In the Surrogate Court of the United

In the Surrogate Court of the United Counties of Frontenac Lennox and

Addington September term 1850

The application of !

Patrick Driscoll and ! The applicants for Letters of

Elizabeth his wife for ! Guardianship of the Infants

Letters of Guardianship ! above named William Franklin

of and over William Franklin ! and Sarah Franklin having

and Sarah Ann Franklin ! appeared before the Court by

Infant Children of the late ! themselves and their Solicitor

John Franklin deceased ! Mr John MacDonell, the caveat

presented to the court by Mr

OReilly, (for O Reilly v Henderson) on the part of Matthew Donaghue was read (and

marked exhibit No 1) – The Caveat presented by Mr OReilly on behalf William Franklin, (Marked No 2) was read).

The Caveat presented to the Court by Mr OReilly on behalf of the Infants was read (and marked No 3). The reception of this Caveat was objected to by Mr MacDonell; on the ground that infants have no power to object to the appointment of the Guardian by the Courts, or to appoint a Solicitor to make such objections on their behalf. In Law or otherwise, and that the Law authorizing the appointment of Guardians would, if such power were vested in Infants, be entirely migatory; that the Statute authorizing such appointments must be read Strictly, being an enabling Statute, and that by it the power of Infants is limited to application for the appointment of a Guardian, only and that in this case the Infants are in the custody of Matthew Donaghue, one of the Parties who have presented Caveats. Mr OReilly having

been heard on the part of the several parties who presented Caveats to the court, and urged on the part of Matthew Donaghue that the children were committed to his, Donaghues, custody by their mother when in a dying state, with a desire that he should protect and keep them until they were severally of age, which desire he has up to the present time complied with; and that John Franklin the father of the Infants consented that the Infants should be brought up according to the Roman Catholic belief and doctrines in religion, and that their mother made a dying request that the infants should be so brought up; and that the Parties who have made application, Patrick Driscoll and Elizabeth his wife are of a different religion; and that Donaghue has supported the children since their mother’s death, over two years, and sent them to school.

On the part of William Franklin, Mr OReilly urges that he is Eldest Brother & Heir at Law of John Franklin deceased, and next of kin to the Infants, and consents that the children shall remain with Donaghue, and that the custody of the property real & personal of the Infants shall remain with himself, William Franklin, and a reasonable proportion of such property to be applied to the support of the Infants.

On the part of the Infants Mr OReilly urges that they are unknown to the Driscolls, the applicants, and only know by repute that Mrs Driscoll is their Aunt, that they the Driscolls have only recently arrived in Canada, that they the Infants have been informed that a certain sum of money is claimed by Mrs Elizabeth Driscoll, and believe that the present object of the Driscolls, the applicants, is to get possession of certain property in the Township of Pittsburgh in which the Infants, Franklins are interested under the Will of their Grandfather the late Joseph Franklin, that they are satisfied with the care taken of them by Matthew Donaghue, and with the past clothing and schooling, provided for them by him; that they are of the Roman Catholic persuasion, as is also Matthew Donaghue; and that they would not like persons of a different persuasion as the Guardians over them, that William Franklin their Uncle having consented to their remaining with Matthew Donoghue they do not protest against letters of Guardianship being granted to William Franklin.

The Evidence adduced by Mr OReilly on the part of the parties Filing caveats; Matthew Donaghue sworn, says that all the matters urged by MR OReilly on the part of him Matthew Donaghue are true to his own knowledge, except the statement that John Franklin the deceased had consented to the Infants being brought up as Roman Catholics, which statement he Donaghue only knows from hearsay, but believes to be true. Knows William Franklin to be the Eldest brother of the late John Franklin. Heard William Franklin say that he would protest against Letters of Guardianship of the Infants being granted to Mr and Mrs Driscoll, or to any other person than Matthew Donoghue or himself. This statement was made to Witness by William Franklin last night.

A Farm in Pittsburgh in which Infants claim an interest is worth about seven pounds per annum. Heard William Franklin say on last evening that it was never his intention to interfere with the property in which the Infants claim an interest under the Will of their Grandfather, and that he had instituted an action of Ejectment against one Mr Neice?, who is in possession, for the purpose of turning him out for the benefit of the Infants. William Franklin and Sarah Ann Franklin.

William Franklin said that he has stopped proceedings re ejectment against Mr Neice for the property of John Franklin long since. Cross examined witness says he never heard

William Franklin make any offer to confirm any interest of the Infants or of either of them in any property, and further that he William Franklin did not intend to make any claim upon or for any property in which the Infants have any interest.

Says that the land in which the children are interested is Lot number ten in the Third Concession of the Township of Pittsburgh a Two hundred acre lot.

Mr MacDonell for the applicants produced a Writ of Habere facias? possession issued out of the Court of Queens Bench directed to the Sheriff of the United Counties of Frontenac Lennox and Addington ordering him to give possession and any other lands of part of Lot number ten in the 3^rd consession of the township of Pittsburgh in said Counties, to John Doe? which said John Doe had recovered on the demise of William Franklin, which writ is returnable on the first day of Michaelmas Term next, and that it is endorsed with notice from the plaintiffs attorney to give possession as therein commanded.

Case adjourned until 12 oclock on this day next week.

In consideration of the application above mentioned was, on the day last mentioned further postponed until the return of the Honorable John A MacDonald, solicitor for the applicants, from England.

On the third day of July AD 1851 the above named applicants appeared by the Hon John A MacDonald, and the above named Matthew Donaghue also appeared before me George Alexander Cumming, Esquire, Surrogate of the said United Counties, and the said Donaghue being further examined, touching the age of the above named Infants says that the Girl, Sarah Ann Franklin is of the age of fourteen years, and that the Infant William Franklin is under the age of Fourteen years, and that witness was a Brother to the mother of said Infants she is now deceased. By the Act of the Ninth Provincial Parliament of Upper Canada passed in the 8^th year of King George the fourth, authorizing the appointment of Guardians in certain cases by the Judge of the Court of Probate in Upper Canada, and the Judges of Surrogate courts in the several Districts therein the Judges of Surrogate Courts in their respective are empowered to grant Letters of Guardianship. “Upon the written application of any Infant or the friend or friends of such Infant residing within the Jurisdiction of the Judge to whom such application shall be made and not having a father living, nor a Legal Guardian, and after twenty days public notice of such application, and after proof of twenty days notice to the mother of such Infant, or proof to the satisfaction of such Judge that such Infant Has not mother living in this Province of such Infant or Infants as may apply or on whose behalf application for such letters may be made to him.

As the sole and only power of a Surrogate to act in matters relating to the Guardianship of infants or to grant letters of Guardianship is derived directly from the Statute above mentioned, I do not intend in deciding in this case, to take into consideration any thing beside the application of Patrick Driscoll and Elizabeth Driscoll, now to be disposed of by this court and conceiving as I do that my jurisdiction, as Surrogate of the above mentioned counties, is strictly confined by the act of the Provincial Parliament above quoted to , the granting of Letters in cases not excepted from the operation of that act, amongst which latter is to be included the case of an infant I shall now consider the application before me as affected by that act. Having a Legal Guardian – By the common Law of England a Brother of the Mother of the Infants would be deemed a “Legal Guardian” of an infant inheriting or taking Lands in free and common socage in preference to the Relatives of such Infant on the father’s side. Such a Guardian would be Matthew Donoghue the Witness examined in this case he being a brother of the mother, deceased, of the Infants above mentioned. It is not pretended that either of the above named applicants is related to the Infants William Franklin is as yet within the age of fourteen years at which Guardianship in socage cease to be operative, and therefore I adjudge that Letters of Guardianship of the said William Franklin be not granted to the applicants William Driscoll and Margaret Driscoll, any other ground of objection except the request made by the mother of the Infants previous to her death, mentioned in the evidence, not appearing. I do also refuse to grant to the said Driscoll’s, the applicants, Letters of Guardianship of the above names Infant Sarah Ann Franklin, as I do not think it expedient to remove her from the care of her Maternal Uncle Matthew Donaghue, with whom she has lived since the death of her mother.

Dated this Term in June AD 1851

GA Cumming

Surrogate

Petition by Patrick and Elizabeth Driscoll

To His Honor the Judge of the Surrogate Court in and for the United Counties of Frontenac Lennox and Addington.

The Petition of Elizabeth Driscoll at present residing at the City of Kingston in the said United Counties.

Sheweth

That John Franklin late of the Township of Pittsburgh Yeoman died, intestate, some years ago leaving two infant children, as are not now twenty one years old; and that your Petitioner is desirous of obtaining Letters of Guardianship over William and Sarah Ann the said infant children for Patrick Driscoll her husband and herself and the further sheweth unto your honor that she is the sister of the late John Franklin and Aunt to the said infants.

Dated the 4^th day of Sept 1830

Elizabeth Driscoll

Witness

Mr John MacDonell

Submitted by AM BENSON

The Islands: Probates, Wills: