On February 18, 1954 the Surrogate of Bergen County appointed William Eckel the guardian of the person and property of his grandchild, David William Hoppe, who will be 16 years of age in November 1954.
On February 27, 1954 said surrogate admitted to probate the last will and testament of William B. Hoppe, the father of said infant. Paragraph Fourth of this will provides:
"Fourth: -- If at the time of my decease, my son shall be under the age of twenty-one (21) years, then and in that event it is my wish and I so direct that my good friend, MAE E. GROSS, be appointed Guardian of my said son."
This action is brought by Mrs. Mae E. Gross to remove William Eckel as guardian and for the appointment of herself as testamentary guardian. The infant is now living with his maternal grandparent, William Eckel, with whom he has been residing since his father's death, February 10, 1954.
The statutory authority for the court's consideration of the issue presented appears in N.J.S. 3 A:6-23, which provides:
"If a will appointing a testamentary guardian has been or is to be probated in the surrogate's or county court of any county, the county court of the county may, in an action brought upon notice to the guardian named in the will, inquire into the present custody of the minor, and make such order touching the testamentary guardianship as may be for the best interest and welfare of the minor."
In the leading case of Lippincott v. Lippincott , 97 N.J. Eq. 517 (E. & A. 1925), involving the appointment of a guardian of his infant child by an instrument which the court held was similar to the appointment of a guardian in a last will and testament, the court held that such an instrument of appointment does not prevent the disposition of the custody of the infant according to its best interest. This rule has prevailed. The court further stated in the Lippincott case that even the natural right of the father to the custody of his child cannot be treated as an absolute property right but rather as a trust reposed in the father by the State, as " parens patriae ," for the welfare of the infant.
The Legislature has even in controversies between parents provided that the rights of both parents, in the absence of misconduct, shall be held to be equal, and the happiness and welfare of the child shall determine the custody or possession. N.J.S.A. 9:2-4.
The court must consider that the disposition of the custody of a child is not the disposition of the possession of a chattel but rather the dealing with a human being. This same rule should apply and does apply even in controversies among strangers.
"The court may make the necessary orders and judgments from time to time in relation to such custody or ...