Matter of Allen

The controversy embodied in these appeals turns upon the right to the custody of Mavis Kathryn Allen, a minor. The minor is the daughter of Peri E. Allen and Catherine B. Allen, who, at the date of the child’s birth, August 29, 1900, were husband and wife. On October 16, 1901, in an action instituted by the wife, a decree of divorce was entered in her favor, and by the decree the care, custody, and control of the minor were awarded to the plaintiff: in the action, “with the privilege given the defendant of visiting said child at all reasonable times.”

The mother, to whom the custody of the child had thus been granted, died on June 2, 1903, leaving a will which contained, among other things, a request that if the testatrix should leave issue, Jennie Allen, a sister of Peri E. Allen, and appellant here, should “have the care and custody of such issue.” We shall assume, for the purposes of this opinion, that the appellant is correct in construing the language quoted as equivalent to a testamentary appointment of Jennie Allen as guardian, so far as the testatrix had power to make such appointment. The will was admitted to probate in the superior court of the city and county of San…