The opinion
Martin, J.,
delivered the opinion of the court.
The defendant is appellant from a judgment, which refuses to him the tutorship of the minor children of his brother, and gives it to the plaintiff, their grandfather. He had been appointed tutor by a family meeting, which the plaintiff alleges was irregularly held, and which the defendant admits to be a nullity. The defendant contended, that letters of tutorship ought not to be given to the plaintiff; 1st. Because his age and infirmities disable him from performing the duties of tutor. 2d. Because the father of the minors solemnly requested that the defendant, his brother, should take charge of his estate, and manifested the greatest aversion to the plaintiff’s doing so. 3d. Because the plaintiff neglected to cause an inventory to be made.
I. The testimony shows that the plaintiff is only fifty-four years of age, and there is no evidence of his being infirm.
ll. However solemn may have been the request of the minors’ father, that the defendant should take care of his estate and of them, it cannot amount to the appointment of , . the defendant as tutor, because it was not made by will; neither can any evidence of the alleged aversion to the plaintiff, authorize his exclusion from the tutorship. 1
ttt r™ it • , IIL Ihere was no obligation on the plaintiff to cause an inventory to be made, until he was appointed, and had been qualified as a tutor.
■Where there is no- tutor appointed by will, the judge of probates is bound to give it to the ant1 delation°of the minor, and no family meet-iqgis required.
There being no tutor appointed by will, it was the duty of the judge of probates to give the tutorship to the nearest asCendant of the minors. Both their parents being dead, the plaintiff, their grandfather, is entitled to letters of tutorship; and no family meeting ought to have been called. Civil 7 9q-i uoae5 ¿Qí-
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.