Surrogate court

“ It is true a large discretion is given to the surrogate to secure a competent person, and if relatives are disqualified, for certain causes mentioned in the statute, or are unwilling to accept, administration may be granted to others, and, in such a case, the basis of action concludes nothing as to the right of succession. ”

“ An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a "right" must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. ”

“ In relying upon evidence of this kind we are quite aware that we may not ascertain with the precision which might be desired the credit which the state of New Jersey attaches to these judicial proceedings. But it is all that we can have. We think that we may safely infer from it that the order of the surrogate barring all creditors who had failed to bring in the demand from any further claim against the executors was binding upon all. ”

“ To the refusal of the said surrogate to find, as a conclusion of law, that none of the personal estate of said Albert Tilt is subject to the payment of a transfer tax under the laws of the state of New York, excepting only such of his personal estate as was actually within the state of New York at the time of his death.' An appeal was then taken, and, as already stated, the action of the surrogate was affirmed by the supreme court and the court of appeals. ”

“ The purpose was to get at the estate, and so they say in their petition addressed to the surrogate for leave to intervene. They allege themselves to be 'the nearest of kin' and 'entitled to share upon the distribution of the estate,' and ask to be heard 'and to receive their distributive share of the estate.' Manifestly, they sought the contest because they supposed the right to administer involved the right to the property. ”

“ In this case, George W. Cullum, a resident of the state of New York, died in the city of New York, on February 28, 1892, leaving a last will and testament, which, on the 30th day of April, 1892, was duly admitted to probate. By this will, the testator bequeathed to the United States government the sum of $175,100, upon which, by order of the surrogate's court, there was assessed an inheritance tax of $8,755. ”

“ Sometimes an action in the Supreme Court to establish such succeeds; but who can be found willing to unnecessarily involve his estate in litigation to ascertain the validity of a will when it can easily be avoided? The surrogate has certainly no power to admit such wills.
In concluding this discussion on the execution of a will, it may properly be said that the instrument must be fully completed before death that is, it must have been subscribed by the testator at its foot, in the presence of the witnesses, or the subscription so acknowledged ”

“ Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court's 'cutting off' a mother's right to custody of her children, as if it raised problems similar to those involved in 'cutting off' her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. ”

“ In our considered judgment, an undue burden is an unconstitutional burden. See Akron II, 497 U.S., at 519-520, 110 S.Ct., at 2983-2984 (opinion of KENNEDY, J.) . Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability could be constitutional. ”

“ The government contended in the court below, as it contends here, that, in view of the restriction in respect of issue contained in the will, the value could not be thus determined, since the law, without regard to the fact, conclusively presumes that a woman is capable of bearing children as long as she lives; and that this presumption controls where the organs of reproduction have been completely removed and inability to bear children admits of no valid dispute no less than where the question turns upon the circumstance of age alone, or upon conflicting evidence or medical opinions. ”

“ A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. ”

“ If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent; there is no reason to excuse the absence of the judiciary's participation in depriving the parents of the care, custody, and management of their child.
Tenenbaum, 193 F.3d at 594. The court emphasized that " [e] mergency circumstances mean circumstances in which the child is immediately threatened with harm. The mere possibility of danger is not enough." ”

“ The jurisdiction is conferred to enable the cause of restraint to be inquired into, and the person imprisoned or wrongfully deprived of freedom restored to liberty.
The subject was discussed by Mr. Justice Miller in the case of Re Burrus, 136 U.S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850, in which it was held that a district court of the United States has no authority to issue a writ of habeas corpus to restore an infant to the custody of its father when unlawfully detained by its grandparents. ”

“ If any woman, within a year after the death of her husband, should marry another, or commit adultery, the children by her first marriage shall receive half of her property; or, if there are no children, the nearest heirs of the deceased husband shall receive half of her property, by order of the court. We have especially prescribed this penalty lest the woman, having been left pregnant by her husband, and desiring to enter into a second marriage, should destroy her unborn offspring. ”

“ Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody. ”

“ A petition for a writ of habeas corpus was denied by the federal District Court for the Northern District of California, and upon appeal to the Circuit Court of Appeals, the judgment was affirmed. 287 Fed. 533.
'That if the person sending for wife or minor child is naturalized, a wife to whom married or a minor child born subsequent to such husband or father's naturalization shall be admitted without detention for treatment in hospital. * * *'
The measure of the exemption is plainly stated and, in terms, extends to the wife of a naturalized citizen only. ”

“ We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman's abortion right.
[p881]
B We next consider the informed consent requirement. 18 Pa. Cons.Stat. § 3205 (1990) . Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the “probable gestational age of the unborn child.” ”

“ In keeping with our rejection of the common-law understanding of a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. ”

“ At stake in this case is the welfare of a child. More immediately the question before us is what restriction, if any, does the Constitution of the United States impose on a state court when it is determining the custody of a child before it. ”

“ The sentence was reversed on appeal, but as it was neutral property re-captured, the lords of appeal referred it to their surrogates to decide whether any and what salvage was due, with provisions for executing their decree. The surrogates decided that no salvage was due; but it is clear that if it had been a case for salvage, the restitution, on this reversal of the sentence of condemnation, would have only been on payment of it. It is unnecessary to discuss the arguments drawn from our different and totally inapplicable modes of proceeding under our municipal code. ”

“ It is difficult to conceive of any reason, aside from a judge's personal opposition to abortion, that would justify a finding that an immature woman's best interests would be served by forcing her to endure pregnancy and childbirth against her will.
Even if I did not believe that a judicial bypass procedure was facially unconstitutional, the experience of Minnesota's procedure in operation demonstrates that the bypass provision before us cannot save the parental notification and delay requirements. This Court has addressed judicial bypass procedures only in the context of facial challenges. ”

“ The society voluntarily took the child there with the intention that it should remain. Through imposition the child was placed in custody of those unfit to receive or maintain control over it, and, as above stated, came into the custody and possession of the respondent.
The child was within the jurisdiction of the court under such circumstances that rival claimants of the right of custody might invoke the jurisdiction of a competent court of the territory to determine, not the right of personal freedom, but to which custodian a child of tender years should be committed. ”

“ Relying on these cases, Carpenter, Bishop, and most heavily upon Meadows, the majority of this court concluded in Chatelain that a decision to include fetus in the definition of person would "create an inconsistency in the laws of this State by holding 'person' included viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate." ”

“ In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional. ”

“ In all others the father has the sole custody and control of the persons, education, earnings and estates of minor children. Where this right is abused the mother can obtain custody only by applying for separation or divorce or proving in court the unfitness of the father. In a number of States the father may by will appoint a guardian even of a child unborn, to the exclusion of the mother. In others the widow is legally entitled to the guardianship but forfeits it by marrying again. Others do not permit a widow to appoint by will a guardian for her children. ”

“ Illinois, 405 U.S. 645; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535. But the Court has recognized as well that the Constitution protects "a woman's decision whether or not to terminate her pregnancy." ”

“ The passage of even a relatively short period of time may work great changes, although difficult of ascertainment, in the needs of a developing child. Subtle, almost imperceptible, changes in the fitness and adaptability of custodians to provide for such needs may develop with corresponding rapidity. A court that is called upon to determine to whom and under what circumstances custody of an infant will be granted cannot, if it is to perform its function responsibly, be bound by a prior decree of another court, irrespective of whether 'changes in circumstances' are objectively provable. ”

“ While I agree with Part I of the Court's opinion that we have jurisdiction over this appeal, I do not think the statute meets the requirements of procedural due process.
The District of Columbia Code makes it a felony for a physician to perform an abortion 'unless the same were done as necessary for the preservation of the mother's life or health.' D.C.Code Ann. ”

“ Although the wife cannot maintain an action, in relation either to her dotal or to her paraphernal property, against a third person, unless authorized by her husband, or, if he fails to do it, by a judge, yet she may, with the authorization of the court in which she brings the action, sue her husband 'for the separation of property, or for the restitution and enjoyment of her paraphernal property.' Code Pr. ”