Shanks v. Ross , 173 Ga. 55 ( 1931 )

Gilbert, J.

1. Where botli parents of an infant child are deceased, the father having survived the mother and by will having provided that his mother should be testamentary guardian of the person of such child, and where in a contest between the paternal and the maternal grandmothers of the child it appears that both are fit and proper persons to have custody of the child, the testamentary guardian is entitled to the custody. This is true although the maternal grandmother has caused herself to be appointed by the ordinary as “temporary guardian” of the child.

2. As between the two grandmothers, there are no presumptions in favor of either.

3. It follows that the court erred in awarding the custody of the child to the petitioner.

Judgment reversed.

All live Justices concur. Branch & Howard and B. L. Tiller, for plaintiff in error. Julius A. McCurdy Jr., contra.