Flath v. Nelson

*605 BüRKb, J". This is a controversy over the appointment of a guardian for one Edna Lois Flath, a child of four years. The plaintiff and respondent, A. Flath, is the paternal grandfather of the child, and the defendants and appellants, Gens Nelson and Mrs. Gens Nelson, are the maternal grandparents of said child. The action was originally started in the county court of Mountrail county, and on appeal to the district court, the judge made his findings of fact and conclusions of law, giving his reasons therefor in a memorandum opinion, awarding-custody to both parties, subject to agreement as to time. On November 19, 1918, Harold Flath and Clarice Nelson were married. They were only children at the time, Harold being nineteen years of age, and Clarice seventeen. On page 133 of the record Mr. Nelson testifies, “Well the kids had been going together some, and the Flaths wanted them to get married and run the farm for them. I first objected but finally consented.” Flaths were to set them up in life and give them equipment on the farm, so the children were married and sent to live on the farm near *606 Churches Ferry, about 200 miles from the homes of their parents, at Stanley and Boss. Of course they failed, they left the farm, Clarice worked in a telephone office at Koss, and Harold worked when and where he could find work. On the fifth day of March 1920 their child Lois was born. Harold took out an insurance policy on his life, with double indemnity. The initial and second premium being paid by Lizzie Flath, his mother, and two policies were issued, one running to Lizzie Flath for $4,000, and one to Clarice Flath for $1,000. On the 24th day of August 1921, Harold Flath was killed in a train accident, and little more than two years later, on April 13, 1923, Clarice Flath died, leaving the child Lois Flath an orphan. It appears from the testimony at the trial, and from the arguments and briefs of counsel, that there is such feeling existing between the plaintiff and defendant, that there is no possibility of their co-operation in the guardianship of their grandchild. The child’s mother Clarice Flath, left a little memorandum book, defendants exhibit 6, in which there is written in her own handwriting the following: “In case of my death I wish my parents to have Lois. They have taken care of her since she was two and half weeks old and she loves them more than any one else.” Clarice Flath. Here the mother has expressly declared her wish that the guardianship of her child should be given to her parents in case of her death. She had lived with her parents and with her husband’s parents after Lois was born, and she was in a position to judge between the grandparents. Under § 4462, Comp. Laws, 1913, “Of two persons equally entitled of the custody in other respects preference is to be given as follows: 1. To a parent. 2. To one who was indicated by the wishes of a deceased parent. 3. To one who already stands in the position of a trustee of a fund to be applied to the child’s support. 4. To a relative. Since the defendant was indicated by the deceased parent Clarice Flath, and the plaintiff does not claim any right to the guardianship, *607 under subdivision 3 of § 4462, Comp. Laws 1913, tbe defendant Nelson is preferred under tbe law, o-tber things' being equal. Tbe defendant is a much younger man than tbe plaintiff, strong and healthy, and has no other children. The Nelsons were able to raise and educate their daughter Clarice, and while they" are poor, there is no evidence that they are not able to raise and educate Lois who is now about six years old. Clarice passed out of their lives at a very tender age leaving little Lois to take her place. It would be cruel to take her away, except upon very good cause shown. None has been shown and it is the judgment of this court that the judgment of the district court be and is hereby modified by giving to the defendant Cens Nelson the sole guardianship and custody of the child Lois Flath, and judgment is ordered to be entered in accordance herewith. CiikistiaNsoN, Ch. J., and Johnson, Birdzell, and Nuessle, JJ., concur.