Fletcher v. Booth

Beck, J. (After stating the foregoing facts.) We are of the opinion that the court, under the evidence in the case, was authorized to enter the judgment complained of. The undisputed evidence shows that the mother of the child in question was a widow at the time when the illness which resulted in her death came upon her. A few days before her death, and during her last sickness, she said to the petitioner that she wanted him to take the child back [646] home with him, that he had been like a father to her, that she knew she (the mother) was going to die, and she wanted petitioner to' take the child and rear her like one of his own children. And petitioner, who was the brother of this mother of the infant child, agreed to the proposition then made. He did take the child home with him, and treated her as one of his own children. The mother died shortly after the conversation referred to. Petitioner sent the child to school from January until July, and then allowed her to visit her grandparents, the defendants in the habeas-corpus proceeding; the latter having made a request of petitioner to allow the child to visit them. When the child had been with the grandparents for some time, they refused to allow her to return to petitioner, and insisted that thejr had the right to keep her. It appears from the evidence that Mr. Booth and his wife, as well as Mr. Fletcher and his wife, are anxious to have the child in their family. The uncontroverted evidence shows that there is no question as to the fitness of either Booth or Fletcher to have the custody of this child. They are both amply able to take care of her, rear her properly, and to send her to school. In either home the child would be under good influences and well provided for. It is not, therefore, a question of taking the child from the home of one in whose custody the dying mother, the sole surviving parent, left her, and giving the custody to one better prepared to properly rear and educate the child, and thereby enhance the child’s welfare. And it would seem that any other order that might have been passed in this case would have been contrary to law and evidence. The mother had the right — the father being dead — to give the possession of this child of tender years to the brother, that he might rear and educate her. The brother had accepted the request and offer of the sister, and had complied faithfully with his obligation. Under such circumstances it would have been a clear .miscarriage of justice for a court to have awarded the custody of the child to the grandparents. Judgment affirmed. All the Justices concur.