In re Guardianship of McChesney

Maeshall, J. There are no legal questions that need be discussed on this appeal. It is conceded that the mother, who was awarded the custody of the children in the divorce action, being dead, the petitioner, as the only living parent, is entitled under the statute to be appointed their guardian, if competent to transact his own business and not otherwise unsuitable within the meaning of sec. 3964, Stats. 1898. As regards the first requisite there is no question, so the case comes down to the second. Independent of the petitioner’s ability to transact his own- business, is he a suitable person to be intrusted with the care and custody of the two infant girls, whose guardianship he seeks ? That is the question and is purely one of fact. It is conceded that if the findings in that regard are sustained by the evidence the decision of the trial court is right. "We have examined the evidence with care and are unable to say that any material finding is contrary to the clear preponderance thereof. Complaint is made because the court permitted evidence regarding the character of the petitioner at the time of the divorce decree and prior thereto. It is by no means certain that if all such evidence were out of the record the order appealed from could properly be disturbed, but we cannot say error was committed in receiving it. The trial court had broad discretionary power regarding the limits of the inquiry reasonably necessary to a correct determination of the controversy calling for a decision. The history of the petitioner’s life from the date of the marriage down to the hearing had a bearing on that controversy. True, the fact that he, for several years prior to the hearing, so far as morality and integrity are concerned, had lived a correct life, was a strong circumstance in his favor, but it would be going too far to say that it established his character and suitableness for the guardianship of the infant girls so conclusively as to preclude the court from looking into the circumstances — 320 — that led to the decree divesting him of their custody and placing them with their mother. It is useless to discuss here at length the circumstances referred to; they appear sufficiently in the findings of the court and are included in substance in the statement preceding this opinion. Suffice it to say that they are of such a character that it is not unreasonable to hold that a probationary period of more than six years would be required to so obliterate their effect upon the petitioner’s suitableness to have the care and custody and education of infant girls as to preclude giving any weight to them in determining his character in that regard. It is said the court gave undue weight to the expressed wishes of the children to remain with the grandparents. Ve cannot tell hoW that is. There is no indication in the record of what significance the court gave to the children’s wishes. It is not suggested but that it was entirely proper to inquire of the children, as was done, as to their state of mind as regards being taken from their grandparents. ¥e observe in the finding merely a brief statement that “ the children, as expressed by them on the trial, are desirous of remaining with their grandparents, to whom they are warmly attached.” There is nothing in that to indicate that the children’s wishes were regarded as controlling in any sense. Error is assigned on the admission in evidence of the mother’s will attempting to appoint Mrs. De Bower the testamentary guardian of the children: (1) Because the conditions greatly changed after the making of the will. (2) Because the wishes of a deceased parent are of little weight as against the right of the survivor. (3) Because the mother had no right to appoint a testamentary guardian. In answer to all these suggestions it may be said that the evidence was not treated as vital to the case. Answering the propositions in detail we say, as to the first, the will speaks from — 321 — the death of the testator and must be presumed to express the Avishes she entertained at that time; as to the second, that at most-it only goes to the weight of the evidence; and as to the last proposition, that the evidence was not received or considered as proof of a rightful legal disposition of the children. Sec. 3965, Stats. 1898, expressly authorizes the father of a child, if living, and in case of his death the mother, by last Avill to appoint a guardian therefor. That indicates the legislative policy to be that, the parent entitled to the custody and care of a child during' its minority shall have the right to appoint a testamentary guardian therefor. It is not necessary to say here that, since the decree of divorce removed the children of the petitioner from his control and placed them in the care and custody of the mother, his right as regards appointing a testamentary guardian for them was thereby taken from him and the right of the mother was substituted instead thereof. Such is the effect of some adjudications elsewhere. Hochheimer, Custody of Infants, § 78; Wilkinson v. Deming, 80 Ill. 342. There can be no question but that the decree of divorce suspended the statutory power of the petitioner to control the custody of his children by his last will and testament, and that the spirit of it is, that the mother, the father being disabled from acting, may appoint a testamentary guardian. But whatever may have been the exact legal status of the mother in that regard, it is considered that, because of the legislative policy that she shall have the right where the father is so circumstanced that he cannot exercise the power of testamentary appointment, it was proper to consider her Avishes, expressed in her will, not as warranting a denial of the right of petitioner to the custody of his children, but as bearing on the propriety of granting the prayer of Mrs. De Bower to be appointed guardian of the children in case the — 322 — petitioner’s claim was not sustained because of his unsuitableness for the trust. ' A further contention is made, that the court erred in deciding that the appellant is wanting in natural affection for the children. The evidence on that point abundantly supports the finding. Many circumstances bearing on the subject and indisputably established might be mentioned. The occurrences, unexplained and unexplainable consistent with natural parental feelings and conceptions of duty, of the appellant’s neglect to visit his dying infant son, and of permitting the funeral of the boy to be held unnoticed by him and with less concern than one would naturally have for the funeral of a stranger hapjsening in his vicinity, after special pains were taken by the stricken mother to remove all obstacles to his visiting the dying boy and being present at the funeral, are sufficient in themselves, in the absence of some clear explanation of such conduct, to prevent the finding from being disturbed that the appellant has no fatherly love for the children whose custody he seeks. It seems that no man could be so hardened toward his own flesh and blood, where represented by a child so young as to be free from any intelligent bias against him by reason of a hostile environment, as appellant’s conduct indicates.- The fact-that the appellant so conducted himself suggests the probability that the groundless suspicion the evidence shows he had expressed as to the paternity of the children, or some of them, influenced him, which of itself, as has been held, is entitled to weight in determining whether he is a suitable person to have their care and custody. Sheers v. Stein, 75 Wis. 44. We will not further discuss the findings or the evidence. The following is the situation, in brief, as appears by the record: The appellant, by his conduct, forfeited the control of his children and the decree to that effect stands undisturbed. He came before the court with a mere claim of — 323 — legal right to be preferred as the nominee for the guardianship of the children, since circumstances had arisen that rendered the appointment of a guardian necessary. They being under the age of choice, it was the duty of the court to make a choice for them, and to do so having regard for their best interests as the primary consideration and the legal right of the appellant to be chosen if suitable for the trust. In determining the propriety of appointing the appellant, since such appointment would take the children away from the home in which they were pleasantly located, and where they were reasonably certain of having proper parental care, and place them among those who were comparative strangers to them, such facts were entitled to consideration. The appellant has a second wife and family of children, so it is not certain that the two girls could be received there and permanently treated on an equality with the other child members of the household. Though appellant is now an upright man so far as regards morality and integrity, his past life cannot be entirely ignored. It is entitled to some consideration in determining whether he is a suitable person under all the circumstances for the trust he seeks. He does not possess natural love and affection for the children, and the circumstances of the situation render it quite probable that fatherhood is not the moving cause of his present desire to control them. The children were placed legally by the court where the mother, by an attempted testamentary disposition of their custody during their minority, placed them. Such testamentary disposition was in accord with the spirit of the statute as regards the right of the mother, and, though not binding upon the court, was entitled to consideration, since thereby the best interests of the children were conserved and there was no legal impediment, clearly, in the way. The grandparents and the children are warmly attached to each other, so that the relations between them are akin to those between par — 324 — ent and child under normal conditions. The ability of the grandparents to care for the children is equal to that of the appellant, and their disposition to do so, independent of all selfish impulses, is manifestly superior to his. In view of all the things stated, within all the authorities, the court properly decided that the appellant had no legal right to be selected as guardian of the children, that the proper place for them was with their grandparents, and the proper person to have their legal guardianship was their grandmother. The cases in our own court so fully cover the subject, so far as the law is concerned, that it is considered that there is no need of going elsewhere for authority. In re Goodenough, 19 Wis. 274; Sheers v. Stein, 75 Wis. 44; Johnston v. Johnston, 89 Wis. 416; Markwell v. Pereles, 95 Wis. 406. By the Court.— The order appealed from is affirmed.