Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-08-02
The Younglove Habeas Corpus Case.


AS the decision in this case, transferred
to Judge Armstrong; Court from Amador
county, appears to have been misunderstood
by many, we publish it:
Eugene Younglove is child years OF age,
who was born in lawful wedlock. Dwight
Youngloye is his father, and the mother died in
February, 1884. Under the Civil Code Section
$50 the father is entitled to the custody of his
child, and in this case he would be entitled to
the custody of Eugene Youngloye unless his
right has been forfeited by the facts hereinafter
stated, and the proceedings had in the Superior
Court of the county of Amador, which will IL
noticed. If the proceedings of that Court are
valid, then under Section 20i. of the Civil Code
the authority of the atheroverthe child ceased.
The father and mother of this child had been
married about eight years when the child was
born About nine months after the child was
born the parents separated. When the child
was two years old the father obtained divorce
from the mother Before the divorce was
granted there was an agreement between tne
father and the mother that she should have the
custody of this child, and upon that agreement
the custody of the child was surrendered by the
father to her. She afterwards inteTmarried
with Mr. Holder, and lived with him as his wife
until she died. The mother of the child had its
custody up to the time of her death, from the
time of the separation. On her deathbed she
made a will in which she appointed her then
husband and her brother testamentary, guard
ians of this child. Her husband pre-
scented the will for probate in the
Superior Court of Amador county, and that
Court rendered decree establishing the eXecu-
ton of the will. Under the code | think that
the Court had not jurisdiction to extend its
judgment beyond an establishment of the exc
cution of the will, unless there was property
disposed of by the will, In which case the Court
might direct letters testamentary to issue.
Code of Civil Procedure, Sections 1877 and
1891 But the Court in that proceeding, instl-
tuted to probate the will directed that letters OF
omar n aDs shin jSs11p tn Holder who turned the
child over to Mrs. Hawkins the maternal grand
mother, who now has the child in custody.
But the Court had no jurisdiction in such pro-
ceeding TO appoint guardian Guardians can
only be appointed by the Court upon proceed
ings instituted therefor. and when there has
been no guardian legally appointed by will or
deed. the will was valid and the wife had q
right 10 dispose of the child then the Court has
no jurisdiction to appoint a guardian. Section
1747, Code of Civil Procedure.) The full extent
of the power of the Court in such Il case would
be to require bond from the tcstamentary
guardian. Section 1853, Code of Civil Pro
cedure) The order in this case directed that
the will be admitted to probate and that letters
of guardianship issue to Holder, who was named
in the will. without bond. The Court had not
jurisdiction to make such an order, for in all
cases a testamentary guardian must give bond.
1t is clear, then that the letters of guardianship
are void, and that neither Holder, the tesla
mentary guardian nor Mrs. Hawkins, who
has the child in custody, has any right
to the custody of the child by reason
of the proceedings of that Court, and the
question then arises, Did the father lose his
right to the custody of the child by reason of the
agreement made with the mother and her tesla
mentary disposition of it at her death? The
agreement between the father and the mother
in reference to this child must be regarded as a
personal agreement, surrendering to the mother
the custody of the child but not giving to her
the right TO dispose of the child by will or other
wise against the consent of the father. Ii was Il
personal right that she had that terminated upon
her death and : that is the construction that
must be given to that agreement it follows that
as the mother she had no right to dispose OF the
child as against the claim of the father. Section
241 of the Civil Code reads:
90 A guardian of the person or estate or OF
both of child born, or likely to be born. may
be appointed by will or by deed, TO take effect
upon the death of the parents appointing: If
the child be legitimate by the father, with the
written consent of the mother; or by either
parent, if the other be dead or incapable of con-
sent. II the child be Legitimate, by the
mother"
As the father is living and capable of consent
ing the mother had no authority 10 dispose OF
the child by will. and there is nothing N the
proceedings of the Court, nor in his agreement
with the mother TO estop him from claiming the
child, and it follows that the father is legally
and naturally entitled to the custody of the
child. But il was claimed at the argument that
the Court had power to award the custody of
the child to the father conditi0nally that the
grandmother could visit it. The Court is of Il
different opinion. This is a proceeding on
habeas corpus and not proceeding either in
chancery or for the appointment of guardian,
and the Court can therefore not exercise
chancery jurisdiction. Section 1893 OF the Penal
Code reads:
In cases where any party is held under lille
gal restraint or custody or any other person en-
titled to the restraint or custody of such party,
the Judge or Court may order such party to be
committed to the restraint or custody of such
person as is by law entitled thereto"
This is strictly legal proceeding, and the
mower of the Court Is clearly defined bV tins
section of the statutes. While the Court would
gladly make the order desired, if it had iursdic-
ton, yet the only order that can be made under
the law is that Eugene Youngloye, the child,
be committed to the custody of his father, and
it is 50 ordered JOHN ". ARMSTRONG,
S1IeriOr