Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-12-18
MAY WILL CHILDREN
Judge Hagner's Decision Regarding
the Slack Case.
The Old LAW UPHEL D
The Husbands Authority Extends
After His Death.
HABEAS CORPUS AFFAIR
HABEAS CORPUS AFFAIR


in The Star yesterday, that the old English
statute of Charles II. empowering father
to bequeath the custody and tuition of his
miner children by will. even to the exclu-
sion Of their mother. is in force and effect
IN the District of Columbia today. and
under the laws of the District fathers
right to make disposition of his children
cannot be questioned, unless the testament
tary guardian be morally or otherwise I'M
fit to be SO appointed.
The decision was rendered in the matter
of the contest over the custody and guar
danship of the children of the late Wm
H. Slack, two girls of eight and ten years,
respectively and the judge decided that
their aunt. Mrs. Addie Slack Perrine. who
was made their guardian ard custodian by
their fathers last will, dated July II last
shall retain such guardianship and Gus
tody. The judge also granted the inJunc-
ton asked for by their next friend and
grandfather the late Maj. VIM b. Slack,
enjoining the institution or prosecution
here or elsewhere of all legal proceedings
respecting the custody or guardianship OF
the little ones until after the contest over
their fathers will, filed by their motner,
Mary kemble Slack, shall have been de-
termined.
Long Opinion.
The opinion of Judge Hagner was an I'M
usually lengthy one. occupying about two
hours in its delivery. For the most part II
was discussion of dry legal points, and
those in the crowded court room who ex-
pected from the judge discussion of the
te stimouy in the case, some of which was
rather startling in the dLectness of charges
made against Mrs. Stacks moral htnesS,
were disappointed. the court carefully re-
framing from such discussion on the
ground chat ii was NOT necessary, and might
be taken by one side c. other as an ex-
preston of judicial opinion.
An OLD statute.
After reciting at length the previous legal
proceedings in the case. both here and in
New Jersey. Judge Hagne- proceeded to dis
crss the applicability here OF the statute of
Charles II.
In the first place, he held that unless the
will Of the father of the children should be
set aside, Mrs. Slack could not question the
rights of Mrs. Perripe under it. The old
English statute, he held. has been in force
here since il Inherited from Maryland
the time the seat of the national gov
eminent was established here. 1t had never
before been seriously doubted, he said, al
though in 1861 the courts of the District
had be an asked to set 1t aside because of its
alleged inhuman provisions, but the courts
then held that that was matter not for
them, but for Congress.
His Opinion.
Speaking of the alleged inhuman char
acter of the old statute, Judge Hagner
marked:
Il have no difficulty in saying that it
would be a far greater inhumanity to
minor children to deny the father the
power to appoint a judicious guardian, who
might be able to avert the ruin of way
ward children by too indulgent mothers,
pCweress to resist their entreaties, to
save his little daughters from a mother
whose influence would probably induce
item to follow her own occupation and
spend their lives in the circus ring or in
similar pursuits, or who he knew. was a
votsry of one of the extremes of impiouS
disbelief, or of faith-cure superstition
other silly issues of the times that would
be destructive of their usefulness and hap
piness. and, above all, there should be
some sucl. protection to a father who is
compelled to believe his wife morally I'M
fit to be safe companion and guide to his
young daughters. There is nothing in the
law to prevent the father from naming his
wife IS testanentary guardian. and the
cases would be rare where such a DISPOSE
ticn would rot be made, if she We're fit for
the trust
In Other States.
The statute or it's like. said Judge Hagner,
is in full force and effect today in ma
jority of the states of the Union, among
them being Maine Massachusetts, New
Hampshire Rhode Island, New York Penn
sylvania, Delaware. Ohio. Maryland, Indi-
ana, Virginia. Georgia, Mississippi, Louisi-
ara. Kentucky and New Jersey. And the
rights of such "A testamentary guardian are
rot only paramount here. but also in New
Jersey, the rights of the mother not except
ed. Hence, the claim of Mrs. Stacks coun-
sci, that no case could be found sustaining
the rights of the testamentary guardian
when the fitness Of the mother was not
questioned, cannot be sustained for re-
marked Judge Hagr err, both in civilized and
uncivilized nations the authority of a Esther
in sucn matters is sustained both by law and
custom.
Everywhere the father is entitled to the
custody Of his children, he thought. and
that right has yet to he successfully de-
MED here and elsewhere, authorities to
that effect being innumerable. But the
courts will always, he explained. remove
testamentary guardian shown to be NOR
ally otherwise unfit to exercise such
guardianship. and will also so Interfere for
the protection of children. even where they
are held iy the father or mother. There
fore, he stated. very strong proof Of unfit
ness would be required to induce court
to remove testamentary guardian once
legally appointed.
Habcns Corpus Proceedings.
Judge Hagner next discussed the effect of
the habeas corpus proceedings instituted
by Mrs Slack in New Jersey for the recov-
cry of her children where, after Mrs. Per-
rine had removed them to this city, pending
was awarded the custody and guardianship
of the little ones until they reach the age
of twenty-one years. 1t was claimed be-
fore him, explained Judge Hagaer. that the
decision of the New Jersey court, Vice
Chancellor Bird. Is binding upon the courts
here, but he held to the contrary. The rule
of res adjudicata, ne held. Is not applicable
in habeas corpus proceedings. he stating
that decision in one state In habeas cor
pus proceedings will not be considered by
the courts of another state final or bind
ing upon the latter tribunals.
New Jersey Courts.
Judge Hagner quoted numerous decisions
which, in his opinion. sustained such view
and then remarked that he felt obliged to
hold, beyond all that. that the vice chancel-
lor of New Jersey exceeded his powers In
awarding the children to Mrs. Slack.
Neither Mrs. Perrine nor the children, he
thought, were properly before the New Jer-
sey court, and he remarked that 1t seemed
to him almost monstrous to place the future
of the children in controversy wherein
not them, but others. were the real parties.
The vice chancellor exceeded his powers,
too, he held in granting the custody of the
children to Mrs. Slack until they reach the