The times. [volume] (Richmond, Va.) 1890-1903, 1898-03-25
CHILD REMAINS
WITH ITS AUNTS
Interesting Opinion in the StringfeI-
low Case.
THE FATHER KNEW OF The WILL
In Which He Acquiesccd, az Result
Of Which a state of Things Has
Arisen Which Cannot
Now BE Altered.

anu ann tliNNs NiittttNA ~ sAAr' ANNtNfff
Mrs Ellen sthngfcllow born somer-
vile, died leaving an infant son. the sub
ject OF controversy. Shortly before her
doath. her husband the petitioner here
Tor habeas corpus at her instance prepar-
cd her will. as follows: y de-
sire that my child be permitted to TO-
main with and De reared by my sisters
and trained as their own, and my
husband will aid them IN sympaihetc
anccu0n and support Second, / desire
that my husband bc made GUARDIAN OF NY
child. and 20 manage my busl"eSs anu
property. as ne now does; 'Ha' "o
shall continue the tin and stove business
as long as he sees best for the interest %
INV child. lie shall have the pronts rom
the property 10 support my chid' al
above that 10 Dee used as he sees proper
during his life and then my ehuIo P'oP-
erty 10 be given 10 my son.
The purposc disclosed 10y the viii seems
10 have been long contemplated by the
mother and fully understood ana approx
Cd bv her husband and sisters. The WIN
was proved and in accordance therewiih
the infant was delivered 10 her sisters
was taken 20 their home where II mas
been reared and nurturcd with most ten
der and loving care.
Held !. Tho language Of the will leaves
no room for doubt as TO the wish OF inc
testatrix. As far as 1t was In her power
10 do so her sisters were clothed win
plenarv power and duty; the husband re-
minded 10 "aii them I'm sympathetic al
lection and support" If her VIII IS 10
prevail. the sis RS are the principals on
whom Ns execution is conferred. the falh-
or their aid and auxiliary True IN 'he
second clause, she desires that her nus
band be made guardian Of the child ana
that ne manage the business and property
as now: but reading the two clauses TO-
gether. considering her situation, her pre-
vlously declared intention ana her iuu
NnowledRe Of the whole environment there
- he no doubt that the second clause
ba- reference to the duties Of guardian
with respect TO business, the property
etc and was not intended as Limitation
or restriction upon the disposition OF the
,,erson OF her child made in the hrst
clause. ,,., o..
, Ordinarily the father is entitled to
fhe custody and care of his infant chlld'
but where he is in court claiming 10 re-
cover custody Of 10. the court VIII exercise
f,e discretion according 20 the facts, ana
continue what win be best adapted 10
rromote the childs welfare. (Merritt vs.
sVanlev. So Va. 433. Coffee VS. BLACK H.
500. The father IS the natural guar
dian Of his infant child. and IN the az
sence OF good and sufficient cause SHOWN
IS entitled 20 its custody But me court
Is en- mo- case bound to deliver the chid
into The custody Of any claimant but may
leave A. in such custody as the welfare OF
the child may seem to require. (ureeh
NJ "A
A PARENTS right to his child IS not Ike
the right If property an absolute ana
unconditional rieht. The paramount con-
alteration IL tho welfare OF the child.
(Chapsky VS. wood % Kansas, 65N The
question is not which OF two claimants
can bestow greater luxury or bcqueaeh
a. greater estate but which Is likely 10
rear and train lin 10 be the better man
and citizen.
Without discussing tho evidence the
conclusion of the circuit Judge that this
child has been kindly cared for ana
properly nurtured and instructed In the
home OF his aunts; that his surroundings
and daily associations are all that could
be desired 20 promote his happiness ana
physical Development IS heartily CON
CURED in. The fitness OF his aunts is
nowhere questioned and is beyond chal-
lenge
@ Where a parent has transferred the
custody Of his child by fair agreement,
which has been acted on by the other
party 20 The manifest. interest and wei
fare of The child he Will not be permit
ted TO reclaim the custody un'ess he can
show that a change OF custody will ma
ter.ally promote the childs welfare
Green vs.. Campbell supra)
g. While the mother could not by viii
defeat the natural right OF the father 10
the custody OF the child and the duty
which nature imposes TO rear and support
a. yet We have seen that the mother had
the clear and settled purpose to entrust
n 10 her sisters 90 the exclusion of the
father go far as Il lay in her power
or this the father was fully advised fle
wrote the viii which declares this in
tention In the plainest terms ,he assented
10 its execution. and surrendered the
child 20 the sisters In whose care It has
remained and been trained as their own"
10 the present time Courts greatly re-
spect cOntompOraneous construction Of in
struments and contracts by the parties 10
and interested in them. and the construc-
ton OF the viii here acted upon for FIVE
years. Is in accordance with the manifest
intention OF the mother.
without doubt the father could havs
asserted his right 10 the custody OF his
infant upon the death OF his wife, and
demand could not have been successfully
resisted but the whole situation changes
when by his voluntary act he permits
the custody 10 pass TO tho respondents.
and while the will does not constitute
contract 10 may properly be looked 20
70 ascertain the intend and purpose actu-
ating the petitioner and respondents when
his child was placed with his aunts and
allowed 70 remain With them nearly six
years BY his acquiesccnce state OF
things has arisen which cannot be alter
ed without risking the happiness and in
terest o. his child He has allowed the
parties 20 90 on for years Ia the belief
that his rights were waived. Pool VS..
Colt. Il Law Reporter 269
The lower court committed no error IN
rejecting the prayer Of the petitioner. SO
much OF is order az undertakes TO regu-
late the intercourse between the father
and child would be subvsrsive OF the dis
cipiine which those having the duty ~
rearing the child must exercise IN order
well and faithfully TO discharge their
trust. An order will be entered mod w.
ing the Judgment appealed from. and in
lieu OF the specific provisions Of the order
regulating the intercourse between the
father and child TIE Judgment ~ the
Circuit Court will be affirmed with IN
sfrrcfiors that the case be drcpped from
the docket with leave 20 any party 10 re-
instaie and ask for any relief which a
change OF circumstances may render
proper. either with resrect 20 the care
and cus'cdv ~ the child. or the inter
80. l.f,.rep ..affffoner ana child