Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-03-25
THE FATHER LOSES.
SUPREME COURT GIVES STRING
FELLOW CHup TO AuyTs.
THE LOWER COURT is AFFIRMED.
Opinion Handed Down Yesterday I'm
Celebrated Case-Only Two Opin-
IONS i'm conrt-rrpstec's Expenses
The Guggenhcimcr-Roge Case.

has attracted widespread attention, es-
peeially In the Valley OF Virginia. where
the interested parties to the case-Mr.
George L. stringfellow. his little or
phaned son Glassill, ard his slsters-in-
law. the Misses Someryille. live. The
subject of the litigation Is the little son.
and the father, who was the plaintiff in
The case, sought 10 recover him from his
aunts, in whose custody he had been
placed by the viii Of his deceased mother.
by the opinion OF Judge Keith. handed
down yesterday, the judgment of the
lower court, rejecting the prayer Of the
father, is affirmed, and the child is left
ir the care OF its aunts
THE OPINION.
Appended is an abstract of the opinion:
Mrs. Ellen stringfelIow. born somer-
WIFE, died. leaving an infant son. whose
custody is the subject of this controversy.
Shortly before her death her husband. the
petitioner here for habeas corpus. at her
instance prepared her will as follows
Il desire that my child be permit
tea to remain with and be reared by my
sisters and trained as their own,
and my husband will aid them in sympa-
thetc affection and support. Second de-
sire that my husband be made guardian
OF my enid, and to manage my business
ana property as he now does:
That he shall continue the tin and stove
business as long as he sees best for the
interest Of my child. He shall have the
profits from the property to support my
child, all above that to be used as he secs
proper during his life, and then my entire
property 10 be given to my SON"
The purpose disclosed by the will seems
TO have been long contemplated by the
mother and fully understood and APP
proved by her husband and sisters. The
will was proved, and in accordance there
with, the infant was delivered TO her sis
tiers, was taken to their home, where it
has been reared and nurtured with most
tender and loving care.
Held: l. The language of the will leaves
no room for doubt as to the wish of the
testatriX. As far as it was in her power
TO do so, her sisters were clothed with
plenary power and duty; the husband re-
minded to laid them i'm sympathetic af-
lection and support" If her will is to pre-
vail, the sisters are the principals on
whom its execution is conferred, the
father, their aid and auxiliary. True, in
the second clause, she desires that her
husband be made guardian of the child,
and that he manage the business and
property as now; but reading the two
clauses together considering her situa-
ton, her previously declared intention,
and her full knowledge Of the whole en-
vironment, there can be no doubt that the
second clause has reference to the duties
of a guardian with respect to business.
the property, etc, and was not intended
disposition Of the person Of her child
made in the first clause.
THE COURTS DISCRETION
2. Ordinarily the father is entitled to
the custody and care of his infant child,
but where he is in court claiming to re-
cover custody OF il, the Court will ex-
ercise it's discretion according to the
facts and continue what will be best
adapted 10 promote the child's welfare.
Merritt VS.. Swimley, 50 Va, 1873; Coffee
VS. Black Id, 567. 1.-THE father is the
natural guardian of his infant child and
in the absence of good and sufficient
cause shown, is entitled to its custody.
But the Court is in no case bound to de-
liver the child into the custody of any
claimant, but may leave 1t i'm such GUS
tody as the welfare of the child may
seem to require" Green VS.. Campbell,
30 w. VA. $50.
parents right TO his child is not like
the right of property, an absolute and UNI
conditional right. The paramount con-
sderation is the welfare of the child.
Chapsky VS.. Wood. 26 Kansas, $50 The
question is not which Of two claimants
can bestow greater luxury or bequeath
a greater estate, but which is likely to
rear and train him TO be the better man
and citizen.
1. Without discussing the evidence the
conclusion of the Circuit Judge that this
child has been kindly cared for and pro-
perIy nurtured and instructed i'm the home
of his aunts, that his surroundings ana
daily associations are all that could be
desired to promote his happiness and
physical development is heartily concur
red in. The fitness of his aunts is no
where questioned and is beyond challenge.
. Where a parent has transferred the
custody of his child by fair agreement.
which has been acted on by the other
nartv TO the manifest interest and well
fare of the child, he will not be permitted
IN reclaim the custody unless he can
Chow, that n change of custody VIII ma
,a,ialIv promote the child's welfare.
Green VS.. Campbell. Supra.
FATHER ACQUIEsCED.
while the mother could not, by Will,
dsfoat the natural right OF the father TO
,be custodv of the child and the duty
which nature imposes to rear ana support
:, 80 ,,,e have seen that the mother had
,be clear and settled purpose TO ehtrus'
=, 90 nor sisters TO the exclusion or the
-. ca far as IL lay in her power vi
- ba father was fully ADVISED. lie
,,.,.ote the will which declares lhis lh'eH
tion I'm the plainest terms; ne aSSeH,y"
80 ,ts execution, and SURRENDERED tne
nina IN the sisters, in whose care ~ naa
remained and been tralneu 40 - -.
80, ;, IN the present time courts S'v"'ys
resnect contemporaneous CohS,i " 80 .,r,ios
iretruments and contracts d! ti's p", -
A. md interested in. theh' auu 80, Cor
struction of the will here actvu tp ,,,oni.
Eve years rs I'm accordance WI" WV
lost intention of the molher' ,d have
Nl.hoSt ~ right to the CUSTODY Oh ni3
aSSel ,,,on the death OF ms VIII 90"
li ~ mi could not have petii a,I ~
n',sfitlIv resisted, but the WHIT 'i 1T he
cbanpes when. by his voluntary tbe re-
= H@Ia9 The custody to pass 10 tlc -
perilitn and while the will does no.
ap,,,tit,ite a contract, IL may pToPeIi!
y, 49, 20 10 ascertain the intent ailI ~
80 actuating the petltlohel rioced |
p,,andents when his chlid "as P,oin
Win his aunts, and alloWeu ~ ~ his ac-
,,ith the,n nearly six years by ne arisep
Wlth tle . staie of things has arisen
It,tch cannot be altered Wltnout iaioiiI
~ bappiness and interest ol lh' an Tor
r. nos allowed the parties W ~ Iyere
wears i'm the belief tnai ~" taw Reporter
waived. Pool vs.. uol'' ~
2G9. ,,,,,,
TOWER COURT AFFIRMED.
oo,,rt committed no error IN
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