The herald and news. [volume] (Newberry S.C.) 1903-1937, 1910-02-18
outside the law Of South Carolina.
The Decision.

The Decision.
After discussing the statute under
which young Tiilman conveyed his
children to his parents, the supreme
court goes on to say:
From these considerations, it fol-
bows that, if the Act under consider
alton be construed as an attempt to
give the father the absolute right to
dispose Of the custody Of his chill
dren by deed or will, it must be held
unconstitutional. But, If there is a
different construction Of the statute,
which can he reasonably given, not
inconsistent with the Constitution, it
is the duty Of the Court to adopt it,
although, it may be the less natural
construction. For it Is always pre-
Buned that the Legislature intends a
statute to have meaning and effects
consistent with the Constitution. Elk
parte Graham, 13 Rich, 277; Hayes
VS. Clinkscales, 9 South Carolina, a.;
Cooley Con. Lam. 223; 26 Ameer-
ican and English Encyclopedia, 694.
We think such construction may be
given in this instance. While the
father cannot be: empowered to con-
>yey: away the rights Of the children
or of the rights Of the mother with
respect to. their custody, there is no
reason why the General Assembly
may not provide his deed should be
binding on him. The result Of this
construction of the Act would be to
give effect against the father him.
self, to any deed made by him in
accordance with the statute, so that
after he had made such a deed, he
could not, as against the grantee, de-
maud back the custody which he had
voluntarily relinquished. According
ly, the validity Of the statute, to this
extent, is recognized in ex parte
Davidge, 72 South Carolina, %; and
ex parte Reynolds, Is South Carolina,
296.
From these considerations it fol-
lows that the rights of the children
and their mother, the petitioner, are
unaffected by the deed from B.. R.
Tillman, Jr., to the respondents; and
hence the duty devolves on the Court
to determine whether the custody Of
the children should be awarded ito
the petitioner, their mother or to
the respondents, their grandparents.
No claim is made by the father to
the custody Of his children. On the
contrary, in his deed to the respond
ents, he expressly states, as one Of
the reasons for making it, that he
does not wish to undertake the re-
sponsibiities Of rearing them. The
issue then is between the petitioner,
in the maternal right and the pater-
nal grandfather and grandmother,
claiming under deed from the faith
e. and alleging the mother to be un-
fit to be entrusted with the rearing
Of the children. In the decision Of
this issue, the Court should give
great, if not conclusive, force to the
wishes Of the father expressed in the
deed entrusting the custody Of his
children to another fitted to rear
them, if the family relation was bro
ken not by his own fault, but by the
fault of incompetence Of the mother.
On the other hand, if the family re-
lation was broken by the taking Of
the children from the mother, and
bestowing them on the respondents |
against her protest, when there was
not on her part such improper con-
duct or ineompetency as to consti-
tute a just reason for such extreme
action, then the execution Of the
deed and the taking away Of the
children could not be regarded other
than acts in themselves so violatiVe
Of the fathers obligation to both
mother and children as to call for
tie interference of the Court in their
behalf.
The Mothers Care.
This, We think, presents the ultl-
mate issue in the controversy. The
version of the petitioner has been al
ready set out. The respondents IN
their return make the general charges