The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1910-02-19
THE COURTS DECISION.
SYNOPSIS OF OPINION IN TILL
MAN CASE.
The Law Of the State rs Applied to
The Rights OF Parents In Disposing
Of Minor Children.

After briefly setting forth the con-
tentions Of both sides and quoting the
act under which young Tillman gave
his children to Senator and Mrs. Till
man. the decision says ION behalf
OF the petitioner, It IL contended that
statute should be construed to con-
Ger ON the father the right to dispose
of the custody Of his children only
after his own death. This position
10 untenabie. 1t II true that the stat
ute 'f IL. Charles II c. "a. adopted in
this State without change. in 1s4s (2|
Stat. 707). clearly limited such power
to the disposal of the custody of his
minor children to take effect only ut
the time Of his death; that the first
statute was entirely repealed by the
revised statute containing the sections
above quoted (except the amendment
Of 1887. providing for disposition by
deei or Will by the mother. the faith
er being dead). was enacted. not as
an amendment. but as. separate
statute. When so enacted, 1t was
placed under the general head
Guardian and Ward and under the
subhead Minors the words limiting
the application of the law to the GUS
tody of the children after the death
of the father were omitted from the
new statute and the omission clearly
signifies the intention not to limit
the power Of disposition. which 1t con-
ferred on the father. to custody after
his death.
The fact that the statute was
placed In the revised codes of 1882,
1898 and 1902, under the head, tes-
taInentary guardians. might be re-
gai:ded as significant Of the intention,
II the case were one Of doubtful con-
struction. but the place assigned to
statute In the civil code can not con-
troll the plain meaning expressed in
the statute itself.
IT y therefore manifest that what
ever power OF deposition was con-
ferred by the act on the father ex-
tended to the custody of children
during his life.
THE next position taken on behalf
OF the petitioner II that the deed to
the respondents could have no effect
because there was a prior outstand-
Ing agreement between B. r. Till
man. Jr.. and his wife. acquiesced In
by the respondent. which provided
that during the year 1909. the hus-
band and wife should alternately
have the custody Of the children. The
argument Is that the first agreement
was binding on the husband and the
respondents. until 1t had been revok-
ed by consent Of the wife. or had ex-
pired by Its own limitation.
'The argument fails. because the
first agreement was made in view of
the then existing separation Of the
husband and wife and there was af-
tsrward reconciliation.
ANY agreement made in contem-
rlatton of broken family ties and pro-
viding for the continuation of the
breach was annulled by the reconcil-
iation and the renewal Of united
family life.
This brings us to the inquiry, what
Is the extent Of the power of DISPOSE
tion. conferred ON the father. Did the
general assembly intend to confer ar
bitrary power. regardless of the
rights and welfare Of the children.
and Of the family rights of the moth
sr. or did 1t intend to confer upon
him the power to transfer such rights
as he himself had at the date of the
deed. without infringing upon the
rights of the children to be placed in
the custody OF their mother, and of
the right Of the mother to have their
custody, In case the father had for
feited his right by his conduct?"
I'VE think the proposition capable
of demonstrating that If the act is to
be construed as comforting arbitrary
power on the father, 1t Is violative of
constitutional rights. The constitu-
tion Of this State provided: 1.-THE
privileges and immunities OF citizens
Of this State and Of the United States
under this constitution shall not be
abridged. nor shall any person be de-
prived Of life, liberty or property with
out due process of law, nor shall any
person be deprived Of the equal pro-
lection OF the laws (Article /, Sec
tion 81. In the right OF freedom
from unlawful restraint Is embraced
the right Of the enjoyment of all
those privileges and immunities