Eugene C. Hernandez and St. Mary's Orphan Home, Appellants, v. Sarah Ann Thomas, Appellee, 50 Fla. 522

Taylor, J. (after stating the facts.) The court below erred in its order or decree vacating and setting aside its former order or decree made on June 1st, 1903, consign- ' ing said two minor children Blanche and E'dith Hernandez to the custody and care of St. Mary’s Orphan Home, and turning them over to the custody and control of the appellee Sarah: Ann Thomas.

While we doubt the propriety of the proceeding followed here, that of permitting a stranger to the proceedings to intervene by petition in a formerly pending divorce suit that had long prior thereto passed to a final decre of divorce between the parties husband and wife, and in which the divorced wife had died subsequent to the decree of divorce but prior co such intervention by petition, yet inasmuch as it is one of those unfortunate contests over the custody of children where considerable rancor is manifest, we deemed it best, under all the circumstances of the case to pass over the technicalities of procedure and to dispose of the case upon its merits.

Practically the only grounds upon which the petitioner Sarah Ann Thomas bases her alleged claim and right to the custody of these two infants, aside from the fact that she is their maternal grandmother, are the alleged will made by the mother of said infants bequeathing them to the custody of their said grandmother and to their aunt, and that prior to his consignment of them to the care and custody of St. Mary’s Orphan Home their father Eugene G.

Hernandez had promised or agreed to give them to her, the said Sarah Ann Thomas, whenever he found that he was unable to care for them equally as well as she their said grandmother had formerly cared- for them; and that prior to their consignment to said Orphan Home their father had neglected them and permitted them to run at large upon the streets in a filthy and ragged condition where they contracted vicious habits and speech. In so far as the alleged will of the mother Madge G.

Hernandez is concerned, undertaking to bequeath or devise the care and custody of said children to their grandmother -and aunt, such will was a nullity and conferred no claim- or right upon said grandmother and aunt to the custody of said children. Our statute,

section 2086 Revised Statutes, like its predecessor in England, 12th Charles II, Chap. 24, Sec. 8, confers upon the father alone the power to appoint a testamentary guardian for his child 'by last will and testament or by deed. No such power is conferred upon the mother by our statute, and she has no such authority or right from the common law or from any other source. Ex parte Bell, 2 Tenn. Chy. 327; Ingalls v. Campbell, 18 Oregon 461, 24 Pac. Rep. 904; Ex parte Edwards, 3 Atkyns, 519. As to the alleged promise or agreement by Eugene C.

Hernandez, the father, to transfer the custody of said children to their grandmother in the event he found himself unable to care for them as well as she had done, such agreements are against public policy, and are not, in cases circumstanced like the one under discussion, enforceable or binding upon the parties. Regina v. Smith, 16 Eng. L. & Eq., 221; Schouler’s Domestic Relations (5th ed.) Sec. 251, and authorities there cited. But even if this were not true, there has been no such exhibition of want of ability on the part of Eugene C.

Hernandez, the father, to have his said two children properly cared for, as would justify an enforcement of any such promise or agreement on his part. On the contrary it is shown by the uncontradicted proofs in the case, that he had and has the ability to procure their admission to and maintenance in ■a permanent home where they have every educational advantage, secular, moral and religious, where they are well clothed and fed and are surrounded in their daily lives by all of those refining Christian influences that tend to make of them virtuous, law abiding and useful citizens.

As to the charge that the father, Eugene O.

Hernandez, had neglected said children and allowed them to run wild about the streets in a ragged unkept condition, where they had contracted vicious habits and speech, the evidence is conflicting and about evenly balanced as to whether such a condition of affairs did not exist with said children prior to their father’s taking charge of them while they were in the custody of their mother and grandmother, and whether the same condition of neglect did not continue after their father took charge of them — but, however this may be, the undisputed proof shows that their father had voluntarily put a stop to such condition of neglect, if it existed on his part, prior to the institution of this proceeding by voluntarily placing them in the care of the Sisters in charge of the St.

Mary’s Orphan Home, where he and their other relatives have free access to them at all times, and where their every necessary want is properly supplied, and where their every welfare, educational, physical, moral and religious is carefully and constantly looked after, and where they have been weaned from the vicious habit of roaming the streets. We have held in Miller v. Miller, 38 Fla. 227, 20 South.

Rep. 989, in accordance with the prevailing rule in the American courts, that in awarding the custody of children the paramount consideration is the welfare of the child rather than the technical legal right of the parent. While this is true, yet the court should not lightly and without good cause invade the natural right of the parent to the custody, care and control of his infant child. No sufficient cause has been shown here for depriving this father of the right to the custody and control of these children and of the right to dispose of them for their welfare as he has done.

It is not alleged or proved that he is a man of vicious or immoral character or in anyway unfit to have the custody and control of said children. This being true he, as their father, has the legal right to their custody and control and to have them educated in any religious faith that he sees proper, whose tenets do not inculcate violation of the laws of the land. Villareal v. Mellish, 2 Swanst. 533; In re Anne Turner, 19 N. J. Eq. 433. Or as it is properly expressed in Verser v.

Ford, 37 Ark. 27: “As against strangers, the father, however poor and humble, if of good moral character and able to support the child in his own style of life, cannot be deprived of the privilege by anyone whatever, however brilliant the advantage he may offer. It is not enough to consider the interest of the child alone.

And as between father and mother, or other near relation of the child, where sympathies of the tenderest nature may be confidently relied on, the father is generally to he preferred.” The grandmother here, Sarah Ann Thomas has shown no valid claim or right to the custody or control of these two children, and if for no other reason, the evil influences to which they would inevitably be subjected in the disreputable locality in which the proofs undisputedly show her to have continuously maintained her residence, renders it improper that she should have such care and custody.

The decree of the court below is reversed with directions to have said two children returned to the custody and care of St. Mary’s Orphan Home under the provisions of the decree heretofore made on June 1st, 1903, and that the petition of the appellee Sarah Ann Thomas herein be dismissed. The appellee Sarah Ann Thomas to be taxed with the costs of this appeal. Hocker and Parkhill JJ. concur. Shackleford, O. J. and Cockrell and Whitfield, JJ, concur in the opinion.