October 10, 1921. The opinion of the Court was delivered by This is a habeas corpus proceeding instituted by Mrs. Adella Gilbert, the paternal grandmother of an infant girl, Jennie Beulah Gilbert, aged seven years, against Mrs. Catherine M. Smith, the maternal grandmother of the child, for the purpose of having the Court award the custody of the child to her.
The matter was heard by Judge McIver upon affidavits and certain oral testimony. He awarded the custody of the child to the petitioner, the paternal grandmother, upon the general ground that it was for the best interests of the child, with no detailed statement of the considerations which moved him to that conclusion. The maternal grandmother has appealed to this Court.
It appears that B.H. Gilbert, a son of Mrs Adella Gilbert, the petitioner, about ten years ago married Lila Smith, a daughter of Mrs. Catherine M. Smith, the respondent below, appellant here; the young couple took up their abode with Mrs. Smith, and the little girl was born in Mrs. Smith's home November 9, 1913; when the little thing was only a few months old the father died, the mother continuing to live with her mother; in November, 1919, Mrs. Gilbert, the mother of the girl, married James Galloway and moved from the old home to the home of her second husband, leaving the child with Mrs. Smith; Mrs. Galloway lived less than a year after her second marriage; she died July *Page 309 16, 1920; with the exception of a week's visit to the home of the elder Mrs. Gilbert after the death of her mother, Mrs. Galloway, the child has lived continuously in the home of Mrs. Smith, who naturally has become greatly attached to her; from the time of her birth until the present she has known no other home; her clothes and trunk have been always in the home of Mrs. Smith and are there now; soon after the death of Mrs. Galloway, July 16, 1920, this proceeding was instituted, on August 25th, by Mrs. Gilbert to have the Court direct Mrs. Smith to surrender the custody of the child to her and decree in her legal right to her custody, care, and maintenance.
It was in evidence that Mrs. Galloway gave the child to her mother when she left the old home with her husband, stating that she wanted the child to remain with the respondent; that she declared to at least three witnesses that she had given the child to her and desired her to have the care, custody, and rearing of the child.
Even in a contest between the father or mother and one to whom they had by a parol gift surrendered the custody of the child, the Court will greatly respect the gift. As this Court says in Ex parte Reynolds, 73 S.C. 302;53 S.E., 402; 114 Am. St. Rep., 86; 6 Ann. Cas., 936:
"Nevertheless, if a parent undertakes to make a parol contract absolutely bestowing the custoldy of the child upon another, and allows the child to acquire a new home, and strong attachments and tender associations to spring up, the Court will not, at his instance, ruthlessly break these ties which have come into existence through his acquiescence and neglect to assert his right. In such case the parent is estopped and the affection of those who have cared for the child and learned to love it will not be sacrificed unless the interests of the child require that it should be restored to the parent."
See, also, Enders v. Enders, 164 Pa., 266; 30 A. 129; 27 L.R.A., 60; 44 Am. St. Rep., 586. State v. Libbey, *Page 310 44 N.H. 321; 82 Am. Dec., 223. Stringfellow v. Somerville,95 Va., 701; 29 S.E., 685; 40 L.R.A., 623. Bonnettv. Bonnett, 61 Iowa; 199; 16 N.W., 91; 47 Am. Rep., 810.
The social standing of the two grandmothers appeared to be the same; their characters are above reproach; the moral atmosphere of one home is as good as the other; there is no claim that Mrs. Smith is not financially able to rear and educate the child; it is conceded that the petitioner, Mrs. Gilbert, is in a more favored financial condition than Mrs. Smith; eight witnesses testify to the excellent character of Mrs. Smith, her financial ability to rear and educate the child, and to her tender affection for the child; six witnesses testify to the excellent character of Mrs. Gilbert and her greater financial ability to care for and educate the child.
The supreme test is the interest of the child, its future welfare and happiness. Ex parte Schumpert, 6 Rich., 344. Ex parte Reed, 19 S.C. 605.
We cannot say that in a home of comfort and affection, even though lacking luxury and trained in frugality, she will not make a better woman than in one of greater comfort, greater luxury, greater educational advantages; we cannot say that the greater financial ability of the one shall be the determining factor.
We cannot say and believe that, if the child were of sufficient age to make the choice for herself, her decision that a life based on love and gratitude and fidelity cannot be given in exchange for one of greater ease and personal advantage would not only commend itself to every loyal soul, but would make for a more splendid character. As we conceive our duty, we make that choice for her, in her best interest.
At the same time the material interests of the child must be safeguarded. This decision will probably, though it should not, result in financial loss to her, and the loss, perhaps, of a college education. The appellant, whose tender feelings for the child have weighed heavily in the scales, *Page 311 should in a measure insure a compensation for these losses. She should give a bond to the general guardian of the child in the sum of $5,000, with sufficient surety approved by the Clerk of Court, conditioned upon the faithful discharge of the trust reposed in her, the care, maintenance, and education of the child, at least to the extent of a thorough high school course; this bond to be executed and delivered within thirty days after the filing of the remittitur.
The judgment of this Court is that the order appealed from be reversed, and that, upon the conditions stated above, the right of the custody, care, maintenance, and education of the child be adjudged in the appellant; upon default in the performance of said conditions the judgment below will stand affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.