* Writ of error dismissed for want of jurisdiction October 24, 1923. Asserting that it appeared from the testimony "that the best interest and future welfare of the child would be secured and subserved" by awarding the custody thereof to her, appellant insists that this court should reverse the judgment of the court below and should here render judgment awarding her the custody of the child. The contention is on the theory, it seems, that it appeared that appellee, in conformity to the wish of his deceased wife expressed during her last sickness, agreed that appellant might take and rear the child, and further appeared that the findings of the trial court that appellee was a "sober, quiet, industrious, hard-working man," and that his "home life and conditions" were about the same as appellant's, were not warranted by testimony.
The testimony was conflicting as to whether appellee agreed as claimed or not. He testified he did not, and the testimony to the contrary was not strong.
There was testimony showing that "before prohibition went into effect" appellee drank intoxicating liquor to excess and neglected the child and its mother, but the finding of the court that he was a sober, quiet, hard-working man referred to the time of the trial. If appellee was that kind of a man then, the fact that there was a time in the past when he was not a proper person to have the custody of the child was not a reason why the court should have refused to award him the custody thereof.
As to the "home life and conditions" of the respective parties from a material viewpoint, the testimony was that appellee was a "mattress finisher," earned $30 a week, rented the house he lived in, and owned no property except a small quantity of household furniture, and that appellant's husband was a "fruit mixer" in a pie factory, where he earned $35 a week. Whether appellant and her husband owned the house they lived in, and whether they owned any property of any kind, was not shown.
The legal presumption was that the best interest of the child would be subserved by awarding it to its father. Wood v. Deaton, 93 Tex. 243,54 S.W. 901; Dunn v. Jackson (Tex.Com.App.) 231 S.W. 351; Fasel v. Gunning (Tex.Civ.App.) 249 S.W. 875. The burden was on appellant to prove to the contrary, and that its best interest would be subserved by awarding its custody to her. We think the trial court had a right to say that she had not discharged the burden, and to conclude that appellee was entitled to the custody of the child.
The judgment is affirmed.