In re Guardianship of Estate of Crocheron

SULLIVAN, C. J.

This appeal involves the guardianship of Ellena May and Letha Joan Croeheron, minor daughters of A. B. Crocheron. Said children are about eight and ten years of age, respectively, at the present time. It appears that the mother of these children, Mrs. Millie Croeheron, died about November 9, 1907, in Nampa, Idaho, and thereafter on December 24, 1907, Joseph Babington, the stepfather of the mother, filed his petition in the probate court of Owyhee county praying that he be appointed guardian of said minors. Said petition sets forth the death of the mother and, among other facts, states as follows:

“That A. B. Crocheron, father of said Ellena May and' Letha Joan Croeheron, is an unsuitable person to be appointed their guardian, by reason of his indigent condition, and incapacity to properly provide for, and educate them; by reason of his insobriety and lack of integrity; by reason of the fact he abandoned said children in 1903 and has failed and neglected to provide for their support since said time, and by reason of his immorality. That he is without a home, and a nonresident of Owyhee county, where said children reside. That therefore, it is necessary and convenient that a guardian be appointed to the persons and estates of said minors.”

On January 4, 1908, A. B. Crocheron, the father of said minor children, presented his petition to said probate court, showing that said minor children had a certain interest in the estate of their deceased mother, and prayed that he be appointed guardian of said minors, and thereafter, on January 13, 1908, filed his objections in said probate court to Ihe appointment of Joseph Babington as guardian of said minors, alleging that he is the ’father of said minors, and denying that he is an unsuitable person to be appointed guardian of them, and denying all of the material allegations of the petition of Babington which go to show that he is not competent to transact the business of the minors and not otherwise suitable to become the guardian of said minors.’

After hearing said matter, the probate court granted the petition of Babington, and appointed him guardian of said minors, and issued letters of guardianship to him. He thereupon took the oath of office as such guardian and was given custody of said minors. From that action of the probate court, the father appealed to the district court. A hearing was there had, a number of witnesses testified1, an documentary evidence was introduced on the trial. The court thereafter made findings of fact and conclusions of law, and entered judgment against the appellant and sustained the action of the probate court. A motion for a new trial was thereafter made and overruled by the court. This appeal is from the judgment and the order overruling the motion for a new trial.

Only one error is assigned, and that is the insufficiency of the evidence to justify the finding of facts and conclusions of law, and the decision made by the court.

Under the provisions of see. 5774 of the Rev. Codes 1909, the father is entitled to the guardianship of his minor children if he is competent to transact his own business and not otherwise unsuitable for that trust. Said section is as follows :

“Either the father or the mother of a minor, being themselves respectively competent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor.”

The second finding of fact made by the court is as follows:

“That the said A. B. Crocheron is the father of said minors and is not indigent or incapable of properly providing for said minors, or of educating them”; and the third is as follows-: “That the said Crocheron is not an immoral man.” By the fourth finding, the court found, “That said Crocheron is a man of insobriety and intemperate habits; that he is addicted to the use of intoxicating liquors, and that he is lacking in integrity. ’ ’

The evidence amply supports said findings 2 and 3, but the evidence does not support the fourth finding of fact, and there is no evidence whatever to show that said Crocheron is lacking in integrity. The fact that a father is lacking in integrity- — does not pay his debts — is no cause for depriving him of the guardianship of his children. The evidence shows conclusively that he is a man of honor and strict integrity in his dealings with his fellowmen. The petitioner undertook by his evidence to cast some reflection on Crocheron’s integrity by showing that he had been elected assessor and tax collector for two terms in Owyhee county and that he was short in his accounts as such officer. The evidence also shows that when the matter was called to his attention, he at once put up sufficient money with the clerk of the board of county commissioners of said county to cover all shortage that could in any manner occur, and that the clerk failed to pay over said money on any shortage that was found against him; that he thereafter paid said shortage, whatever it was, a second time.

So far as his insobriety and intemperate habits are concerned, the evidence shows that he did drink some; that he at times became a little hilarious, but the evidence fails to show that because of his intemperate habits he was ever unfitted to perform his duties as an officer or to attend to his own business affairs. The evidence does not show that he was incompetent at any time to transact his own business, and nowhere shows that he is unsuitable to act as the guardian of said two minor children.

It appears from the record that Joseph Babington, the guardian appointed by the probate court, was the stepfather of Crocheron’s deceased wife; that Crocheron was married to her' in October, 1897, in Owyhee county; that she was the daughter of Mrs. Babington by a former husband; that the Babingtons have resided in Owyhee county for forty odd years. It appears that Crocheron was assessor of said county for two terms, commencing in 1891 and 1892, and also in 1895 and 1896, and was elected sheriff of that county in the fall of 1896 and held that office for two years; that thereafter he was for a time connected with a saloon in Silver City; thereafter he removed, to Bruneau in said county with his family, and was appointed postmaster there; thereafter he went to his mother’s ranch on Sinker creek in that county and remained there for a time. It appears that his wife was very much attached to her mother and her stepfather, the Babingtons, and that the mother had been opposed to the marriage of Crocheron to her daughter; that they quite frequently visited the Crocheron ranch and often took Mrs. Crocheron home with them, without consulting her husband. It appears that the Babingtons were very much prejudiced against Crocheron and that during his term of office he was' addicted to strong drink to some extent. All of the evidence as to his habit of drinking applies to his conduct some four years prior to the commencement of these proceedings, and the record contains no evidence showing that he has been addicted to the drink habit for about four years immediately preceding the commencement of these proceedings. Crocheron became discontented and was not pleased with the influence the Babingtons had over his wife, and he urged his wife to go with him to Pocatello, Idaho, or elsewhere, and make a home, but she absolutely refused to leave her stepfather and mother. This condition continued up to March, 1904, when appellant left his wife on his mother’s ranch, and went to Pocatello and sought employment there. He was out of employment for some time, then worked in the railroad yards there, and then with a fence and bridge gang; also cut timbers for a coal mine and worked for a time near Minidoka and Twin Falls in Idaho, and on June 23, 1906, he went'to work for his brother in law, a Mr. Hyde, at Thousand Springs, in this state, and continued to work for him until July 20, 1907. He thereafter went to Nevada on a prospecting trip and was at Elko in that state when informed of his wife’s death. He immediately returned to Nampa, where his wife died, attended the funeral, paid all funeral expenses and desired at that time to take charge of. his children, but through the importunities of Mr. Babington, the stepgrandfather of his children, and his wife, consented that they remain with them until the holidays of 1907 and 1908.

After Crocheron left his mother’s ranch in March, 1904, Mrs. Crocheron and the children remained on the ranch for some months and then went to her old home, the Babington ranch on Reynold’s Creek, in Owyhee county, and remained there for about fifteen months. She then went to Nampa in October, 1905, to place said children in school. The Babingtons purchased a house for her to live in at Nampa, and some articles of furniture, and Mrs. Crocheron resided there with her children from that time until her death in November, 1907, except during school vacations, which she spent on the Babington ranch at Reynold’s Creek. It appears from the evidence that during the time that Crocheron was absent from his family, he wrote his wife frequently and urged her to come and live with him. She positively refused to do so. It also appears that during said time appellant sent her from month to month on an average about $30 per month; besides, she sold some horses that were on the ranch when Crocheron left, and also received the proceeds of the sale of a few head of cattle, from Crocheron’s brother. The evidence shows that he sent her all of the money he earned during his absence except what was necessary for his own maintenance. If a month during that time went by without his sending her money, it was because he was not earning more than sufficient for his own support. The record fails to show that there was any trouble or dissension betweeen Crocheron and his wife during her lifetime except that caused by the wife’s mother and her stepfather. They, were evidently very much prejudiced against Crocheron, perhaps because of his being addicted to some extent to the drink habit during the time that he held the offices above mentioned and up to the time he left his family. Because of their prejudice and influence over his wife, the evidence shows that Crocheron was very anxious to take his family from Owyhee county and away from the influence of the stepfather and mother. There is no evidence in the record that would justify the appellant in leaving his family for forty-four months, and we cannot justify his conduct in that regard, although he furnished them all the money he earned except what was necessary to maintain himself. The fact of his leaving his family for that length of time, however, would not alone be sufficient to show that he was unfit to have the guardianship of his own children. There is nothing in the record to show that he has not a tender regard for said children and that it would be against their interests to give him the guardianship of them. The record shows that he desires to place them with his sister, Mrs. Hyde, who, it is conceded by counsel for respondent, is among the very best women of Owyhee county. Mrs. Hyde was a warm friend of the deceased mother during her lifetime, and it also appears that the -deceased mother stated to Mrs. Hyde that she desired in case anything happened to her that she (Mrs. Hyde) should take charge of the children. And it sufficiently appears that the children would be educated and well eared for if the father had control of them. A brother in law and two brothers, and, I think, the mother of the defendant reside in Owyhee county and are among the most respectable people of that county. No valid reason appears why the father should not be given the control of his children. Mr. Babington, the stepgrandfather of said children and Mrs. Babington, their grandmother, are respected and honored people, and no doubt have a great affection for the children, but that is no reason, under the law, why the father, he being ready, able and willing to properly care for and educate them, should be deprived of their guardianship.

The trial court found as a fact that said father was not indigent or incapable of properly providing for said minors and educating them, and that he is not an immoral man. Those findings, as before stated, are amply sustained by the evidence, but there is no evidence to show that he is so intemperate in his habits and so addicted to the use of intoxicating liquors as would deprive him, under the law, of the right to the guardianship of his daughters, and there is no evidence whatever to show that he is not a fit, proper and competent person to have the guardianship of them. The evidence clearly shows that the appellant is competent to transact his own business and that he is otherwise suitable to have the guardianship of said children. Therefore, under the provisions of said see. 5774, he is entitled to their care and custody.

In Hernandez v. Thomas, 50 Fla. 522, 111 Am. St. 137, 39 So. 641, 2 L. R. A., N. S., 203, the court said: “We have held.....in accordance with the prevailing rule in 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.”

In Re Galleher, 2 Cal. App. 364, 84 Pac. 352, the court said: “It is well settled in this state that a parent is entitled to the guardianship of his child under the age of fourteen years, if he is a fit, proper and competent person, in preference to any other person.” (See, also, Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798.)

In Ex parte Davidge, 72 S. C. 16, 51 S. E. 269, .the court holds that the welfare of the children must be considered, but that the parent’s right to the love and influence of his children and the happiness they bring him must also be recognized and considered along with the interest of the children, and says:

“To separate the child from its parent is, therefore, a very strong measure, justified only by convincing proof of the parent’s unfitness. No inflexible rule can be laid down by which unfitness may be determined. Each case must be decided on its own peculiar facts, but manifestly it is not sufficient to prove the poverty of the parent, and that financial benefits will come to the child from separation, or that the parent has faults of disposition and behavior somewhat unusual and trying. The conditions in life or the character and habits of the parent must be shown to be such that provision for the child’s ordinary comfort and contentment, or for its intellectual and moral development, cannot be reasonably expected at his hands.”

In Watts v. Lively (Tex. Civ. App.), 60 S. W. 676, the court said: “As aptly said by the trial court, the issue as to what is for the best interest of the child is not determined by showing in whose custody it would likely be more comfortably reared. In order to overcome the presumption of law that the best interest of the child would be sub-served by placing it in the custody of the father, who is responsible for its being, and who, under the laws of God and man, is held responsible for its care and protection, it must plainly appear that the father is unworthy of the trust. ’ ’

The supreme court of Indiana in Gilmore v. Kitson, 165 Ind. 402, 74 N. E. 1083, said: ‘ ‘ Courts must not be tempted to interfere with the natural order of family life except in special cases of extreme urgency.....Paternal control of the family has been a fundamental principle in the history of mankind, and its free exercise, restricted only in the interest of humanity and good morals, is essential to the highest development of the race. What influence more likely to lead to despondency and self-destruction than the unnatural separation of a parent from his child, and what greater stimulus to worthy ambition and noble endeavor on the part of a father than the care and companionship of his motherless girl?”

In Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672, the court held that where it was sought to deprive a father of the custody of his child, the burden is upon him who avers such unfitness; that the presumptions are against it.

In Rust v. Vanvacter, 9 W. Va. 600, the court said: “The father is the natural guardian of his infant children, and in the absence of good and sufficient reasons shown to the judge, or court, such as ill-usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education. It seems that all of the' authorities concur on this point. (Citing many authorities.) The custody of the minor will be assigned to the person having the right, unless it appears he is an improper person to take it.”

In Andrino v. Yates, 12 Ida. 618, 87 Pac. 787, this court held that where the legal right of a parent to the guardianship óf a child is not clear, the best intereste of the child will govern the decision of the court. In the ease at bar, however, the legal right of the father to the guardianship of said minors clearly appears, and under the law he is entitled to the guardianship of them.

(May 17, 1909.)

The decision of the lower court must be reversed, and the cause remanded with instructions to the district court to make findings of fact and conclusions of law in accordance with the views expressed in this opinion, and to certify the same back to the probate court, with directions to appoint the said A. B. Crocheron guardian of said minor children.

Costs are awarded to appellant.

Stewart and Ailshie, -XT., concur.