dissenting: The court found as a fact that the little child is 20 months of age; that the mother is dead; that the child was born at the residence of the mother’s father; that the father separated from his wife and was not present at the birth of the child nor at the death and burial of his wife; that the mother and father did not live happily together and that the father is not able “to bestow that particular care and personal attention on the child which is necessary that it should have at this particular period of its life, and that it is the court’s duty to say that the child shall have as nearly as can be the attention of some female who will in some degree take the place of its dead’ mother.”
The court further found that Mrs. C. M. Wofford, the mother of the dead mother of the infant, and Mrs. Fain, the mother of the father, are both women of character, fit and suitable to take care of the child, and the court awarded them the custody of the child until it should attain the age of S years, alternately 6 months, each, at a time. Llis Honor, with all the facts before him more fully .than they can be presented to us on the record, has so adjudged, and it would seem that his decision is in accordance with a reasonable view of the welfare of the child, and it is certainly within his power as prescribed by Eevisal, 1853, which provides that in a contest over the custody of a child “between parents who are living in a state of separation without being divorced” the court may award the charge of the child “with such provisions and directions as will, in the opinion of the court, best uromote the interests and welfare of the child,” subject to modifica-n’on of the order at any time by the court.
*794Tbe attitude of society, and in consequence of tbe law, botb by statute and in judicial decisions, bas been much changed from tbe common law, when tbe wife was tbe chattel of her husband. When, as in this State till 1868, tbe property of tbe wife passed to tbe husband by virtue of tbe marriage and her person was subject to chastisement at bis will (until tbe decision of tbe Court in 1874 which abolished it, S. v. Oliver, 70 N. C., 60), it was natural that tbe custody of tbe child should be deemed also tbe absolute right of the father, who could will away its custody and guardianship from tbe mother, after bis death, though she bad borne tbe child in agony and endured tbe care of bringing it up. Bevisal, 1853, now puts it in tbe sound discretion of tbe court to award tbe custody to any fit person. It would seem very certain that if tbe mother were still living no court in this day would take tho child, 20 months old, from tbe custody of its mother to give it to tbe father, who bad shown such indifference at tbe birth of the child. It would also seem plain that tbe father is not a fit person to be entrusted with its care at this tender age. Moreover, tbe judge so finds as a fact, and we are bound by tbe findings of the facts by tbe judge. Britt v. Board of Canvassers, post, 797.
"Whatever may be said of the division of custody between the two grandmothers, this is not unusual in such cases, and certainly ought to satisfy tbe father, since bis mother, with whom he lives, will have the custody of the child half the time. It might be well that tbe mother of the dead mother of tbe child ought to have custody of tbe child all tbe time. But bis Honor thought differently, and we should respect the soundness of his judgment. Certainly the father has no ground to complain. As the order is subject to modification at any time upon cause shown, it would seem that this judgment should stand unless and until it is modified by some other Superior Court judge upon evidence adduced which should satisfy him of the propriety of a change. Upon this record I am satisfied that his Honor acted for the best interests of the child of 20 months of age in awarding its custody to its two grandmothers.
In Newsome v. Bunch, 144 N. C., 16, Walker, J., after stating that at common law the father had the absolute right to the custody of his children, said that now “The welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and, therefore, they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third person for good and sufficient reasons. In re Lewis, 88 N. C., 31; Hurd on Habeas Corpus, 528-529; Tyler on Infancy, 276-277; Schouler on Domestic Delations, sec. 428; 2 Kent’s Com., 205.”
*795In re Turner, 151 N. C., 474, this Court held, Walker, J.; that in the exercise of a sound legal discretion the court may order the child in the custody of some third and fit person against the claims of both the father and mother. This last case is a full consideration of the modern and humane rule that the welfare of the, child and not the absolute rule of the father is the guide. This is cited with approval, Howell v. Solomon, 167 N. C., 591. The duty of the support of the child is upon the father, but it does not necessarily follow, as at common law, that he is entitled to its custody. The judge here finds as a fact, and there is evidence and other findings of .fact to sustain him, that he 'is not a fit person to be entrusted with the care of this baby, and in his sound discretion has awarded its custody to its two grandmothers. The only objection that can be found with this reasonable and natural order is the alternation of the custody between them, and if this should be found by a subsequent judge, upon evidence adduced before him, not to operate in practice for the best interests of the child, the order can be changed.