This is an appeal from a decree of the equity court overruling the demurrer of the Bureau of Catholic Charities, St. Mary's Orphanage and Catholic Boy's Home (appellants) to the petition of Troy Leon Deakle (appellee). The allegations of the petition show the following. Troy Leon Deakle is a resident citizen of Mobile County over the age of twenty-one years and is the duly appointed and qualified guardian of the persons and estates of Betty Ann Deakle, a minor eight years of age; Dorrance Everet Deakle, Jr., a minor twelve years of age, and Joseph Patrick Deakle, a minor nine years of age.
The Bureau of Catholic Charities, Diocese of Mobile, has assumed control and custody of the aforesaid minor children and Betty Ann Deakle is now kept in St. Mary's Orphanage in Mobile while Dorrance Everet Deakle, Jr. and Joseph Patrick Deakle are in the Catholic Boy's Home in the City of Mobile. The children were taken into custody by the Bureau of Catholic Charities immediately after the death of their father Everet Deakle, Sr. on to wit January 9, 1948 and before the appointment of petitioner as their legal guardian.
Dorrance Everet Deakle, Sr. prior to his death had made arrangements so that in the event of his death the children could be placed and kept in the Masonic Orphanage at Montgomery, Alabama and had expressed the desire that they be so placed. The Masonic Orphanage at Mongomery has advised petitioner that it is ready to receive the children, that they will be kept and maintained in the home at Montgomery, will be given high school educations and if desired college educations and will be permitted to attend the church of their preference and will receive the best possible care. The petition contains the following allegation. "That your petitioner believes that it would be to the best interest of said children that they be placed in said Masonic Orphanage and in deference to the expressed wishes of their deceased father, he desires that they be placed in said home."
It is further alleged in substance that petitioner has requested the Bureau of Catholic Charities to deliver the children to him in order that he might place them in the Masonic Orphanage but his request has been refused.
We consider that the allegations of the petition are sufficient to call into exercise the full jurisdiction of the equity court with respect to the custody of these minor children. *Page 473 Mere legal niceties in pleading are not favored in a case of this character. The petition alleges that "it would be to the best interest of said children that they be placed in said Masonic Orphanage." Stripped of everything else in the petition this presents the single and paramount issue, which is the welfare of the children. Murphree v. Hanson et al., 197 Ala. 246,72 So. 437; McDaniel v. Youngblood, 201 Ala. 260,77 So. 674; Blackburn et al. v. Moore, 206 Ala. 335, 89 So. 745; Payne v. Payne, 218 Ala. 220, 118 So. 575; Scott v. Scott, 247 Ala. 598, 25 So.2d 673.
The court does not proceed on the theory that one litigant has a cause of action against the other, but acts as parenspatriae to do what is best for the welfare of the children. Ex parte White, 245 Ala. 212, 16 So.2d 500. So we do not consider that the respondent is required to take issue on the belief of the petitioner, but simply that the petition is sufficient to require the court to determine what is best for the children.
The demurrers which were filed by each respondent, not only challenge the equity of the petition, but point out that the guardian is not seeking custody for himself, but seeks to take the children out of institutions which for his own reasons he does not prefer and place them outside of Mobile County in institutions in Montgomery. As pointed out we are not concerned here with mere legal niceties in pleading. The guardian has sufficiently alleged that it is to the best interest of the children that they be placed in the Masonic Home. If this is true the personal reasons of the guardian are not controlling.
Our attention is called to the statutes which comprise Articles 1 and 2 of Chapter 4 of Title 49, Code of 1940. We assume that all the institutions referred to in the petition are child-caring institutions. But these statutes were not intended to override or supersede the jurisdiction of equity courts where that jurisdiction has been invoked. In fact the powers vested in such courts to award the custody of children is recognized as unaffected by the statutes. § 79, Title 49, Code of 1940.
We have also noted Ex parte Fletcher, 225 Ala. 139,142 So. 30, and Desribes v. Wilmer, 69 Ala. 25, 44 Am. Rep. 501, cited by appellants. These cases in nowise conflict with the principle that equity does not concern itself with the disputants in disputes of this kind but is only concerned with the welfare of the child. Ex parte White, 245 Ala. 212,16 So.2d 500. As stated the best interest of the children is the one and only issue before the court.
Affirmed.
FOSTER, LAWSON and SIMPSON, JJ., concur.
BROWN, J., dissents.