(dissenting).
The majority opinion is clearly wrong, and I wish to record my reasons for declining to assent thereto.
Briefly put, the majority decision flatly reverses the chancellor upon the exercise of his judicial discretion, based upon the implied finding of fact, which finding is amply and abundantly supported by the competent, credible testimony in the case. The opinion does not, and cannot, say that the discretion exercised under the facts is not warranted by the law and testimony, nor that the discretion was manifestly abused, but seems to go upon the theory that this court should determine the truth of the conflicting testimony, and settle the question of fact as well as law, regardless of the finding of the truth by the chancellor. This I think is contrary to the rule in this state.
The paramount right of the father under the common law to the custody of his child against its mother, in a contest between them, has been annulled by our statute, and vests the question solely in the judicial discretion of the court, and provides that “the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just make all orders touching the care, custody, and maintenance of the children of the marriage.” This is the modem rule as established by the statute and the decisions of this court. Section 1673, Code of 1906 (section 1415, Hemingway’s Code); Cocke v. Hannum, 39 Miss. 423.
In the case of Dawson v. Dawson, 57, W. Va. 534, 50 S. E. 619, 110 Am. St, Rep. 813, the court quoting from Judge BbaNNON, said:
“The law as to the custody of the children has been greatly modified. Formerly the right of the father to *283its custody was almost an inflexible rule. That rule forgot that a mother had a heart. The real owner of the child, be it even a baby, must give it np. Bnt civil ization, advanced thought, and human kindness have bent this iron rule and opened the ears of courts to the pleading of the true friend and owner of the child. The .courts do not, these days, inexorably take from mothers their children of tender years, even for the father, if the mother is a fit person and has a home for them, but look at the circumstances. The welfare of the child is the test.”
There is no dispute as to the rule being that the best interest of the child is the question for primej*con-sideration and that it should be placed in the custody of the parent best calculated under all the circumstances to promote its welfare. Therefore the question here is whether or not the decision of the chancellor upon the facts, in the exercise of his judicial discretion, should be -set aside, and, if so, for what reason and upon what ground. '
It stands out as a mountain peak in the' main opinion that the alleged adultery of the mother of this six year old son is the moving cause that prompts the majority conclusion herein. This immoral charge against the wife, Mrs. Duncan, was denied and disputed by credible testimony, which the chancellor had a right to believe and did believe, as evidenced by his decree giving the custody of the child to the mother. At all events, the alleged act of adultery complained of, if true, occurred about eighteen months before this last petition for the custody of the child was filed. In the meantime, after the date of the alleged occurrence, the mother had returned to the roof of her parents and was living a reformed life amid moral and Christian surroundings . That she had reformed was established by the strongest kind of undisputed and overwhelming proof. She taught in the Methodist Sunday School, and was an officer in the Epworth League, and her moral character was shown *284to be above reproach. She was thus living at her old home, from whence she had been taken by her husband five years before, and her character then was spotless and pure in innocent girlhood. The divorce granted in Tennessee for adultery, referred to by the main opinion was, in effect, an ex parte proceeding, in her absence, long before the case here was heard. After she had lived eighteen months of an undisputed moral and upright life back in her father’s home, was it manifestly wrong for the chancellor to believe and hold that she had truly reformed, if she was ever in fact immoral? The evidence certainly justified such finding by the«v°nrt, and I can see no good reason for disturbing it. In this enlightened day of charity and justice to the weak and fallen, no prescribed time can be fixed in which to judge a moral reformation. High authority gives instances of early redemption when the sin has been forsaken. The chancellor evidently believed she had proven her good character after her return to her old home in Cairo. See page 442, Cocke v. Hannum, 39 Miss, supra.
But this is not all that justified the discretion exercised by the chancellor. Mr. Dunacn, the husband, returned and dwelt with his wife for many months at Cairo after the date of the alleged act of adultery. If the charge was ever true, he condoned it; and grave doubt is reasonably entertainable from this record as to whether it was true. He must have doubted it. His conduct speaks so. At all events there is no charge against her character for at least eighteen months before this suit was filed.
Then again, as to the question whether the mother or, father was the most suitable person with whom to place the cutody of the child, the testimony before the chancellor showed that the husband, Mr. Duncan, was indeed no saint; that he gambled, drank liquor, wrongfully brought liquor into the state, and used his home for immoral purposes, in her absence, even to the ex*285tent of having lewd women there while the gambling and , drinking was going on. He admits part of this, and denies part. Nevertheless the chancellor was warranted by the proof in believing him guilty of immorality. Of course, if a double standard of morality is to be indulged, and the man can escape his sins and iniquities, while the weaker party, the woman, must pay the penalty, without a chance or hope of redemption, then the soundness of the majority opinion on the facts becomes more apparent. But- at the bar of justice and righteousness, especially in a Christian civilization, no such standard should be recognized or countenanced.
The surroundings and influences in which the husband placed this innocent girl wife and left her must have also impressed the chancellor in his investigation. I shall not detail these surroundings as shown by the record, but will say that the lower court very probably thought, from the proof, that the husband should have abated the evil temptation which the wife was daily subjected to while he was away on the road, all of which he knew, or should have known.
Furthermore, the chancellor’s decree is right, because the conditions and circumstances had materially changed between the date of the first and second decrees herein. The principal changes were that the mother had reformed, if ever guilty, and had a home and support with the father; and she had also come into the possession of considerable property by inheritance, it appearing that she was possessed of sufficient means with which to support, maintain, and educate her child. However, it is the duty of the father to furnish support for his child. The first decree was only a temporary award' of the custody of the child to the father, and was properly reopened and changed by the court under its terms and the proof of new conditions and circumstances.
Of course, the primary inquiry is, what is the best interest of the child? and in deciding this question the *286suitableness of the party to whom the child is to be awarded is for the sound judicial discretion of the trial judge. He may taire into consideration all the facts and circumstances in evidence in reaching his conclusion based on the facts before him. The chancellor did not believe from the proof that Mrs. Duncan was an unsuitable person for the custody of the child. He did not believe that she had been guilty of adultery, or, if so, then he believed that she had reformed. By his decree he refused to “cast the first stone.” But the majority of this court finds the fact here that brands her with the “scarlet letter” and takes from her her only child, the dearest thing on earth to her; and this, too, in face of the justified discretionary finding by the chancellor that the mother was the most suitable person to have the custody of the child. The chancellor being on the ground, so to speak, having seen and heard the witnesses as to the facts and circumstances, and determined the truth thereof, I think his judgment as to the welfare and best interests of the child is safer than that of this court, with only the dry record before it.
Notwithstanding that the test is the'welfare of the child in such cases as the one before us, I think the parents also have some respective rights and interests therein; and in all cases where the suitableness between the mother and father is in question, and it does not clearly appear by a preponderance of the evidence that the father is the more suitable person to have the custody of the child, and that the child will fare better generally with the father, then its custody, especially when of tender years, should be awarded to the mother. The. natural mother love of a mother for her child is such, in my opinion, that no other person on earth can administer to the care and welfare of her child the same as she can and would. There is peculiarly no limt to the love and affection of a mother for her child ; and I believe that, even though she be handicapped with poverty and human weaknesses, her care and protection *287of her offspring is more naturally efficient than that of any other person who might he more fortunately situated and endowed. It is harsh and cruel to forcibly separate a mother from her child, and it should not he done, in my judgment, except in certain case's, where there can he no reasonable doubt that the welfare of the child requires such separation.
The main opinion states that the child “became the common object of their affection.” This is quite true, but I think no man will hardly contend that the strength of the father’s affection for the child is equal to that of the mother. He has his rights in the premises) ’tis true; but she is the one whose responsibility is greatest and whose life is fraught with the dangers and cares of motherhood. Of the two, it has always appeared to me that the mother, by the very law of nature, possessed greater interest in the child than the father, so it is best for its future, and also just to the mother, to give its custody to her in all cases, unless it is clear and certain that to do so would be injurious to the best interests of the child.
The chancellor in this case had all these considerations and questions of fact before him at the trial, and I am convinced that his decree granting the custody of the child to the mother was not a manifest-abuse of his discretion, and should not be reversed by this court. That the decree of the chancellor puts the child beyond the jurisdiction of the court cannot be considered a determining factor in this character of case, if the decree is otherwise right in awarding the custody to the mother, for the reason that a denial of a right because the party entitled thereto lives outside of the state would be obviously wrong. The father took the child away from Cairo in the first instance.
The main opinion states that — “There are a number of saloons in Cairo, to one of which the residence of Amanda’s (Mrs. Duncan’s) father is in close proximity, and it is also in close proximity to the city’s ‘red light’ *288district; but other people of the highest respectability live near him, but his and his family’s social position is good.”
I do not think this is controlling argument in support of the majority opinion. In the first place, what the main opinion terms “in close proximity” is in fact a distance of several blocks. This fact cannot be very persuasive in this case because many thousands of the best people living in cities that permit these iniquitous resorts live “in close proximity” to such vile places, yet it cannot be said that these good people are necessarily in danger of being infected thereby. Furthermore, with the general cleaning up that has been brought about during the recent world war, and the fact that national prohibition- will soon eradicate all saloons, I think the evils pointed out will be dfestroyed, and even Cairo will become a comparatively clean city in which to live.
The father’s occupation on the rail road, as we understand the record, takes him to Cairo, where he can visit the child oftener and with less difficulty than he could at its grandparents’ abode in this state.
The main opinion indicates that the award in this case by the majority decision is really in effect to the grandparents of the child. If this is true, then by all the rules of law and reason the decree should be affirmed here, because, if the controversy is between the grandparents and the mother here, there could be no douibt whatever as to the correctness of the decree of the lower court.
I think the decree of the chancellor should be affirmed by this court, with a provision in it allowing the father ample opportunity to visit the child, so that he may bestow upon it his affection and fatherly advice.
Etheridge, J., joins in the above dissenting opinion.