(dissenting).
As I am so unfortunate as to differ with my brethren in regard to the proper result of this cause, I take the liberty of stating the grounds of my dissent.
Upon a bill filed by this respondent for divorce a mensaet thoro, because of cruelty, this court, in June, 1876 (12 C. E. Gr. 579), decreed that she was not entitled to such divorce. The misconduct of her husband, then complained of by her, seemed to the court to be exceptionable, and to *750have grown out of a temporary bodily ailment of the wife, aggravated by her nervous and rather delicate constitution ; and, “looking at the history of the married life of these parties, the affection this husband has always manifested for his wife, and his repentance for his misconduct,” the court concluded that there was no reasonable ground to apprehend any further transgressions.
Upon the making of that decree, it became the legal duty of the respondent to return with her children to the home which she had left, and to replace herself by the side of him to whom she had promised to cleave so long as they both should live. Ever since her departure, up to the present time, that home has been kept ready to receive her, and touching entreaties from her husband have again and again besought her reconciliation. But hitherto she has disregarded this legal and sacred duty, and has, without lawful cause, withheld from this petitioner the society of wife and children, to which he was entitled. This is, I think, misconduct on her part, such misconduct as prevents her from establishing upon the statute, any claim to equality of right with her husband for the possession of her children. To hold the contrary is to put an end to the long-conceded right of the husband to be the head of his family. If a wife may, in the absence of legal justification, remove herself aud her ehildreu from their father’s domicile, and fix their residence in a place where he may not abide, and still stand before the law upon an equal footing with him as to their custody, then is the headship of the husband and father no longer legally recognized. In my judgment that conclusion should not yet be reached, and this controversy should be decided upon the principle that the father is entitled to have his children, unless their welfare requires that they should be otherwise disposed of.
But, waiving any question of superior right, I proceed to consider whether the happiness and welfare of these children are the more likely to be promoted in the custody of the mother or of the father. And by happiness I do not *751mean the pleasure of remaining with the parent whom they love, as compared with the temporary pain of separation from her, but I mean that more permanent enjoyment of life which attends upon and is almost identical with welfare.
As to the girl, I agree that, for the present, she ought to remain with her mother.
The boy is now over eleven years old, not, perhaps, robust, but of average healthful ness, and, as his aunt says, “ seems to be very smart, reads very nicely, ciphers and writes very nicely, better than most children of his age.” He has therefore reached or is close upon that stage of life when the care and nurture of a mother are less indispensable than the authority and control of a father. It will soon be proper to determine what occupation shall engage his manhood, and to guide his youth with that end in view.
The petitioner is a mechanic and tradesman; a person of at least ordinary education and intelligence, of sobriety, industry and probity, of an affectionate disposition, and having a respectable place in society. By prudent management, he has accumulated a moderate fortune, which supports a well-established business in Jersey City, and out of which he provided, and is able to provide, for his family a good home with every reasonable comfort. He, therefore, possesses those qualities of mind and heart which are likely, under favoring conditions, to center his affections upon this only son, and those habits of thinking and living which are calculated to make him a safe guardian for his boy. He has, also, the means of educating his son, and of establishing him either in his own business, or in some other useful calling. Under his control, this child will enjoy far better opportunities for comfortable success than are afforded to most youths.
The respondent is, perhaps, possessed of somewhat more culture than her husband, and, but for her disregard of wifely duty, I would have no difficulty in believing that she is endowed with those estimable traits which are so common to her sex. She is without means of her own. Her father, *752with whom she has taken up her abode, is a man of good character and standing, but rapidly approaching the allotted limit of life. Besides the respondent, he has another married daughter with children, two married sons with children, and an unmarried son. He seems to have no settled trade or profession. Mrs. English says: “, He was at one time teaming for Droy’s oakum factory, carting oakum, and rope, and other things.” At present, he is superintendent of chemical works. His pecuniary resources are not shown by the evidence, but enough appears to justify the belief that, among all the objects of his bounty, this grandson will not bo likely to receive from him such aid and advancement as his own father can supply.
This statement of the respective positions of the persons concerned, drawn, in considerable measure, from the former opinion of this court, and in the whole warranted by the proofs, strongly inclines me to the judgment that this boy’s prospects in life will be best promoted by committing him to the affection and control of his father. Nor am I unmindful of the advantages of a mother’s influence, nor would I deprive him entirely of it. For, although the custody of this son should be given to the petitioner, yet, in the order of the court, provision should be made for his being a frequent visitor to his mother’s residence, and thus, as far as practicable, her proper influence may be retained.
But it is said that, in a few years hence, the court may conclude to grant what the petitioner now asks. To this delay, however, there are serious objections. The evidence shows that, during the separation of these parents, the love aud respect of the children for their father have cooled, and, from circumstances not necessary to be discussed, they have imbibed (to use the respondent’s words) “a dread and constant fear of seizure and capture ” by him. A continuance of the present relations cannot but intensify these unhappy sentiments, and soon will preclude the possibility of the petitioner’s instilling' into the mind of his son such filial regard as alone can secure to the son the lasting affec*753tion of his father. Then, too, this petitioner, under the advice of most experienced counsel, has suffered the deprivation of his children for years, awaiting the time when, as they judged, an application to the law would be most likely to succeed. At their permission, and with much anxiety, trouble and expense, doubtless, he has now appealed for relief, only to learn that he must still stand alone in the world, expecting the coming of a day, no'one can tell when. If, under this rebuff, he shall withdraw his parental desires and shut up his heart to selfishness, who shall say that he is worse than nature has made many men ?
“Even here I will put off my hope, and keep it No longer for my flatterer; he is drowned Whom thus we stray to find, and the sea mocks Our frustrate search on land. Well, let him go!”
Such a hazard I am not willing to incur.
Nor do the precedents in this and other courts warrant further delay. In State, Baird pros. v. Baird, 6 C. E. Gr. 384, where, as here, the father was seeking from the mother possession of his children, and where, having regard to the best interests of the children, he certainly stood upon no better vantage ground, as compared with his wife’s position, than does this petitioner in relation to this respondent, this court, while leaving with the mother two boys of the age of five and eight years, gave to the father the custody of three others, ten, twelve and fourteen years old. A similar disposition of still younger boys was made in Com. v. Briggs, 16 Pick. 203, and State v. Paine, 4 Humph. 523. I know of no opposing case.
The statute of our state contemplates that, as a rule, a child of seven years should be with its father. Thus both the legislature and the courts have indicated that ordinarily the welfare of a boy .as old as ten years will be best sub-served under his father’s eye. I can find no fact in the character or circumstances of any of these 'parties which should make this case an exception to this wise and natural rule. And if it be for the good of society that lands and *754chattels shall be secured to us under uniform laws that maybe known, much more should our children—these dearest possessions, the ornaments of middle age and the props of declining years—not be arbitrarily torn away.
. There is another consideration not yet adverted to, one, perhaps, not of controlling moment, but, nevertheless, well worthy to be remembered. When, four years ago, this court reversed the chancellor’s d.ecree for the legal separation of these parents, it was hoped that they would be re-united. The father, stripped of every domestic joy, has earnestly and sincerely sought that re-union. It is even now ui’ged against him, by the advisers of the respondent, that this proceeding aims more at the reeovei-y of his wife with her children thaxx of the children alone. The mother, crushing out her wifely love under a sense of wi’ong endured, consoled for what she has given up by the society of her childi’en and her parents, has silently resisted her husband’s desires. That the best interests of these children depend upon the complete rehabilitation of the petitioner’s home, is unmistakable. If this boy be with his father, and this girl be with her mother, both dwelling respectably in the same city, and thex’e be, as there ought, frequent visitation on the pai’t of these children to both parents, this court’s pui’pose of reconciliation may yet be accomplished. What the husband alone has not been able to secure, the husband and son together may bx'ing to pass—the restoration of this x*espondent to a full sense of her duty as a wife and mother.
The decree below, as to the son, should be reversed.
Eor affirmance—Beasley, C. J., Depue, Knapp, Mague, Reed, Scudder, Van Syckel, Clement, Dodd, Green, Lathrop—11. Eor reversal—Dixon—1.