I dissent. The evidence, without conflict, shows that the mother of the child in question decided before it wias born to give it away. The undisputed evidence also shows that ■the then putative father of the child, respondent herein, knew that it was the intention of the mother to give the child away, and that he made no objections thereto either before -or after the birth of the child. Mrs. Phillips, the matron of the hospital where the child was born, testified in part as follows:
“Q'. Did you have any conversation with Mrs. Harrison ■as to the disposition of the baby before its birth? A. Yes, sir; she said the baby was to be given away; that she wanted that I find a home for the baby; that she could not keep it. I asked her to keep the baby. I wanted her to keep the baby. She desired that I should put the baby in /another room. She said she didn’t want to see it. She said that before the baby was born. After the baby was born I placed it in another room. ... I did this at her request. Q. Did you talk to her .at all about keeping the baby? A. I did. I spoke to her in regard to keeping the baby before the baby was born. I said this to her: ‘Keep your baby, yes, keep it. If you give your baby away, you will shed tears and tears over the baby, and your heiart will ache and call for the baby.’ It was my desire that she keep it. She said she wanted it given away. . . . Q. When Mrs. Harker came, state what, if anything, you did with the baby before giving it to Mrs. Harker. A. I went into Mrs. Harrison’s room and asked her if she would not like to see the baby before it was given away. She said yes she would, and I carried the baby in and placed it in her arms. She held it close to her breast and kissed it. - . .. After she held it for a few minutes she opened her arms and said, ‘Here.’ ”
*576Mrs. Harrison, the mother of the child, testified on this, point as follows:
“Q. Do you remember telling the nurse before the child was born that yon didn’t want to see it? A. I don’t remember. Q. Ton may hare said that? A. I don’t remember. I did not tell Mrs. Phillips to take the child in, another room so I could not see it. I could not rest, and she. took it into another room so I could rest. Q. You did know, Mrs. Harrison, that the child would be given away when you went to the hospital. You did know that, didn’t yon? A. Yes, sir. Q. And you went there because you knew it would be given away, and you would conceal what you and your husband had done. . . . You knew that was the best way to conceal it, didn’t you ? A. Well, yes;. I guess I did.”
Mrs. Harrison further testified:
“I let the child go because I did not like my father to-hear about it. My folks did not hear anything about it* and I was going to keep it quiet. Q. Were there any objections when the child was given awa-y? A. No, sir.”
Mr. Harrison, the respondent, on cross-examination, testified:
“Q. Did you know that your wife was going to give away the biaby when she went to the hospital ?' A. That is what she said. ... I thought she was. That is what she said. Q. Did you tell her not to ? A. No, sir.”
It will thus be seen that Mrs. Harrison, of her own volition, and with the consent and approval of the child’s then putative father, voluntarily relinquished her right to the care, custody, and control of the child, with the intention,, deliberately formed on her part, of never reclaiming it from the parties into whose custody it was placed, and in pursuance of an arrangement she had made with Mrs. Phillips before the child was born.
The court, among other things, found:
“That at the time the sa-id Ella Harrison instructed said Mrs. Phillips to ‘'give’ said child away, she was. to a cer*577tain degree, tinder the influence of an anaesthetic administered to her at the time of her confinement.”
I respectfully submit that there is not a scintilla of evidence in the record that supports, or tends in the remotest degree to support, that finding. On the contrary, the evidence without conflict shows that - Mrs. Harrison was not in any degree under the influence of an anaesthetic at the time she requested Mrs. Phillips “to give, the child to some responsible person” as found by the court. Mrs. Harrison, on direct examination, in answer to a question propounded by counsel for respondent stated:
“She (Mrs. Phillips) knew what I went there for. She knew, of course — I knew, of course, the child would be given away. Tes; I knew it would be given away.”
The record shows that both Mr. and Mrs. Harker are thirty-six years of age; that they, financially, are well to do people. Mr. HarkePs testimony asfio this, which is not disputed, is:
“I reside at Taylorsville (Utah). I have lived there about thirty-six years. I own my home. I own land of my own. My principal business is dairying. I own my own stock and cows.- My income from my dairy business and farm, I should judge, will average the year round fifty-five dollars a month clear, aside from what we consume.”
No claim is made that the Harkers are not fit and proper persons to have the care and custody of the child. In fact, I do not think that any pea-son can read the record in this case without being impressed, if not convinced, that they are .honest, truthful, moral, frugal, industrious, and thrifty people, and in every respect model citizens. Last, but not least-, the record shows afirnnatively that they are kindhearted and sympathetic, and that they are very much attached to the child. They received the child and took it into their home about nine or ten hours after it was born. The next day they discovered that the child’s eyes were sorely afflicted. This affliction lasted about ten weeks, during which time the child was nearly blind. They employed *578a physician to treat the child’s eyes. They also procured the services of a trained nurse to help take care of the child during the first ten days of its illness. Later on the child came down with the measles, and they again secured the services of a doctor, who prescribed for and gave it medical attention during its illness. Immediately on taking the child to their home they consulted the board of health and a doctor as to the kind of food or diet that would be suitable for the infant. Mr. Harber testified regarding the watchful care they gave, and are still giving, the child, as follows:
“We have nursed the child night and day, tried to do our best for it, and gave the little thing the best we had. We had to feed it first regularly about every two hours night and day; now we are feeding it on retiring about seven o’clock, and then we feed it twice in the night and the first thing in the morning.”
Further:
“If we have the luck to keep' the child and raise it, it is my intention that it shall share equal — if we have good fortune enough to have other children, it shall share equal, and, if we do not have any others, the child shall fall heir to all I have.”
Mrs.' Ilarker’s testimony regarding the child’s illness and the care and attention given it was substantially the same as that given by her husband. She further testified:
“I have been a nurse ever since I was fourteen years of age. Nursing has been my occupation' — taking care of newborn babies and nursing them. Q. If you .are allowed to keep the child, is it your desire and feeling that you maintain, support, and take care of the child? A. Tes; to the best of my ability. Q. To educate it? A. Tes. Q. And will it share in your property the same as your own child? A. Yes; that is what we got it for. Yes, sir; thei’e is no hope of any family. That is what we got it for.”
On reviewing the evidence bearing upon the general character of Mr. Harrison, respondent herein, and his conduct towards and treatment of the child land its mother, I shall refer to the different incidents, facts, and events relating *579tbez'eto in tbe chronological order in which they occurred, rather than the order in which they were presented to the trial court. It developed at the trial that Mr. Harrison, respondent herein, is the father of at least one other child bom out of wedlock. It is held in the prevailing opinion, written by Mr. Justice Frick: (1) That the evidence introduced establishing this fact was incompetent; (2) that the evidence, under the rulings of the court, was excluded; and (3) that the question in response to which the evidence establishing the fact was given was withdrawn by counsel who propounded the question. I cannot agree with my Brethren as to either of these propositions. Since our views regarding this point in the case are so much at variance, I herewith insert in substance the testimony as given by the witness, the remarks of counsel, and the rulings of the court as contained in the bill of exceptions. After the witness had given his name as David A. Shields, and testified that he is forty-eight years old, has lived in South Jordan, Utah, ail his life, is and has been for fifteen years acquainted with respondent, and that his farm adjoins that of Mr. Harrison, the boundary line between them being the Jordan river, tbe record continues:
“Q. Have you been in more or less close communication with him during the time you have known him ? A. Well, no sir; don’t have very much with lfim, only just as a neighbor. That is all. Q. Do you know what his reputation is as far as integrity and morality ?
‘‘Counsel for respondent: I object to the question as not being proper, not being in the proper form.
“The Court: Well, it is not if he has completed the question. Of course he should limit it to some locality and not leave that up in the air.
“Counsel for appellant: I will limit it to the locality in which he lives.
“Counsel for respondent: If I may suggest, you can only inquire; if I understand the law, as to the general reputation, wMch you did not do.
*580“The Court: That is correct. It should cover his general reputation.
“Counsel for appellant: I mean his general reputation.
“The Witness: Well, not a very good one, as far as I am concerned.
“Q. You say, as far as you are concerned? A. No, sir; he has put me to a lot of trouble and expense. Q. In what respect? A. Well, I had a daughter had a child by him.
“Counsel for respondent: Object to this examination as immaterial, irrelevant, and incompetent.
“The Court: Sustained.
“Counsel for appellant: Exception.
“Q. You say you know his general reputation? A. Yes, sir; in that respect. Q. Well, now just explain to the court in what respect you mean.
“Counsel for respondent: We object to that last question as calling for particular circumstances, and counsel has no right only to examine as to his general reputation.
“The Court: You are correct. In the first instance that is what the question should be limited to. ... I think you are limited to the general reputation.
“Q. I will ask you, Mr. Shields, to explain what you know of his general rep-utation.
“The Court (addressing counsel) : Now, Mr. Stokes, I think the question should be limited to whether this witness knows the general reputation in the community, and as to that, if he answers yes, you could ask whether it is good or bad. I think that is the extent of your direct examination. . . .
“Counsel for appellant: I will withdraw the question. I think your honor is correct on that point.”
It will be noticed that no objection was made to the answer of Shields to the question, “Do you know his general reputation in the locality where he lives for integrity and morality ?” on the ground that the answer was not responsive to the question. The two questions following the one just mentioned indicated that improper testimony as to *581reputation would be elicited from the witness; but counsel for respondent, nevertheless, remained silent and made no objections until after the questions were answered. Nor did be request the court to strike out this damaging evidence to his client. It will also be noticed that the question withdrawn by counsel for appellants was the one twice propounded to the witness after the testimony in question was given. The evidence that he is the father of another illegitimate child whom he had neglected and left for others to support is therefore in the record and before this court for consideration in connection with other evidence in the case. Jones on Evidence, section 898. In this class of cases, the interest of the child being of controlling importance; great latitude is allowed in the introduction of evidence.
“The court is not restricted to ordinary methods of trial, or hound down by any particular form of proceedings.” 29 Cyc. 1604.
Where a mother gives away her illegitimate child, with the approval of the child’s father, a few hours after it is bom, as was done by Mrs. Harrison in the case at bar, and the child is thereby in effect cast off and abandoned by its parents, and other parties receive the child, with the intention of adopting and rearing it as their own, care for and nurse it for nine months, and the father then by legal proceedings seeks to recover possession of the child, the inquiry is not confined to the question of whether the father is able to care for and support the child, and is a proper person to have the care and custody of it. In such case the primary, important, vital, and controlling question is: Would the social, moral, physical, and educational training of the child be best promoted by leaving it with its foster parents, or by giving it into the custody of its natural parents? (Stanford v. Gray, 42 Utah, 228, 129 Pac. 423; Hummel v. Parrish, 43 Utah, 373, 134 Pac. 898; Ex parte Swall (Nev.) 134 Pac. 96; Nugent v. Powel, 4 Wyo. 173, 33 Pac. 23, 20 L. R. A. 199, 62 Am. St. Rep. 17; 2 Bish. Mar. Div. & Sep. 1171.)
*582In the case of Schneider v. Schwabe, recently decided by the Texas Court of Civil Appeals, 143 S. W. 265, the court said:
“While recognizing the natural right that parents have to their custody of their children, the children have rights that are higher and of more importance to state and society than the naked right of parents to their custody. ... No sentimentality should attend a proceeding of this character; hut the permanent interest and welfare of the child should he the great aim and end to be attained.” (Italics mine.)
In determining this question, the court will consider the habits and disposition of the parties to the action, the affection or lack of affection they, or either of them, have shown for the child, the care and treatment it has received in the past and would likely receive in the future at their hands, ihe social and moral influences with which the child is and has been surrounded in its present home, and what those influences would likely be in case it should be given to its natural parent. The moral character of the parties may also be shown, and, in proving character in this class of cases, the evidence is not necessarily confined to general reputation for morality or immorality as the case may be. Evidence of particular acts showing moral turpitude is admissible. In Bonney v. Bonney (Ky.) 9 S. W. 404, the court, in taking a little child from the custody of the father and giving it into the custody of the mother, based the order or judgment on one particular act of “grossly immoral and indecent conduct on the streets” by the father. (Garner v. Gordon, 41 Ind. 92.) If Harrison on .another occasion had wronged, debauched, and ruined an innocent, trusting girl, and as a result of his illicit criminal relations with her a child was born out of wedlock, which he has failed to care for and support, or to contribute to its support — and the record as it now stands shows such to be the case — under wha¿t rule of law can it be successfully urged that this transaction, in which is blended the breach of a high moral duty and the infraction of a penal statute, may not be shown by evidence and be considered by the court for the purpose of *583establishing and determining the kind and character of a man he is ? Putting the proposition in another form: Under what principle of justice, rule of equity, law, or procedure, may he, in >a proceeding of this kind, where his character and manhood are vital issues, claim the right to have these moral delinquencies suppressed ,and withheld from the court — breaches of moral and legal duty, which 1 contend are the very best kind of evidence of his character viewed from the standpoint of morals? It must be conceded that if he were the father of a child bom in lawful wedlock, whom he had east away and abandoned, as he did the child in -controversy, and had failed to provide or secure it a home, had failed to support or to contribute to its support, evidence of such breach of moral and legal duty would be admissible. Such evidence would have a direct bearing on the question of whether it would be to the interest of the child’s parent and future welfare to take it from under the kind and loving care of the Harkers, where it is surrounded with congenial family influences so necessary to its social, moral, and intellectual training, and give it into the custody of the respondent, who had been thus derelict in his duty to his other child. His moral duty to provide for the support of his illegitimate child, and to see that it is provided with a home, properly reared, and educated, is just as great as it would be if the child had been born in lawful wedlock. This being so, how can it be consistently held that evidence of his derelictions of duty to his illegitimate child is not admissible as evidence, but, if the child had been born in lawful wedlock, such evidence would be admissible? To illustrate: Suppose that in a controversy of this kind the natural parent should be addicted to the excessive use of narcotics, and should be what is commonly called a “dope fiend,” or that he is the father of other children whom he has willfully neglected to provide with the common necessaries of life, or that he has a violent and uncontrollable temper, and has on numerous occasions cruelly and brutally beaten and otherwise illtreated his children; may not these facts be shown by direct evidence? First, *584that be is .addicted to tbe use of drugs; second, that be bas willfully neglected to provide bis children with tbe common necessaries of life; and, third, that be bas on numerous occasions cruelly and brutally beaten and otherwise illtreated them. Such evidence would be admissible, as it would have a direct bearing on tbe question of whether the parent is a fit or unfit person to have tbe custody of bis child. ' And 1 venture tbe statement that there is not a well-considered decision that bolds to tbe contrary. Tbe evidence of Shields was therefore admissible for tbe purpose of showing that respondent is tbe father of another illegitimate child whom be bas deserted and abandoned. In bis supplemental opinion Mr. Justice Frick observes that:
“When it is sought to prove a hahit, such as drunkenness, the courts, of course, permit evidence of individual instances, since that is practically the only way the hahit may be shown.”
If this is sound doctrine, and it must be conceded that it is, then why may it not be shown, in a case of this kind, where a parent seeks to recover bis illegitimate child whom be bas deserted and abandoned, that be is tbe father of another illegitimate child whom be bas also deserted and abandoned, by direct evidence of tbe fact? It is tbe only way it can be proved. I recognize tbe general rule that, where tbe character of a party to an action is collaterally put in issue, specific acts or omissions bearing upon tbe question of character are not admissible; but in cases of this bind, where tbe character of tbe parties to tbe action is one of tbe vital or main issues in the case, a more liberal rule obtains as to tbe introduction of evidence.
It is stated in tbe prevailing opinion that I base my “conclusion that Mr. Harrison is an unfit person to have tbe custody and control of bis child upon one statement made by tbe witness Shields.” This is an error. How it is possible for a person to read my opinion and arrive at any such conclusion is to me incomprehensible. What I do say is, that tbe evidence of Shields was neither withdrawn nor stricken, and hence is before this court, and may be con*585sidered in connection with other evidence in determining whether it would be for the best interest of the child to remain with its foster parents or be given to respondent. It, however, is not a vital element in the case. It neither adds to nor detracts from the perfidy of respondent in his conduct towards and his treatment of the child in permitting it to be born out of wedlock and then willfully neglecting and abandoning it.
Assuming for the sake of the argument — but not conceding — that the evidence of Shields was incompetent and inadmissible for any purpose, and that it should not be considered, yet the evidence shows that respondent is woefully lacking in moral fiber. His conduct towards and neglect of his wife from the time he learned of her delicate condition, caused by his illicit criminal relations with her until they were married, were so dishonest and reprehensible, and his conduct towards the child in casting it away and in effect abandoning it when it was bom, and his indifference to and coldness for it ever since, shows that, if he is not wholly unfit to have the care and custody of it, at least that it would be for the best interest of the child for it to remain with the Harters, and especially so when considered with the other evidence in the case. As an excuse for his failure to atone, so far as it lay in his power, to Mrs. Harrison for the irreparable wrong he did her before they were married, when he learned of her delicate condition, which was, so he testified, “quite a few months before” the child was born, he said:
“I had offered to marry Mrs. Harrison before the child was born. I permitted this arrangement to protect her own reputation with her own folks. I worried about it.”
These statements were made on his redirect examination, and they were all suggested by the questions asked him by his counsel. The record all but conclusively shows that his statement that he offered to marry Mrs. Harrison before the child was born was an afterthought suggested by his counsel, and that he never made any such offer. Before he made the statement he testified as follows:
*586“Q. Now tell the court whether or not there was anything in the way of your getting married before the child was born? A. No, sir; not a thing. Q. Not a solitary thing ? A. There was nothing to stop my getting married, except she said to keep it from her father, nothing in the world.”
I will here observe, parenthetically, that this is evidently the testimony upon which the statement made in the prevailing opinion that “prior to July, 1911, the respondent and Ella, his wife, were lovers and engaged to be married” is based, because it is the only evidence in the record on the question of their intention or lack of intention to get married before the child was born, except the emphatic denials made by Mrs. Harrison that before the child was born they had no intention of getting married. Mrs. Harrison, in giving her testimony, said :
“Q. He (respondent) knew your condition before you went there (to the hospital) . . . knew it some months prior to that time, didn’t he? A. Yes, sir. Q. And you and he talked the matter over .about concealing it, didn’t you? A. No, sir; we didn’t. Q. You never talked it over? A. N>, sir; we didn’t. Q. He could have married you before that time and took care of the child, couldn’t he f A. Yes. Q. There is no reason in the world why he should not have done that, is there, Mrs. Harrison? A. I think not.”
This evidence alone is sufficient to brand respondent’s statement that he offered to marry Mrs. Harrison-before the child was born as a falsehood. Mrs. Harrison, in giving her testimony, said that her object in going to this private hospital, and in giving her child away immediately after it was born, was to “keep it quiet” and thereby prevent her father from learning of her shame; but nowhere in her testimony can be found an expression that suggests, or even hints, that Harrison offered to marry her, or that she objected to him marrying her, or that the subject was ever mentioned by either of them before the child was bom. The claim made by respondent that he did not marry the girl when he learned *587■of ber delicate condition, and took no steps and made no effort to protect and to provide for tbe child when it was born, was because be wanted to keep tbe fact of its birth from ber father, is so puerile and, as tbis record shows, basely false that I would not give tbe matter further consideration, were it not that it is referred to in tbe prevailing opinion, and there apparently given some weight. Tbe fact is be neither desired nor intended to marry tbe girl. These parties were twenty-four years of age. -Tbe girl bad left ber father’s home and was living with ber aunt, presumably supporting herself. There was therefore no legal impediment whatever preventing him from marrying tbe girl either before or after be accomplished ber ruin. While Mrs. Harrison testified that it was not their intention “to be married befpre tbe child was born,” she nevertheless testified that “be could have married me before that .and taken care of tbe child.” And, again, that there was “no reason in tbe world why be should not have done that.” That the girl’s father was not even a silent factor in these transactions, and that Harrison, because of him, was not in tbe remotest degree influenced in bis despicable conduct toward tbe girl and ber child, I think, is too plain to admit of serious discussion. He knew that be had violated a penal statute of this state, and he no doubt fully realized that if bis offense became known the matter would be investigated, and be probably would either be compelled to marry the girl or suffer imprisonment, hence his “wonw.” I think the conclusion is. also irresistible that, if it were not for the interest that the girl’s, aunt, Mrs. S'ilcoeks, took in hex welfare, respondent would never have taken any steps or made any move to atone to the girl for the great wrong he had done her. It was the aunt, not.the parent, who went with t-he girl to the home of the Harkers three weeks after the child was given away and induced her to demand of them the return of the child. From the Harkers she went with the girl to see respondent. I think it may be fairly said that it was because of what occurred between Mrs. Silcocks and Harrison on that occasion that induced, or rather forced, him to marry *588the girl, which he did in less than a week thereafter. It seems that in all of these transactions the girl’s father was entirely ignored. In fact, 1 think the record justifies the conclusion that the only interest respondent has ever had or shown in his wife’s father was to- use his name in formulating excuses for his perfidy to the child and to- Mrs. Harrison before the marriage took place. On cross-examination respondent testified:
“Q. Did you ever talk to her father? A. No, sir. Q. Never had a word with him ? A. I just met him is all. . . . Q. You never had any conversation with the father at all ? A. No, sir. Q. You don’t know whether he would or would not object to your marrying the girl? A. I don’t know whether he would or not.”
It thus appears that, in matters usually of the greatest importance to a parent who has a daughter about to enter the marriage relation, respondent showed less respect, courtesy, and regard for the girl’s father than one neighbor would ordinarily show to- another in the common everyday affairs of life. Moreover, the marriage was not entered into by him because of any desire on his part to legitimate the child and , then later on recover possession of it. Mrs. Harrison, on direct examination, was asked the following question by respondent’s counsel: “You may state if it was your intention to get the child at the time you were married.” And she answered, “I cannot answer that.” A few days after he and Mrs. Harrison were married respondent met the Harkers at the hospital where the child was born. Mrs. Phillips, a disinterested witness, testified that on that occasion Harrison stated to- the Harkers that “he didn’t want the baby, neither did his wife want it.” Both Mr. and Mrs. Harker testified to the same thing. Harrison denied making any such a statement. He admitted, however, that he made no demand on them for the child. He also admitted that he stated to the Harkers that he did not want Mrs. Silcocks to have the care and custody of the child. He further admitted that he made- no demand on the Harkers for the return of the child until ten months after *589it was given away. I submit that taking into consideration the character of tbe witnesses and their manner of testifying, as shown by the record, the great preponderance, in fact the overwhelming weight, of the evidence shows respondent made the statements attributed to him by Mrs. Phillips and the Hankers. Moreover, his neglect of the child and his cold indifference to its welfare from the time it was born until the tidal of the case, I think, conclusively shows that he has no love or affection whatever for it. Mrs. Harrison informed him three days after the child was born that it had been given to parties residing in Taylorsville, ánd he did not care enough about the child to even inquire who the parties were. Three weeks later he learned that the child had been given to the Hankers, and that it was afflicted with sore eyes; hut he never called to see it, and there is not a scintilla, of evidence in the record that indicates that he ever made any inquiry about it. In fact it appears that when he and Mrs. Harrison were married, and he no longer was in danger of being criminally prosecuted, he ceased “worrying” about her and the child.
It is suggested that when the judgment of the trial court goes into effect, and the child is taken to the home of the Harrisons, its mother will give it the proper care and attention and surround it with wholesome moral influences, educate .and bring it up as children should he reared and educated, and that its environments and the influences surrounding it will he as elevating, if not more so, than those with which it is now surrounded. I respectfully submit that this record does not justify any such conclusion.
It is said in the prevailing opinion that prior to the birth of the child respondent and Mrs. Harrison “were lovers and engaged to he married.” As I read the "record there is absolutely no evidence whatever showing, or tending to show, that they were engaged to he married before the child was bom. And I submit that the evidence does not justify even an inference that they were in love with each other. Mrs. Hairrison, on direct examination, testified concerning the *590understanding, or rather lack of understanding, between ber and respondent about getting married as follows:
“Q. You may state whether it was your intention to be married before the child was born? A. No, sir; it was not.”
And again, on cross-examination, she said:
“It was not our intention to get married before the child was born.”
Assuming for the sake of argument that they were, prior to the birth of the child, in love with each other and engaged to be married, their failure to get married, and permitting the child to be born out of wedlock, the giving of it away, and sending it out into the world a nameless waif, their lack of interest in the child and its welfare, and their indifference to its fate for nearly a year thereafter, were unnatural. Their conduct in that regard was contrary to the natural emotions, impulses, instincts', attributes, and sense of right of parents who have any affection whatever for each other, or for their offspring, and who have any conception or regard for the moral obligations they are under to shield, properly care for, and support their helpless children. ■ It is evident, regardless of whether they were sweethearts and engaged to be married or not, that Mrs. Harrison is a woman of weak moral convictions, and that she is deficient in the natural instincts and attributes of her sex that exalt and sanctify motherhood. Otherwise she would not, without protest, have consented that the child be born out of wedlock. Nor could she, in the presence of the infant, and in face of the kind, persuasive, urgent, and forceful appeals made to her by the nurse, Mrs. Phillips, to keep the baby, have given it away, which she did apparently without any feeling or remorse, and with less regret than a young woman would have given away a pet animal to which she had become attached. While Mrs. Harrison is to be pitied more than blamed for her weakness and indiscretions, yet I cannot permit sympathy .and compassion for her to sway or warp my judgment to the prejudice of the legal and equitable rights of the child. In its present home the child, a girl, will be *591under tbe constant, watchful, tender, and loving care of Mrs. Harker, the only mother it has ever known. And I think that this record shows, tested 'by the love and affection now being bestowed upon the child as compared to what it will receive in the home of the‘Harrisons, Mrs. Harker is the only real mother it will ever know. The record shows, so far as it is possible for a record to reflect the intelligence, refinement, and general disposition and character of a per-' son, that Mrs.. Harker is a woman of high ideals, refined, kind-hearted, sympathetic, and a lady in all that the term implies. In fact, the only conclusion permissible from the record is that she is an exemplai’y woman in every respect.
The effects of environment even on a woman of strong character and high ideals, situated ns Mrs. Harrison is, are well illustrated by the following lines:
“As tlie husband is, the wife is. Thou art mated with a clown, And the grossness of his nature will have weight to drag you down.
“He will hold thee, when his passion shall have spent its novel force,
Something better than his dog, a little dearer than his horse.”
The record in this case shows that the respondent, in the affection and consideration, or rather lack of both, which he has shown for his wife and child, falls far below the standard of the coarse dominant character so graphically portrayed in the foregoing- couplets. The evidence clearly shows that respondent has exhibited less concern and solicitude for his wife and child than men ordinary do- for pet animals. I think the presumption may be safely indulged that he would not have neglected a valuable horse that needed care and attention as he neglected the woman he so grievously wronged, and that he would not have given away ■and abandoned any kind of a domestic animal of value as he gave away and abandoned his child. In the treatment of his wife before he married her, and by his willful neglect and abandonment of the child from the time it was horn until he made a demand on the Markers for its return ten months thereafter, he showed a ruthless disregard and con*592tempt for the moral law, both human and divine, that bordered on degeneracy.
“But if any provide not for his own, and especially for those of his own house, he hath denied the faith and is worse than an infidel.” 1 Tim. v, 8.
[Respondent not only failed to provide “for his own” offspring, but declines to compensate the Harkers for the expense and trouble they have been put to in caring for and nursing the child. I shall pass by the seventh commandment and the numerous expressions in holy writ in which a kindred offense is condemned and denounced, because I am assuming, but not for one moment conceding, that in all cases of this kind evidence of the breaking of the seventh commandment and commission of like or kindred offenses condemned by holy writ and denounced as crimes by our Penal Code is incompetent and inadmissible to prove moral character even where, as in this case, an illegitimate child is bom and then deserted and abandoned by its parent.
It is suggested that the demand made by Mrs. Harrison three Aveeks after the child was given away and in effect abandoned was a revocation of the gift, and that it was the legal duty of the Harkers to deliver the child to her. Later on I shall refer to the circumstances and conditions under which the demand was made, and point out wherein I think the Harkers were legally and morally justified in refusing to give up the child. For the present I shall assume, for the sake of argument only, that the demand made by Mrs. Harrison for the possession of the child revoked the gift, and that she was legally entitled to have it returned to her. The refusal of the Harkers to deliver the child to its mother was not a wrong committed «gainst respondent. The demand was not made at his request, with his knowledge, in his name, or in his behalf. Mrs. Harrison testified:
“We were not married at this time. I had not seen him since I left the hospital. I had not consulted with him about getting the child.”
*593Despondent also testified to the same thing. He had. dono nothing to legitimate the child. Nor had he done or said •anything that indicated or suggested that he intended to •adopt it. Therefore he was neither morally nor legally entitled to the custody of the child. (Sections 4 and 10, tit. 2, C. L. 1907; 2 Bishop, Mar. Div. & Sep. section 1172.) Moreover, there is no allegation in the complaint that the action is brought for or in behalf of Mrs. Harrison. She is not, therefore, in a legal sense, either directly or indirectly a party to the action; hence respondent cannot predicate ■■any legal or equitable right upon the demand made by her. Further along in the opinion I shall again refer to respondent’s claim of right to the custody of the child and point out wherein he cannot, in -view of the admitted facts, maintain this action under either the statutes or the common law. Eespondent, a few days after he and Mrs. Harrison were married, met the Harkers at the hospital in which the child was born and engaged in a friendly conversation about the •child. On that occasion he made no demand for the return ■of the child, nor did he even suggest to the Harkers that he desired them to give it up. But, on the contrary, as I have hereinbefore stated, the overwhelming weight of the evidence is that he there told the Harkers that neither he nor his wife wanted the child. On cross-examination respondent-testified :
“Q. Did you ask them for the child at that time? A. No, sir. Q. Did you say anything to them at that time about adoption papers ? A. They said they had seen John M. Cannon (attorney at law), and they were going to have papers fixed up; they were going to sign them. Q. What ■did you say? A. I don’t remember saying anything to them. Don’t remember saying anything to them.”
The evidence shows, in fact it is conceded, that Mrs. Harrison went 'to the hospital July 16> 1911, and that the child was bom the following day; that she was in the hospital three weeks only,’and from the hospital she went to the home of her aunt. In other words, she went to live with her *594aunt about August 5th. She and respondent were married August 1I, 1911; the marriage taking place in the city and county building of this city. It seems that the bride’s father was not present. In fact the record affirmatively shows that respondent did not consult him at all about the matter, notwithstanding he claims 'that it was because of the great respect that he and his wife had for the feelings of her father that caused him to permit the child to be born out of wedlock, given away, and in effect abandoned by its mother. I have again referred to this phase of the case because it all but conclusively shows that the excuse he gives for not marrying the girl in time to protect both her and the child is a silly subterfuge.
Mrs. Harrison took sick in September. During her illness she remained with and was cared for by her aunt. In October she became convalescent, “was able to be up and around,” left the home of her aunt and went to Orescent, where she and respondent began “keeping, house.” I refer to these facts because they completely refute the claim made by respondent that the bringing of the action was delayed on account of Mrs. Harrison's ill health.
Reference is made to the stem and harsh manner in which Mrs. Harrison, in her testimony, claims Mr. Harker received and treated her when she, in company with her aunt, Mrs. Silcocks, called at the Harker home and demanded the return of the child to her about four weeks after it was born. Mrs. Harrison, on her direct examination, testified as to what Mr. Hanker said to her on that occasion as follows :
“He would not talk to me civilly. He told me I would not get the child; could not have it. Said I was not entitled to it, and should not have it.”
On cross-examination she said Mr. Harker “talked to me cross ¡and crabbed, insulting me.”
Mrs. Silcocks testified concerning what Mr. Harrison said as follows:
“Q. Oan you state what the conversation was ? A. . . . He said she could not have it, . . . she wasn’t able to take care of it. Q. Did she say at that time anything about who *595the child was — who its parents were ? A. Well, not exactly. He said that she should not have the baby; she wasn’t a fit mother for it. This is in substance about all that was said at that time.”
Of course. Mrs. Harrison was entitled to courteous and ■civil treatment, and that Mr. Harker should have accorded her such treatment no one will deny or even question. In view of the facts and circumstances under which the fore.going statements were made, can it be said that they amount to such a breach of decorum on the part of Mr. Harker and are of such .a serious character as to indicate that he is not a proper person to have, in connection with his wife, the care and custody of the child? It is apparent that it was because of the interest he had in the child rather than any ill will towards Mrs. Harrison that caused him to be emphatic and stern in this matter. The reasons he gave for not complying with her demand for the child, namely, that “she was not able to take care of it,” and that “she wasn’t a fit mother for it,” were about the only legal reasons he ■could give. Mr. Harker testified that he asked Mrs. Harrison the following question: “Why didn’t you do the right thing and go and get married before that child was bom?” and that she did not answer or attempt to answer the question. This was a pertinent and proper question. Mr. Harker was, under the circumstances, entitled to know whether she willingly or unwillingly permitted the child to be born out of wedlock. If it were her desire to get married before the child was born, but was prevented from so doing because of respondent’s refusal to enter the marriage relation with her, something might be said in. extenuation of her conduct in giving away and abandoning the child. It may be fairly inferred from the admitted facts in the case that the principal reason why these parties did not get married in' time to legitimate the child was that neither of them was willing to assume the cares, duties, and responsibilities of the marriage relation, hence Mrs. Harrison’s failure to answer the question propounded to her by Mr. Harker. It is ■ admitted that Mrs. Harrison gave the child away a feAV *596hours after it was born to' prevent the illicit and unlawful relations that had existed between herself and respondent from becoming known to others. And she did this with at least the tacit acquiescence and approval of respondent. These facts alone ought to be sufficient to bar forever both respondent and Mrs. Harrison from getting possession of the child. What assurance have we that they would not again desert and abandon the child if at any time they should be of the opinion that it would be to their personal interests to do so ? Certainly this record furnishes none.
Respondent testified that, when he made his last visit to the Harkers and demanded from them the custody of the child, he stated to Mr. Harker, “I thought I would be a. man and come and tell you that we are going to proceed and see if we could not get the child.” Mr. Harker testified concerning that interview >as follows:
“I said: ‘Mr. Harrison, it was an understood thing when you went to that hospital that the child was to be given away, and you didn’t care whether it got a home or lived or died, or what became of it, so long as it covered up your crime." And he said: ‘No, sir; I didn’t. But I have changed my mind now. I will show you I am white.’ ”
Reference is made to the foregoing remarks of Mr. Harker as being unduly harsh and severe. Mr. Harker said nothing more than what the testimony of Mrs. Harrison, coupled with the conduct and admissions of respondent, shows to be the fact. From the time the child was bom until respondent, in company with Mrs. Harrison, called at the Harker home ten months thereafter, he was entirely indifferent as to the fate of the child. He was advised by Mrs. Harrison three or four weeks after the child was born that it was dangerously ill, but did not call to see- it, and'the only conclusion permissible under this record is that he made no inquiry concerning the child. During this time neither respondent nor Mrs. Harrison furnished the child with any clothing, nor did they on Christmas even send it a toy or make it <a gift of any kind. They cannot excuse this indifference because of any supposed resentment of Mr. Harker to*597wards them, because tbe undisputed evidence shows that when they called to see the child about two weeks before respondent made a demand for its return they were hospitably received and kindly treated by the Iiarkers.
Two witnesses, who have known Harrison in the community where he resides and has resided since he was a boy, testified that his reputation for being an upright and moral man is good. It does not appear how many innocent girls it would be necessary for a man to debauch and ruin before these witnesses would regard him as a man of questionable moral character. It is quite evident that one, and probably two, would not be sufficient Nor does it appear how many illegitimate children a man must be the father of and willfully abandon, leaving them to others to protect, care for, and support, before the witnesses would question his integrity or uprightness as a man. It seems that one, and probably two, are not enough. This, however, has but little, if any, bearing on the case because the evidence of any number of witnesses could not in the face of the admitted fact in this case, make an upright and moral man of him. As I have pointed out., the Harrisons decided before the child was bom that it should be given away. This plan they deliberately and voluntarily carried out. And the record justifies the conclusion that it was their intention that the transaction of thus getting rid of the child should be conducted in such manner or way as not to reveal to the party receiving the child who the parents were, and to keep from the parents the name of the party talcing the child. Mrs. Harker testified that when she received the child she asked Mrs. Phillips, “May I see the girl (Mrs. Harrison) ?” and that Mrs. Phillips answered, “No; she does not want to be seen.” She then continued, “I asked her name, and she (Mrs; Phillips) said .she had refused to give it.” Mrs. Harker further testified: “I saw Mrs. Harrison somewhere between four and five weeks after. She came to my home. . . . I asked her how she found out, and she said, I overheard Mr. Smith introduce you to the nurse as Mrs. Harker.’ ” David Harker testified that he and Mrs. Harkei’ *598■called at the hospital about four or five weeks after they received the child; that they “went there to> fmd the name of the . . . parents of the child.” The disposition made of the child was, under the circumstances, as much a waiver and relinquishment by its parents of their right to its custody, and as complete an abandonment of it, as it would be if they had gone in person in the silent hours of the night and quietly placed the child on the doorstep of the Harter home ;and left it there, without any intention of ever returning for it. Abandonment consists of “an act of a parent in exposing an infant in any place with intent to wholly desert it.” (Anderson’s Law Dictionary, 4.) In Black’s Law Dictionary abandon is defined as follows: “To desert, surrender, relinquish, give up, or cede.” Webster defines abandonment as “the act of abandoning or the state of being abandoned: Total desertion; relinquishment. The voluntary leaving of a person to whom one is bound by a special relation as & wife, husband, or child.” See, also, Gay v. State, 105 Ga. 599, 31 S. E. 569, 70 Am. St. Rep. 68.
The great weight of modern authority holds that where a parent abandons his infant child, or by agreement or gift relinquishes and surrenders its custody to another without limitation or condition, as was done by respondent and his wife in this ease, and thereafter brings an action to recover possession of the child, the- primary question, the one of paramount importance, is the present interests and future Avelfare of the child. In such cases the law, speaking for the child, says to the parent:
“Since you have abandoned the child, or otherwise voluntarily divested yourself of its custody and permitted others to provide it with a home, maintain, clothe, feed and care for it as their own, the child’s interest and not your desires ■or your mere naked legal rights shall control and direct the discretion of the court in the premises.”
If it appears that the “physical, intellectual, social, moral, ■and educational training and general welfare and happiness of the child will be best promoted by leaving it with its foster parents, the presumptive right of the natural parents must *599yield to tbe interest of the child.” (Stanford v. Gray; Hummel v. Parrish, supra.) And the custody of the foster parents will, be treated as lawful, and will not be disturbed. In Schroeder v. Filbert, 41 Neb. 745, 60 N. W. 89, the court said:
“The doctrine of this court is that in a controversy for the custody of an infant of tender years the court will consider the best interests of the child, and will make such order for its custody as will be for its welfare, without any reference to the wishes of the parties.”
In Legate v. Legate, 87 Tex. 248, 28 S. W. 281, the court, in the course of the opinion, says:
“Where ... a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child, . . . the court will not grant the relief unless, upon a hearing of all the facts, it is of the opinion that the best interests of the child would be promoted thereby. . . . The law does not prohibit such a transfer, but, on the contrary, allows the child to reap the benefit thereof when it is to its interests so to do.”
And tbe legal rights of a child three weeks old, in this regard, are just as sacred in the eyes of the law as those of a child three years or even ten years of age. When a parent voluntarily and deliberately divests himself of the control and custody of his infant child by delivering it into the custody of another, with the intention that such change of custody shall be permanent, the legal right of the child to have its interest and welfare considered by the court as the paramount and controlling question in all controversies that may thereafter arise between its foster and natural parents regarding. its custody attaches the moment such change of custody takes place, and is complete regardless of the age of the child. It cannot be held, without abrogating this rule, that the rights of children from three to ten: years of age are any broader or more sacred in this regard than the rights of infants from one day to three years. There is no rule or principle of law that holds that the rights of a child ten years *600•of age are any more sacred than the rights of an infant but a few hours old. It therefore necessarily follows that when the Harkers received the child in question at the hospital. • and took it to their home, under the circumstances as shown by the record in this case, the change of custody was as complete as it would be if they were allowed to retain the custody of the child until it was eight or ten years of age.
There were two demands made on the Harkers for -the • child. The first demand was made by Mrs. Harrison about four weeks after the child was bom, and the other demand was made by respondent about ten months later. The first •demand was made before respondent .and Mrs. Harrison were married. And there is not a scintilla of evidence tending to show that they intended, or ever had intended, to get married. Mrs. Harrison had no home of her own, was in poor health, and at the time was living with her aunt, who was taking “care of her.” The undisputed evidence shows that Mrs. Silcocks, who did most of the talking on that occa•sion, stated that Mrs. Harrison was an orphan, and that •she, Mrs. Silcocks, was her guardian. The only inference •deducible from the evidence is that Mrs. Harrison had no means or property of her own, and was unable to support the child and take proper care of it. In fact the only con- • elusion permissible is that; if her aunt had not furnished her a home, she would have been, in effect, an outcast and vagrant depending upon charity for the common necessaries ■of life. Since the filing of this opinion Harrison, speaking through his counsel, in a brief filed on petition for rehearing, says, “The girl had absolved him, as the record shows, 'from any obligation to-marry her.” Hence the demand for the child was not made in contemplation of marriage with Harrison. Under these circumstances, as I view the case, it would have been the worst of recreancy on the part of the Harkers and a violation of the moral and sacred duty they • owed to the child and to society to properly care for and protect it for them to have surrendered it to Mrs. Harrison, who was ill and had no means of support, and was unable to properly care for either herself or the child.
*601The Harters have given, and still are giving, the child the considerate, kind, and loving care that indulgent, devoted parents usually bestow upon their children. They have provided, and, if permitted to retain the custody of the child,, will continue to provide, it with a good home in which it is, and will continue to be, surrounded with congenial family influences so necessary, if not indispensable, to the moral development and intellectual growth of the child. If it can be fairly said that under these circumstances and conditions it would have been to the best interest and welfare of the' child for the Harters to have surrendered it to Mrs. Harrison, who had no visible way or means of supporting it, and who was physically unable to give it the care and attention it required, to say nothing of the medical treatment necessary to save its eyesight which was being furnished by the Harters, it follows that Mrs. Harrison was entitled to its-custody. But no such inference can be fairly made or deduction drawn from the evidence.
Respondent’s right, if he has any right, to have the child returned to him dates from the time the demand was made-on the Harters for the child, ten months after it was bom. The great preponderance of the evidence shows that respondent, on the occasion when he and the Harters met at the hospital four or five weeks after the child was born, stated to the Harters that he did not want the child — that he wanted them to have it. Mrs. Phillips, who was present, testified:
“Q. Do you remember whether or not Mr. Harrison said in substance that they should keep it ? A. He did.”
Mr. and Mrs. Harter testified to the same fact. While respondent denies he made any such statement, his admission as to what he said concerning Mrs. Silcock’s connection with the affair, and as to what her desires were regarding the child, his failure to make any demand on that occasion and for nine months thereafter for the custody of the child, tend to neutralize the force and effect of his denial, if it does not entirely destroy it. Moreover, the irresistible effect of this evidence, coupled with his conduct from that occasion until the last demand was made, is to brand his statement *602that he postponed the bringing of the suit for more than a year after the child was born because of his wife’s illness as a reckless and unconscionable falsehood. To hold in the face of this record that the Harkers, in their retention of the child from the time respondent met them on the occasion referred to until the bringing of the action, were wrongdoers is, in effect, to condemn the most praiseworthy and perfect of charities, and to offer a premium for the most inexcusable and indefensible of moral delinquencies of which parents can be guilty toward their children.
I think the record clearly shows why the Harrisons waited some months after the first demand was made before they, or either of them, again demanded the child from the Harkers. The day after the Harkers received the child at the hospital — twenty-four hours after it was bom — they discovered that its eyes were sorely afflicted. Mr. Harker testified, and his testimony is not denied, that “for the first eight or ten weeks the child was .almost blind; the doctor said it was a chance as to whether it would ever gain its eyesight or not.” Mrs. Harker’s testimony on this point was siibstantially the same as that given by her husband. Mrs. Harrison testified that when she, in company with her aunt, called on the Harkers about four weeks after the child was born, “its eyes were bad.” “Q. What condition were they in? A. Well, she could not open them at that time.” Harrison, on cross-examination, admitted that Mrs. Harrison on that day informed him that the child was afflicted with sore eyes. A few days thereafter he and Mrs. Harrison were married. A day or two after the marriage took place Harrison met the Harkers and the baby at the hospital where the child was bom. The child’s eyes were still sore and in a dangerous condition, and it follows that Harrison was fully advised of this. The evidence is all but conclusive that Harrison on that occasion said to the Harkers that neither he nor his wife wanted the child. Notwithstanding the Harrisons resided but a few miles from the Harkers and knew that the child was ill and in danger of losing its eyesight, yet neither of them called to see it or made any in*603quiry of tbe Harkers concerning it. Mrs. Harrison testified that she inquired about the child, “not directly from the Hankers,” but that she “heard from the child in other ways.” By' making these inquiries she no doubt was advised when the child’s eyes got well, and when it recovered from the measles and other ailments common to infants, with which the evidence shows the child was afflicted during the winter. The Harrisons, .about April or May, and after the child, through the tender care and nursing of the Harkers and the medical treatment paid for by them, had fully recovered from the ailments referred to, called on the Harkers to see the child. Now, the record shows one of two things, namely: That the Harrisons did not form any intention to try and get possession of the child until they saw it on that occasion; or that they adopted a “waiting policy” with ia view of ascertaining whether or not the care, nursing, and attention the child was receiving at the hands of the Harkers and the medical treatment they were procuring for it would save its eyesight and cure it of the other ailments with which it was afflicted during the winter, and, if the child survived and retained its eyesight, then they would endeavor to get possession of it. It is evident, however, that if the child had been so unfortunate as to lose its eyesight, no second demand would have been made on the Harkers for its possession, and this action would not have been brought. As I read the record this is so plain, so self-evident, that the question is not even debatable. Therefore it was not the illness of Mrs. Harrison that caused the delay in bringing the action, but the uncertainty as to whether or not the child would recover from the different ailments mentioned with its eyesight unimpaired.
Passing, now, to the situation of the respective parties to this controversy, including the child, at the time respondent made a demand on the Harkers for the child ten months after it was horn. The evidence shows that Mrs. Harrison is a woman of weak character, and is easily influenced by people with whom she comes in contact. She permitted re-spondest to establish and carry on illicit relations with her *604without exacting from him a promise of marriage. When she discovered that she would soon become a mother because of those relations, instead of requesting him to marry her and thereby repair the wrong, so far as he was able, she kept the matter “quiet,” and permitted him -to take her to a private hospital and leave her there,' without even providing the necessary clothes for the child when born, or furnishing her the means to obtain them. And, finally, in order to cover up her shame, and to shield him from trouble, she, with his approval, if not his solicitation, gave the child away. Three or four weeks thereafter she, under the influence of her aunt, demanded that the child be returned to her. She testified, “Aunt Jane wanted me to have it, and I wanted it myself.” A few days after the demand was made she apparently again changed her mind and decided not to claim the child; at least she did not take any steps, nor have respondent take any, to get the child until ten months after it Avas born. The recoivl clearly shows that, from the time she discovered that she would soon become a mother until the bringing of this action, the welfare and even the fate of the child had been to her a matter of secondary consideration only. The evidence shows that respondent has never exhibited any affection for either the child or its mother. He has shoAvn less regard for the child than dumb animals usually show for their offspring. The printed brief of counsel for appellants contains the folloAving trenchant, terse, and correct summary of the situation as I view the record:
“At least on one other occasion the respondent committed a- similar flagitious crime to the one in this action disclosed, Avith the possible exception that in the one instance he did not marry the Avoman. The illicit relations, the abandonment of the fruits of the same, the shirking of all responsibility in the premises are identical in both cases. ... In view of the record . . . made by both Mr. and Mrs. Harrison, and particularly the record of Mrs. Harrison, what assurance is there that their self-respect ’ and self-control and their affection for the child will be any stronger in the future than it has been in the past? Mr. Harrison’s immoral propensi*605ties have at least twice overpowered him, and twice bas be shown absolutely no parental affection for bis offspring. . . . Tbe Harrisons, although being the father and mother of the child, willingly, deliberately, and intentionally gave it away — abandoned it. .The Harkers, 'although strangers to it, welcomed it, and became and are now, in care, tenderness., love, and affection, all. that they could be were the child their own. . . . The Harkers rescued the child from the pitiable condition of want in which respondent and the mother left it, supplied its every need, nursed it through spells of sickness and the many ills of infancy, giving it both the services of a doctor and of a trained nurse, when needed, and through their tenderness towards and love for it saved its life as far as it is in human power to do. . . . The record shows the Harkers to be both suitable and capable from every point of view to have the care, custody, and control of the child. Their characters and reputations are untarnished; their domestic relations, after fourteen years of married life, are harmonious; their financial circumstances are .ample; and their lives are such as to practically insure the child of everything that would contribute to its proper care, development, and growth morally, socially, and financially.”
The child, if permitted to.remain with the Harkers, is assured of the advantages of harmonious, congenial family influences; that it will continue to receive the same considerate, kind, and affectionate care in the future at their hands that it has received in the .past; .and that it will receive the proper social, moral, and intellectual training. In other words, the child in the present home is assured of the same advantages that children have generally whose parents are kind, honest, industrious, and moral people, and whose domestic relations are pleasant and reciprocal. Again quoting from counsel’s brief:
“All that the child could wish for, all that the laws of society and the state could exact, the child now has .and enjoys, and will continue to have and enjoy.”
*606Moreover, the record shows that the Harkers as a family-are in some respects exceptional people. They .are of that, class, the number of which is very limited, comparatively speaking, who are willing to take into their homes infants-bom out of wedlock, and who have been deserted and abandoned by their parents, as the child in question was in effect deserted and abandoned, care for, support, maintain, educate, and give such children the same advantages as they do-children born to them. And even among this exceptional class, composed as is of sympathetic, kind, warm-hearted,, charitable, and benevolent individuals, the Harkers are, in some respects, superior people. This was made manifest by their attitude and conduct toward the child when they, within twenty-four- hours after it was born, discovered that its eyes were afflicted with some kind of malignant disorder, ailment, or disease. Notwithstanding the .additional expense, trouble, and inconvenience they would be put to because of this- malady, and the inferences that ordinarily well-informed people would, under the same or similar circumstances, deduce, and which they would be justified in deducing, .as to the origin and cause of this malignant affliction of the eyes, the Harkers, instead of rushing back to the-hospital with the child and leaving it there, as, we may well conclude, the majority, if not practically all, of those who-are disposed to take into their homes unfortunate infants-would have done, kept the child. The child’s misfortune, and its pitiable condition in being thus afflicted, instead of causing the Harkers to pause and hesitate as to whether they would keep the infant or return it to the hospital, seemed to more thoroughly arouse their sympathy and compassion, for it in its unfortunate and helpless condition. While the Harkers have no children -of their own -to occupy any of their time and attention, and while Mrs. Harker has had much experience as a nurse in caring for and attending to infants,, they nevertheless, in order that the child might have all the tender care .and attention that it was possible for human hands to give it, employed a trained nurse to assist them in watching over and caring for the child during the first ten *607•days that it was given medical treatment, paid for by them, for its eyes. On the other hand, the record shows respondent to be the embodiment of selfishness and ingratitude, and that he has no affection whatever for the child, and but little, if any, for its mother. He is the father of at least one •other child born out of wedlock which he has abandoned as he in effect abandoned this child for ten months, during which time the record shows he was utterly indifferent to its fate. Therefore what assurances have we — and certainly the record furnishes none — that the child’s presence in the Harrison home will not be an element of discord and strife, rather than one of peace, good will, and domestic harmony ? Let that be as it may, as I read the record the only conclusion permissible from the facts, viewed in the light most ■favorable to respondent ¡and his wife, is that it will be for the best interest of the child to remain with the Harkers, and that to take it from its present happy home and the kind and loving care of its foster parents and the wholesome- influences with which it is surrounded, and place it in the home of the Harrisons, will have a detrimental, if not a blighting, effect upon the child’s moral and intellectual growth. I have made diligent search but have been unable to find a. case, not even a “sporadic” case, in which the doctrine announced by this court in Stanford v. Gray and Hummel v. Parrish, supra, where a parent, under the circumstances and conditions such as the record discloses in this case, was given the custody of the child. There are, however, numerous oases in which the facts are much more favorable to the parent than they are in this case, yet the court refused to award him the custody of the child. Sturtevant v. State, 15 Neb. 459, 19 N. W. 617, 48 Am. Rep. 349, is a case in which a father brought habeas corpus proceedings to obtain the custody of his little daughter, who was only eight months old. The trial court found:
“(2) The relator (father of the child) is a man in every way well qualified and able to have and exercise the care and custody of said child. That he is possessed of ample means to raise, educate, and provide for her, etc.
*608“(3) That respondents are also proper persons to have the-care and education of the child, . . . and are now greatly attached to her.
“(4) During the last sickness of the relator’s wife, and a few days after her death, and when said deceased as well as the relator and respondents expected her death soon to occur, the said wife asked the respondent S. L. Sturtevant to take said child and raise and care for it in all respects as his own. That said respondent agreed to do so, and answered said request in the affirmative. That the relator was present at said conversation and did not assent to or dissent from, said proposition, tut remained silent. (Italics, mine.) ...
“(6) That, in taking said child to their home, respondents claim-to have acted upon the said request of the relator’s wife.
“(7) That said relator visited said child at the home of respondents three different times between the 8th day of January, 1883, and the 15th day of April, 1883, hut did not demand saidchild from respondents at any of said times.
“(8) That, . . . being in poor health and distressed in mind on account of the death of his wife, said relator went East on a visit,.. and did not return until June 18, 1883, and a few days thereafter .... he demanded said child from respondents, who refused, and. have ever since refused, to deliver her to the relator.”
Tbe court also found that the child was born on December 6, 1882, and that its mother died January 8, 1883. The-court also found that:
“Relator is twenty-three years old, and has no other children and no one depending on him, and that the respondents are both about 42 years of age, and have two daughters now living.”
As conclusions of law the court found that:
“The relator, Anson L. Havens, is entitled to the care, custody, companionship, and education of said Ella Nettie Havens.”
The Supreme Court of Nebraska, in an opinion reversing the judgment of the trial court in that case, says:
“That in controversies similar to this, especially where the infant is of the tender age of the one contended for, the court will consider only the best interest of the child, and make such order-for its custody as will be for its welfare, without any reference to-the wishes of the parties. Applying this rule to this case, we are forced to the conclusion that the conclusions of law as stated by *609the district court are not sustained by tbe findings of fact. . . . It is no doubt true that the defendant in error is greatly attached to this child, and the facts as found by the court show that he is' in every respect a suitable person to have its care and custody. . . . The grandparents have had the custody of the child since its birth, are greatly attached to it, have ample means to provide for its wants, and have the judgment and experience so essentially necessary in rearing a child of its age. It seems to us no further reasoning is necessary to convince any one that it is better for the child to remain where it is,” etc.
I bave copied somewhat copiously from the Nebraska case because the child there in controversy was approximately eight months old at the time the parent demanded the custody of it, and about two years of age when the case was decided by the Supreme Court. In the case .at bar the child was ten months old when respondent demanded it from the Harkers, and it will be approximately three years old by the time the decision of this court becomes final. The two cases in this respect are quite similar.
Jones v. Darnall, 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545, is another case in which a father brought suit to regain the custody of his infant son, who was but a few months old. In that ease, as in the Nebraska, case, the child, after the death of its mother, was given to its grandparents to be cared for and reared by them. The facts in the two oases were almost identical. The trial court in the Indiana case found that the father was a fit and proper person to have the care and custody of his child, and rendered judgment in his favor. The Supreme Court, after citing with approval the Nebraska case and a number of other authorities which declare the same doctrine, disposed of the case in the following language:
“In the case in hand, after carefully examining and considering all the evidence appearing in the record, we have reached the conclusion- that the best interests of appellee’s child imperatively require that it should be suffered to remain, during the tender years of infancy, at least, in the custody and care of its grandparents, and that the court should have refused to direct the delivery of such child to its father.” >
*610In each of the cases last referred to, the evidence supporting the parent’s claim of right to the custody of the child was much stronger than it is in the case at bar. Those cases were cited with approval by this court in the case of Hum-mel v. Parrish, supra. The affirmance of the judgment of the lower court in this case, not only repudiates the doctrine announced in those cases, but overrules the cases of Stanford v. Gray and Hummel v. Parrish, supra- In the prevailing-opinion these cases and the case at bar are distinguished; but it is a distinction made where there is no difference, except that in each of those eases the evidence was much more favorable to the parent and also much less conclusive that it would be for the best interest of the child to remain with its foster parents than it is in the case under consideration. In Stanford v. Gray the mother of the child was an honest, industrious young woman, twenty-four years of age. She kept and supported her child by her daily labor until it was about twenty-one months old; then, for reasons set forth in the opinion not necessary to repeat here, she placed it in a charitable institution, with the understanding that it should be adopted in a good home. A short time thereafter the mother sought to recover her child, but was informed that it had been taken from the institution where it was left, to be adopted. She immediately commenced a search for the child, and, when she succeeded in locating it, commenced an action to recover possession of it. The trial court found, and the evidence supported the finding, that the mother was “a fit and proper person” to have the control and custody of the child. It will readily be seen by examining the record of that case in connection with the record of the case at bar that the mother of the child in that case is much more competent and in every way better fitted to have the care and custody of a child of tender years than is the respondent here, even when assisted by his wife. This court, nevertheless, held in that case that:
“The mother having voluntarily relinquished and surrendered her right to the care and custody of the child, the burden is on her to show that the parties who acquired the custody of the child *611by virtue and in pursuance of tide relinquishment have in some way been derelict in their duty to the child, and that it would he better for the best interests of the child to take it out of their custody and return it to her.”
Mr. Justice Frick, in a concurring opinion in the case, says:
“Suppose the mother should again meet with misfortune such as in her judgment would . . . justify her to abandon the child; would she not again abandon it precisely as she did to further her own welfare? (This is also the query in the case at bar — a query not answered or solved in any respect in favor of the mother in thes prevailing opinion.) Under such circumstances, the sympathy that we naturally entertain for the mother should not he permitted to sway our judgment. In view, therefore, that the mother has surrendered her natural or legal right to the exclusive custody and control of the child, this court has but one duty to perform, and that is to protect the test interests and welfare of the child.” (Italics mine.)
In tbe Hummel Case Mr. Justice Frick, in a concurring opinion, among other things, says that:
“The record conclusively shows that the mother’s past conduct was not such as inspires one to believe that she has a very exalted conception of what a young woman’s conduct and deportment should be. While, so far as the mother is concerned, one may well overlook her error, yet when one is charged with determining the welfare of a young girl (as in the ease at bar), one may well hesitate before taking her from a virtuous and in all respects desirable hom.e and expose her to at least unknown conditions and surroundings. Conceding, therefore, the naked legal rights of the mother, yet I have not the slightest hesitancy in saying that the record is conclusive that the best interest of the child and the equities of respondents (the foster parents) far outweigh those legal rights. Under such circumstances, we owe it to the child, to the state, and to ourselves not to permit any experiments with respect to the welfare of a young girl who is nameless and helpless and must look to us alone for protection.”
If the foregoing was good and wholesome doctrine in those cases, why is not the principle equally as potent in determining the equities and best interest of the child whose faite, if not its very existence, is at stake in the ease under consideration? As I have stated, a comparison of-the records of those *612cases with, the record in this case will show that there is much less merit to respondent’s claim to the custody of the child here involved than there was to the claim of the natural parent in either of the cases mentioned. If the doctrine announced in the cases of Stanford v. Gray and Hummel v. Parrish is to be the rule of decision in this state in this class of cases, the judgment of the lower court must be reversed, because the affirmance of the judgment is necessarily a repudiation by this court of the doctrine upon which those cases were ruled and decided. From this there is absolutely no escape. This court, by affirming the judgment, not only overrules the two cases mentioned, but, in effect, says to the kind-hearted sympathetic and generous people of this state who are willing and are disposed to take into their homes infant children who are given away and abandoned by their natural parent, as the child in question was given away and abandoned, and by .adoption make them their own and give them all the advantages, opportunities, and legal rights that-children born to them enjoy:
“You may receive and take into your home a. homeless waif that has been given away and abandoned by its parents, or, for that matter, left by them on your doorstep in the silent hours of the night, without any intention of returning for it; yon may nurse, care for, and support it with the intention of adopting and making it your own, but you do so at your peril. Should the parent, after you have had the child for months, or even years, under these circumstances and conditions, demand of you its return to him you must comply with the demand, even, though his delinquencies in his moral duties to the child and its mother bring him to the border line of moral degeneracy and your legal rights in the premises are no more than they would be if you were kidnappers and had stolen the child.”
While this is the effect of the prevailing opinions, it nevertheless does not accord with my notions of justice, equity, or humanity, nor with what I think court-made law should be.
Hr. Justice Frick, in the prevailing opinion, asks the question:
*613“Suppose Mr. Harrison sliould die next week, or next month, ■or next year, and leave a large fortune; would not the child in question he his legal heir under our statute?”
Comp. Laws 1907, section 2833, answers the question as follows:
“Every illegitimate child is an heir of the person who acknowledges himself to be the father of such child, . . . and inherits his or her estate in whole, or in part, as the case may be, in the same manner as if he had been born’ in lawful wedlock.”
It. seems that this section gives an illegitimate child the right to inherit the estate “in whole or in part” of a person who acknowledges himself to be the father of such child, regardless of whether such acknowledgment is public or private. While this section answers the question propounded 'by Mr. Justice Erick, it has no bearing on any of the questions presented by this appeal.
Comp. Laws 1907, sections 4 and 6, tit. 2, are general provisions relating to the 'adoption of children. Section 10 provides how and in what manner a father may adopt his illegitimate child, and is as follows:
“The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family and otherwise treating it ^s if it were a legitimate child thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this title dp not apply to such an adoption.”
Whatever right respondent has to the custody of the child he has acquired under and in pursuance of section 10. It will be noticed that three things are required of a. father who seeks to adopt his illegitimate child under this section of the statute: (1) He must “publicly” acknowledge the child as his own, (2) receive it as such into his home, and (3) “otherwise” treat it as if it were a legitimate child. (In re Garr’s Estate, 31 Utah, 57, 86 Pac. 757.) There is not a scintilla of evidence tending to show that respondent, at any time, or on any occasion prior to the filing of the complaint *614herein, “publicly” acknowledged tbe child as his own, or that he, on any occasion, treated it “as if it were a legitimate child.” On the contrary, his own evidence shows that he not only failed to publicly acknowledge that he was the child’s father, but, to prevent that fact from becoming “publicly” known, permitted it to be sent adrift into the world a nameless waif to be cared for, reared, and educated by others who were ignorant as to who its parents were. And the evidence justifies the inference that respondent, from the time he learned that the child’s mother was, because of. his illicit relations with her, in a delicate condition until he and Mrs. Harrison were married, was very much “worried” because it might become publicly known that he was the child’s father. Mrs. Phillips, in her testimony, referring to the time that Mrs. Harrison was in the hospital, said:
“This young woman was in my home for three weeks. Mrs. Harrison during this time mentioned the subject of the baby once that I remember of. I don’t remember Mr. ITarrison mentioning the child on any of his visits to the hospital.”
The evidence without conflict shows that when he met the Harkers at the hospital, about four or five weeks after the child was given away, he “saw the child at that time,” that he “did not take it,” and that he “paid no^ attention whatever to the child.” Nor did he do or say anything on that occasion that could be construed as an acknowledgment that he was the child’s father. Nor did he say or do anything from which it can be inferred that he intended to adopt the child. The great preponderance of the evidence, however, does show that he did say on that occasion that neither he nor Mrs. Harrison wanted the baby. When he made a demand on the Harkers nine months later for the return of the child, he neither said nor did anything from which it can be said that he publicly acknowledged that he was its father. The only thing said or done by him on that occasion that could possibly be construed as even an implied admission that he was the child’s father was the bare naked demand he made for the custody of the child. The undisputed evidence shows *615tbat be coupled tbe demand with tbe statement tbat bis wife “was pining for it,” and be “wanted it,” and tbat they bad “changed tbeir minds,” and bis “wife wanted it.” He admits tbat at tbe time be made tbe demand be saw tbe child, but, quoting, “I did not pick it up; I did not handle it at all.” This was not in any sense a compliance with tbe foregoing provisions of tbe statute relating to tbe adoption by a parent of bis illegitimate child. He neither publicly acknowledged tbe child as bis own, nor did be “treat it as if it were a legitimate child.”
Section 10, supra, of our statute is a literal copy of section 230 of the California statute (2 Kerr’s Cyc. Codes Cal. section 230). In tbe case of Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40, tbe Supreme Court of California, in construing section 230, said:
“The public acknowledgment of tbe child is the main fact. It is the important factor, in the eyes of the law.”
Again, in tbe same opinion:
“The statute clearly means that the father must treat his illegitimate child as he would naturally treat his legitimate child.”
In tbe case of Garner v. Judd (Cal.), 64 Pac. 1076, tbe court said:
“There can be no compliance with section 230 in the absence of the conditions contemplated by that section, and absolutely necessary to give it effect.”
Tbe same thought is expressed in Garner v. Judd, 136 Cal. 394, 68 Pac. 1026; Cebrian v. De Laveaga, 142 Cal. 158, 75 Pac. 790; In re Jones’ Estate (Cal.) 135 Pac. 288. In 5 Cyc. 633, it is said:
“While one may by his acts be held to have sufficiently recognized a child to legitimate it, loose acts of occasional recognition or an occasional apparent recognition during the first years of the child’s life at the home of its foster parents have been held insufficient.”
*616Several well-considered eases are cited in the footnotes which support this doctrine.
In the case at bar respondent, prior to the filing of the complaint, as I have pointed out, had neither publicly ■acknowledged the child as his own, nor at any time or upon any occasion treated it as if it were a legitimate child. Having failed to comply with the statute in these respects, it follows that he has not adopted the child, and therefore has no legal right to its custody, and cannot maintain this action.
Since the draft of this opinion was prepared and submitted to my Associates, Mr. Justice Frick has added to, or rather written an addenda to, his original opinion, and Mr. Justice Straup has also written 'an opinion concurring in the conclusions reached by Mr. Justice Frick. In view of what I think will be the far-reaching and baneful effect of the prevailing opinions upon the life of the little child in question, and upon like cases that may hereafter come before this court, and since I have failed to make clear my position regarding some of the propositions discussed in the first draft of my opinion, I have been impelled to make some slight changes in the opinion, and to venture a few observations in addition to those hereinbefore set forth. Mr. Justice Straupr in his concurring opinion, says:
“The father by his petition publicly acknowledging the child as his own, legitimated it.”
Mr. Justice Frick expresses the same thought. It is therefore judicially determined that the child is legitimated by the filing of the complaint in this action. The child, being thus legitimated, will remain so, irrespective of whether the statute has been complied with or not. The status of the child in that regard, being fixed, cannot be .affected by the disposition made of this case. My contention is — and I respectfully submit I am fully supported by the record — that there is not a scintilla of evidence tending to show that respondent, at any time, or upon any occasion prior to the filing of the complaint, publicly acknowledged that he was *617the father of the child. Mr. Justice Frick, among other things, says:
“Did lie not go to the hospital before' the child was born and make arragements for the care of Mrs. Harrison during her confinement? And did he not, when he met the appellants at the hospital a few weeks after the child was horn, acknowledge it as his own? Did he not do so again when he demanded its custody from them?”
Respondent in his own testimony answers the first question wherein he said:
“Q. Did you talle the matter over as to the best place for her (Mrs.. Harrison) to go ? A. She found that out herself. I never found out at all about it. I left that responsibility to her ... I worried .about it>”
As I have hereinbefore pointed out, and as the admitted facts show, Mrs. Harrison went to this private hospital and remained there during her confinement in order to enable her and respondent to keep the entire matter concealed from the public. And during the time she was at the hospital respondent, so far as shown, never mentioned the child to any one except Mrs. Harrison. And yet we are told, if I correctly understand the import of Mr. Justice Frick’s questions, that respondent’s reticence in that regard was an act amounting to a, public acknowledgment that he was the father of the child. Moreover, Mrs. Phillips, who was a disinterested witness, testified, and her testimony is not disputed, that:
“On July 15th Mrs. Harrison came to my home and' stated her condition and asked me to take care of her through the confinement, and I told her I would. . . . She first came to my place on Saturday, the 15th, to see me and remained there Saturday night. . . . Mr. Harrison accompanied Mrs. Harrison to the hospital on the evening of the 16th. The child was born . . . Monday, July 17th.”
This evidence and that given by Mrs. Harrison, coupled with the positive testimony given and the admissions made by Mrs. Harrison, show that the claim made by her that the birth of the child was premature, and that she was there*618by prevented, from providing tbe necessary clothing for the child, is a mere subterfuge. It, however, has no material bearing on the case, and I would not refer to it if it were not for the fact that seemingly great importance is attached to-it in the prevailing opinion, as well as to other trivial and, as I view the record, like groundless excuses made by the Harrisons for their cold indifference to and unnatural attitude toward the child for the first ten months after it was born. It is also a sufficient answer to the second proposition propounded in the form of a question to quote from respondent’s evidence on that point wherein he says:
“They (the Harkers) said, ‘If you wanted the child, why didn’t you come before we got attached to it?’ I did nob so,y anything. Q. What did you say ? A. I don’t remember saying anything. Q. Did you demand the child from the Harkers on that occasion ? A. No, sir; I didn’t. Q. You did not tell them you wanted the baby at some future time ? A. No, sir.”
In find, nothing in this testimony that in the remotest degree tends to show that respondent on that occasion publicly or otherwise acknowledged that he was the father of the child. In answer to the third proposition, I invite attention to the statements made by respondent when he demanded the child from the Harkers ten months after it was born» which I have hereinbefore referred to and set forth. And I again insist that those statements did not amount to an acknowledgment on his part that he was the father of the child.
Hr. Justice Frick refers to my discussion of the merits-as follows:
“In answer ... to the question of the Chief Justice, which he propounds in various forms, and the substance of which is: ‘What more is necessary to brand Mr. Harrison as utterly unfit to have the care, custody, and nurture of this child?’ I answered that the only thing that is really lacking is sufficient competent evidence to establish his unfitness.”
The pivotal question is not whether respondent is wholly unfit to have the custody of the child. As I have repeatedly stated in this opinion, the vital, the paramount, the control!-*619ing question is: Would tbe present interest and tbe future welfare of tbe ebild be best 'subserved by leaving it in tbe care and custody of its foster parents, or would its interest be best subserved and promoted by giving it to respondent \ Keeping in mind tbis theory of tbe case, wbat acts or omissions showing moral turpitude, may I ask, would it be necessary for respondent to be guilty of against tbe child and its mother, in addition to those shown and established by tbe record, before tbe scales would tip in favor of tbe Harkers ? I must confess my inability to answer tbe question. It seems to me that under' tbe prevailing opinions respondent in order to forfeit bis right to tbe custody of tbe child, because of neglect or illtreatment of it or its mother, must commit some act against one or both of them amounting to a felony, be tried, convicted, and sentenced to tbe state prison. Abandonment, desertion, and willful neglect, coupled with bis other moral delinquencies herein referred to, are not sufficient, otherwise tbe judgment of tbe trial court would be reversed. It would be difficult to’conceive of wrongs of tbe character in question more aggravated and involving greater moral turpitude than those of which respondent, by bis own evidence, coupled with the testimony of bis wife, stands convicted. It seems that, from tbe time respondent first learned that Mrs. Harrison would soon become a mother until tbe present inherent rights of tbe child, as well as its 'interest and welfare generally, have, at most, been a matter of secondary consideration only — and for tbe first ten months of its life no consideration at all with tbe Harri-sons — with all (except the Harkers) who, in a legal sense, have bad anything to do or say regarding its welfare. Now, as tbe acme and culmination of its misfortunes, it is to be taken from its present happy home and tbe moral, refined, elevating, and congenial family influences with which it is surrounded, and where it is secure in all that a child requires to insure it a healthful, moral, and intellectual growth, and be given into the custody of the cold, unsympathetic, selfish, and ungrateful man who has not, and never has had, a particle of affection for it, and who caused the child to be *620born out of wedlock, and then permitted it to be given away and sent into the world, unknown and nameless, and who later, when it was very ill and in danger of losing its eyesight, never went near it, never offered to assist it, and the only reasonable inference that can be drawn from the record is that he never made any inquiry about it. And we are told that this is done to promote the interest of the child. That is, according to the prevailing opinions it is presumed that by taking the little girl from her present home, where she is happy and contented, and is nurtured and warmed by the love and tender care of the Harkers, and transplanting her into the cold, unsympathetic, uncongenial, and repellent social atmosphere, which, in view of the admitted facts, we are justified in believing pervades the home of the Harri-sons, her present physical, moral,- and intellectual training will be improved on, and her development along’ these lines better assured. As I view the situation, it would be just as reasonable to take a fragrant, delicate, tender tropical flower from its natural soil and transplant it into an iceberg, and expect it to grow and thrive, and to permeate the atmosphere with its sweetness and fragrance, as to ¡anticipate any such result.
In the prevailing opinion it is suggested that in my discussion of the merits I am unduly harsh and severe in characterizing the acts and omissions - of respondent and Mrs. Harrison in their conduct toward ¡and treatment of the child. It is said that what are termed my “strictures” in that regard are “not justified by the evidence when considered in-all its parts.” By an examination of the record in connection with my opinion, it will be seen that there is not a statement made in the opinion regarding the merits of the controversy, or an inference deduced, or a conclusion reached that is not fully supported, warranted, and justified by the evidence “when considered in all its parts.” Furthermore, since the rule of law in this state is to- be that individtoals of weak moral character and “easy virtue” may, in violation of the penal statute, and in defiance of decency, good morals, and society, bring into the world illegitimate children, and *621soon after the children are bom give them away and send them into the world nameless waifs, without any intention of ever reclaiming them, and if these children are taken by sympathetic, kind-hearted, and generous people into their homes, with assurances that they are to keep and rear them as their own, and after the foster parents have cared for, watched over, and protected them and given them the same tender care and attention as the. children born to them receive, and this .association and companionship have ripened into a deep, and abiding affection for' 'the children, as in the ease at bar, the natural parent, ox parents, as the case maybe, may reclaim the children ten months after they have parted with them, regardless of the* interests and welfare of the children, and in all controversies arising between the natural and foster parents involving the right to. the custody of the children, the natural parents — the transgressors of both the moral and penal codes — are to be surrounded by a halo barring just comment or criticism for their wrongdoing, and the foster parents are to be judicially reproved and held to be wrongdoers because of their magnanimity in rescuing the little ones from oblivion, taking them into their homes, making'the same unselfish sacrifices for them and giving them the same tender care and consideration that the children of their own flesh and blood receive, the people of this state are entitled to be advised of it, especially those who are inclined to take these unfortunate children into their homes and adopt them. And they are entitled to be advised of the facts’ and circumstances of the particular case in which the rule was inaugurated, so that they may thereby govern themselves accordingly. This is one of the reasons that have impelled me to review and discuss the case at considerable length.
In the prevailing opinion some speculation is indulged in regarding the effect this dissenting opinion may have on the child and its welfare in after years when she shall grow up and become a woman. There is .absolutely no ground whatever for apprehension on the part of my Brethren on that ground. The present interest and future welfare of the *622child is not, and will not be, prejudiced by the dissenting opinion. "Whatever misfortune may come to this unfortunate child because of this litigation will be due, not to the dissenting opinion, but to the prevailing opinions. The child has certain rights, and it is the recognition and enforcement of those rights that I have all through this opinion contended for.
Mr. Justice Straup’s discussion of the case, considered as it should be in connection with the facts of the ease as disclosed by the record made in the court below, reduced to its final analysis, is to the effect that in controversies of this kind, involving the right to the custody of a child, before, the natural parent will be denied his legal right to its custody, it must be shown that he is either morally unfit to have the care, training, and education of it, or is unable to properly provide, care for, and support it, and that the interests and welfare of the child is a matter of secondary consideration only. This doctrine finds support in some of the earlier cases both in this country and in England. The rule, however, has become obsolete, and is contrary to what is now the settled law in nearly every state in the Union. Mr. Bishop, in his excellent work on Marriage, Divorce & Separation, vol. 2, section 1171, says:
“In American cases of recent date, so numerous as to constitute an established doctrine, where one or both of the parents, being poor, or otherwise unable to take the care of their young child, have verbally or by conduct relinquished it to competent and willing persons, commonly relatives, who have entered upon their assumed duties and established a partial or full de facto relation of parent and child, neither the real parents, nor even the father, or a change of mind or of circumstances, has been permitted to resume the custody, where the interests of the child would not thereby be promoted. . . . Plainly, in principle, the arrangement between the parent and the new custodian need not be such as could be forced while executory.”
I also invite attention to Nugent v. Powell (Wyo.), supra, in which the question is elaborately and ably discussed, and many authorities cited and reviewed.
Mr. Justice Straup, in the course of his opinion, says:
*623“I do not think any one will seriously contend that a parent’s legal right to the custody of his child will be denied him, where an abandonment, or a forfeiture, or laches, or a legal surrender, or unfitness or inability of the parent is not clearly shown.”
Tbe American decisions in this class of eases (including tbe Gray and Hummel Oases, recently decided by tbis court) practically all bold that where, as in tbe case at bar, a parent bas by word or act voluntarily relinquished and transferred tbe custody of bis infant child to another, without, any intent on bis part of ever reclaiming' it, and such party is in every respect a proper person to have tbe care, custody, training, and education of tbe child, in all controversies thereafter arising between tbe nátural and foster parents involving tbe right to its custody tbe present interests and future welfare of tbe child, not tbe legal rights of tbe natural parent, will direct tbe discretion and control tbe judgment of tbe court. And, as was well said by tbe Supreme Oourt of Virginia, in tbe case of Strung fellow v. Somerville, 95 Va. 701, 29 S. E. 685, 40 L. R A. 623:
“The question is not which of the two claimants can surround the infant with greater luxury, or which of the two will be able to give or bequeath him the greater amount of money or property, but with which of them, he is likely to 'he'reared, and trained so as to mdke him the better man and the better citizen.” (Italics mine.)
In Stanford v. Gray, supra, recently decided by tbis court, it is said:
“We do not wish to be understood as holding, or even intimating, that the Hansens are unsuitable persons to have the care and custody of the child in question. "What we do hold is that, Mrs. Hansen having voluntarily relinquished and surrendered her right to ’ the care and custody of the child, the burden is on her to show that the parties who have acquired the custody of the child by virtue and in pursuance of the relinquishment have in some way been derelict in their duty to the child, and, that it would be better for the best interests of the child to take it out of their custody and return it to her. This she has wholly failed to do.”
I submit that it is impossible to reconcile tbe doctrine of tbat case, which was reaffirmed by tbis court in tbe Hummel *624Case, with the obsolete rule of law adhered to by Mr. Justice Sti’aup in his concurring opinion.
Again referring to the question of abandonment: Under the authorities hereinbefore cited the disposition made of the child by the Harrisons was in fact and in law an abandonment of it. I invite attention to the following cases, which contain the more recent expressions of the courts of last resort as to what constitutes abandonment in this class of cases: Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147, 70 Am. St. Rep. 894; Wood v. Wood, 77 N. J. Eq. 593, 77 Atl. 91; Winans v. Luppie, 47 N. J. Eq. 302, 20 Atl. 969. In Parsons v. Parsons the court said:
“The term abandonment . . . means no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children.”
This thought is expressed in Wood v. Wood. In Winans v. Luppie it is said:
“The statutory notion of abandonment does not necessarily, we think, imply that the parent has deserted the child, or even ceased to feel any concern for its interests. It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all paternal duties and relinquish all parental claims to the child.”
If the foregoing is good law — and I have been unable to find a modern authority that holds to the contrary — the undisputed facts of this case clearly establish abandonment of the child by the Harrisons. I invite attention to the notes to the case of Clark v. White, 102 Ark. 93, 143 S. W. 587, Ann. Cas. 1914A, 740, wherein the annotator cites and reviews many English cases and numerous American decisions, state and federal, in which the questions here involved are discussed. See, also, case of In re Cozza, 163 Cal. 514, 126 Pac. 161, Ann. Cas. 1914A, p. 221, and notes. I also invite attention to the ease of Allison v. Bryan, recently decided by the Supreme Court of Oklahoma, 26 Okl. 520, 109 Pac. 934, 30 L. R. A. (N. S.) 146, and notes, 138 Am. St. Rep. 988.
*625Tbe affirmance of tbe judgment must rest on tbe obsolete rule of law stated by Mr. Justice Straup. Otherwise, this ■court in effect bolds that persons, in tbe prime of life who •are kind, sympathetic, honest, moral, and upright, and are fairly well to do in a financial way, whose domestic relations ■are pleasant and congenial, and who' are in every respect model citizens, are not more suitable .and more worthy to have the care, custody, and the’intellectual and moral training of a little girl between one and three years of age to whom they are very much attached and devoted than are the natural parents, who permitted the child to be born out of wedlock, there being no impediment, legal or otherwise, preventing them from being married; who., in pursuance of a prearranged plan and understanding, deliberately made and •entered into before the child was born, to prevent their illicit relations from becoming known to others, and presumably to avoid being forced to assume the duties and obligations of the marriage relation, gave the child away a few hours after it was born, with the intention that such relinquishment of the child on their part should be permanent; who, when they learned, three or four weeks after the child was born, that it was afflicted with a malignant eye trouble or disease, and was in danger of losing its eyesight, never went near it-for nine months thereafter, during which time they were utterly indifferent to its fate; who. have but little affection for each other, and, as far as the father is concerned, none whatever for the child; whose past record shows them to be people of weak moral character, and especially the father, who is shown to be a man of coarse mental and moral fiber, having but little, if - any, conception or regard for his moral duties and obligations to the state, society, and to the child. In other words, it is held that under these circumstances it is to the present interest and future welfare of the child to take it from its present pleasant home and congenial environments, and from under the wholesome and elevating influences with which it is surrounded, and place it under the ■care and control of the Harrisons. I respectfully submit *626that such holding under the circumstances is not only contrary to the spirit, but is in conflict with the very letter, of the Gray and Hummel Cases and all the authorities therein cited. Notwithstanding I have made a diligent search, I have been unable to find one modem .authority that supports the conclusions reached by my Brethren in this case.
For the reasons herein stated, I think the judgment should be reversed, with directions to the trial court to enter an or der similar to the order that was directed by this court in its affirmance of the judgment in the case of Hummel « Parrish, supra.