I respectfully dissent.
With the legal propositions enunciated in the majority opinion, as abstract- legal propositions, I agree. With the statement of facts I cannot agree, as, in my opinion, it is inaccurate and *1355much more unfavorable to appellant than is warranted by the record. Neither can I agree with the application of the law to the facts.
I make no attack upon Mr. and Mrs. Jackson. While I doubt if their financial situation is as good as would appear from the majority opinion, the record clearly reveals them to be good citizens well able to furnish a good home to their grandson, for whom they have real affection. Mrs. Jackson, under the record, has given much of her time and strength to her daughter and grandchild during their illness and misfortune. She is truly a typical grandmother.
However, this court is here called upon to determine what, if any, rights the natural father of a young child has as to its care and custody. It is conceded by the majority, purely I am afraid as an abstract legal rule, that a surviving parent is, under our statutes, entitled to such care and custody, subject to the qualification of such right being contrary to the best interest of the child. In determining this question sentiment has no place. As was said in Watters v. Watters, 243 Iowa 741, 744, 53 N.W.2d 162, 163: “ ‘The unfitness which deprives a parent of the right to the custody of a child must be positive, and not merely comparative.’ ”
Ellis Finken and Carmen Jackson were married in 1945. He was a young farmer and took his wife to a home-on a 183-acre farm, owned by his father, and which he was renting. With reference to this home Mr. Jackson states: “The farm home of my daughter and Ellis was satisfactory. Good enough for anybody.” Mrs. Jackson says: “This home was comfortable and well furnished. I had no objections to the farm home. I would say Ellis was a good provider.” It is to this same home that Ellis seeks to take Bussell. At the time of their marriage, Ellis was told that Carmen had a heart ailment and should not have children. From 1945 until in 1949 they appear to have lived happily together. Bussell, the child here in question, was born August 24, 1949. Ellis brought Carmen and the baby directly from the hospital to the Jackson home where they stayed for six days, neither Carmen nor the baby being well. They then returned to the farm. When Bussell was about twelve or fourteen days old, Ellis' *1356brought Carmen and the baby to the Jackson home and set them out in the rain. She remained there with the baby until after Thanksgiving, when they returned to the farm with Ellis. During this period Ellis came to the home once and saw and held the baby, after some disagreement with Mr. Jackson. After returning to the farm, they apparently got along pretty well. As Mrs. Jackson says: “Carmen and Ellis would go out in the evenings and they were both bowling and one thing and another.”
In May 1951 Carmen became pregnant; and, on the advice of her physician, the baby was taken. She was in the hospital a few days and Mrs. Jackson cared for Russell. In February 1952 Carmen had a heart operation. While she was in the hospital, Russell stayed part of the time with Grandma Finken and part of the time with Mrs. Jackson. From February until May 1952 Carmen and the boy were with Ellis on the farm. In May she returned home for five or six days and then called Ellis to come and get her, which he did. The record is silent as to what caused this short separation. In August 1952 Carmen and Russell left Ellis and came to the Jackson home. A divorce action was commenced, which resulted in a default decree in December 1952, with Carmen obtaining the custody of the boy. The decree provided for a $1000' alimony, which was paid, and $25 per month for child support. Again the record is silent as to the facts and cause for this divorce. It appears without dispute that during the seven years of their married life Ellis paid in excess of $5000 for Carmen’s medical and hospital expense, most of which was subsequent to the separation in 1949. Mrs. Jackson states: “We were never asked at any time to assist in the payment of the hospital bills or other expenses of Carmen Finken during the time she was married to Ellis. I am sure they were all taken care of by him. * * * Ellis reimbursed me for all the doctor bills I paid for Russell. lie gave me $200 and I turned it over to Carmen.”
Following the divorce, Carmen and Russell lived with the Jacksons until her marriage to Glen Porter in October 1953. During this time she worked awhile and then kept house for Mr. Jackson at a home in Omaha. On February 8, 1953, Russell, while riding in a car with some teenagers, one being his aunt, was in an accident in which one person was killed. He sustained *1357severe injuries and was hospitalized for about ten days. Ellis was at the hospital about every day visiting with Carmen and Russell, when he was able. He offered to pay the hospital and doctor bills but was told that insurance would take care of it. After Carmen’s marriage in 1953, she and Russell moved to the Porter farm where they were living at the time Carmen was killed in an auto accident in January 1954. On January 11, 1954, Porter was appointed legal guardian of Russell. Since Carmen’s death Porter has paid Mrs. Jackson $50 a month for caring for Russell and says he may continue to do so if Jacksons obtain custody of Russell.
Ellis Finken enlisted in the Naval Reserve in November 1952. He was married to Alice Fisher, his present wife, on February 14, 1953. They took a trip- to California. He brought back a complete cowboy outfit for Russell. After 'the honeymoon they had Russell with'them for a few days before Ellis left for active training on March 3, 1953. In May they were home on boot leave and again had Russell for two days and a night. In September 1953 he was assigned to the U. S. S. Wisconsin and sent to Korean waters. While there, and on January 9, 1954, he received a cable from his father telling of Carmen’s death. As the ship was due back in home port about April 15, he was denied emergency leave. He obtained leave April 13. On April 15 he was refused the child, who was then staying at Porter’s home. He commenced this action April 16, 1954.
Alice Fisher Finken is about twenty-four years of age and this is her first marriage. She has helped her sister rear four children. She is not a total stranger to Russell. There is not a derogatory word against her in this record; in fact, various witnesses state she has always borne an excellent reputation. She expresses a desire to have Russell in their home.
Now turning to the Wanda Clark affair, referred to in the majority opinion. That this was reprehensible on the part of Ellis Finken cannot be denied; and had a divorce followed that affair, and this action then brought, there would, in my opinion, be a reason for denying him custody of this boy. Under such condition it would be somewhat similar to Joiner v. Knieriem, 243 Iowa 470, 52 N.W.2d 21. However, such action was not taken by Carmen. She returned with Russell to their old home and *1358lived, apparently happy, for three years thereafter. Subsequent to that affair in 1949, she again became pregnant. Subsequent thereto, Ellis expended some $5000 for Carmen on doctor and hospital bills. There is not one word in this record, following the leaving- of the baby with the Jacksons when he was fourteen days old, and which was during the Clark affair, that Ellis ever mistreated Russell. Several substantial citizens in the community state that, at least since 1949, Ellis has borne an excellent reputation. The majority opinion refers to a so-called covenant not to sue. The record is that Clark says he signed a paper not to sue Ellis if he appeared as a witness for him in his divorce action. The document, unsigned and not identified as a copy of the one referred to by Clark, was accepted in evidence over proper objection. Apparently the majority opinion deems it competent proof. I do not; but even so, it is only a part of the Clark episode in 1949. Ellis Finken denies he ever saw or signed such a paper. Clark states it was Carmen Finken’s idea and not Ellis’.
The majority opinion states: “Ellis made the $25 monthly payments for Russell’s support from January to August, 1953. No further payments were made until during the trial when the delinquent payments * * * were made. Failure to make the payments sooner is at least partially excusable by Ellis’ absence in the service.” What’s the record? Ellis, before leaving for the service in March of 1953, asked the bank to make the payments each month from his account. Howard A. Wilding, an official of the bank, testified: “Well, he, just said he wanted to leave arrangements to pay twenty-five dollars a month, and I told him -1 said, ‘Gosh, we have got to make some limit on it. Supposing something would happen to you?’ And he said, well, he didn’t know, he said. So I just wrote down six months from then and that’s what it says here — August 1.” Ellis signed it and the payments were made. Ellis’ father inquired at the bank just shortly before Carmen’s marriage if Carmen was still drawing the $25 per month, and instructed them to draw on his account, if necessary, to make the payments. So far as the record shows, Ellis had no knowledge that payments were not being made while he was in Korea. The trial court stated he would not listen to this testimony as it made no difference why it was not *1359paid. Apparently the majority of the members of this court take the same view. This is not an action to collect alimony. If it was, the attitude of the court would be understandable. In my judgment, this testimony was extremely important as bearing upon the father’s attitude and feeling of responsibility toward his child.
The majority opinion states that requests made by Carmen to her mother and to a Mrs. Henderson, who had been Porter’s housekeeper, are entitled to weight and consideration, citing authorities. They state that in Jensen v. Sorenson (Evans, J.), 211 Iowa 354, 361, 362, 233 N.W. 717, 721, it says the dymg reqtiesi of a mother as to the -future custody of her child is entitled to great weight. I have no fault with that statement or to other eases cited on this proposition. The testimony is hearsay and was so objected to. Such testimony, when appearing to be made in premonition of death, is taken under an exception to the hearsay rule. Mrs. Jackson states that just before Carmen left on her honeymoon with Porter, she said that if anything should happen to her while on her honeymoon she wanted her (Mrs. Jackson) to care for Rusty. It may be Carmen considered going on a honeymoon as a premonition of death. It was her second one. The statement to Mrs. Henderson was alleged to have been made some time after Carmen and Russell moved out to the Porter farm. In this statement she included Porter with Mrs. Jackson. Again, where is there found any premonition of death? In my opinion such testimony is not competent.
The majority opinion comments upon there being evidence as to the good reputation of the Jacksons and Porter and also of Ellis and Alice Finken, but that regarding Ellis it is weakened by the Wanda Clark episode. That is true, and it is the single black mark against him. No mention is made of the fact that, of all the parties involved — Ellis and Alice Finken, Mr. and Mrs. Jackson, and Glen Porter — Porter is the only one concerning whom there is evidence as to the use of intoxicating liquor. He has been convicted of intoxication and of driving-while intoxicated. The testimony is that since he married Carmen he has not used it as frequently. Yet, he is Rusty’s legal guardian, and, as the majority opinion says, the one Carmen wanted to look after her little boy.
*1360The majority opinion says: “Their home [Jacksons’] has been Russell’s home more than any other.” That simply is not the record.
I apologize for the length of this dissent; but so strongly do I feel that a terrible injustice results from the majority decision, that a fair and accurate statement of the record is due this father. Only upon the theory that once a man sins he is forever damned and no honest effort for atonement will be considered, can I understand the majority decision.
I would reverse.