(dissenting). The court commissioner did not find that the father was unfit to have the custody of his ten-year-old child, but determined that it would be for the child’s best interests that she remain in the home of the grandparents. Such determination of best interests appears to have been based wholly on considerations that the child had lived with the mother in the home of its grandparents from the age of eight months until the mother remarried, and that the child continued to live in the grandparents’ home after the mother had remarried and had removed from there, the mother, however, retaining legal custody; further, that the child was presently nervous and disturbed because of the death of the mother, and the notoriety attending the circumstances of her death, and also the realization that she might be changed from the home she grew up in; further, that the child preferred to remain with the grandparents. The many cases determined by this court from early times to the present involving custody applications under sec. 319.03, Stats., or legislation, similar thereto antedating that enactment, indicate that the term “suitable” as contained in the provision “in case of the death of either parent, the survivor being competent and suitable, shall be entitled to the custody of the minor, and to the care of his education,” has been interpreted to mean that the parent be not unfit to be intrusted with custody, and that a change of custody to the parent would not result in 'injury to the child’s welfare or safety. In Lemmin v. Lorfeld (1900), 107 Wis. 264, 266, 83 N. W. 359, Mr. Justice Winslow in a review of the principles laid down in Markwell v. Pereles (1897), 95 Wis. 406, 69 N. W. 798, pointed out that:
*437“Under the common law, and by the terms of our statute (sec. 3964, Stats. 1898), the father has the. right to the custody, care, and education of his minor children, unless it be shown that he is unfit or unsuitable for the trust. Unsuitableness is not to be found merely because the father may be in straitened circumstances, or may not be as discreet or judicious as could be wished, nor because other persons, of greater means or better social standing, stand ready and willing to take the child and give it greater advantages. If such were the test, the father’s right would be reduced to a mere shadow, of the most unsubstantial character. But it must appear that the father has ‘so conducted himself, or. shown himself to be a person of such description, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended, — should be superseded or interfered with.’ ” (Emphasis supplied.)
In Markwell v. Pereles, supra, at page 415, the court said:
“The decisions in this state under this statute are, we think, in substantial accord, and must be regarded as holding that the statute secures to the father, as the natural guardian of his child, the right to its care and custody, if he is competent to transact his own business and not otherwise unsuitable; and that he is not rendered unsuitable by the fact that there are those attached to the child, having or desiring its care and custody, who occupy a higher position in the social scale, or are able to give or secure to it advantages in life better than those of the station to which it was born.”
See also Guardianship of Bare (1920), 170 Wis. 543, 174 N. W. 906, and Custody of Collentine (1934), 214 Wis. 619, 254 N. W. 118.
On the basis of the record in the instant cause I am of .the view that the court commissioner’s findings are against the great weight and the clear preponderance of the evidence, and that as a result there was error which the circuit, .court properly corrected by its judgment. With respect to thé father’s fitness, although it was challenged at the trial before *438the commissioner and at the trial in the circuit court, it stands of record as being satisfactory. The medical testimony adduced on behalf of the grandparents indicates beyond doubt that the nervousness of the child and the disturbances heretofore referred to, are temporary. There is no medical or other evidence to indicate that the child would not in a very short time adjust to a happy life in the home of her father. At the ages of these grandparents (in accordance with modern standards), it is neither for the best interest of the child nor themselves that they undertake the continued care and training of the child. The record shows without dispute that should illness or death come to either of the grandparents before the child attain the age of eighteen years, it would be far more difficult for the child to adjust to a changed home environment than it would be now. Although the child expressed a preference to remain with the grandparents, it does not appear that the same is more than a personal choice, and that it does not include substantial reasons why it would be against her best interests to be compelled to reside with her father. As to this last item, the situation is controlled by the principle elucidated in Edwards v. Edwards (1955), 270 Wis. 48, 56b, 70 N. W. (2d) 22, 71 N. W. (2d) 366, where in a per curiam opinion on motion for rehearing this court said:
“In the instant case, if Franklin Edwards, Jr., does testify that he prefers to remain in the foster home where he has resided for some years rather than return to the custody of his father, such fact should not be deemed to be controlling on the issue of custody unless the testimony of the boy goes beyond this matter of personal preference and gives substantial reasons why it would be against his best interests to be compelled to reside with his father.”
In my opinion the judgment of the circuit court ought to be affirmed.