Robinson v. Frost , 54 Vt. 105 ( 1881 )

The opinion of the court was delivered by

Taft, J.

This was an action of trespass qu. cl. for breaking and entering the plaintiff’s dwelling-house. The plaintiff is a householder in the town of Newfane. He had a son, William H., forty-eight years of age, who, with his wife and children, was domiciled in the State of Illinois. This son was in poor health, afflicted with disease of the brain, which greatly impaired his mind ; and in the year 1879, he came or was brought into this State, to his father’s house, his wife accompanying, and as the evidence tended to show, having charge of him. He and his wife remained at his father’s house until February, 1880, when she desired to return with him to their home in Illinois. This was opposed by the father. The defendants, as agents and servants of the wife, entered the plaintiff’s dwelling and removed the said William, and it was for this entry and resisting the plaintiff, in his attempts to prevent taking said William away, that this action was brought.

The plaintiff having given his son leave to enter his hou.se, could not prevent his departure, unless by law he had some authority over him which would justify detaining him. Upon the trial below no question was made as to the insanity of the son ; and the question was presented, and the case depends upon it, whether the father, or the wife, was entitled to his custody, and the control of him. The County Court instructed the jury that the wife had the right to say whether he should be taken away or left there, the same right that William himself would have had, had he been of sound mind. We think the instructions in this respect correct. We do not think that the father’s rights as natural guardian, which ceased when the son arrived at full age, were restored, or became endowed with new life, upon the insanity of the son. His rights as one in charge of an insane person, and his liability in p-espect thereto, were the same and no greater than though such insane person had been an entire stranger to him. There was no statutory guardian ; probably none could have been appointed, as William was but temporarily in the State. It is unnecessary, however, to determine that question, as it does not arise. In the absence of such guardian, whether the father or wife should control the insane son and husband, we have no hesitation in saying, that the right should be in the wife ; for during the insanity of the husband, she should be regarded as the head of the family, and entitled to the control of it; and that no one, as against the right of the wife, should have the power to control the abiding place of the husband ; such power naturally including the right to alter the domicil, which is sometimes accompanied with a radical change in the descent of personal estate, and in those principles that are most intimately connected with the domestic peace and rights of the famiiy.

Independent of this question of the right of the wife to control her insane husband, we think she was entitled to the care and custody cf him. He was insane ; was brought into the State in her control; and as the one actually having charge of him, whether her husband or not, she should be held responsible for his restraint, and therefoi’e entitled to his custody.

Judgment affirmed.

Powers, J., absent.