In re the Proceeding of Schroeder

Daniels, J.

The children whose custody is in controversy are-a? son of the applicant, who is nearly of the age of eight years,, and a daughter nearly the age of seven years at the time when the order was made from which the appeal has been taken. They had resided with the respondents, who were sisters of their father, for more than three years proceeding the day of his decease, which was on the 6th day of July, 1879.

He was at their residence during his last sickness, and he was supported, nursed and cared' for by them; and on or about the 2d day of July, 1879, he, together with the petitioner, the mother of the children, executed an instrument under seal committing the custody, tuition and education of the children during their minority to his sisters, the respondents, and under that instrument the children were supported and eared for by the respondents to the time of the hearing-in December, 1882, when the order from which the appeal has been taken was made. This instrument has .been objected to as ineffectual under section 2851 of the Code of Civil Procedure, because of the omission to record it. But by section 3856 the provision requiring such an instrument to be recorded within three months after the decease of the grantor to secure and preserve its validity, did not go into effect before the 1st day of September, 1882. It consequently could not include the instrument executed by the father and mother of these two children. That seems to have been made under the authority of the preceding statute impowering the father of a minor child to dispose of his or her custody and tuition during his minority, or for any less period of time, by his deed or last will duly executed (3 R. S. [6th ed.], 167, sec. 1). Under the authority of this section it was not required that the mother should join in the execution of the instrument. But the fact that she did so, could in no manner deprive it of effect, for it was still the deed of the father designed to take effect upon his own decease, which took place in a few days afterwards. But even if it should be held that the instrument itself for any cause was inoperative, still the facts as they were made to appear on the hearing would deprive the applicant of the custody of the children.

It was alleged, and not denied, that she had been in the habit of quarreling with her husband, when the children would be taken to the home of his sisters, and left there with them. That the applicant at times left her home and remained away for two or three weeks, during which she did not give the children a mother’s care or attention. That she has been arrested several times since her husband’s death for disorderly conduct, and that it was the dying wish of the father of the children that their care and custody should be committed to the respondents, and the children themselves have no desire to leave them, but remain there. It is only reasonable to presume, from the circumstances, that the children could not be committed to the custody of their mother without danger to their morals, as well as their health and personal safety.

That they are better cared for, provided for and protected by the respondents than they could be by her, is free from all reasonable grounds of doubt. And the law will not interpose under such circumstances to remove infant children from a comfortable home provided for them, as their present residence has been, and commit them to the care and custody of their mother, where both safety and their morals would evidently be endangered by such an interposition. Under ordinary circumstances the mother, after the decease of the father, is entitled to the custody of her infant children.Bor it is presumed that they will be well cared for and protected in all respects by her. But when the facts disclosed in the controversy for their custody are such as to remove this presumption, and to justify the conclusion that it has no foundation in the particular case, then when they are properly cared for by others, to whom their custody may have been committed, the law will not interfere in her behalf. The security, good conduct and well being of the' children are the important considerations to be regarded, and where those ends can only be best accomplished by depriving the mother of their custody, it is the uniform practice of the courts to give such a direction (Matter of Murphy, 12 How., 513; Matter of Clifton, 47 id., 172; Matter of Watson, 10 Abb. N. S., 215).

As the facts were presented by the return to the writ, and its traverse of so much of it was denied by the applicant, the order was correct, and it should be affirmed with the usual costs and disbursements.

Davis, 0. J., and Beady, J., concurred.