34 Tex. 554 | Tex. | 1871
Juan Barela made application in the District Court of Matagorda county for letters of guardianship of the person of Milly Barela.
The petitioner- avers that the said Milly is the illegitimate child of himself and one Mary Jamison, now deceased, and that she is about six years af age ; that he supported the said mother and child from its birth until the death of its mother, who departed this life some time during the year 1869 ; that the mother, on her deathbed, entrusted the child to his care and custody; and that the mother died without property of any kind, and left her child entirely destitute.
The application was resisted by Emma Roberts—alleging that she- is the half-sister of the said Milly, and praying for letters of guardianship.
Upon the hearing, the court below decided against the application of Juan Barela, and awarded letters of guardianship to Emma Roberts.
From this judgment .the applicant appealed to this court.
There seems to have been no objection made in the court below to the competency or fitness of Barela to discharge the duties of guardian; and we can only infer, that the court decided adversely to him upon the ground that his paternity gave him no claim to the care and custody of his child.
In the case of Byrne v. Love, 14 Texas, 95, Chief Justice Hemphill says : “If the plaintiff were wholly illegitimate, that is, begotten out of matrimony, that would not of necessity give the guardianship to the mother. After such a child attains the age of seven years, the father has an equal claim with the mother to the guardianship.”
We have not had at our command authorities to verify the cor
“ In all cases not otherwise provided for by law, the father, while living, * * * and when there shall be no lawful father, then the mother, if living, shall be entitled to the guardianship of their minor children.” (Paschal’s Digest, article 3884.) This statute is a recognition, by implication, of the right of the putative father, on the death of the mother, to the guardianship of their illegitimate offspring.
“ The putative father has no legal right to the custody of a bastard child, in opposition to the claim of a mother; * * * she has a right to the custody and control of it against the putative father, and is bound to maintain it as its natural guardian; though, perhaps, the putative father might assert a right to the custody of the child as against a stranger.” (2 Kent, 233.)
Bouvier says, “ The putative father is bound to support his children, and is entitled to the guardianship and care of them, in preference to all persons but the mother.”
“ The relaxation in the laws of so many of the States of the severity of the common law, rests upon the principle that the relation of parent and child, which exists in this unhappy case in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity.” (2 Kent, 231.)
The law should never receive such a construction as would tend to dry up the sources of natural affection. Nor should the child, who is innocent of the guilt of its parents, be denied all claim to the protection and love of its father. Neither should the father be denied the privilege of assuming voluntarily the duties and responsibilities which, in the courts of other States, are forced by law upon the putatiye father of his illegitimate child.
The judgment is reversed and the cause remanded, to be proceeded with in accordance with this opinion.
Reversed and remanded.
