24 Tex. 278 | Tex. | 1859
It was objected, in the District Court, that the appellee, Mary Bybee, could not maintain this suit, in her own name, without being joined by her husband. The whole case was submitted to the judge below, without a jury, and there does not appear to have been any action of the court below, upon the objection, that the husband did not join in the suit; nor is the point made in the assignment of errors. We are of opinion, that the appellee, as the natural mother of the infant, was competent to assert her right to the guardianship of her child, without being joined by her husband, inasmuch as the law provides, that, “the mother,” under certain circumstances, “shall be entitled to the guardianship of her minor children, and shall have the custody of their persons, education, and estates.” It may be true, that where the mother is required to give bond, as guardian, she ought to be joined in the bond by her husband, if she be again under coverture. But if this be so, it does not prevent her from appearing in court, to assert her right to the guardianship of her minor children.
It is true, that there are cases, in which the father of a minor, after surrendering his control of his child’s education, has not been permitted again to assert his right to such control; but those are cases where legacies were given, or donations made by third persons, to the minor, upon condition that the father would relinquish the control of the minor’s education; and where the father had acceded to the conditions imposed. There is nothing in the present case, to place it in the class of cases just mentioned.
The right of the appellant, to the guardianship of the minor, in this case, by virtue of the provision of the will of the father of the minor, was lost by the failure of the appellant to appear before the court where the will was probated, and accept of the appointment, and obtain letters of guardianship, within six months
Judgment affirmed.