Heard v. Cottrell

| Miss. | Mar 15, 1911

Whiteield, C.

This case has had our most careful and thorough examination. If the dying request of the father as to the custody of his child, a boy about six years of age, were taken from the record, we should affirm the decree. But the record shows clearly that the father on his deathbed .distinctly stated that .he wished the appellant to have the custody of his child. There is no dispute that such wish was distinctly expressed by the father. The -controversy is as to whether the father, who died of pneumonia, was rational and competent to make a disposition of his child at the time it was made.

. We know no useful purpose that could be subserved by setting out in detail, the testimony on one side and the other on this point: Recognizing fully the rule that the decree of a chancellor, especially the decree of an unusually able chancellor, on the facts, should not be disturbed by this court, except where it is plainly and manifestly wrong, we are constrained to hold that the conclusion which the chancellor must have reached in order to render the decree he pronounced in this case, to-wit, that at the time the father expressed his wish as to the custody of his child he was not competent, to make such disposition, was clearly and manifestly wrong: We think the testimony overwhelmingly establishes, properly weighed and analyzed, that the father was perfectly rational at the time he made this disposition and thoroughly understood what he was doing. It is not like the case of a testator suddenly stricken down and called unexpectedly to dispose of large property interests by his will. Such testator would be required suddenly to recall all the property he owned, to determine as to who should be the beneficiaries of his will, what estates or interests he would devise to each, to provide for debts, to choose executors, etc. The whole matter would be one, for the first time present to his mind, requiring a first great effort of the mind to meet the exigencies of the whole situation.

Nothing of that sort was true here. This father knew both aunts and the families of botli, their financial ability, and their suitableness from every point of view. The child has been with both at different times, and both have been as kind to it as possible. What influenced him in making the choice we do not know, nor is it material to inquire. It is enough that, all other things being equal, the law is that the father’s clearly expressed wish ought to turn the scales. We think that principle of law controls this case, there being nothing to show that the best interests of the child are in conflict with the wish of the father. Reversed.

8%iggestion of error filed and overruled.

Per Curiam.

The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the decree of the court below is reversed, and a final decree will be entered here, awarding the custody of the child to appellant.