18 Or. 461 | Or. | 1889
The facts in this case are these: On the fifth day of April, 1889, Esther Holladay, widow of Ben Holladay, died, leaving a will, in which she appointed General Rufus Ingalls executor thereof, and the guardian of her two children, Linda Holladay and Ben Campbell Holladay. The will was regularly proven and admitted to probate in the county court on the twentieth day of April, 1889, and General Ingalls was appointed executor of the’will, but in regard to the matter of his.application tobe appointed
The question involved and to be decided is the right of a mother to appoint by will a guardian for her children. The common law did not recognize the right of a testator to appoint a guardian for his children during their minority. While it made various provisions for the care of infants and their estates, the right to make any testamentary dispositions of the guardianship of the children was denied or withheld. It was years after the power to dispose of his property by will had been established by various statutes, that the right to make a testamentary disposition of the guardianship of his minor children was conferred. This right was given by the statute of 12 Charles II, 2 chap. 24, and by the words of the Act the father only can appoint the guardian or guardians, who shall have the custody of his children and the control of their estates during minority. The power thus conferred, when exercised to its fullest extent, invested the testamentary guardian with an authority over the children and control of their estates almost as coextensive as that enjoyed by the father himself. His appointment supersedes all other guardians, and all control on the part of the mother. So absolute is this power that it may be exerted in utter disregard of the claims of maternal affection and despite its protests, and commit the custody of the children to a stranger and embitter the life of the mother by depriving her of the society of her offspring. It matters not how amiable and
It is to the credit of the American courts that they' have been guided by a more liberal policy than those of England in awarding the custody of the children to the mother, and have regarded their welfare and interest in such controversies as the paramount obligation to be considered. Mercien v. People, 25 Wend. 104; Schoulder on Domestic Relations, 339 and 40; Hurd on Habeas Corpus, 472, et seq. Yet, notwithstanding the liberality of our courts in this regard, the statute of 12 Charles II has been re-enacted in most of the States, including our own State, shorn only of its verbose phraseology, but without any intention, it is thought, of varying its construction. 2 Kent’s Comm. 225.-It is true that in some of the States, of late years, the injustice to which it subjected mothers provoked a revolt in public sentiment and resulted in legislation which has softened its rigors, or so materially changed its features as to place the parents comparatively upon an equality in the right of the custody of the children. And while the spirit of mod ern progress has characterized our legislation, leading to the removal of numerous disabilities created by the com mon, law, and to a recognition of her individuality and of her rights of property, and what is equally or more sacred to her, the right to direct and control the training and custody of her oflspring, in case of divorce, where the husband is in fault, or shown in any controversy between them to be an unfit custodian of them, yet this relic of barbarism in the form of a statute is still in force in°our own State, unless its rigors have been softened or repealed by the Act of 1880.
With a full knowledge, then, of the injustice which may result to the mother from the operation of this statute, we are to turn to the statute of 1880 in order to determine whether its effect has been to give the mother the right to appoint a testamentary guardian for her children in the same manner as the father could do; for unless the statute works this result, the judgment must be reversed. Our
The two last sections constitute the Act of 1880, and the contention is, that they give the mother the same right to appoint a testamentary guardian'in case of the father’s death, as the father would have in case of the mother’s death. The first section (2998) provides that “all laws which impose or recognize civil disabilities upon the wife which are not imposed and recognized as existing as to the husband are hereby repealed. ” ‘ ‘All laws ” would include both the statutory and common law, and whatever of these that impose or recognize civil disabilities in the one that is not recognized in the other, are hereby repealed. The manifest object of the section is to repeal, not to modify or amend, all laws, whether common or statutory, which have the effect to impose or recognize such civil disabilities. What are the “civil disabilities” of the wife?
We now come to construe § 2878, and it is upon the latter clause of this section that counsel more confidently rest their argument for the authority of the wife or mother to appoint a testamentary guardian. That section provides: (1) “That the rights and responsibilities of the parents in the absence of misconduct shall be equal, and (2) that the mother shall be as fully entitled to the custody and control of their children and their earnings as the father, and (3) in case of the father s death, the mother shall come into as full and complete control of the children and, their estate as the father does in case of the mother's death. All laws or portions of laws inconsistent with the foregoing are hereby repealed.” Of this section it is the italicized clause upon which the right of the mother to appoint a testamentary guardian is chiefly urged. We are to understand, however, at the outset, that all laws or portions of laws •inconsistent with, or w'hich deny the mother, in case of the father’s death, as full and complete control of the children
The case stands in this wise. That at the father’s death, the mother cannot come into the full and complete control, if the father chooses to exert the right conferred by the statute against her, but her death in no way effects his right to such full and complete control of the children, irrespective of his right of testamentary appointment. What, then, is the purpose of the statute when it proposes in direct terms to give the mother the full control and custody of the children and their estate at the father’s death, as he enjoys at her death? Is it the right to appoint a testamentary guardian? There is no suggestion
As a consequence, it follows that the decree must be reversed, and it is so ordered.