116 Ga. 108 | Ga. | 1902
Lead Opinion
This was a proceeding by habeas corpus, brought by • W. F. Monk and his wife, Minnie Monk, against Sarah A. McDaniel, for the custody of Ethel Monk, formerly Ethel Coker, a child between four and five years of age. The judge of the superior court, upon the hearing, awarded the child to the defendant; whereupon the plaintiffs excepted. It appears from the record that Ethel is the daughter of John and Virginia Coker, who, until their respective deaths, resided in Henry county, Alabama; and that John, who survived his wife, died about February, 1900. The record shows that on September 8, 1900, the plaintiffs, in the probate court of Barbour county, Ala., and in accordance with the laws of that State, adopted Ethel as their child, having her name changed to Monk, and that her grandfather, Thomas Coker, and her aunt, Mrs. Mc-Craney, consented to .the adoption. Plaintiffs based their right to the custody of the child upon this adoption.
1. One of the contentions of the defendant was, that she was entitled to the custody of the child, because the child’s father had given her to Mrs. Price, who, in October, 1900, had given her to the defendant. It appeared that John Coker, about two weeks after his'wife’s death, and some four months before he died, wrote a letter to Mrs. Price, a sister of Ethel’s mother, in which he used the following language : “My health is not very good no way, and I, may not live very long, and if I should not, I don’t know what would become of the children. I know that you have got your hands full, but if anything was to happen I want you to take Dudley and Ethel, if possible, and N. W. Vinson lay, or [if?] it suited you and you could keep her with them that would be all right; maybe I would leave enough to help them along some, and of course I would expectyou to take that.” Mrs. Price, who resided in Henry county, Ala., testified by interrogatories as follows: “ In reply to said letter I wrote said John Coker that I would, in case of his death, take said children and take care of them until I could get them a good home. I accepted said trust, but afterwards delegated the same to Sarah A. McDaniel, in consideration that she would take said childreirand raise them as her own, and to clothe, maintain, and educate them.” It appeared that immediately after the death of her father Ethel was taken to the home of Mrs. Price, where she remained only one night, and was then taken to Barbour county, Ala., to her grandfather, Thomas Coker, and her aunt, Mrs. McCraney,
2. The defendant further claimed that the plaintiffs relinquished to her their right to the custody and control of Ethel after they adopted her. Mrs. Hearn was the only witness examined in reference to this feature of the case. She testified as follows: “ That Ethel was a second cousin of hers and her sister, Miss Sarah A. McDaniel; that in June, 1901, she went to Clayton, Ala., to plaintiffs about Ethel; that she and defendant had already gotten her little brother, Dudley, who was just about two years older than Ethel, and wanted to get Ethel also; that she saw plaintiffs and told them what she wanted, and also told them that she thought it best for the children to be raised together, and the plaintiffs said they thought so, too; that she had had some correspondence with plaintiffs about Ethel before, and had written them that she was coming to see about getting her; that at first plaintiffs did not seem to be willing to give up Ethel; that she told them that they could have their adoption papers canceled, and that she would pay all costs thereof; plaintiffs agreed to let her and defendant have Ethel if she was sat
3. Another contention of the defendant was that Mr. Monk, in January, 1902, entered into a contract with Mrs. Hearn, by which he agreed to relinquish to her and. the defendant the custody of the child. The only evidence submitted in support of this contention was as follows:' Mrs. Hearn testified,in substance, that Monk came, to Carrollton, in January, 1902, after the child; that witness and the defendant declined to give her up; that the child did not wish to go with him; that he said if witness and defendant would pay him fifty dollars — that being about the amount that he had expended on the child’s account,— he would let them keep her; that witness agreed-to do this and told him, “ if he would have his adoption papers of Ethel canceled and forward them to the Carrollton bank, she would instruct the bank to pay him the fifty dollars;” that this was on Sunday, and the next week she did instruct the cashier of said bank to pay Mr. Monk the fifty dollars when said papers were sent to the bank thus canceled, and wrote Mr. Monk accepting his proposition; that she would have accepted his proposition the day it was made, but did not want to make a trade on Sunday. A letter from Mrs. Hearn to Mr. Monk, dated Feb.’ 21, 1902, was as follows: “My sister and I accepted your proposition. The money is now in the Carrollton bank, and has been all the while ready for you when you send in the papers as you said you would. This the second time I have notified you.” A letter from Mr. Monk to the cashier of the Carrollton bank was put in evidence by the defendant. It was a,s follows: “ Mrs. Ella Hearn wrote me a few days ago that she had deposited $50 in the bank for you to give me when I notify you of the cancelation of my
4. In view of the evidence submitted on the hearing, we do not think that the judge, in the exercise of the discretion vested in him in such cases, was authorized to award the custody of the child to the defendant, rather than to the plaintiffs, the adoptive parents. There was uncontradicted evidence to the effect that Mr. and Mrs. Monk were each thirty-two years of age; that they had been married several years and liad no children of their own; thát he owned realty of the value of twenty-five hundred or three thousand dollars and three or four hundred dollars worth of personalty;' that he was a graduate of the Normal School of Alabama, had been teaching school seven or eight years, and at the time of the trial was superintendent of the schools of Phenix City in that State, at a salary of six hundred dollars per annum. There was absolutely no evidence tending to show that either he or his wife was an improper person to have the custody of the child they had regularly adopted, or that they had ever in any way mistreated her. It appeared that the defendant was a maiden lady, worth between four and five thousand dollars, and there was no question as to her ability and fitness to rear the child. Both plaintiffs and the defendant professed to love her, but the child expressed a decided prefer
5. In view of the rulings we have made, which dispose of the case upon its substantial merits, we deem it unnecessary to pass upon other assignments of error presented in the bill of exceptions.
Judgment reversed.
Dissenting Opinion
dissenting. It is my judgment that, under the evidence contained in the record, the question of awarding the custody of the child was a matter to be governed by the exercise' of the sound discretion■ of the judge; and that it was not abused by the judgment he rendered.