38 N.Y.S. 193 | N.Y. App. Div. | 1896
The controversy betweén the'jparties to this proceeding relates to the custody of Arthur Byrne, an infant of the age of about four years, and a son of the petitioner. The appellants are the maternal uncles of the infant, and claim to be entitled to. the custody of him,- oil the ground (1) that .they are his testamentary, guardians, "under the last will and testament of his mother, and (2), that the petitioner is not a fit and proper person to have the custody of his /.son. The learned judge who heard the case at Special Term overruled both of these claims, and we concur with his conclusions.
The appellants wholly failed to show anything in. the character. ■ofThe petitioner, or in reference to his conduct towards the infant •or its mother, which would have permitted the. court to have ■denied to him the care and custody of his son. The appellants -acquired no right in reference to the child, under its mother’s will. The petitioner had" the legal right to have the custody of his son, and the attempt upon the part of Mrs. Byrne to dispose of his •custody during his minority, by her last will and testament, created no right whatever in the appellants as against the petitioner. '
. At common law the father had the legal right to control his minor child and-was entitled to its custody absolutely, to the exclu.sion of its mother. This rule has been modified by the statutes of this .State, and the course of legislation upon the subject, appears in 2 R. S. 150, § 1; Laws 1871, chapter 32; Laws 1888, chapter 454; "Laws 1893, chapter 175. In the last statute cited every married "woman is declared to be the "joint guardian: of her children witli'lier husband, with' rights and duties in regard "t,o them equal to her. husband, -and upon the death of .either- parent the survivor is given the right by deed or will to.-dispose of the custody of such child or children 'during their minority or for any less time. This statute is /still in force, and the petitioner, being the surviving, parent, has the /sole right to appoint the testamentary guardian, of the child, and his."fight to its custody is absolute (assuming him. to be a fit person)> i(Matter of Schmidt, 77 Hun, 201.)
All concurred.
Order affirmed, with ten dollars costs and. disbursements. . ,