140 Iowa 399 | Iowa | 1908
— Felko Smidt is a boy eleven years of age. His mother died as a result of childbirth, the boy being then about one month old. A Mrs. Kramer was the grandmother of Felko, and, upon the death of the mother, this grandmother, with her daughter, Mrs. Benenga, by agreement with the father undertook to bring up the boy. The grandmother was then about sixty years of age and somewhat crippled, but she was a woman of some means, and then and thereafter lived with the defendants, as did the boy when taken by the grandmother. This grandmother and the defendants have treated the boy kindly, attended to his education, supplied his wants, and defendants were, in so far as the boy knew while he was growing up, his parents. The grandmother died some weeks before this action was commenced, and shortly after her death the father began his efforts to get possession of the child. He admits that he consented- to the grandmother taking the child, but contends that he never agreed that defendants should have him, and insists that, upon the death of the grandmother, he, the natural father, became entitled to the care, custody and control of his offspring. On the other hand, defendants contend that the father gave them, with the grandmother, the care, custody and control of the child; that they gave him support and suste
There is no evidence that the boy was ever in the father’s home after the second marriage, and it is affirmatively shown that he has not been in that home since the father removed to' Hancock County, nor has the father*403 paid for the support aud . education of his son. And no excuse is offered by the father, or appears in the evidence, for his failure in these respects. Because others have done for this motherless child the duties ordinarily performed by all good parents does not excuse the father from his neglect. Now a condition has developed in which the son has no love for his father, and the reason is obvious. If the father loves his son as a good father should, he has long failed to manifest such love. The fact that a present interest is taken in the son when he has reached an age at which boys in his station of life began to be helpful in chores and work, and when he has come into property from his grandmother’s estate, can not atone for the long years of indifference and neglect during the child’s helplessness and need. On the other hand, the evidence conclusively shows that Mrs. Benenga has been a kind and loving mother to this motherless boy during more than ten years from babyhood, and that as a result of such care and intimacy there has grown up a deep and strong affection on the part of each for the other. He is now a part of the Benenga home as much as though he had been born into it. He is a stranger to his father’s home, due entirely to the acts and conduct of the father. In character and reputation the Benengas are fully equal to the father and stepmother. There is no question as to their ability to properly care for and educate the lad. They have proven their unselfish devotion to the boy by long years of loving care when' such care was needed. From all the evidence in the case I am firmly and abidingly satisfied that the boy’s welfare and happiness will be best promoted by permitting hito, to remain in the defendants’ home, where he desires to remain, and that an order transferring him to his father’s house might result in serious injury to him, and would cause great sorrow to him and to Mrs. Benenga.
No error appears, and the judgment must be, and it is, affirmed,