86 So. 320 | La. | 1920
Plaintiff appeals from a judgment rejecting his demand for possession of his minor son. The defendants, who have possession of the boy, are his maternal grandmother, Mrs. C. Hamilton Tebault, and a maternal uncle, Grantland L. Tebault.
The child is six years of age. His mother, Mrs. Corinne Tebault I-Iarper, died on the 1st day of October, 1919, at her mother’s home, in New Orleans, where Mrs. Harper had been
Mrs. Harper left a written request that her mother and her brother Grantland should raise her child. But the instrument, of course, has no legal effect, because the right to appoint a tutor by will is vested only in the one of the parents who has survived the other. Rev. Civ. Code, art. 257.
The only question presented is whether relator, who is primarily entitled to the tutorship and possession of his child, is, for any of the reasons advanced by the defendants, unworthy of the tutorship and possession of his child, or incapable of taking care of him.
Article 305 of the Civil Code, as amended by Act 82"of 1880, p. 107, declares that no cause for the exclusion or removal from the tutorship of minor children shall be applicable to the father, except the following: First, unfaithfulness of his administration; second, notoriously bad conduct; and, third, abandonment of his children and failure to support and maintain them for more than one year.
Defendants urge all three causes or reasons for their contention that relator should be denied possession of his child.
They contend that he has already shown unfaithfulness in his administration of the child’s estate, in the manner in which he directed the notary public to make the inventory.
It appears that in January, 1920, Mr. Harper came to New Orleans and had his wife’s succession opened, and was then confirmed and qualified as natural tutor of the child. The property of the succession consisted only of personal property. The separate estate amounted to $722.21, consisting of Liberty Bonds and articles of jewelry found in the bank box of the deceased. The only community property put upon the inventory was a deposit of $1,123.26, in a savings account kept by the deceased, in a New Orleans bank, one-half of .which sum was inventoried as belonging to the child.
Mr. Harper at'that time owned an automobile, which he had bought during the marriage, and which therefore belonged to the marital community; and he had a small balance to his credit in a bank in New York, which deposit also belonged to the marital community. He neglected to have the notary public include in the inventory the child’s half interest in these two items of community property. He also failed to have the notary public include in the inventory an indebtedness alleged to have been due by him to his wife, for the value of a diamond ring, said to have been worth $1,500, which his wife had lent him, and which he had pledged as security for a debt that he owed. The evidence is that, after lending the ring to her husband, for the express purpose of pledging it and paying any debt or debts that he might owe, Mrs. Harper agreed that the ring should be a gift to her husband if he should be unable to return it. When the notary public was making the inventory, Mr. Grant-land L. Tebault, defendant herein, demanded that the claim against Mr. Harper for the value of the ring should be included in the inventory as belonging to the separate estate of the deceased. In response to the demand, Mr. Harper declared that the ring had been given to him by his wife, that he had pledged it for a debt, had not redeemed it, and was therefore unable to return it.
There is no evidence of notoriously bad conduct on the part of relator. Defendants refer to one instance in which it was reported to them that relator was guilty of unbecoming conduct in presence of the child; but our conclusion, from the evidence in the record, is that the report was not well founded. It appears that in February, 1920, Mr. Harper came to New Orleans, called at the residence of Mrs. Tebault, where the boy was living, and took him out riding in an automobile. There were two other men and the wife of each of them in the automobile, besides the chauffeur. The two couples were strangers in the city, guests of the same hotel at which Mr. Harper stopped. The party visited a respectable pleasure resort and had refreshments, and after the two married couples had returned to the hotel, Mr. Harper returned the boy to his grandmother’s home. Thereupon it was reported to Mrs. Tebault that the party of pleasure seekers had indulged in intoxicating drinks and improper conduct in presence of the child. Her belief in the report seems to have been her main reason for refusing Mr. Harper’s request thereafter that the child be returned to him.
On receipt of the telegram announcing the death of his wife, Mr. Harper came immediately to New Orleans. Before returning to his business in New York, he placed his son in the care and keeping of Dr. O. Hamilton Tebault, another maternal uncle of the child, and prominent physician in New Orleans. There the child remained a month or longer, and was then taken, either by Dr. Tebault or by a nurse in his employ, to the home of Mrs. Tebault. It is said in the answer to this suit that the child appeared at Mrs. Tebault’s front door unattended, rang the door bell, and announced that he had been sent there to remain as long as it pleased him to stay. But the responsibility for the child’s being sent to the home of Mrs. Tebault has not been put upon Mr. Harper.
The judgment appealed from is annulled, and it is ordered, adjudged, and decreed that the defendants deliver to relator his minor son, Howard Hamilton Tebault Harper, and that defendants pay the costs of this suit.
