145 Minn. 383 | Minn. | 1920
By habeas corpus William F. Maehgan seeks to obtain the custody of his daughter Ethel from John and Veronica Pelowski, the parents of Ethel’s deceased mother. The father prevailed in the district court, and the grandparents appealed to this court. The trial here is de novo. Upon the testimony taken and reported by the referee herein the following facts appear:
In October, 1913, Maehgan, then about 22 years old, married Anna Pelowski, who was three years younger. He was born and brought up in St. Paul, his parents being German Lutherans. Anna was bom and raised on a farm in Le Sueur county, her parents being Polanders of the Catholic faith. To secure their consent to the marriage Maehgan became a Catholic. The young couple first boarded for a month or two with the husband’s relatives in St. Paul, and then went to housekeeping in rented rooms. Maehgan had very little with which to establish a household, and received some help from Anna’s parents. He was an operator in a shoe factory, and had been such for some time. In October, 1914, Ethel was bom. A year later a strike in the factory caused Maehgan to despair of earning a living for his family in the city. The Pelowskis were appealed to, and they received Maehgan with his wife and child into their home. In the spring of 1916, Maehgan secured temporary quarters in neighboring unoccupied farm houses, and did whatever work he could find to do among the farmers, but it is clear that the Pelowskis continued to give substantial aid to Machgan’s family as long as Anna lived. In the fall of 1916, Anna appears to have contracted a serious illness, which during the following winter increased so that it became necessary for the Pelowskis to again take her and the child into their own home for proper care. Here they remained until the summer of 1917, when, at the attending physician’s suggestion, Maehgan rented a place in Montgomery, where it would be more convenient to give Anna the medical attention she needed. The Pelowskis also let their daughter Emily accompany Maehgan to Montgomery. Emily nursed Anna and attended to the housework until Anna’s death. While living in Montgomery Anna gave birth to a second child. A few weeks thereafter she was taken to a hospital in St. Paul for an opera
Since her mother’s death Ethel has been with the Pelowskis, except for visits of some weeks’ duration with her father’s relatives in St. Paul. Some time after his wife’s death, Machgan returned to St. Paul and got work in a shoe factory and in May, 1918, secured a position in the city fire department, where he still remains "at a saMry of $105 per month. At present he boards with a widowed sister. He has no property or resources except his earnings. He has discharged some of the bills incurred during his wife’s illness. The Pelowskis own the 154-acre farm where they reside, valued at $335 per acre. They also have live stock and other personal property estimated at $11,500. They owe $3,000. Mr. Pelowski is 58 and his wife 44 years of age. They have eight children living at home, the eldest, Emily, being 33 and the young: est two years old. Two grown brothers of Mr. Pelowski also share the home. The one is deaf and dumb, and the other is so seriously afflicted with hydrocephalus that he must be eared for like an infant.
In addition to the above uncontroverted facts we consider it established that shortly before Anna’s death she requested her parents to rear and educate Ethel, and they agreed to so do and also to will her a share in their estate equal to that of any of their own children, and that Machgan consented to this arrangement.
This bitter contest for the custody of this child has mainly taken the form of an effort on the part of Machgan to show the unfitness of the conditions of the Pelowski home and the discreditable traits or habits of the two" dominating persons therein, Mrs. Pelowski and Emily. A like assault is made upon the habits and character of Machgan by appellants. It is quite certain that neither Mrs. Pelowski nor Mr. Machgan has, as a rule, refused to indulge in intoxicating liquors when such could be had. But we think the charges made against both are greatly exaggerated. And under the present status of intoxicants no
The right of a father to the custody of his motherless child is superior to that of any other person. He should not be deprived of that right, unless it is made to appear that the best interests of the child demand it. State v. Martin, 95 Minn. 121, 103 N. W. 888; State v. Halvorson, 127 Minn. 387, 149 N. W. 664.
It is urged that the agreement made at Anna’s death-bed is one which courts may enforce, if the one in whose behalf it is made complies with the conditions. This is true, but such agreements are not binding on courts, when the question of the care and custody of a child is to be determined. State v. Anderson, 89 Minn. 198, 94 N. W. 681. However, we should not be unmindful of the pecuniary advantage that may inure to Ethel by the agreement that by will she should be assured of her share of the Pelowski inheritance.
■Notwithstanding the property consideration .just alluded to, and notwithstanding the fact that Ethel’s father has no home of his own to which he can take her, we nevertheless have reached the conclusion that her best interests will be served by awarding her custody and care to him, and mainly for these considerations: Machgan’s plan is to make a home for himself and child with his brother-in-law and sister, Mr. and Mrs. Hawkins, who are very much attached to Ethel. Mr. and Mrs. Hawkins own, free of debt, a modem, comfortable home in a good residential district of St. Paul. They have been married 11 years, but no children have been born to them. Mr. Hawkins taught school for five years, but for a number of years has been in the railway mail service. His present salary is $150 per month. The evidence is undis
In reaching the conclusion that the best interests of Ethel will be promoted by giving her to the custody of her father, we do not believe any pecuniary loss will result to her from the fact that she may not be in a position to enforce the agreement her mother made for her with the Pelowskis. The agreement only insured to Ethel that part which would come to her through her mother in case Pelowski died intestate. We do not believe that the affection and love which both Mr. and Mrs. Pelowski profess for Ethel, and which is evidenced by what they have done for her and her parents and the great expense they have gone to in seeking to retain her custody, will permit them to disinherit Ethel because of her father’s successful effort to obtain possession of her.
Much is made by counsel for the Pelowskis of some testimony of cruel treatment of his wife by Machgan. The kindly .treatment accorded Machgan by the whole Pelowski family, and the friendly visits that
Upon the consideration hereinbefore indicated the custody and control of Ethel Machgan is hereby awarded to the relator, her father. No statutory costs are allowed.
Let judgment be entered accordingly.