Wilkinson v. Deming
| Decision Date | 30 September 1875 |
| Citation | 80 Ill. 342,22 Am.Rep. 192,1875 WL 8760 |
| Parties | ANDREW WILKINSONv.HANNAH E. DEMING. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding.
This was a petition filed by the appellant against the appellee, to obtain the custody of appellant's infant daughter, Sarah A., then about seven years of age. It appears that in January, 1871, the mother of the child obtained a decree of divorce against the appellant for cruel treatment, which gave her the custody of the daughter. On Dec. 2, 1873, the mother died, having, by her last will, appointed the appellee testamentary guardian of the child. The county court afterwards granted letters of guardianship to appellee, without notice to appellant. The petition sought to have these letters revoked. The court refused to take jurisdiction and to grant the prayer.
Messrs. HENRY & JOHNSON, for the appellant.
Mr. F. D. RAMSAY, for the appellee.
Several questions of importance, and new in this court, arise upon this record.
The first is, what is the effect of a decree of divorce a vinculo, for the fault of the husband, wherein the custody of the child is committed to the wife. And, second, on the death of the wife, the child surviving, has she the power to appoint, by will, a guardian for the infant, the father of the infant living.
We are inclined to hold, the decree, on a divorce being granted for the fault of the husband, giving the custody absolutely to the mother, takes away, ipso facto, all control of the father over the child. It nullifies, or at least neutralizes, the rule of the common law, and takes from the father all power thereafter over the infant, until it shall be restored by the action of a proper court. By the decree, the infant is no longer the child of the divorced father, but is entirely under the control of the mother, until, in this case, the infant being a female, she shall arrive at the age of eighteen years.
If this be so, then as the father, in case there had been no separation, could have appointed a guardian by his last will and testament, so could the mother, she having, by a decree of a court of competent jurisdiction, been vested with the absolute control of the infant.
Section 17, of ch. 47, title “Guardian and Ward,” R. S. 1845, p. 268, gives power to the father to make such a testamentary disposition of his child. The...
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Fox v. Hicks
...fix the domicile of the child must be necessarily hers. The divorce transferred all the father's parental rights to the mother. Wilkinson v. Deming, 80 Ill. 342. To a change of domicile there must be both an actual residence and intent to remain there. Magowan v. Magowan, 57 N.J.Eq. 322. Th......
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State v. Larson
...changes her domicile, the minor's domicile follows hers. Fox v. Hicks, 81 Minn. 197, 83 N. W. 538, 50 L. R. A. 663; Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192; Toledo Traction Co. v. Cameron (C. C. A.) 137 F. Applying the above discussed principles to the case at bar, we conclude tha......