In re Williams

• Decision Date: 19 July 1910
• Parties: In re WILLIAMS.
• Court: New Jersey Court of Chancery

77 A. 350

77 N.J.E. 478

In re WILLIAMS.

Court of Chancery of New Jersey.

July 19, 1910.

In the matter of the application by St. Mary's Orphanage for the possession of a child in the custody of Sara V. Murray. The child should be returned to petitioner.

Thomas L. Raymond and Henry W. Stiness, for petitioner.

Charles E. S. Simpson, for respondent.

HOWELL, V. C. This is an application by St. Mary's Orphanage, a Rhode Island corporation, for the custody of Kenneth Williams, a child about six years of age, now in the keeping of the respondent Sara V. Murray, of East Orange, in this state. The child was born in Rhode Island, where its parents lived, in 1894. Soon after its birth the father deserted the wife and child; his whereabouts at the present time are unknown. The mother committed the child to the care of the orphanage on October 6, 1905 by a document signed by her whereby she relinquished and surrendered the infant to the institution in consideration that it would provide him a home and education until he should arrive at the age of — years, agreeably to its by-laws, promising not to interfere in the management or control of him in any way until that time. She agreed to pay to the orphanage the sum of $1.50 per week for each and every week that the child should remain at the institution, and that if at any time the weekly payments should remain due and unpaid for the space of 30 days, then she would relinquish and forever quitclaim to the institution all her right to the control of her child during his minority. The orphanage appears to have statutory authority for whatever it did concerning the child. Nothing has been heard from the mother since September 24, 1908. At that time she wrote a letter to the matron of the orphanage in which she stated that she had not been well for a long time and did not think she would ever be able to look after her son; that if the matron could get a home for him it would be better, for she did not think that she would ever be able to care for him herself, and she hoped he would find some place where he could be cared for.

In the early part of 1910 the respondent came into communication with the officers of the institution, and an arrangement was made with the authority of its directors by Which the infant was to be committed to the custody of the respondent; and a direction was given to the matron by a writing which is in evidence, signed by Mrs. Foster, who was chairman of the committee on admissions and dismissals, to dismiss two boys, one of them being the infant in question, to the care and custody of the respondent, for six months on trial for adoption. This document was dated January 29, 1910, and was delivered to the matron. I do not find any testimony going to show that it was ever exhibited to the respondent; but although the question of fact was much disputed at the hearing, I find enough evidence to convince me that the respondent knew, at the time the child was committed to her care and custody, that it was for a probationary period of six months, and that she took him with that understanding. The child was actually delivered to the respondent at a hotel in New York by a Miss Mason who had brought him there from Providence for the purpose. There is considerable discrepancy in the testimony as to whether Miss Mason delivered the child unconditionally or whether it was delivered for the probationary period. I find, however, that Miss Mason had no authority to make any agreement for the institution, and that the sum of her power was to deliver the child in accordance with the previous understanding, between the respondent and Mrs. Foster. I therefore conclude that the child was delivered to the respondent on trial only, for the period of six months from the date of delivery. The petition praying for its return to the custody of the institution was filed within that period, so that it has the benefit, if benefit it be, of that fact. It is perhaps noteworthy that the respondent at once changed the name of the child from Kenneth to David, a step which would imperil the chances of tracing him in after years.

An attack was made by the petition upon the respondent's character as an unfit person to have the custody of the child. It was not supported by any allegation of fact, nor was any evidence adduced against her moral character, nor anything shown which would lead the court to think that the child was not well taken care of. He was before the court, and upon such inspection as could be given to him under the circumstances he appeared to be well and happy, well dressed, and well taken care of. This conclusion is supported by the evidence of James Forbes, secretary of the Mendicancy Association of New York City, who visited the respondent's house on four occasions and at her request inspected the whole premises; and by Mr. Abbott, agent of the Children Aid and Protective Society of the Oranges, who visited her house at the request of Dr. Wight, the Commissioner of Charities and Corrections of New Jersey, for the purpose of investigating the conditions there. I am therefore constrained to hold that there is nothing in the testimony which impeaches the respondent's character on the score of immorality, or, with the exception of the matters hereinafter stated, would lead me to conclude that she is not a fit person to be intrusted with the care and custody of this child.

The real objection to her upon which the petitioner's case must rest relates to her financial ability to undertake and carry on the work to which she declares herself to be devoted. The facts are that her present marriage is her second marriage, her first husband being named Pollard. They were members of an Episcopal church in California. Prior to her marriage to her present husband she became a Roman Catholic, living in Buffalo, New York City, and Cranford, N. J., and subsequently became an adherent of the Christian Science Church. About four years ago she and her husband withdrew from that connection, and founded and organized the Church of the Healing Christ, holding services on Sunday morning in New York City, her husband being the pastor of the church. She is a writer for the periodical published by that church and for other religious papers. What the doctrines of the church are do not appear; certainly nothing appears which can discredit or disparage he on the score of her religious belief. She has. however, undertaken to care for several children ranging from one year of age upward, 8 in number, 2 of whom she has adopted by the decree of the Essex Orphans Court. Besides these children her family consists of her husband, herself, and some other young men and women, 12 or 14 in all—in addition to which there had quite recently been two other children in the household. To support this establishment she stated that she and her husband together had an income of from $8,000 to $10,000 a year, and that she owned the house in which they lived. On cross-examination, however, it developed that she did not have title to the house, did not know who did, and was totally ignorant as to whether she had any interest in it or not; that she went to New York nearly every day, and was away from her home the greater part of the day, leaving the large family of children in care of a German nurse girl whose knowledge of the English language is rather meager. Her husband was not called as a witness, the excuse being that he had the day before gone to a sanitorium on account of illness. The absence of so material a witness is at least cause of comment.

When required to particularize the sources of her income she said that it was derived principally from her books and from the books of her husband, although her books have not yet been published, and her husband has published but one; that her principal income came from her husband's work, and this he turned over to her three times a year, each time giving her "perhaps, twenty-five hundred dollars"; that she had some property at one time in the West and in San Domingo which she had conveyed to her mother, and that her mother allowed her $150 a month. Her whole story concerning it is so full of extravagances and prevarications that I am forced to believe that she is not telling the truth about it; but it is quite plain that she must be in receipt of a considerable income in order to pay the expenses incident to the conduct of the establishment which she has set up. Her whole story seems very improbable, and even at its best exhibits a...