Lamar v. Harris
| Decision Date | 02 June 1903 |
| Citation | 44 S.E. 866,117 Ga. 993 |
| Parties | LAMAR et al. v. HARRIS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A father may, in this state, release to another the right to the custody and control of his minor child.
2. One to whom the parental power over a minor is awarded has no power to appoint a testamentary guardian for such minor.
3. W by a written agreement, released to L. and wife (his parents-in-law) all his parental power, custody, and control over his minor son, a child less than two years old. L confided the personal care of the child to his daughter, H and she has since that time occupied in every way the relation of a mother to the child. L. survived his wife, and died when the minor was nine years old, leaving a will in which he undertook to appoint his son guardian of the minor. H. continued to exercise parental power over the child for more than five years, without interference from the father, and with his full acquiescence. The father, since the agreement with L., has never contributed anything to the support of his child. Held, that the father, by long acquiescence in the control of the minor exercised by H. since the death of L., and his failure to contribute anything to its support or to assert his parental authority in that time, has lost his right to the custody of the minor.
4. In habeas corpus cases for the custody of a minor, the paramount consideration is the welfare and happiness of the minor; and, in determining that, the trial court is vested with a large discretion. Where the circumstances justify it, the wishes of the minor may properly be consulted in determining to whom the custody shall be awarded.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by V. L. Harris against H. J. Lamar and another. From the judgment, defendants bring error, and plaintiff files cross-bill of exceptions. Judgment on main bill of exceptions affirmed, and on cross-bill dismissed.
Bacon, Miller & Brunson and Thos. E. Matthews, for plaintiffs in error.
Dessau, Harris & Harris and Hardeman, Davis, Turner & Jones, for defendant in error.
This is a habeas corpus case from Bibb county, involving the custody and control of a minor. The minor in question, Lamar Washington, is a son of one of the plaintiffs in error, W. H. Washington, and his wife, Alberta Washington, née Lamar. He was born on March 6, 1887, at the home of his mother's parents, Col. and Mrs. H. J. Lamar, in Vineville, near Macon. About two weeks after his birth his mother died. His father's home was in Nashville, Tenn. Shortly after the death of Mrs. Washington, W. H. Washington returned to Nashville, leaving his infant son in the care of the Lamar family. About two years later, he returned to Bibb county for the purpose of taking the child back to Nashville with him. In the meantime, however, the Lamars had become very much attached to the child, and objected strongly to having him taken from them. After some negotiations between Col. Lamar and Mr. Washington, the following written agreement was entered into between them:
This agreement was signed by both the parties, and was executed in the presence of two witnesses. Henry J. Lamar died December 25, 1896; his wife having died about two years previously. Shortly after his birth, the infant, Lamar Washington, was intrusted to the care of his maternal aunt, Mrs. Valeria L. McLaren, now Mrs. Valeria L. Harris, the defendant in error, and ever since that time he has lived with her, in every respect as her own child. Henry J. Lamar left a will, which contained, among others, the following provision: "Having received by due transfer all the parental powers of his father over my said grandson [Henry J. Lamar Washington], I hereby appoint Henry J. Lamar, Jr. [ a son of the testator], guardian of his person, and in the event of his failure or inability to act, I appoint Walter D. Lamar such guardian in his stead." Certain real and personal property were also bequeathed to H. J. Lamar, Jr., in trust for H. J. Lamar Washington, and the trustee was directed to apply the income thereof to the education and maintenance of the cestui que trust during his minority, "provided he remains, and so long only as he remains, under the control and influence of, and is domiciled with, my immediate family, or some member thereof; but in the event my said grandson should be removed beyond the limits of the state of Georgia, or should otherwise be taken from the control and influence of my said immediate family, or some member thereof, or his domicile be changed therefrom, said income, interest and profits shall no longer be applied to his support, maintenance and education, *** but shall revert to and become a part of my estate."
On April 5, 1902, Mrs. Harris filed in the superior court of Bibb county her equitable petition, in which she set out substantially the foregoing facts, and also the following: Since the death of H. J. Lamar, Sr., W. H. Washington has never set up any claim or asserted any rights to the custody and control of Lamar Washington, but Mrs. Harris has had such custody and control. She has stood in the position of a mother to said minor, and has the affection of a mother towards him, while he has the affection of a son towards her. On the day the petition was filed, Henry J. Lamar, Jr., gave notice to Mrs. Harris that on the following day W. H. Washington would be in Macon, and that Lamar Washington would have to return with his father to Nashville, Tenn. From the time that the child was turned over to petitioner as an infant, she has had charge of him. She nurtured him in his infancy, nursed him through several illnesses, attended and watched over him, and in every respect brought him up as her own child, and learned to love him as her own offspring. The petition prayed for an injunction to restrain Henry J. Lamar and W. H. Washington from interfering with her possession, custody, or control of Lamar Washington, for general relief, and for process. Subsequently she amended her petition, claiming that she was entitled to the custody of the child, and praying for a writ of habeas corpus, and for an order decreeing her to be the lawful custodian of the child.
The defendants filed separate answers. Both claimed that under the will of H. J. Lamar, Sr., the testamentary guardian was entitled to the custody of the child, and denied that Mrs Harris had had such custody since the death of her father, except by the permission of the guardian, H. J. Lamar, Jr., who, it was averred, had been the legal custodian of the child since the death of H. J. Lamar, Sr., and had been recognized as such by Mrs. Harris. By an amendment to his answer the defendant Washington set up that "if the court should determine that, under the law, the provisions of said will [of H. J. Lamar, Sr.] are inoperative and of no effect, then respondent submits to the court that the right to the custody and control of said child has revested in this respondent, and he alone has such right; and, in the event the law prevents Col. Lamar's wishes as to the custody of said child from being carried into effect, then this respondent here and now asserts his right to the custody of said...
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