Lewis v. Crowell
| Decision Date | 11 October 1923 |
| Docket Number | 2 Div. 818. |
| Citation | 97 So. 691,210 Ala. 199 |
| Parties | LEWIS v. CROWELL. |
| Court | Alabama Supreme Court |
Appeal from Probate Court, Sumter County; P. B. Jarman, Judge.
Petition of Jonas Crowell for writ of habeas corpus directed to Will Lewis. From a decree awarding the writ, defendant appeals. Affirmed.
James A. Mitchell, of Birmingham, and Patton & Patton, of Carrollton, for appellant.
John Altman, of Birmingham, and Thos. F. Seale, of Livingston, for appellee.
This is a proceeding commenced by petition for writ of habeas corpus to determine the custody and control of two children, one a girl three years old and the other a boy five years of age. It was commenced in the probate court by Jonas Crowell against Will Lewis. The court, by decree on hearing the cause, directed that Will Lewis deliver the two children to Jonas Crowell, the petitioner, and that he was entitled to the custody and control of them. This appeal is prosecuted by Will Lewis from that decree, and it is assigned as error.
Lucy Smith, the mother of the two children, is dead. Jonas Crowell, the petitioner, is the putative father of the children, and Will Lewis, the defendant and appellant, is the brother of their mother.
Jonas Crowell and Lucy Smith for many years prior to her death lived together as husband and wife, but during this time Jonas had a living wife, from whom he had never been divorced, and Lucy had a living husband, from whom she had never obtained a divorce. These two children were born while Jonas and Lucy were living together; and it appears from the evidence that Jonas was recognized as their father. As one had a wife and the other a husband living at that time, and no decree of divorce dissolving the former marriage had ever been rendered by a court of competent jurisdiction, they could not be husband and wife under a common-law marriage. Baccus v Eads, 209 Ala. 578, 96 So. 757; Potier v Barclay, 15 Ala. 439. These children are bastards illegitimate children, and the father is under no legal obligation to support them in the absence of a statute requiring it. Simmons v. Bull, 21 Ala. 501, 56 Am. Dec. 257.
In proceedings of this kind for the custody and control of children, the court must determine and decide what is best for their benefit and welfare. The present and future welfare and interest of the children should control the conscience and direct the decree of the court in determining who shall have their custody and control. Neville v. Reed, 134 Ala. 320, 32 So. 659, 92 Am. St. Rep. 35; Ex parte Boaz, 31 Ala. 427.
Here the brother of the mother and the half-sister of the children desire to keep, rear, and control them. From the evidence they are financially better able to do so than their father. It is evident that the petitioner is their father; they lived with him and their mother until her death; and he seeks their custody and control. While he has no property, it appears he can...
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Kowalski v. Wojtkowski, A
...and the decisions of 38 jurisdictions reveal common recognition that legitimacy is merely a rebuttable presumption. Lewis v. Crowell, 210 Ala. 199, 97 So. 691 (Sup.Ct.1923); Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (Sup.Ct.1920); Murr v. Murr, 87 Cal.App.2d 511, 197 P.2d 369 (D.Ct.App.194......
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T., In re
...was awarded custody in preference to other relatives of the child. Hayes v. Strauss (1928), 151 Va. 136, 144 S.E. 432; Lewis v. Crowell (1923), 210 Ala. 199, 97 So. 691; Fierro v. Ljubicich (1957), 5 Misc.2d 202, 165 N.Y.S.2d 290; Aycock v. Hampton (1904), 84 Miss. 204, 36 So. 245, 105 Am.S......
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In the Matter of the GUARDIANSHIP OF C.
...in many other states. In most of those jurisdictions the father has been held to have the right of custody. See Lewis v. Crowell, 210 Ala. 199, 97 So. 691 (Sup.Ct.1923); Caruso v. Superior Court etc., 100 Ariz. 167, 412 P.2d 463 (Sup.Ct.1966); In re Guardianship of Smith, 42 Cal.2d 91, 265 ......
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Griggs v. Barnes
...P. 784, mother; Ex parte Wallace, 26 N.M. 181, 190 P. 1020, father; Garrett v. Mahaley, 199 Ala. 606, 75 So. 10, father; Lewis v. Crowell, 210 Ala. 199, 97 So. 691, father; People ex rel. Meredith v. Meredith, supra, 272 App.Div. 79, 69 N.Y.S.2d 462, affirmed 297 N.Y. 692, 77 N.E.2d 8; Stat......