Neville v. Reed

• Decision Date: 28 June 1902
• Parties: NEVILLE v. REED.
• Court: Alabama Supreme Court

32 So. 659

134 Ala. 317

NEVILLE v. REED.

Supreme Court of Alabama

June 28, 1902

Appeal from probate court, Mobile county; Price Williams, Jr. Judge.

Henry Neville filed a petition for habeas corpus, wherein he sought to have Henry Edward Neville, a minor under the age of 14 years, removed from the custody of Josephine Reed and placed in the custody of the petitioner.

It was averred in the petition that Henry Neville was the father of Henry Edward Neville, a minor under the age of 14 years; that the petitioner was the natural guardian of said minor, and was entitled to his custody and control, and that said minor was unlawfully detained by said Josephine Reed.

In response to the writ of habeas corpus which was issued Josephine Reed answered that while the petitioner was the father of said minor, the mother of said minor obtained a divorce from said petitioner, and in the decree of said divorce the sole care and custody of said minor was given to its mother, who alone maintained and supported said minor up to the time of her death; that just before she died, and realizing the approach of death, the mother of the minor requested the petitioner to take said minor and care for him and this the petitioner refused to do; that the mother of said minor in her last will and testament appointed the respondent to be the sole guardian of said minor and requested and entreated the respondent to take and care for the child, which the respondent solemnly promised to do, and that the respondent was able and willing to carry out the wishes of the minor's dead mother, and the minor was desirous of remaining with her.

The petitioner introduced evidence tending to show that he was financially able to care for said child, and that he was in the habit of liberally providing for his family and was kind to them. That the minor Henry Edward Neville had repeatedly been to the petitioner's place of business, and the petitioner always treated him kindly and gave him spending money, although he had never done anything towards supporting him, except in one instance when he purchased a hat for him. That after having been divorced from the minor's mother he had married a second time, and if the child was put in his custody he would be well cared for and provided for.

The evidence for the respondent tended to prove the facts stated in her answer, and also tended to show that the petitioner was a man of violent and uncontrollable temper and that on one occasion when Henry Edward Neville was at his place of business, he became irritated at something the child did lost his temper, and brutally treated him. There was further evidence introduced by the respondent tending to show that she treated said minor as a member of her family, was very kind and thoughtful of him, that she liberally provided for him, and that the child was happy and contented.

At the request of the respondent, the judge presiding at the trial examined the minor, Henry Edward Neville. He asked the child many questions...