Stringfellow v. Somerville
| Decision Date | 24 March 1898 |
| Parties | STRINGFELLOW . v. SOMERVILLE et al. |
| Court | Virginia Supreme Court |
Parent and Child—Custody of Child—Agreement.
1. A mother, by will which was drawn by her husband and with his consent, expressed her desire that her child be permitted to remain with and be reared by her sisters. After the
child was thus cared for for nearly six years, the father brought proceedings Dor his custody. Held that, it appearing that it was for the advantage of the child to remain with his aunts, their custody of him should continue.
2. When the father claims to recover the custody of his child, the court will exercise its discretion on the facts, and do what will be best to promote the infant's welfare.
3. Where a parent has transferred to another the custody of his infant child, by fair agreement which has been acted on by such other person, to the welfare of the child, the parent will not be permitted to reclaim custody of the child, unless he can show that a change of custody will materially promote his child's welfare.
Appeal from circuit court, Culpeper county.
Action by George F. Stringfellow against Jennie G. Somerville and another. Judgment for defendants. Plaintiff appeals. Modified.
G. D. Gray, Eppa Hunton, Jr., and Grimsley & Miller, for appellant.
Barbour & Rixey, A. F. Robertson, and P. P. Barbour, for appellees.
KEITH, P. George F. Stringfellow obtained a writ of habeas corpus from the circuit court of Culpeper county, to which Jennie G. and Kate Somerville were made respondents. The object of the writ was to determine who was entitled to the custody of Glassell Somerville Stringfellow; an Infant of tender years, son of the petitioner, and nephew to the respondents. Ellen S. Stringfellow, who, before her marriage, was Ellen Somerville, died a few days after giving birth to the child who Is the subject of this controversy. A short time before her death the petitioner, at her instance, prepared her last will and testament; so much of which as need be here considered being in the following language:
The purpose disclosed in this will seems to have been long contemplated by the mother, and fully understood and approved by her husband and her sisters. Upon her death this will was admitted to probate, and in accordance with its provisions the infant child was delivered to the care and custody of Jennie G. and Kate Somerville, and was by them taken to their home, where it has since been reared and nurtured with the most loving and tender care. The language of the will leaves no room for doubt or construction as to the wish of the testatrix: "I desire that my child be permitted to remain with and be reared by my sisters, Jennie G. and Kate Somerville, and trained as their own." What language could be more explicit? "To remain with;" to continue in an unchanged condition; to abide; to stay. The language employed Is not appropriate to a temporary arrangement No period is fixed to its duration short of the accomplishment of the purpose with which the arrangement was made. "My child, " said the dying mother, is to be "reared by my sisters"; that is to say, is to be "educated, " "instructed, " "brought up to maturity, " by them. The measure of authority which she intended to confer Is conveyed in language equally apt and comprehensive. What broader terms could the mother have employed, than those here used, by which she consigns her offspring, from whom she is to be taken by an untimely death, to the loving care of her sisters, to be "trained as their own"? As far as It was in her power to do so, her sisters were clothed with plenary power and duty with respect to this child, while the husband was reminded that It would be for him to "aid them in sympathetic affection and support." If her will is to prevail with respect to her child, the sisters are the principals to whom its execution is confided, and the father becomes their aid and auxiliary.
In the second clause of the will, it is true, she declares her desire that her husband "be made guardian for my child, and to manage my business and property as he now does, carrying out unfinished contracts and agreements made by me." Reading the first and second clauses of the will together, placing ourselves as near as may be in the situation of the testatrix, looking to her previously declared intention and to her full knowledge of the whole environment, we cannot doubt that the second clause has reference to the duties of a guardian with respect to the business, the property, the contracts, and agreements In which she had been Interested, and was not intended as a limitation or restriction upon the disposition which she had made in the first clause with respect to the person of her child.
Ordinarily the father Is entitled to the care and custody of his Infant child. Merritt v. Swimley, 82 Va. 433; Coffee v. Black, Id. 567. But where the father is before the court, claiming to recover the custody of his child, the court will exercise its discretion according to the facts, and continue what will be best calculated to promote the infant's welfare. Coffee v. Black, supra.
In Green v. Campbell, 35 W. Va. 699, 14 S. E. 212, the above principles are thus stated:
We are not dealing with absolute rights of property. Says Judge Brewer in Chapsky v. Wood, 26 Kan. 650: "A parent's right to the custody of the child Is not like the right of property, an absolute and unconditional right; for, if it were, it would end this case, and relieve us from all future difficulties." And...
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J.B. v. Cleburne County Dhr
...455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting in turn Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898)). As the McLendon court "`[This] is a rule of repose, allowing the child, whose welfare is paramount, the v......
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Hibbette v. Baines.
...679; Sheers v. Stein, 75 Wis. 44, S.C. 5 L.R.A. and notes; 43 N.W. 728; Bently v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399; Stringfellow v. Somerville, 95 Va. 701, S.C. L.R.A. 623; 29 S.E. 685; Green v. Campbell, 35 W.Va. 698, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.......
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Mullen v. Mullen
...all controversies between parents over the custody of their minor children. All other matters are subordinate. Stringfellow v. Somer-ville, 95 Va. 701, 29 S.E. 685, 40 L.R.A. 623; Parrish v. Parrish, 116 Va. 476, 82 S.E. 119, L.R.A. 1915A, 576; Fleshood v. Fles-hood, 144 Va. 767, 770, 130 S......
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Gallant v. Gallant
...Ala. 743, 744, 310 So.2d 234, 234 (1975) (quoting Greene, 249 Ala. at 157, 30 So.2d at 445, quoting in turn Stringfellow v. Somerville, 95 Va. 701, 707, 29 S.E. 685, 687 (1898) ).The following year, Judge Bradley, writing for this court, summarized the burden of proof in a child-custody-mod......
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Grandparents have rights after all: no area of custody law is more fraught with conflict between the rights of a child and the legal rights of a parent than the area of third party custody involving grandparents.
...to regain custody. Id., citing Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444, 445 (1947), quoting Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 Similarly, in Lear v. Lear, 124 Or. App. 524, 863 P. 2d 482 (1993), the court reached the same result with the same ......