Taylor v. Jeter

• Court: Georgia Supreme Court
• Writing for the Court: Jenkins, J
• Citation: Taylor v. Jeter, 33 Ga. 195, 81 Am.Dec. 302 (Ga. 1862)
• Decision Date: 31 January 1862
• Parties: Eleazer Taylor, plaintiff in error. vs. Samuel Jeter, defendant in error.

33 Ga. 195

Eleazer Taylor, plaintiff in error. vs. Samuel Jeter, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1862

Habeas corpus. Decided by the Hon. E. H. Worrill, at Chambers, on the 3d of July, 1861.

The question in this case springs out of the following state of facts, to-wit: Samuel Jeter, a man between fifty and sixty years of age, intermarried with Sarah Taylor, a girl seventeen or eighteen years of age, in the spring of 1853. They lived together until the latter part of the year 1858, when a controversy arose between them in relation to the signing of a deed by the wife with her husband, conveying a tract ofland to a son of the husband by a former wife. The wife refusing to sign the deed, was told by her husband to leave, and take her damned child with her. She had a little boy by the name of Oscar T. Jeter, then about five or six years old. She packed up her trunk, and called a servant to carry it out for her, and the husband interposed, saying, " by G—d, no more calling on negroes here, wait upon yourself;" whereupon she carried the trunk into the porch herself. She left the house leading her little boy, and walking down the road toward her father\'s house. The husband declared to as many as three persons, on different occasions, that the child was not his, that there was not a drop of his blood in the child\'s veins, that he was incapable of propagating, and that if he was capable, he was absent from home about the time the child was conceived. The wife was proven to be of good character, virtuous, chaste, intelligent and discreet. After the separation the wife filed her bill in equity in the Chancery Court of Chambers county, Alabama, for a divorce and alimony, in which case it was decreed, amongst other things, that a divorce be granted; that the husband deliver up certain property to the wife; and that he also pay her as permanent alimony the sum of $20,000 00.

It was also decreed that the custody and education of the child, Oscar T. Jeter, be given to the wife.

On the 8th of March, 1860, Sarah Jeter executed a will, bequeathing all her property (with some trifling exceptions) to her son, with limitation over, if he should die without issue, and appointed her father, James Taylor, executor of the will, and also declared in the will a wish that he should be appointed guardian of her child until he became of age.

The will was duly proved, after the death of Mrs. Jeter, on the 5th of April, 1860, and James Taylor exercised the duties of said guardianship up to the time of his death.

On the 15th of March, 1860, previous to his death, James Taylor made a will, in which the guardianship of the child, Oscar T. Jeter, was confided to his son, Eleazer Taylor, who was appointed one of the executors of the will, with direction to execute Sarah Jeter's will also.

On the 3d day of December, 1860, Samuel Jeter petitioned the Court of Probate for the county of Chambers, in the State of Alabama, stating that the child was his son, that he resided in said county of Chambers, and had an estate worth $28,000 00, and prayed that he might be appointed guardian of the person and estate of said child.

Daniel Taylor, another uncle of the child, filed objections to the application, which objections were demurred to, and the demurrer sustained.

Daniel Taylor declining to plead over, the prayer of Jeter was granted, and he gave good security and was appointed guardian of the person and estate of the child.

After the death of James Taylor, Eleazer Taylor removed the child to his residence in Marion county, Georgia, and applied for and obtained letters of guardianship over the person of said child, in 1861.

On the 30th of April, 1861, upon application of Samuel Jeter a habeas corpus issued directing Eleazer Taylor to bring up the child and show why he detained him.

Upon the hearing of the habeas corpus, upon the facts before stated, Judge Worrill awarded the custody of the child to the applicant, Samuel Jeter.

That decision is the error complained of.

B. Hill, for plaintiff in error.

Wiley Williams, contra.

By the Court—Jenkins, J., delivering the opinion.

This is a contest between the father and a maternal uncle, of a child under fourteen years of age, (the mother being dead,) for the custody of the child. The case came before the Court on a return to a writ of habeas corpus, sued out in Marion county by the father against the uncle. The answer admits the possession, in respondent of the child, and asserts his right to such possession.

The Court below awarded the possession of the child to thefather, (plaintiff in habeas corpus,) and the respondent excepted.

The record discloses the facts, that at the birth of the child, Oscar T. Jeter, the subject of litigation, his parents were domicilled in Chambers county, Alabama; that they, with the child, continued to reside in that county and State, until the death of the mother, early in the year 1860, when, or shortly thereafter, (the father then and still residing there,) respondent, who resided and now resides in Marion county, Georgia, without the consent of the father, removed the child to the latter county and State.

The defendant in error, who was the promovant below, rests his claim to the custody of the child,

1. Upon his natural guardianship, the result of paternity.

2. Upon an order and judgment of Court of Probates of Chambers county, State of Alabama, appointing him guardian of the person and property of the child, after the death of the mother, to-wit, in December, 1860.

This evidence unquestionably makes a prima facie case for the defendant in error.

1. It were a useless expenditure of time and labor to adduce either argument or authority in support of the general proposition, that the father is the natural guardian of his own minor child, and as such entitled to its custody and management.

2. And again, if that right were in this case imperfect, it received judicial recognition and confirmation in the order and judgment of the Court of Probates of Chambers county, Alabama, (wherein the minor was born and domiciled,) appointing the defendant in error guardian of the person and property of his child. We assume, now, that the domicil of the child was unchanged at the time of this appointment. That proposition will be fully discussed in considering the case made by the plaintiff in error, to which we now proceed.

The plaintiff in error relies for his defence, 1. upon documents drawn from the records of Chambers county, Alabama, viz: 1. A decree in chancery, whereby, at the suit of Sarah Jeter, (the mother,) she was divorced absolutely from Samuel Jeter, the father, and the custody of the child awarded to her. 2. Her last will and testament, appointing James Taylor, (her father) guardian of Oscar T.; and 3. The last will and testament of said James Taylor, appointing plaintiff in error his guardian. 2. Upon the order and judgment of the Court of Ordinary of Marion county, Georgia, appointing him guardian of the person of said Oscar T. 3. How far, then, do the Alabama records avail him to overcome the claim set up by the defendant in error? In the absence of the decree in chancery it is not pretended that the mother could, by last will and testament, appoint a guardian for the child, the father surviving her. Whether or not she could do so, under any circumstances, in Alabama, we need not consider. In Georgia, there is an enabling statute, authorizing widowed mothers to do so. It is enough for our purpose that in this case that authority is claimed for the mother, from the decree alone. What then is the decree, and what its extent and force? It is simply "that the custody and education of the child of the marriage be, and the same is hereby given to the plaintiff" (the mother.) It does not dissolve the relation of parent and child between Samuel and Oscar T. Jeter— does not bastardise the latter.

What the result would have been, had the Court gone farther and attempted, by decree, to separate between father and child as effectually as it had done between husband and wife, to disfranchise the child forever from paternal authority, we need not pause to inquire. It is enough for our purpose, that no such stringent action seems to have been contemplated; certainly none such was taken. The decree of the Court annulled the marriage—put an end to the cohabition of the parents, and consequently to their joint control and nurture of the child of the marriage. To avoid future contest between them,...