
    [No. 5465.
    Decided March 10, 1905.]
    John Russner, Appellant, v. Frances P. McMillan., Respondent.
    
    Parent and Child — Guardians—Appointment—Qualifications —Custody of Infants — Father Improper Person. After a decree of divorce for non-support awarding to the mother the custody of children between two and five years of age, the father, upon the mother’s death, is not entitled to their custody and guardianship, where it appears that he was addicted to the use of liquor, was without a home or relatives to care for them, and was engaged as a waiter in a saloon, and had been in the habit of giving the children liquor; and a temporary appointment of their grandmother, who was found to be a suitable person, is proper and will not be disturbed where the trial court saw and heard the witnesses.
    Same — Temporary Guardianship — Equity Powers of Court. Upon conflicting applications of a father and a grandmother for the guardianship and custody of young children, where the father appears to be unfit to have their custody, the judgment awarding the custody to the grandmother may properly be made temporary in its character, and the children made wards of the court, for the purpose of changing the guardianship if the father should reform in the future and furnish proper assurances of his qualifications, or if the guardianship of the grandmother should become unsuitable, and the equitable jurisdiction of the court may he invoked in such a proceeding.
    Same — Evidence of Fitness of Guardian — Admissibility. Upon an issue as to the fitness of a person to have the custody of children, it is proper to exclude evidence that one of the applicant’s daughters had been arrested for vagrancy, where she had not had her custody or rearing and was in no way responsible therefor.
    Appeal from a judgment of the superior court for King county, Hon. Austin E. Griffiths, Judge pro tempore, entered June 28, 1904:, after a hearing on the merits of conflicting applications for appointment as guardian of minors.
    Affirmed.
    
      
      Geo. M. Sinclair, for appellant.
    
      Willett & Willett, for respondent.
    
      
       Reported in 79 Pac. 988.
    
   Root, J.

The appellant, John Russner, is the father of two girls and a boy, aged respectively five, four, and two years. The mother of these children died prior to the commencement of this proceeding. The mother was the daughter of this respondent, Mrs. Trances P. McMillan. Within two months prior to her death, the mother obtained a divorce from appellant, upon the ground that he had not supported her and these children during the three years then last past, although able to do so. The children were awarded to her. When conscious of near approaching death, the mother requested that the children be given to their grandmother and not to their father. After her death, appellant, respondent, and the children r&(sided together for a time, but had difficulty; whereupon appellant withdrew from her home.

At about this time, each of these parties filed a petition for appointment as guardian of the persons and estate of these minor children. The petitions were heard together, and, among other things, the court found: “That the father is in the habit of using liquor freely at all times and places, according to his own will, both at home and abroad; but that he is not an habitual drunkard, and is competent to transact his own business and ig fondly attached to his children;” that he has a farm worth $2,500, a timber claim, and some interests in a mining claim of unknown worth; “that be has no house or home, has no relatives in this country, and no place to which he could talco these children; that he would have to place said children with some woman for their care;” that since coming to Seattle, “he has been employed in waiting on tables in one of the basement saloons and restaurants below Tesler way, in this city (Seattle), working on the night shift, his work being’ to carry liqnor to the tables, and otherwise ’ /ait upon the drinkers,” card players, and others patronizing' that sort of a saloon; “that he is in the habit of drinking liq nor while so engagedthat he had been in the habit of gn ing these children liqnor to drink in moderate quantities r nth their meals; “that John Russner at the present time is not a fit or proper person to have the care and control of these children and their estate.”

We think the findings made by the trial court were certainly as favorable to appellant as he had any ri. jht to expect. The evidence showed that his wife had shortly before obtained a divorce because he had failed for three years to support her and these minor children; ihere was testimony going to show that he had lived for 1wo years with a squaw, he himself admitting that the scuaw had stayed at his house during that time as his housekeeper, there being no other woman residing there; he admitted that he had given these young children liquor; ¡ nd there was evidence that this had been a common jua ¡tice and carried to such an extent that the little ones, or some of them, had acquired such an appetite that they v unid cry for these intoxicating drinks. He admitted that he was working nights in an underground saloon south of Yesler way, Seattle, carrying drinks and looking after the card tables for those who congregated there; and that he was a constant drinker himself, and had been drunk sor ie times; and other evidence showed that his getting drunk was a common occurrence.

The trial court denied the appellant’s petition for appointment as guardian of the persons and estate of these minors. We think this action was right. The state and the public at large have an interest in the proper nurture, care and education of minor children; and, whi e it will ordinarily be presumed that the parents of minors, on account of natural love and affection, are the ones best calculated to look after their interests, this presumption, like most others, cannot be indulged in the face of facts showing conclusively to the contrary. The natural rights of the father to the care, control, and custody of his minor children cannot, and ought not to, be denied or disturbed in the absence of good and substantial reasons — reasons made imperative by the necessities of such children and the interest in, and the duty owing to, them by the state. But where it has been adjudicated by a court of competent jurisdiction that a father has recently for three years neglected to support his offspring, and has thereby caused his wife to get a divorce, such husband is not in a good attitude to come into court and ask for their custody, control, and guardianship. He should not be allowed the guardianship of his children until, by a substantial period of probation, he is shown to have amended his character and disposition regarding them, and to have acquired those worthy and substantial qualities of heart and mind that characterize the reputable man and the considerate father.

As to the right and propriety of awarding the custody and control and guardianship of minors to others than the father, the authorities afford ample justification. We call attention to a few. In the case of County of McLean v. Humphreys, 104 Ill. 378, 383, the court said:

“It is the unquestioned right and imperative duty of every enlightened government in its character of parens patriae to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding or misfortune or infirmity, are unable to take care of themselves.”

In the case of McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406, the supreme court of Colorado, among other things, said:

“The old rigid rule of the common law, whicl gave to the father ... a right to the custody and services of his child, superior to that of the mother and a 1 others, has in modern times been greatly modified ano relaxed both in England and America. ETow it is almost universally conceded in both countries that this pater ral right must yield and be subordinated to the interest anc welfare of the child, under the control of the state.”

The foregoing was a case where there was a cc ntest between the father and the immediate relatives o: the deceased mother, as to the custody and guardianship of the child, a girl six years of age, of a highly nervous temperament, delicate and devotedly attached to the moth ;r’s family, and where the father had no woman membi r of his household except his mother, aged about eighty years— otherwise without disqualifications of any kind. 1 'he court felt that the welfare of the child demanded that it 1 >e placed with the mother’s relatives — that the consideratio a for its welfare should predominate over the rights and i fishes of the father in the premises. In the case of Ex part Crouse, 4 Whart. (Pa. St.) 9, the court said:

“It is to be remembered that the public has a ps ramount interest in the virtue and knowledge of its mend ers, and that of a strict right the business of education helo igs to it. The parents are ordinarily intrusted with it becar se it can seldom be put into better hands; but where they ai e incompetent or corrupt, what is there to prevent the pul lie from withdrawing their faculties, held, as they obvious] y are, at its sufferance?”

In Gishwiler v. Dodez, 4 Ohio St. 615, the cour said:

“Neither of the parents has any rights that can be made to conflict with the welfare of the child.”

In Prime v. Foote, 63 N. H. 52, a child was taken from both fattier and mother and given to an aunt. Among other things the court said:

“This power of the father, however, is regarded as a trust, confided to him by law, upon the presumption that the natural affection of the parent will insure its faithful execution. But, like other guardians, he may, for inability or unfaithfulness, be displaced, and the trust conferred upon another.”

With regard to the respondent, the trial court made the following finding: .

“That the grandmother is able and willing to give mese children a good home and proper training; that these children are very much attached to her; that they need a good home and the care of some woman who will take their mother’s place as far as that is possible; that the grandmother is a strong-minded, sensible, sober, intelligent woman, with whom these children will have the best of care and a good home, with such moral and social surroundings as they should have.”

From the evidence, we think this finding is fully as favorable to respondent as could be justified. There were some admitted facts, and considerable evidence in the case, well calculated to arouse a suspicion as to the fitness of respondent to have these minor children. However, the trial court had the benefit of seeing her upon the witness stand, observing her manner and deportment, and the manifestations of love and affection seeming mutually to exist between her and these children, and was in a better position to correctly weigh all of the evidence than are we. The record shows that the learned judge pro tempore, who heard this case, tried it with marked fairness and impartiality, keeping paramount a commendablv humane consideration for the welfare of these young children. It was an exceedingly delicate matter to deal with. The rights and affections of the father, the love and solicitude of the grandmother, the interest and concern of the state, as to these children — all these were matters to be regarded, and secondary only to the welfare of the children themselves. In the light of all these considerations, under the e idence and laws of the case, we are disposed not to disti rb the judgment of the trial court.

In this judgment and decree, the respondent was ¿ranted the temporary guardianship of these minor children, it being specifically adjudged and decreed that they shculd be and remain wards of the court, and that said ordir and decree shouldbesubject to modification whensoever t re best interest of the minors should suggest. In the cone usions cf law, among other things, the trial judge statec “that John Russner is not a fit or proper person to have tie custody or care of his children at this time, but that, under changed conditions, he may hereafter become in Ivw entitled to the custody and care of said minors.” It v as evidently the intention of the trial judge that, at any 1 ime in the future, when the father should furnish to tin court proper assurances of suitable reformation in his ch iracter and manner of life, in so far as they should bear u] ion his fitness to have the custody and control of these mino ’S, and should be able to show to the court that their welfare would properly be conserved under his guardianship, t íat he should be’permitted to be appointed as their guardian. The judgment and decree was made temporary in it 3 character evidently for this purpose, and for the further purpose of changing the guardianship from respondent, in case her character and manner of life should become unsuitable to warrant her further holding the custoi y and control of said children. If the career of this apiellant in the future, for such a length of time as to give reasonable assurances of its permanency, is such as to fairly justify him in having the custody and control of these cl. ildren, his shortcomings of the past should be overlooked, md he should be awarded the guardianship of these childr n. A liigli standard should not he insisted upon; hut it should he sufficiently substantial to assure these children the surroundings, protection, and treatment demanded hy ordinary respectability and a wholesome sense of decency.

It is contended that the terms of the judgment and decree called in exercise equity powers of the court, and that such jurisdiction could not he properly invoked in such a proceeding. We think the action of the trial court is abundantly justified by the spirit of our code, and that appellant’s contention is at vaziance with former holdings of this court. Filley v. Murphy; 30 Wash. 1, 70 Pac. 107; Browder v. Phinney, 30 Wash. 74, 70 Pac. 264; Koontz v. Koontz, 25 Wash. 336, 65 Pac. 546. See, also, Bispham, Prin. Equity (6th ed.), § 541 et seq.; 2 Story, Equity Juris. (13th ed.) § 1341 et seq. The author last cited, § 1342, says:

“The jurisdiction thus asserted, to remove infant children from the custody of their parents and to superintend their education and maintenance, is admitted to be of extreme delicacy, and of no inconsiderable embarrassment and responsibility. But it is nevertheless a jurisdiction which seems indispensable to the sound morals, the g’ood order, and the just protection of a civilized society.”

Appellant excepted to the sustaining of objections to questions calculated to show the career of one of respondent’s daughters, who, it appears, was once arrested for vagrancy. But it affirmatively appears that this daughter had not been reared hy respondent, hut had been awarded to a former husband at the time of divorce. Ueither did it appear whether this daughter was a minor when arrested. There being no showing of any responsibility on respondent’s part for the conduct and training of said daughter, we cannot say that the ruling was error.

Other errors are assigned, hut we fail to find merit in these assignments. The judgment is affirmed.

Mount, C. J., Rudkin, Dunbar, and Crow, JJ., concur.

Hadley and Fullerton, JJ., took no part.  