
    Palin et al. v. Voliva, Guardian.
    [No. 19,742.
    Filed April 22, 1902.]
    Guardian and Ward. — Custody of Orphan Minor Child. — Wishes of Ward. — The guardian of an orphan minor child is entitled to the custody and control of such child, and the desire of the ward is not controlling.
    From Fountain Circuit Court; J. M. Rabb, Judge.
    Habeas corpus by Robert N. Voliva, guardian of Flora Moffitt, against Orange Palin and another, to obtain the custody of his ward. From a judgment for plaintiff, defendants appeal.
    
      Affirmed.
    
    
      C. R. Milford, for appellants.
    
      I. E. Schoonover and J. B. Martin, for appellee.
   Monks, J.

This proceeding was commenced July 26, 1901, by appellee, as guardian of Flora Moffitt, a minor, against the appellants, to obtain, by writ of habeas corpus, possession and control of his ward, whose father and mother were deceased. The proceeding, which was commenced and determined in vacation, resulted in an order awarding the custody of the ward to appellee as such guardian.

It is claimed by appellants that the court erred in awarding the custody of said ward to appellee, because the same is not supported by the evidence, and is contrary to law. In this State, where there is no father or mother living, as in this case, the guardian of a minor is entitled to the custody and control of such minor during minority. §2682 Burns 1901, §2518 R. S. 1881 and Homer 1901. Schleuter v. Canatsy, 148 Ind. 384, 388; Johns v. Emmert, 62 Ind. 533; Bounell v. Berryhill, 2 Ind. 613. This provision of the statute is mandatory. Johns v. Emmert, supra, p. 536. The evidence given on the hearing does not show any reason why appellee’s legal right to the custody of his ward should be denied.

It appears from the evidence that on May 25, 1901, the Fountain Circuit Court, in a proceeding brought by appellee as such guardian against Cora Palin, one of the appellants, for the custody of said ward, adjudged that appellee “was the guardian of said ward and entitled to the custody of her person and property, and that said Cora Palin had interfered with and usurped and withheld the custody of the person of said ward from the appellee, her guardian, and that appellee have the custody of the person and property of his said ward.” Afterwards appellee removed his ward from the house of appellants and placed her with her brother. On the evening of July 14th appellee and his ward attended church, and, at the close of the services, after a conversation between the ward and appellants, she went with them to their home. Appellants claim that this was with appellee’s consent, while he claims that it was without his consent' and against his will. About two days afterwards, appellee, by his agent, at the home of appellants, demanded of them the possession of his ward. After-wards, on July 26, 1901, appellee commenced this proceeding. It would unnecessarily extend this opinion to set out the evidence given as to what occurred at the church on the night of July 14th, and at the home of appellants after-wards, when the demand was made for the possession of said ward.

We have carefully read and considered all the evidence in the cause, and, while there is some conflict, we are satisfied that appellants, by their solicitation, counsel, and advice, as well as by their actions, intentionally induced and influenced said ward to leave her said guardian, and go with them to their home and remain there, and that if appellants had not attempted in any way to influence said ward that she would have remained with her guardian.

It is true that the wishes or desires of an infant of discretion, in respect to his or her custody, are frequently considered by the trial court in the exercise of its discretion, in such cases; but, as was said in Berkshire v. Caley, 157 Ind. 1: “Not because such infant has the legal right to demand that his wishes be regarded, but because it is proper for the court to be informed relative thereto, in order that it may be better prepared wisely to exercise its discretion upon the question of the custody of such infant. The court, however, is not to be influenced in any degree by the mere whims of the infant, but may have regard for its feelings, attachments, and reasonable preferments, and its probable contentment and happiness, incidental to its custody. Hurd on Habeas Corpus, 532, 533.”

There was evidence which fully justified the learned judge in awarding the custody of said ward to appellee, her guardian, and we can not hold that in making such order the discretion vested in him was abused.

Judgment affirmed.  