
    Between David M. Albert and Wife, appellants, and Samuel Perry and Wife, respondents. Abraham Gulick, appellant, and the same respondents.
    The mother, and after the mother, the next of kin of an infant are entitled to be appointed guardian of a minor under fourteen years ; and such claim cannot be disregarded unless for some satisfactory reason apparent to the court.
    The right of the mother must be held in subordination to, and exercised in consistency with the rights, the moral training, and the highest welfare of the child. The law gives no countenance to the idea that the moral and mental culture, the proper education and discipline of the child are to be held in subordination to the legal rights of the parent.
    As between relations having no legal claim to the services of the infant, a greater latitude of discretion is allowed to the court, anda reason which might not be sufficient to bar the legal rights of the mother might suffice to decide the question between the claims of the other relations.
    The circumstance that the mother relinquished or agreed to relinquish the charge of the child to its paternal grandparent, is entitled to no consideration in support of the claim of such grandparent to be appointed its guardian. A parent cannot by contract thus alienate the right to the control or guardianship of his children.
    Nor did it constitute any good ground forgiving preference to a paternal relation in the appointment of a guardian that all the estate of the infant came from the grandfather.
    It was not error in the Orphans Court, that before making the decree appointing a guardian for the infant, the judges had a conversation with the infant on the subject, although the court, in making the appointment, must be controlled by other considerations than the wishes of the infant.
    
      John M. Sherrerd, for appellants.
    The mother is entitled to the guardianship of the child. If unmarried, she is clearly entitled. Eldridge and Wife v. Lippincott, Coxe 397.
    The marriage of the mother does not alter the right.
    The mother and next of kin have a clear preference, and cannot be passed by except for a satisfactory objection. Read v. Drake, 1 Green’s Ch. 78.
    This was a precisely parallel case.
    
      If the mother is unfit, it should have been given to the maternal grandfather. 2 Kent's Com. 227, note B, (5th ed.).
    
    
      J. M. Robeson and J. G. Shipman, for respondents.
    The mother, if single, is to be preferred, not if married. Den v. Demarest, 1 Zab. 540: 2 Kent (5th ed.) 227, note B; State v. Scott, 10 Foster 277; Worcester v. Merchant, 14 Pick. 510; Commonwealth v. Hamilton, 6 Mass. 275.
    By her second marriage, she voluntarily relinquished her right to control the child.
    
      D. A. Depue, for appellants, in reply.
    A parent has a right in law to the custody of the infant. Tenbrook v. McCohn, 7 Halst. 97; State v. Cheesmam, 2 South. 445.
    The guardian has a right to deprive the mother of the custody of the ward.
    The cases cited adversely do not apply ; they are either cases of habeas corpus or actions at law.
    The question of guardianship _ has been treated in New Jersey as a question of right.
    
    The persons before the court have rights. Van Houten's case, 2 Green's Ch. 220.
    The court were controlled by the wishes of the child. Under fourteen the minor has no right to a choice. People v. Willcox, 22 Barb. 178-183.
    That the property of the infant came from the paternal relatives is no reason for confirming the decree. Underhill v. Dennis, 9 Paige's Ch. R. 202.
    Nor can the mother surrender the control of her child. A parent cannot dispose of a child, except as an apprentice. People v. Mercein, 3 Hill 400, 411.
   The Ordinary.

This cause comes before the court upon appeal from a decree of the Orphans Court of the county of Warren, appointing Samuel Perry and Margaret his wife guardians of the person and estate of Mary Schamp, an orphan under the age of fourteen years. There were four applicants before the court for tbe office of guardian of tbe infant. (1.) Tunis H. Tunison, who was the original applicant, and who it is represented applied at the instance and with the approbation of the mother of the infant. (2.) David M. Albert, and Sylvina his wife, who is the mother of the infant, she having intermarried with the said David since the death of her former husband. (3.) Abraham Gulick, the maternal grandfather of the infant. (A) Samuel Perry and Margaret his wife, the said Margaret being the paternal aunt of the infant. The mother and her husband and the maternal grandfather of the infant have appealed from the decree. It is not disputed that the persons who were appointed guardians were in all respects fit and proper persons to fulfil the duties of that office. The only question submitted for determination is, whether the court were justified, in the exercise of their discretion, in preferring the claims of a more distant relative to those of the mother and the maternal grandfather.

The mother, and after the mother the next of kin of the infant, are entitled to be appointed guardian of a minor under the age of fourteen years ; and such claim cannot be disregarded unless for some satisfactory reason apparent to the court. Nix. Dig, 580, § 23; 2 Kent's Com. (7th ed.) 233, note 6; Eldridge and Wife v. Lippincott, Coxe 397; Read v. Drake, 2 Green’s Ch. R. 78.

I think the reasons disclosed by the evidence in this case rendered the appointment of the mother and stepfather of the infant as her guardians improper, and fully warranted the •court in passing by their claims. It is not denied that the mother, under the statute, has the clear legal right to the guardianship of her child, which cannot be disregarded without justifiable cause. Put that right must be held in subordination to, and exercised in .consistency with the rights, the moral training, and the highest welfare of the child. The law gives no countenance to the idea, that the moral and mental culture, the proper education and discipline of the child are to be held in subordination to the legal rights of tlie parent. Tlie courts, both of law and equity, constantly interfere by writ of habeas corpus for the protection of infants against the immoral and vicious influences exercised over them in then own home, and will dispose of their custody, even against the legal claim of the father, in such mode as shall be most conducive to the welfare of tlie child.

This it is true is usually done at the instance of the mother, but the principle is clearly recognized ; and the court, in selecting a guardian to represent the parent, and to exei eise fro tanto his rights, will be equally cautious and equally vigilant in protecting the highest interests of the child.

Where the mother is unfitted, by loss of intellect or by want of female virtue, for the prope'r care and training of the child — where the house of a husband, over whom she has no control, is the resort of improper company, or otherwise an unfit place for the training of a girl of tender years— where the children are trained in habits of vice or profligacy, or where, from any cause, no proper moral or sociai restraint is exerted, but counter influences are continually operating to an extent destructive of private morals and virtue, these and causes like these, it will not he denied would afford a perfectly satisfactory reason why a court should not place a girl of tender years within their influence.

It was not necessary that the Orphans Court should state upon the record the precise grounds of their decree. Eo benefit to parent or child could result from it. It sufficiently appears by the evidence. And without defining, or attempting to define the extent of departure from the line of virtuous conduct or of moral rectitude that may be established by the evidence, it is enough to say that it justified tlie conclusion of the court below.

As between relations having no legal claim to the services of the infant, a greater latitude of discretion is allowed to the court, and a reason which might not he sufficient to bar the legal rights of the mother, might suffice to decide the question as between the claims of other relations. As the guardianship of the orphan involves the charge both of the person and estate, it is important that the party to whom the charge is intrusted should not only be a capable and fit person to take charge of the estate, but in the case of an infant of tender years should be qualified, either personally or through his family, to superintend the habits and training of the ward. It appears, from the evidence, that the maternal grandfather is not so situated. It would appear indeed, from the circumstances under which his claim to the appointment was presented, that it was designed rather to defeat the appointment of the respondents, than from any well grounded wish or expectation that the appointment would or ought to be made.

The circumstance that the mother relinquished^ or agreed to relinquish the charge of the child to its paternal grandparents, is entitled to no consideration. If fully proved, the step might have been influenced by the pressure of poverty or by other considerations which have ceased to exist. A parent cannot by contract thus alienate the right to the control or guardianship of his children. The People v. Mercein, 3 Hill 400.

Nor did it constitute any good ground for giving preference to a paternal relative in the appointment of a guardian, that all the estate of the infant came from the grandfather. Underhill v. Dennis, 9 Paige 208.

But it was a circumstance entitled to very great consideration, and which could not have escaped the attention of the court below, that the infant has never since her early infancy been under the care, control, or custody of the mother, or been in any way interfered with or provided for by her, but that she has been under the care and guardianship of her paternal grandfather and his family, to whose charge she was committed by the mother for a period of nearly eight years ; that since the death of the grandparents she has continued under the care of his family, including the patefnal aunt, to whose guardianship she has been intrusted by the court, and that no objection whatever is suggested to the .mode of treatment which she has experienced, or to the care and control which has been exercised over her. The interest of the infant eonld not be promoted by a change in ber po ■ sition, social relations, habits of life, and mode of training at her present age. It is obviously for her best interests that she should remain where she is, and where she has been and is properly eared for and trained, until she is at liberty to choose a guardian for herself.

It appears upon the face of the decree that the court, before making it, bad a conversation with the infant. It is insisted that the court erred in consulting the wishes or inclinations of an infant under fourteen years of age in the appointment of her guardian.- It is fully conceded that, in making the appointment of guardian of an infant under fourteen years of age, the court are to he controlled by other considerations than the wishes of the infant. But no such motive appears, or is fairly to he inferred from the record as is attributed to the court. The infant, at the time the decree was made, and for some time previously, had been under the care of the relative to whose guardianship she was finally intrusted. The court might have desired to know from the lips of the infant herself whether she was properly treated, or whether any reason existed why she should not he continued in the situation in which she then was. - She might have been called as a witness for that purpose ; and if the court saw fit to examine her without oath, it certainly could uot prejudice the decree or justify this court in inferring that it was made upon improper grounds or under the influence of unlawful evidence.

The decree of the Orphans Court is in all things affirmed. Costs upon the appeal are allowed to neither party, as against the other.

Cited in matter of Anne Turner, 4 C. E. Gr. 436.  