In re Minors of Charles and Anna Luck.

tion. It makes no difference that the education provided for them was to be Roman Catholic. An agreement entered into under like solemn circumstances to baptize the children and rear them in the Presbyterian, or any other Protestant denomination, would have the same binding operation in point of law.

The law gives force to such a compact in dealing with the rights of parents. But after such a covenant has been annulled or disregarded by the surviving parent, having the legal right of custody for years, and for years the nurture and growth of the child has been away from such a course of training, on the death of such surviving parent, in a contest for the custody between the respective relatives, as in this case, no such rule of equitable estoppel should be allowed to prevail over conditions which may materially affect the present and future welfare of the child.

But the court should not forget the wishes, expressed on her death bed, of the mother who bore these children, and which were in keeping with, and not contrary to, the father's solemn obligation and promise. If the lapse of years had not intervened, so effective in changes upon the young lives of these rapidly growing children, causing the tormation of other attachments and relationships, the path of duty here would be plainer than it now appears.

There are other facts which must be conceded upon this evidence of an important nature. The death of Mrs. Anna Luck occurred some. thing more than four years before these applications for guardianship were presented. Of course, at that time, the legal right of custody to these children devolved upon the father, and since that time, these children have been in the exclusive care of the sister and mother of said Charles Luck, and of himself. So far as the testimony discloses, the family of the mother have had no part or lot in the care and nurture of these children. From all that appears, they were at least impliedly excluded therefrom by the sentiments and wishes of their father.

The youngest child at the death of its mother, was of a very tender age, being then less than two years old.

Whatever may be said of the fact, the fact nevertheless, is impor tant, that these children have been nurtured and cared for largely by the father's side of the house, and the family of their mother living in the same town, have done nothing to enforce and invoke any action under this agreement in regard to the education of the children.

Whatever nascent tendencies and dispositions in the way of religious education they have received, has been of the nature that would be in its tendency, non-Catholic.

I have dwelt thus much upon the religious statutes of this case because I believe that the well-settled policy of the law to consider these facts as very important conditions in determining the custody of children, and now that I may be justified in this statement, I wish to refer very

Cuyahoga Probate Court.

briefly to some authoritative adjudications of the courts upon the subject.

Speaking of the duty of parents to their children, Blackstone pronounces the duty of the parent to educate his child to be of the greatest importance, and this importance is enhanced by the consideration that the usefulness of each new member of the human family to society de. pends chiefly upon his character as developed by the training he has received in early life. As Puffendorf says in his "Law of Nations," the parent who suffers his child to grow up like a mere beast, to lead a life useless to others and shameful to himself, has conferred a questionable benefit upon him by bringing him into the world.

The question of religious education has often arisen under English law. It has been laid down as a rule that where one has left in his will no direction as to the religion in which his children are to be educated, it will be presumed that his wishes were that they should be edcuated in his own religion, and that the child's preference will not be consulted on the subject, who is only ten years of age, and that the father is allowed to designate a plan of education to be followed with respect to their education after his death.

During the reign of extreme Protestant sentiments in England, it was considered the duty of the court of chancery of that realm, to see that all infants under its control, should be brought up in the Protestant religion. With the progress of religious toleration, came a different practice; and it is now a question whether the court would, under any circumstances, interfere with the testamentary guardian and the infant's religion, as designated by the father. Indeed, the Roman Catholic faith appears in this respect as much favored as the Protestant.

The conclusion, however, is irresistible that the courts have gone to the very verge of reason in sustaining the right of the father to direct as to the religious instruction and education of his child, even against the mother's religious convictions or that of the children themselves, See Agar-Ellis v. Laselles, 10 L. R., Ch. D., and other cases cited.

This Enlish rule, however, under American policy, cannot be adhered to. Our municipal law in general has more regard for the infant's condition, and this whole jurisdiction calling upon judicial authority to keep in view its best interests and the exercise of this highest discretion in such case, is a matter of great embarrassment and rsponsibility. I have found the substance of the foregoing statements of law contained in Schouler's Domestic Relations, sec. 235. But we are not without more direct and specific judicial authority. In some of the states of our union there are statutes which regulate this matter of the religious education of minors. Notably in the state of Missouri, a statute is in force which prohibits committing the care of a child to a person of religious persuasion different to that of the parents of the minor, if another suitable person can be found.

In re Minors of Charles and Anna Luck.

It has been held that the purpose of the enactment of this statute was to secure in the matter of guardianship, the absolute equality before the law of all forms of religious faith.

This statute came up for construction before the Supreme Court of Missouri in Voullare v. Voullare, 45 Mo., 602. In that case the court decided that "Where no person of the faith of the parents offered to take the children, and a person of different faith, every way suitable otherwise, offered to take charge of them, it was held that the action of the court in committing the care and custody of the children to this person was in no way a violation of the statute."

The case is one of considerable value and instruction, if not of authority, bearing on some of the questions which arise in the case at bar. The child whose custody was sought was of Catholic parentage, and the court, on page 607 of the report, says: "The court of probate evidently sought to conform its order to the spirit of this law, but still, had any Catholic family as near and as interested in the welfare of the children as was Mr. Murray (the person appointed) and suitable otherwise, offered to take the children, it would have been the duty of the court to have committed them to his guardianship; but the record does not show that any Catholic, suitable or otherwise, offered to take the children, and it was not reasonable to expect it of anyone outside the circle of relatives. Mr. Murray had property and no children; Mrs. Murray was their grandmother; one of the daughters had been partly reared by them; they were undoubtedly attached; no opportunity offered of guardianship of the parents' faith, and what more just and natural, as well as lawful, than to commit them to this family?''

A case arose under the same statute in the St. Louis court of appeals, in which this law received further liberal interpretation. It was a proceeding in habeas corpus, and is entitled "In re Laura Doyle," 16 Mo. App., 159. This case is also a very instructive case on the point made under this statute.

In this case the controversy for the custody of the child, Laura, who was eight years old, arose between a sister of a Roman Catholic order called "the Sisters of Loretta," having a boarding school of high grade in the city of St Louis, and other stations in different places in the United States.

The respondent was a non-Catholic master mechanic, earning good wages, whose wife had been bred a Catholic, but had married outside of the church. The respondent was by marriage an uncle to the child, and the child had been placed in his family by her father.

The father and mother of the child were both Catholics, although her father was not a strict religionist of any sort, and his habits and conduct were not commendable. The court finally placed the child temporarily in charge of the sister of the religious order referred to. On page

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168 the learned judge uses the following language: "The child is at the age when impressions made are deep and permanent, and if we refuse this application, she may remain long in the custody of persons, who, however moral and attached to her and capable of supporting her comfortably according to her state of life, are confessedly indifferent to matters of religious belief; one of them regarding all religions as very much. alike, and the other having so weak a belief in the form of christianity in which she was educated, that she received what is regarded by the believers in that creed, a sacrament at the hands, or (if he is not to be regarded as the minister of it) at least in the official presence, as a minister of religion, of a clergyman of a hostile religious body, and has for years abandoned all outward profession of her belief, and all attendance upon its services, and all use of the ministrations of her church, and habitually attended other services."

So it is made to appear that even under a statute like that of Missouri, where the religion of the parents is treated as important, and respect must be given to religious considerations in the fixing of the guardianship, nevertheless, the courts seek after, and endeavor to attain, what is conceived to be for the best and highest welfare of the child.

The laws of the state of Pennsylvania as to the selection of a guardian for a minor on the subject of religious education are similar to those of Missouri. By the Pennsylvania statute, the court, in the appointment of guardians, is required to prefer persons of the same religious persuasion as the parents when practicable.

In Nicholson's Appeal, 20 Pa. St., 50, the court held, however, that a difference in such religious persuasion is not a ground for the discharge of a guardian, if no restraint is put upon the conscience of the minor, nor the impressions made by the parent on the mind of the child attempted to be effaced. On this point the court uses very strong language. "The law which forbids the appointment of a guardian whose religious faith differs from that of the parents, should be most strictly obeyed whenever it is practicable, for reasons so many and so obvious that they need not be repeated. But it is no cause for discharging one from a trust with which he is already clothed. A guardian can only be removed from his management for misconduct, and certainly man's religious opinions are neither the one nor the other. But if he should attempt by any harsh or unfair means, to erase the impressions made by the parents on the mind of the child, and much more if he should put its conscience to any kind of torture, the law would not only justify, but demand his removal." Such are the words of the late Chief Justice Jeremiah Black, one of the ablest statesmen and jurists this country has ever produced.

Again, in the appeal of Catherine E. McConn, 49 Pa. St., 304, the orphans' court, against the choice of a minor over fourteen years of age, had appointed a guardian of the same religious persuasion as the child's

In re Minors of Charles and Anna Luck.

parents, and it was held that, even where the minor was seventeen years of age, the court in adhering to the provisions of the statute had not committed error nor abused its lawful discretion.

The most remarkable decision, and the most helpful and suggestive, if not authoritative, in dealing with the case before the court, is found In re Anne Turner, 19 N. J. Eq., 434. The summary of the points decided is contained in a brief syllabus, as follows: "In the absence of any direction or expressed preference by the father, as to the guardianship or religious education of an infant child, the clearly expressed wishes of the mother will be regarded, and where application was made for the guardianship of the child by both paternal and maternal grandfathers, both being of equal competence and fitness, the guardianship was given to the maternal grandfather in accordance with the wishes of the mother."

The facts proven on these applications are in some important points just the opposite of those upon which the New Jersey judge relied. In this case at bar, both father and mother expressed decided wishes and preferences as to the religious education of these children.

On her death bed the mother charged it as a sacred duty upon her relatives to see that her children were reared in the Catholic faith. On the other hand, it is proven beyond controversy that the father, who survives her several years, was vehement and urgent in his expressed purpose and wish to have them reared—not in any particular Protestant church-but as non-Catholics, or perhaps it were better to say, antiCatholics.

Passing now from this feature of the case, I advert briefly to points of law which have been settled by our own Supreme Court. On the general subject of the rules which should control the jurisdiction of the court in fixing the custody of minors, no more fruitful case can be found than that of Clark v. Bayer, 32 Ohio St., 299. As bearing upon several points arising in this controversy, I quote, (p. 305) a portion of the decision:

"When the question of custody arises between the father and mother, or between either of them and another, as to rightful custody, and the minor is of an age to make an intelligent and discreet choice, courts will respect the minor's election. When the child is too young to exercise judgment in making a choice, courts are never restrained by any supposed absolute right of custody in either parent, but will direct the custody where the best and highest interests of the infant will be subserved.

"It sometimes happens that parents have abandoned their minor children, or by an act and word transferred their custody to another. In such cases, where the custodian is, in every way, a proper person to have the care, training and education of the infant, and the court is satisfied its social, moral and educational interests will he best promoted