Estate of Lindner

HALL, J.

This is an appeal from a judgment denying appellant’s petition to be appointed guardian of the person and estate of her own child and the order denying her motion for a new trial.

The court found that the petitioner was not a fit, proper or competent person to discharge the duties of guardianship or to be appointed guardian of said minor, who was then less than three years of age. The father of said child died before this proceeding was instituted, so unless the evidence fairly shows that the mother was not a fit or proper person to have the care and custody of her own child the judgment and order must be reversed.

Upon the death of the father the mother is*

'prima facie

entitled to the custody of her young child, and cannot be deprived of such custody unless shown to be unfit by suffi

[210]

cient testimony.

(In re Campbell,

130 Cal. 383, [62 Pac. 613];

Guardianship of Salter,

142 Cal. 412, [76 Pac. 51].)

The prior right of parents to the cust.ody of their children under fourteen years of age “cannot be disregarded except on the most compelling reasons proven and sustained before the court.” (21 Cyc. 34.)

The petition of appellant is in the usual form, and showed that the child had an estate of the value of $500, and was then in the custody of Emma Domenici. When the matter came on for hearing Emma Domenici appeared with the child but filed no answer to the petition. The matter was heard upon three different days. At no time was it suggested by anyone that petitioner was in any way immoral or of bad habits. Prior to the death of the father of the child petitioner had brought a suit for divorce from him, and on the twenty-eighth day of January, 1907, an interlocutory decree of divorce was granted to her, in which the custody of the child was awarded to its father until further order of the court. The awarding of the custody of the child was in accordance with an agreement between the father and mother which contemplated that the child should be placed with its paternal aunt, Emma Domenici, but which likewise provided that such custody should be temporary only. The father died January 30, 1907, but the child had been given into his custody under the agreement December 24, 1906, and subsequently by him placed with Mrs. Domenici. After the death of the father petitioner remarried, and is now the wife of George Muth, and is able to provide for the child. The evidence taken upon the first and second days of the hearing disclosed that petitioner had visited the child but once since giving it into the care of its father, but nothing else was shown to her prejudice. Indeed, at the close of the second day’s session the learned judge presiding expressed the view that this was a most unnatural act, and that she (petitioner) “thinks more of the $500 that is in sight in the estate than she does of the person of the child. That is the only matter that is facing me at the present time.”