Commonwealth ex rel v. May et al.

expected, first inspected the house from the outside, and then loitered around for an hour or more. This aroused the suspicions of the butler, who had observed them and reported the circumstance to Mrs. May, who was then confined to her room by illness. They finally went to the door, rang and were admitted. Why it was either necessary or advisable for the relator to take his friend along on this visit was not shown. But her presence and their unexpected visit and suspicious conduct seem seriously to have disturbed Mrs. May, who, after some time, threatened the relator with a revolver, and ordered the callers from the house. They finally left after threatening to go to law, and, so far as we understand it, the relator assigns the treatment he received on this visit, and the fear that the mind of his child is being poisoned against him as the reason for his suing out this writ one week later. We are not inclined to give to the happenings on that occasion the controlling importance contended for by the relator. We have had the opportunity of seeing all the actors in court and hearing them on the stand. The whole enterprise bore the earmarks of having some sinister motive behind it. It was scarcely a visit in good faith by a father to his child.

The issue was thus drawn. The father demands custody of his child as a matter of absolute legal right and Mrs. May replies. that she has the child because of the dying request of its mother and out of a sense of duty and, notwithstanding her affection for it, desires to keep it only until its father can provide a suitable. home for it.

At the first hearing, which was held on July 30th, the relator testified that his mother and sister intended coming from California, where they now reside, and, with himself, establishing a home in Philadelphia and it was shown that Mrs. Powell was willing to care for his daughter until such was done. It was then suggested that, because of the delicate health of the child and the season of the year, it would appear to be unwise to transfer her from the country to Mrs. Powell's house in the city and it was, therefore agreed that the hearing should be continued until the weather had cooled and the relator had had an opportunity to get settled in his own home. November 3rd was fixed for the adjourned hearing.

At that time the parties again appeared and it was shown that, because of the death in the interval of the relator's step

VOL. XXXVI-No. 10

Commonwealth ex rel v. May et al.

father, who had not been mentioned at the hearing in July, it was found impossible for the mother and sister to move to Philadelphia and also that Mr. Hunt had given up his quarters at Mrs. Powell's and was then boarding with a friend elsewhere in that city. There he occupies a single room but has the "run of the house". The family consists of the friend, the latter's wife and their two children, a daughter 19 years of age and a son of 9. Mr. Hunt is the only boarder in the household. So far as shown, none of this family has ever seen Liolta Hunt; her father has been with them only since October first; and his new occupation will require his absence from home during the day. The daughter of the household has volunteered to look after his child while he is away and the little girl will, if she is given to him attend a public school in the vicinity. In view of all the circumstances, however, and especially the present physical condition of the child, her transfer at this time to this home would, in our opinion be of serious disadvantage to her and in reaching this conclusion we do not find it necessary to inquire into the character, standing or qualifications of its occupants.

The general rule is, of course, that a father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them. But this is not on account of any absolute right in the father, but for the benefit of the infant, the law presuming it to be for its interest to be under the nurture and care of its natural protector, both for maintenance and education. It is a mistake, however, to suppose that the father has an absolute, vested right to the custody of the infaut : United States v Green, 3 Mason, 482; Heineman's appeal, 96 Pa. 112; Com. ex rel. v Cadwallader 31 M. L. R. 199; Sherman's petition, 19 Lack. Jur. 300.

And in the disposition of a case such as this, we must always have the controlling questions in mind: What is for the benefit of the child? What do its best interests and permanent welfare require? These, in this case, are best answered by the relator himself, who said that, before the July, 1919, visit, he "did not have any intention of taking the child away from her", (Mrs. May); "the child has got a good home, with nice surroundings. "I never thought of taking the child away. I decided to be unselfish and think of the child's future."

The wisdom of his judgment is shown by these additional

Commonwealth ex rel v. May et al.

facts: The relator is a man of no means. He was an utter failure as a vaudeville artist and is now in middle life. He has very recently taken up "commercial art" as an occupation and, while he says he is doing well in it, it is yet too early to determine what his measure of success will be. He has no home in the true sense of the term, and no home attachments or associations. He is now virtually stopping in a strange household. From our observation of him he is temperamental and erratic. He has not contributed to his child's support for nearly two years, nor has he been to see her since the first hearing. Judged by some of those who testified in his behalf he is very unfortunate in the choice of his friends. A child, especially a girl, should be removed far as possible from degrading influences. One of these friends was more active than was the relator himself in consultations with counsel during the first hearing. His child is in such physical condition, largely as a result of his own neglect while she was still with him, that a continuance of the loving care, medical treatment and nursing that she is now receiving is absolutely essential for her welfare. And, no matter how attractive and winsome she may now be, we cannot escape the conclusion that at her age and in her condition of health, the environment of the stage, were such a career in contemplation for her, would, at least for sometime to come, have a disastrous effect upon her health and character. We are convinced that the child's best interests now clearly require that she remain with the respondents and easily reach this conclusion without thought of her material advantage, which should cut little, if any, figure in such a case. The following decree is, therefore, entered:

And now, 8th December, 1919, this writ came on to be heard and testimony was taken and the case was argued by counsel, whereupon it is ordered and decreed that Liolta Hunt be remanded into the custody of Clarence D. May and Amelia N. May, of Lower Merion Township, the respondents the latter of whom is also her maternal aunt, there to remain until the further order of the court; that the relator shall be permitted to visit his said child, in the day time, at her home, on any day except Sunday or during school hours, that may suit the mutual convenience of himself and the respondents, but not oftener than once a month; that he shall give to the respondents, or either of them, not less than 48 hours notice by mail of any proposed visit, which notice

Commonwealth ex rel v. May et al.

shall contain information as to his own then address; that when he goes to the premises of the respondents he shall go alone and shall be allowed to stay a reasonable time and be alone with his daughter if he so desires; that on every such visit he shall be treated respectfully and considerately and behave himself as becomes a gentleman; and that the child shall not be influenced against him.

It is further ordered that this writ of habeas corpus shall stand over as a pending writ subject always to such further order as may hereafter be adjudged by the court to be right and proper in relation to the custody of said minor.

And the said parties are ordered to pay their own costs.

Court of Common Pleas of Montgomery County

Appeal of Edward E. Marshall from Assessment

Appellant purchased a tract of land which had been on the market for a number of years for $165,000. The assessor, in fixing the value of the land, appraised it at $250,000. The owner appealed from this appraisement, which was reduced by the Board of Commissioners. A further appeal was taken to the Court of Common Pleas. It appears from the evidence produced that the assessor endeavored in making the assessments in his Township to value the properties at approximately fifty per cent. of their real value, and on that basis, after hearing the testimony, the character of the property being taken into consideration, together with its unsuitableness as a residential property, the assessment is reduced to $130,000, being fifty per cent. of what the testimony showed to be its real value.

No. 34, Nov. Term, 1919.

Appeal from Assessed Valuation.

Evans, High, Dettra & Swartz, Attorneys for Appellant.

Freas Styer, Attorney for County.

Opinion by Swartz, P. J., February 2, 1920.

The appellant is the owner of a large tract of land, contain ing three hundred acres, situate in said township of Abington.

1. The township assessors fixed and returned the value of the said farm for taxation at $250,000.00. From this assessment

Appeal of Edward E. Marshall from Assessment.

Mr. Marshall appealed to the Board of Revision and after a hearing the value was reduced to $185,000.00.

Mr. Marshall contends that the assessment is still excessive and appealed to the Court for a further reduction.

2. The property was held, for years, by the Seybert Estate, as a home for the education and training of poor boys and girls. The charity was organized under the provisions of the will of Adam Seybert and was known as the Adam and Maria Sarah Seybert Institution.

3. The improvements consisted of a large school building, dormitories, farm buildings, servants cottages, and other school equipment. Farming instruction was given through the cultivation of portions of the lands.

4. The representatives of the charity found that the Institution could no longer be successfully operated on this tract of three hundred acres, and they concluded to sell the property. They put it into the hands of experienced real estate brokers, and, after energetic efforts for two years, the agents secured Mr. Marshall as a buyer, at the price of $165,000.00.

5. The property in use as a charity was exempt from taxation before this sale, but the assessors carried it on their books for some years at a valuation of $123,000.00.

6. The assessors of Abington township endeavored to assess properties on a basis of fifty per centum of their market value. The rate of fifty to sixty per centum was followed by the assessors throughout the county.

7. It is very difficult to ascertain the value of the appellant's tract of three hundred acres. Few sales of large tracts were made in the neighborhood within recent years, and these sales do not give us a reliable test in determining the value of the appellant's property. It is wholly dissimilar in its improvements and developments from these other large tracts. The improvements were made to meet the requirements of the Sybert Institution. The work and methods of the school were of a special character and the developments and improvements were not adapted for ordinary school purposes. There was no demand in the market for a property offering the uses and facilities found. on these premises.

8. The weight of the evidence shows that this property has its highest value in the market as a country seat; that it is not