Wishard v. Medaris.

PETTIT, C. J., dissents, for the reason that he holds that the money was to be paid to Frederick Nolte on the condition that he arrived at the age of twenty-one, that his arrival of age was a condition precedent to his right to receive the money, and that as he died before arriving of age, his personal representatives cannot recover.

W. S. Holman, for appellant.

D. S. Major and A. B. Liddell, for appellee.

WISHARD V. MEDARIS.

PARENT AND CHILD. Custody of Minor.-Indiana Soldiers and Seamen's Home. On the 6th of November, 1868, a minor, an orphan child of a deceased Indiana soldier, was received into the Indiana Soldiers and Seamen's Home, upon a written instrument signed by the mother of said child, reciting, that she thereby surrendered said child "to the care and guardianship" of the trustees of said Home, to be under the control of said trustees, to do with said child as they might think best for the interest of the child, without specifying any time during which the child should so remain.

Held, that in the absence of anything showing that the mother was not a suitable person to have the custody of the person of said minor, she was entitled to regain such custody at any time.

APPEAL from the Henry Circuit Court.

DOWNEY, J.-The question to be decided in this case arises upon a writ of habeas corpus, sued out by, and on the petition of, the appellee, the object of which was to obtain the custody of her children, alleged to be deprived of their liberty by the appellant.

The return of the appellant to the writ states, that he is the superintendent of the Indiana Soldiers and Seamen's Home; that the children are under twenty-one years of age; that they are the orphan children of James S. Medaris, who was a volunteer soldier in one of the Indiana regiments in the late war; that on the 6th day of November, 1868, the

Wishard v. Medaris.

appellee, their mother and surviving parent, by an instrument of writing, filed therewith, surrendered to the care and guardianship of the trustees of the said soldiers' home, her said infants, to be cared for and educated as the wards of the said trustees, he the said appellant, being the superintendent of said Soldiers and Seamen's Home, and having charge of said minors by and under the authority of the said trustees, who derive their authority from the laws of the State of Indiana; and that his only authority for their custody and detention is the power vested in him by the said trustees and the laws of the State of Indiana.

The instrument, a copy of which is filed with the return is as follows:

"SOLDIERS AND SEAMEN'S HOME, KNIGHTSTOWN, November 6th, 1868. "Know all men by these presents, that I, Amanda Medaris, do hereby surrender to the care and guardianship of the trustees of the soldiers' home, William Robert Medaris and Flora E. Medaris, aged fourteen and five years, to be under the control of said trustees, to do with him and her as they may think best for the interests of the child.

Witnessed

by M. M. WISHARD."

AMANDA MEDARIS.

The appellee excepted to the return for insufficiency. The circuit court held that it did not show legal and sufficient authority for the detention of the children, and ordered that they be discharged from the said Indiana Soldiers and Seamen's Home. There was an exception by the appellant, and an appeal taken to this court.

Referring to the act of March 11th, 1867, entitled "an act to establish a home for the maintenance of sick and disabled Indiana soldiers and seamen and their orphans and widows," 3 Ind. Stat. 494, we find the following provisions bearing on this question: Section I provides, that there shall be established at, &c., a home for the maintenance of sick and disabled Indiana soldiers and seamen, and their orphans and widows, &c.

Wishard v. Medaris.

Section 2 provides, that the charge and management of said home shall be intrusted to a board of trustees, &c.

Section 9 provides, that the immediate direction of such home shall be under a competent and responsible principal, who shall be a surgeon, whose duty it shall be to superintend its several departments, &c.

Section 7 is as follows: "The trustees shall have power to adopt such regulations for the admission of, and discharge of persons who have entered the United States service, in the army or navy, as they may think proper: provided, that no one shall be admitted who has the means of support, and who has not been disabled in such service, or at the time of such application is not disabled and necessitous: and provided, further, that the widows and orphans of such persons from this State as have been in such service, and have not the means of livelihood, shall be admitted, and such admissions shall be in proportion to the number of soldiers furnished by each county, if there be more applications for admissions than can be accommodated, which apportionment shall be made by the trustees."

"Sec. 8. The necessitous persons admitted to the home shall be in the following order:

First. Totally disabled soldiers and seamen.

Second. Partially disabled soldiers and seamen.

Third. Orphans under fifteen years of age, of deceased soldiers and seamen, without father or mother.

Fourth. Orphans under fifteen years of age, of deceased soldiers and seamen whose mothers are living."

In the act of 1869, amending the act of 1867, 3 Ind. Stat. 498, sec. 3, it is provided, that "said trustees shall be deemed the legal guardians of the persons of all children entitled to admission to said home, who shall be voluntarily placed therein by their mothers, or in case they have no mothers, by other authorized persons; and when, in their judgment, it shall appear to the trustees to be for the interest of any such child, they may indenture him or her during minority," &c.