During the lifetime of the father, be is guardian by nature or nurture of his chil dren. As such, however, he has charge only of the person of the ward, and no right to the control or possession either of his real or personal estate; Miles v. Boyden, 3 Pick. (Mass.) 213.
When the father dies without leaving a testamentary guardian at common law, the mother is entitled to be the guardian of the person and estate of the infant until he ar rives at fourteen years, when he is able to appoint a guardian; Littleton § 123 ; 2 Atk. 14; Corn. Dig. Fame; 7 Ves. 348. See Burk v. Phips, 1 Root (Conn.) 487; People v. Wil cox, 22 Barb. (N. Y.) 178; State v. Reuff, 29 W. Va. 751, 2 S. E. 801, 6 Am. St. Rep. 676. The rights of the widowed mother to the earnings and services of her minor child does not appear to have been precisely de termined; but it is by no means so absolute as that of the father ; Pray v. Gorham, 31 Me. 240; Jenness v. Emerson, 15 N. H. 486 ; Cora. v. Murray, 4 Binn. (Pa.) 487, 5 Am. Dec. 412; People v. Mercein, 3 Hill (N. Y.) 400, 38 Am. Dec. 644; Nightingale v. With ington, 15 Mass. 272, 8 Am. Dec. 101.
In Pennsylvania, when the father dies without leaving a testamentary guardian, the orphans' court will appoint a guardian until the infant shall attain his fourteenth year.
Custody. The father, in general, is enti tled to the custody of minor children; Tay lor v. R. Co., 41 W. Va. 704, 24 S. E. 631; People v. Sinclair, 47 Misc. 230, 95 N. Y. Supp. 861; Donk Bros. C. & C. Co. V. Leavitt, 109 Ill. App. 385; it belongs to him as against the mother and particularly as against third persons; Johnson v. Terry, 34 Conn. 259; but under certain circumstances the mother will be awarded custody when the father and mother have separated; Coro. v. Addicks, 5 Binn. (Pa.) 520 ; see Luck v. Luck, 92 Cal. 653, 28 Pac. 787. The father is the natural guardian of his child; Donk Bros. C. & C.
Co. v. Leavitt, 109 Ill. App. 385; and as such, where there is no sufficient cause for depriv ing him of it, has the legal right to its cus tody; Hernandez v. Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 111 Am.
St. Rep. 137, 7 Ann. Cas. 446; and where the husband and wife have separated, the fa ther's right will be recognized ; People v. Sinclair, 47 Misc. 230, 95 N. Y. Supp. 861.
In special cases, as when they are of ten der years, or when the habits of the father render him an unsuitable guardian, the mother is allowed to have possession of them ; Corn. v. Addicks, 2 S. & R. (Pa.) 174; In re Waldron, 13 Johns. (N. Y.) 418.
A child will not be taken from the custody of its father and given to its mother when it does not appear that his welfare required the change ; Day v. Day, 4 Misc. 235, 24 N. Y. Supp. 873.
The mother of a bastard child, as natural guardian, has a right to the custody and control of such child, even as against the putative father, and is bound to maintain it ; Somerset v. Dighton, 12 Mass. 387; Peter sham v. Dana, id. 433; Corn. v. Fee, 6 S. & R. (Pa.) 255; hut after her death the court will, in its discretion, deliver such child to the father in opposition to the claims of the maternal grandfather; Cora. v. Anderson, 1 Ashm. (Pa.) 55; Stra. 1162.
The father may lose the right by unfitness or voluntary transfer; Bently v. Terry, 59 Ga. 555, 27 Am. Rep. 399 ; or if the child is of tender age and the parents are separated; Gray v. Field, 10 Ohio Dec. 170. His right is not an absolute one and the court will deal with the custody of the children solely upon considerations relating to • their own welfare ; IL S. v. Green, 3. Mas. 482, Fed. Cas. No. 15,256; the right of custody of the par ents is subject to the paramount right of the state to interpose whenever required for the interest of the child; Wadleigh v. New hall, 136 Fed. 941; State v. Reuff, 29 W. Va. 751, 2 S. E. 801, 6 Am. St. Rep. 676; Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115.
The unfitness which deprives a parent of the right of custody of the child must be pos itive and not comparative, and the mere fact that the child would be better cared for is not sufficient, but the degree of unfitness is a question for the court; Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472, 20 L. R. A. (N. S.) 171.