¶1DISSENTING OPINION.
¶2After our writ of habeas corpus was served and return was made, the parties agreed upon T. H. Harvey, Esq., of the Saline county bar as special commissioner to take the testimony. We appointed him with directions to make return of the evidence and his' conclusions to the court. Mr. Harvey heard the evidence and, after thoroughly considering it and the law applicable thereto.,- reported that he found the father was a fit and competent person to take charge of his child; that it would be for her best interest and welfare that she be given into his custody; and that no good reason had been shown to exist why that should not be done.
¶3His report shows he has given the case, in all its bearings, careful consideration. He has set out reasons for his conclusions which appear to me to be borne out by the evidence.
¶4Each of the parties concede that the best interest of the child should control the action of the court in disposing-of its custody. The record shows, and it is conceded, that the character of each is the very highest and that the best moral atmosphere, ideals and example would surround the child at the home of either; and the evidence shows, without dispute, that Mr. Crockett’s present wife is a refined and an intelligent woman, even tempered, kind and gentle. -They have no children and nothing appears to cause a thought that she would not be attentive, watchful and loving. The evidence further shows that each of the parties is financially able to provide for the child and properly educate her; though it does appear from the evidence that the grandfather is a man of much larger means than the father. This, evidently, was brought out to show that it was for the best interest of the child and her welfare that she be given into the custody of the grandparents. It would be stretching the meaning of law intended to be beneficent, to such length *68as to destroy its character, if we are to say that the best 'interest of a child lies with the custodian who has the most money. There are some grandparents, or other kinsmen, in this country who could provide extraordinary luxuries for children at enormous cost, and it would be a cruel prospect for an affectionate father who found himself out stript in such measurement of material benefits. Manifestly, the legal expression, “best interests of the child,” was never intended to penalize a parent for living a simple life, so long as he was an honest and respectable man with disposition and capacity to maintain and educate his child.
¶5This being the situation and these the circumstances, I am led to ask, What stands in the way of the father? Why should a good, affectionate and capable father be deprived of the custody and care of his child? Certainly not the law of nature, and neither does the law of the land. The truth is, the record shows that nothing is in the, way save the tender impulse and sentiment of the grandmother for her child who came to an untimely death. So far did she allow this love of the memory of her daughter to control her actions that she treated Mrs. Crockett with liJ le respect and scant politeness. It so far blinded her to Mr. Crockett’s rights that, though the father, he was not accorded much more privilege and association with his child than if he had been a mere acquaintance. The constant efforts he made and the different disappointments he had in seeing her, together with the slight and trivial excuses offered, make up several sad pages in the record.
¶6I think the commissioner’s report should be approved and the proper judgment entered upon it.