¶1The facts are sufficiently stated in the prevailing opinion. The authority conferred upon the courts by section 40 of the Domestic Relations Law (General Laws, chap. 48 ; Laws' of 1896, chap. 272) with reference to the custody of minor children where the parents are living apart, even without a judicial decree or a separation agreement, must be construed and applied with due regard to. the natural and constitutional rights of the parties. The husband has done nothing to forfeit his right to say where his family shall reside, and the relator has no good and sufficient reason to justify her refusal to live with her husband and son. Nor is it claimed or shown that the father is not kind and affectionate toward his child, or is not able to properly clothe and support him, or is not a fit person to control his bringing up. The husband, in refusing to live in his wife’s house, and in selecting another abode, but exercised his legal rights. The relator was welcome to the new home, and was treated by respondent with due consideration, but she would not come of remain. Ordinarily, of course, a child of such tender age should not be deprived of the mother’s affectionate care and attention, but the place for the mother *327is with her husband and child. When she persists in living apart -from her husband, merely because she does not like or cannot get on peaceably with his relatives, and prefers to live, by the expenditure •of her own fortune, in greater luxury than the husband is able to provide, the court should not, by awarding the custody of the child to her, approve her course and conduct, and thus perhaps unwittingly bring about the permanent separation of the husband and wife. Nothing has occurred between these parties to render it impossible, -or even very difficult, for them to reside together, and it is reasonable to presume that the mother has sufficient regard and affection for her child, if not for her husband, to return to the child and husband if the court holds that, under existing circumstances, this is her duty, and that she may not upon these facts remove the child from the home the husband has provided for his family.
¶2Order affirmed, without costs.