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The presumption at common law, as to conveyances from parent to child, was that they were intended as advancements. The presumption in Illinois and some other states, as to such conveyances is that they are intended as gifts. Where fathers purchase property in the name of his child the presumption of law is that an advancement was intended.
If a child ratifies an advancement be must bring it into “hotchpot” before he can receive any further share of his parent's estate. If he repudiates the advancement he may take his distributive share of the estate.
“Hotchpot” is the term applied where a child who has received an advancement is obliged to bring in such advancement before a division is made; the property advanced to him is then charged against his share and the balance of his share paid out of the general estate.
A conveyance from father to child is always good and will be upheld as between the parties to the transaction. A valuable consideration is not required, the good consideration of blood and affection is sufficient. Such conveyance can only be impeached by the creditors of the parent. The creditors who may thus impeach the conveyance are either those to whom the parent was indebted at the time of the conveyance, or those to whom he contemplated becoming indebted. A conveyance to a bastard child stands on the same footing as a conveyance to a stranger.
SECTION 48. RIGHT OF ACTION BY PARENT FOR IN
JURY TO CHILD.
The parent of a minor child who is injured by the wrongful or negligent act of another cannot recover for the injury as such, because that right of action belongs to the child. The parent may, however, recover for any loss sustained by him in consequence of the injury to the child. The right of action in such cases is founded not on the parental relation but on the technical relation of master and servant, the recovery being on the theory of the loss of services.11
Such right may be destroyed by the contributory negligence of the father. The mother can only recover for personal injuries to the child after the death of the father.
Where a parent permits a child to work for an employe he assumes the ordinary risks of the employer's business and can only recover for injuries reached through causes outside of such ordinary risks. The limit of recovery by parent for injuries to child will be the actual loss to the parent, which may include the loss of the services of the child and the trouble and expense to which the parent was put in caring for the child. It may include prospective as well as past damages, but the prospective damages for the loss of services can only be for the value of the services of the child up to the age of twenty-one years. Under the common law the parent had no right of recovery for the death of his child; such a right was first given him by Lord Campbell's act.
SECTION 49. RIGHT OF ACTION BY CHILD FOR DEATH
A child may recover for the death of parent. Such recovery will be limited to the actual value of the support which the child would have been liable to receive from parent, and in most states the total recovery for the death of a person is limited either to $5,000 or $10,000.
vs. Sybert-Cheves L. (S. C.), 177. 20 Dixon vs. Bell, 5 M. & S., 198.
11 Grimmell vs. Wells, 7 M. & G.,
1033, 49 E. C. L., 1033, Am. & Eng. Ency. of Law, Vol. XXI,
CUSTODY OF CHILDREN.
SECTION 50. RIGHTS OF PARENT TO CUSTODY OF
At common law, the father was considered as always entitled to the custody of his child, on account of his being the head of the family, and the party to whom the child had the right to look for support.' The modern laws look to the welfare of the child rather than to the rights of the father, and will grant the custody of the child to the mother instead of the father when the best interests of the child require it.
On the death of the father, or upon his being adjudged unfit, the mother, owing the same duties to her minor child as the father would owe if alive, becomes entitled to its custody.?
The court granting a divorce has the power to award the custody of the children to either party to the marriage. The controlling test in such cases is what will be for the best interests of the child. The poverty of a parent will not affect his right to the custody of a child. The mother is entitled to the custody of a bastard child. SECTION 51. RIGHT OF CHARITABLE INSTITUTIONS paramount to those of the parents when such a disposition of the matter will be manifestly for the best interests of the child. Parents, however, will only be deprived of the right of custody of their child in very clear cases.
AND THIRD PERSONS. The rights of charitable institutions and private persons, who take infants to raise, will be considered 1 United States vs. Green, 3 Mason • Chapsky vs. Wood, 26 Kan., 650; (U. S.), 482; In re Hunt, 103
40 Am. Rep., 321; Tuggle vs. Cal., 355; Cocke vs. Hannum,
Tuggle, 97 Ga., 658.
Where a child has been for a long period in the custody of third parties, so that new affections have grown up between the child and his custodians, and where the parents of the child are unfit parties to be intrusted with his care, the third parties will be entitled to the custody of the child even against his parents.
SECTION 52. DELEGATION OF CUSTODY.
The law gives the parent no right to delegate his authority over his child to a third person, except to a certain degree to a teacher or to a party to whom the child has been apprenticed.
Any agreement made by the parent transferring the custody of the child is revocable. A father has the power to bind his child out as an apprentice in order that the child may be taught some useful trade.
SECTION 53. CUSTODY OF ORPHANS.
The custody of an orphan belongs to his guardian. No particular relatives of an orphan, except his grandparents, have any legal right to his custody.
SECTION 54. CUSTODY OF INFANTS. How DETER
The question as to who is entitled to the custody of an infant may be determined and tried by habeas corpus proceedings.“ · Beller vs. Jones, 22 Ark., 92; In
beas Corpus, under Subject of re Bullen, 28 Kan., 781.
Constitutional Law, Vol. 2, • See discussion of Subject of Ha
Subj. 3, Sec. 78.