As to the exercise of such discretion by trial courts, the rule is that "While the judge, upon a hearing of a writ of habeas corpus for the detention of a child, is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another." Butts v. Griffith, 189 Ga. 296 (2) ( 5 S.E.2d 907), and cases cited therein. (Emphasis ours.)

3, 74-108.6 and 74-110. See in this connection Dornburg v. McKellar, 204 Ga. 189 ( 48 S.E.2d 820); Turpin v. Brown, 170 Ga. 824 ( 154 S.E. 356); Moore v. Dozier, 128 Ga. 90 (2) ( 57 S.E. 110). Where there is conflict in the evidence supporting the opposite parties' position on the controlling issues of a case the discretion of the trial judge will not be controlled or interfered with. Thompson v. Thompson, 214 Ga. 618 ( 106 S.E.2d 788). Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); Shope v. Singleton, 196 Ga. 506 ( 27 S.E.2d 26); McLain v. Smith, 207 Ga. 641 ( 63 S.E.2d 663); Stuckey v. Jones, 212 Ga. 495 ( 93 S.E.2d 719). Therefore, this court will not substitute its judgment for that of the trial judge absent abuse of legal discretion.

In the instant case, the evidence being in conflict as to whether the petitioners had relinquished or abandoned their right to the custody of the children, and as to their standing as fit and proper parties to have custody of them, and the undisputed evidence showing that the respondents were fit and proper persons to have custody of the children, it cannot be said that the trial judge abused his discretion in remanding custody of the children to the respondents. Awtrey v. Awtrey, 164 Ga. 69 (2, 3, 4) ( 137 S.E. 760); Butts v. Griffith, 189 Ga. 296 (2) ( 5 S.E.2d 907); Fowler v. Fowler, 190 Ga. 453 (2) ( 9 S.E.2d 760). Judgment affirmed. All the Justices concur.

marriage is questioned because of the previous marriage of the mother to another person from whom she testified she had never obtained a divorce, and where the respondent, an aunt who had reared the mother, and with whom the mother was living at the time of the birth of the child, alleged and contends that the applicants had lost parental control of the child because the mother, before her marriage to the father, had made a gift of the child to the respondent, which was accepted at a time when the mother was a minor, but which gift had been ratified by the mother after attaining majority, and that both the mother and the putative father, after their marriage, had lost their parental right to the custody of the child by reason of their failure to provide necessaries for the child, and where the evidence is in sharp conflict upon all these issues of fact — the discretion of the trial judge in awarding the child to the respondent will not be disturbed. Code §§ 74-203, 74-108 (1) and (3); Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); McLain v. Smith, 207 Ga. 641 ( 63 S.E.2d 663), and cases therein cited. Judgment affirmed. All the Justices concur.

Where, as here, in a contest between the admitted father of an illegitimate child and third persons, the mother being the only recognized parent (Code § 74-203), and having voluntarily released her parental right of custody and control to the third persons (Code § 74-108(1)), the discretion reposed in the trial court in a habeas corpus hearing under Code § 50-121 is not arbitrary, but should be exercised in favor of the party having the legal right unless the interest and welfare of the child justifies an award to another. Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); Fowler v. Fowler, 190 Ga. 453 ( 9 S.E.2d 760); Watkins v. Terrell, 196 Ga. 651 ( 27 S.E.2d 329). Therefore, since it is admitted that the defendants are fit and proper persons and they have the legal right to the child by agreement with the mother, the only recognized parent, the court did not err in awarding custody to them as against the father of the illegitimate child.

While the judge, upon a hearing of a writ of habeas corpus for the detention of a minor child, is vested with a discretion in determining to whom the custody shall be given, such discretion is not, however, free or arbitrary, but is to be governed by the rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justifies the judge in overriding the rights of the person holding the legal claim. Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Williams v. Crosby, 118 Ga. 298 ( 45 S.E. 282); Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); Shope v. Singleton, 196 Ga. 506 ( 27 S.E.2d 26); Harter v. Davis, 199 Ga. 503 ( 34 S.E.2d 657); Lucas v. Smith, 201 Ga. 834 ( 41 S.E.2d 527). In Williams v. Crosby, supra, the court said: "In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail.

3. While the judge, under the Code, § 50-121, upon a hearing of a writ of habeas corpus for the detention of a child, is vested with a discretion in determining to whom its custody shall be given, such discretion is not free or arbitrary, but is to be governed by the rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child would justify the judge in overriding the rights of the person holding the legal claim. Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Butts v. Griffith, 189 Ga. 296 (2) ( 5 S.E.2d 907); Fowler v. Fowler, 190 Ga. 453 ( 9 S.E.2d 760); Shope v. Singleton, 196 Ga. 506 (2) ( 27 S.E.2d 26). "Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him." Code, § 74-106.

CANDLER, Justice. (After stating the foregoing facts.) 1. While the judge, on a hearing of the writ of habeas corpus for a child's custody, is vested with discretion in determining to whom custody should be given, such discretion should be governed by rules of law and exercised in favor of the party having the legal right, unless the evidence shows that the child's interest and welfare justify the award of the custody to another, where rivalry between parents as to their child's custody is not involved. Code, §§ 50-121, 74-107; Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907), and cases cited. In the present case, the contest for the custody of the child was between two of her maternal aunts.

1. While the judge in awarding the custody of a child is vested with a wide discretion, such discretion should be governed by the rules of law, and, in a case where as here rivalry between parents for the custody of a child is not involved, should be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another. Code, § 50-121; Butts v. Griffith, 189 Ga. 296 (2) ( 5 S.E.2d 907); Fowler v. Fowler, 190 Ga. 453 ( 9 S.E.2d 760); Shope v. Singleton, 196 Ga. 506 (2) ( 27 S.E.2d 26). 2. Under the evidence, the judge was authorized to find that it was to the best interest and welfare of the two children, aged 3 years and 5 years, respectively, that they be left in the custody of the petitioner, and no abuse of discretion is shown in awarding them to her.

While under the Code, § 50-121, the judge, upon a hearing of a writ of habeas corpus for the detention of a child, is vested with a discretion in determining to whom the custody shall be given, such discretion is not free or arbitrary, but is to be governed by the rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that the welfare and interest of the child would justify the judge in overriding the rights of the person holding the legal claim. Fowler, v. Fowler, 190 Ga. 453 ( 9 S.E.2d 760); Butts v. Griffith, 189 Ga. 296 (2) ( 5 S.E.2d 907), and cit.; Monk v. McDaniel, 116 Ga. 108 (4) ( 42 S.E. 360); Chunn v. Graham, 117 Ga. 551, 552 ( 43 S.E. 987); Chapin v. Cummings, 191 Ga. 408, 418 ( 12 S.E.2d 312); Miller v. Wallace, 76 Ga. 479 (2, a, b) (2 Am. St. R. 48). Where the evidence on the controlling issue is in conflict, the discretion of the judge will not be controlled.