delivered the opinion of the court.

On July 27, 1908, the chancellor on a habeas corpus hearing, after full proof, rendered a decree awarding to appellee the temporary custody of her infant until the January, 1909, term of the chancery court, at which term she was required to present herself and child to the court, there “to receive and abide by such further orders pertaining to the custody of said child as at that time shall appear to be to the best interests of said child.” The court further permitted the appellant, father of the child, to visit it at all reasonable times. It,was evidently the view of the chancellor that this child of- tender years could safely be-intrusted to its mother for a time at least, provided she proved herself able to support it and demonstrated her fitness to rear it. The court, as we think, wisely reserved the right, after the lapse of a six months’ probationary period, to change the custody of the child in case the mother failed in her parental duty.

An examination of this voluminous record, abounding in charges and countercharges, criminations and recriminations, convinces us that the chancellor’s view was correct. We need not exhaustively review the testimony. Suffice it to say that many of the charges against both husband and wife were not satisfactorily proved, and we think that neither litigant can be said to have demonstrated their pre-eminently superior fitness as *420a parent. True, the father is financially far better qualified to give the child the comforts, if not the luxuries, of life; but balanced against this consideration is the powerful influence of a mother’s love and tenderness. The child is but two years old, and we think that at such an age the interest of the infant will not suffer in the arms of a mother, though she eats only the bread of comparative poverty.

We commend the action of the chancellor, and affirm his decree so far as may be under the anomalous situation that has arisen. This situation is due to the fact that the chancellor’s decree was superseded and the custody of the child retained by the father. The probationary period has now expired, so that the decree cannot now be literally complied with. However, upon the return of the cause to the chancery court, a supplemental decree can be entered in vacation, if the chancellor shall so desire, creating a new period of probation, and directing the mother and child to report to the next or some subsequent term of the court, in accordance with the manifest scheme of the decree appealed from. The custody of the child will, upon the filing of the mandate in the court below, be returned to appellee, there to rest until further directed by the chancery court.

Affirmed and remanded.

delivered the following opinion, favoring a dismissal of the appeal.

I express no opinion on the merits of this case, for the reason that I think the extent of our decree should be to merely dismiss the appeal. The decree of the court below, set out in the opinion in chief, 'is merely a provisional one, awarding the custody of the child to its mother until a set time, to wit, the January term, 1909, at which time all parties were to be present, and, presumably, the permanent custody awarded. The January term of the chancery court has long since passed. Owing to delay in getting the appeal before *421us such lapse of time has intervened between the date of the provisional decree and the hearing of the appeal from that decree that any decree we could now render would be purely nugatory. We can only deal with the case made by the record, with the precise decree appealed from. If w;e affirm that decree, what do we affirm? Simply that the court was right in awarding the custody until the January term; but that is an idle declaration, since that term has long since passed. Again, should we reverse, we would merely hold that the custody should not have been awarded until the January term; but that would be equally idle for the same reason, to wit, that that term has long since passed. The futility, therefore of any decree on the present state of the record arises out of the fact that the chancellor made an award of the custody only until a time now long passed. In 2 Cyc. p. 535, it is said: “Mere lapse of time might create this condition” — that is, a condition where an appellate court could only properly dismiss the appeal. And at page 533 it is said: “Hence it is not within the province of appellate courts to decide abstract or hypothetical questions, disconnected from the granting of actual relief, or from the determination of which no practical result can follow.”

My view is that the only proper form of decree we can now enter here is one dismissing the appeal, and leaving the learned •chancellor below to make such new award, temporary or permanent, of the custody of the child, as to him may seem wise^ •especially as this court does not now decide, in the opinion in ■chief, anything as to the permanent custody of the child. Practically it makes no difference whether the view taken by the majority prevails or the view I take prevails, since, if the ■appeal be dismissed, the appellee would equally have to surrender the custody of the child to its mother, subject to such further award of that custody as the chancellor may choose to make.

I write only because I think it is important that we should *422be careful to render, as a matter of practice, tbe proper decree in form, which is, as I have stated, in my view, merely one dismissing the appeal.