mother has no right as such, to their custody; but the court, with the view of promoting the benefit of the infant, and upon sufficient reason, as the infant's health, will, in the exercise of its discretion, interfere with the right of the testamentary guardian, to the extent of allowing an infant under eight years of age to reside with the mother, more especially when the father, by a deed of separation, had covenanted to allow such child to reside with the mother up to the age of ten years.(i)

A testamentary guardian cannot by deed or will transfer the custody of his ward to another.(g) On the death of the guardian the office does not pass to his executor or administrator, but is absolutely determined.(r) Where a woman, who is a guardian, marries, the guardianship is not transferred to her husband. (s) A mother having children by a second marriage is not thereby rendered incompetent to be guardian to the children of her first marriage.(t) A testator by his will expressly excluded his wife from the guardianship of his children, and directed that if she should obtain possession of them, the provision he had made for their maintenance should cease, and he appointed his executors to be their guardians. After the testator's death his widow, as the answer alleged, forcibly removed one of the daughters from a school at which her father had [ *692 ] placed her in his lifetime, and took the child abroad. She then filed. a bill as next friend of the children, against the executors for an account of the testator's estate. The court of chancery directed the account to be taken, but referred it to the master to inquire into the alleged misconduct of the mother, and ordered all proceedings under the decree to be stayed till the report was made.(u)

Jurisdiction to control parental Authority on the ground of the pecuniary Interest of the Child.]-Where some immediate irrevocable... provision has been made for a child, the court has interfered in some › cases in taking the custody of children from the father, for the purpose of insuring the education of the child in a manner suitable to its future property.(x) The court will not permit a parent, who cannot educate a child in a manner suitable to the property which the child derives from the bounty of another, to withhold from it the education. to which it is entitled. This jurisdiction however is very carefully exercised, not on writ of habeas corpus, but on petition.(y) In Lyons v. Blenkins, (2) the grandmother, with whom her grand-daughters had resided, by her will gave a moiety of one estate and some other estates and pecuniary legacies to her three grand-daughters, and taking it for granted that she had power to appoint a guardian, expressly directed that their aunt should be their guardian, with power to receive the rents and interest of their property, and to apply such part as to her should seem reasonable towards their maintenance and education during their minorities. The property of the infants amounted together to about 600l. per annum. After the death of the testatrix the infants resided under the care of their aunt. On a petition being pre

(i) Doyle v. Wright, 4 Jurist, 380.

(q) Vaugh. 179; Villareal v. Mellish, 2

Swanst. 533.

(r) Vaugh. 180. 182. 185.

(8) Com. Dig. Guardian, (E.) 2.

(1) Corbet v. Tottenham, 1 Ball &. B. 66;

see ante, 309.

(u) Arnott v. Bleasdule, 4 Sim. 387.
(x) Powell v. Cleaver, 2 Br. C. C. 499.
(y) Lyons v. Blenkin, Jac. R. 234.
(2) Jac. R. 245.

sented by the father, praying for the infants to be restored to him, Lord Eldon, C. said, "The view I have taken of the case is of this [ *693 ] sort; here is a fund provided for the maintenance and education of these children; and I think I am properly warranted by authorities in asserting, that if a testator thinks fit to provide a fund for the maintenance and education of children during their minorities, and at the end of that period makes a further provision for them, and the father permits their maintenance to be supplied from that source, allowing them to be brought up with expectations founded upon a particular species of maintenance and education which he himself cannot afford to give them, he is not (unless I greatly mistake the matter,) according to the principles of this court, at liberty to say that he will take them from the course of education which they had hitherto pursued, and that too at a period approaching to maturity of age. He is not at liberty to say I will alter the course of education of my children, by applying more scanty means for the purpose; and I will not permit them to have the benefit of that sort of maintenance and education which they have hitherto had; and in consequence of which their views in life are very different from what they would have been without it." The father's application was refused, and a reference was directed to the master to inquire by whom and at what expense the infants had hitherto been maintained and educated, and whether the father was of sufficient ability to educate them in as beneficial a manner; and if not, to approve of a scheme for their education during their minorities. (a)

In another case the testator by his will gave 10,000l. to trustees upon certain trusts for the infant plaintiff, his grand-daughter, and on trust to pay out of the interest of it an annnity of 100l. to her father till she should attain twenty-one or marry with consent of the trustees; and he gave and committed, so far as it was in his power so to do, the guardianship, custody, care, tuition, management and education of the plaintiff to the trustees and the survivors and survivor of them; and he gave to her father a legacy of 2000l. By a codicil he declared that if the father or his wife should ever interfere with the management and direction of the trustees respecting the education of his grand-daughter, then he *revoked the legacies left to [ *694 ] him, as it was his wish that he should not have any con

trol over her. The father by his answer submitted, that the condition or prohibition annexed to the legacy to him was for want of a bequest over to be considered as in terrorem only and void. He was desirous of having the care of his daughter, and submitted that she ought to be placed under his care. The decree directed a transfer of the legacy of 10,000l. and on the father undertaking to give up and abandon all interference with the management and direction of the trustees in the education and management of the plaintiff, such undertaking to be given in the manner and form approved by the master, it was declared that he would be entitled to the benefits given to him by the will; but in case he should refuse to give such undertaking, then it was declared that he was not entitled to them; and it was declared, that in the event of his giving such undertaking, the trustees

(a) Jac. R. 255, 256.

were entitled to the guardianship, custody or tuition and management of the plaintiff during her minority; and in that case the master was to approve of a proper scheme for the education and bringing up of the plaintiff according to the meaning and intention of the testator as expressed in his will, regard being had to her rank and expectations in life.(b)

A rich uncle took his three nieces into his house, maintained them there, and died, having bequeathed to them by his will large legacies. The executor continued to keep the nieces in the house where he and the testator lived. The father of the children petitioned that they might be delivered to him. The eldest child (of the age of thirteen) appeared in court, and being examined denied she was under any force; and although she had all imaginable duty for her father and mother, yet she thought herself under an obligation to observe her uncle's intention to continue in the house where he had placed her. The court was of opinion that the guardianship of the children by the law of nature belonged to the father, but that the right thereto was not to be determined upon petition without a bill; and that the father might take his children, but not by force, nor in going to [ *695 ] or *returning from the court; and directed the executor who had the custody of the children to permit their parents at all seasonable times to have access to and see their children.(c)

An infant had been delivered by her father and mother to the sole care of the settlor, who made a settlement on the infant, on condition of her being under the care of the settlor; on a bill filed by the infant after her father's death, stating that no person was properly authorised to take care of her person during her minority, and that she was desirous that the settlor should be appointed guardian of her person, it was referred to the master to consider whether it would be proper to appoint the settlor to be guardian of the infant, taking into consideration the effect of the settlement. In this case the infant's mother was living, but resided abroad. (d) The court of chancery will not interfere as to the religious education of an infant upon any supposed pecuniary advantages to be derived from a change of faith, against the father's injunctions.(k)

Courts of Equity authorised to order Maintenance of Infants.]—The courts of chancery and exchequer in England and Ireland may, by order made on the petition of the guardian of any infant, in whose name any stock shall be standing, or any sum of money by virtue of any act for paying off any stock, and who shall be beneficially entitled thereto, or if there shall be no guardian, by an order in any cause depending in such courts, direct all or any part of the dividends duc or to become due in respect of such stocks or any such sum of money, to be paid to any guardian of such infant, or to any other person according to the discretion of such court for the maintenance and education, or otherwise for the benefit of such infant; such guardian or other person, to whom such payment shall be directed to be

(b) Colston v. Morris, 28 May, 1819; Jac. R. 257,258, note.

(c) Ex parte Hopkins, 3 P. Wms. 152. SEPTEMBER, 1841.-2 L

(d) Fagnani v. Selwyn, Jac. R. 268.
(k) Doyle v. Wright, 4 Jurist, 380.

made, being named in the order directing such payment; and the receipt of such guardian or other person for such dividends or sum of money, or any part thereof, shall be as effectual as if such infant had attained the age of twenty-one years, and had signed and given the same. (e) The court has jurisdiction, under 11 Geo. 4 and I Will. 4, c. 65, s. 32, upon petiton of the father of the infant, where there was no guardian, and no cause depending with reference to the matter, to direct that the dividends on stock belonging to the infant, shall be paid to the father for the maintenance of the infant.(o)

When Maintenance for infants will be ordered without Suit.]The court will not order a reference for the maintenance of an infant [ *695 ] on petition without suit, where the property is considerable, where it is necessary to take accounts in the master's office, or in cases where trustees, in whom a discretionary power is vested, are called upon to allow a maintenance for minors.(ƒ) But it will be done on petition in special cases, as where there is a specific fund for maintenance, or the property is very small; and it was said that as a general rule, if the infant had 100%. per annum, a bill should be filed.(g) But in a subsequent case a guardian was appointed and maintenance allowed upon petition without bill, where the infant's income was 3001. a year. Sir J. Leach, M. R., who made the order, said, that unless the rule was otherwise fixed, he should entertain such petitions, where the income did not exceed that sum.(h) On the petition of an infant for a reference to approve of a guardian and of a proper sum to be allowed for his maintenance, where the amount of his property was stated to be about 2007. per annum, the order was made without suit.(?) And an order for a reference as to the maintenance of an infant out of his freehold estates, the rents of which were 2601. a year, was made upon petition without suit.(k) An order was made, on petition without suit, for the allowance of 4501. a year for the maintenance of an infant, the income of whose property exceeded 1500l. a year; Sir L. Shadwell, V. C., observing that he thought the distinction as to making orders on petition without suit, between cases where the income was above or below 3007. per annum, was without any foundation in principle.(x)

Guardian appointed without a Reference.]-The aunt of two infant orphans, who had no property except a pension of 157. a year, was appointed a guardian without a reference, for the purpose of receiving the pension.(7) And the same was done in a case where the infant was entitled to freehold property worth 801. a year.(m) The costs of the guardian, incurred by a petition for his appointment, and for an allowance for the infant's maintenance, will be allowed in the guardian's account.(n)

(e) 11 Geo. 4 and 1 Will. 4, c. 65, s. 32; and see ss. 36, 37, 38, 39, 40.

(0) In re Naish, V. C. 29 April, 1840, 18 Law Journ. 252.

(f) Corbett v. Tottenham, 1 Ball & B. 60.

(g) Ex parte Mountfort, 15 Ves. 448; In re Molesworth, 4 Russ. 308, n. See Ex parte Whitfield, 2 Atk. 316; Ex parte Kent,

The court refused to appoint a guardian without a reference, where the infant's property amounted to 150l. a year.(0)

Order for Maintenance without a Reference.]-An order was made without a reference upon petition for the application *of the principal sum of 298l., belonging to two infants, [ *697 ] for their maintenance from time to time. They had no other property, except some copyholds yielding about 67. per annum.(p) So the interest of a sum of 1200l., the property of three infants, was ordered to be paid to their father for their maintenance, without a reference.(q) Dividends, to which infants were entitled, were ordered without a reference to be paid to their father for their maintenance, the parties being poor and the property of small amount. (r) So an increased allowance for maintenance was made out of property of infants for the purpose of supporting their parents, who were in great indigence.(s) An infant's share of a residue, amounting to 1251. was ordered to be paid to his father, on account of the expenses (which the father had been forced to borrow money to defray) of the infant's outfit and passage to India.(t) An order was made upon petition, that part of a small sum of stock bequeathed to an infant, whose father had absconded, leaving his wife and children dependent upon her industry for support, should be sold, and the proceeds applied in payment of a debt incurred for necessaries on his account, and that the residue of the stock should be transferred into court, and the dividends paid to his mother towards his maintenance.(u)

Maintenance allowed out of Principal and before Property had vested.]-The court of chancery will go considerable length in providing for the maintenance and education of infants. Where a small sum is given to an infant, the interest of which is insufficient for his maintenance and education, an allowance out of the principal will be made for the education of an infant, on the ground that it is most beneficial to him.(x) The court, however, does not so frequently break in upon capital for the mere purpose of maintenance, as for that of advancement.(y) The court made an order [ *698 ] upon petition, that executors should be at liberty to apply certain small sums, part of the capital of the residuary shares bequeathed by a father to his infant children, towards their maintenance, education and advancement, though the shares did not vest till the children came of age. The will contained a power of advancement for an apprentice fee or otherwise, in the discretion of the executors, for the advancement in life of any of the children during their respective minorities.(z)

In the case of a gift of a legacy by a parent to a child, the court allows interest by way of maintenance, although there is an omission of any direction as to interest, proceeding upon the ground of a very

(0) Ex parte Janion, 1 Jac. & W. 395. See Ex parte Wheeler, 16 Ves. 226.

(p) Ex parte Green, 1 Jac. & W. 253. (q) Ex parte Dudley, 1 Jac. & W. 254 n; In re Allsop, 1 Cooper, C. C. 44.

(r) Payne v. Low, 1 Russ. & M. 223. (s) Allen v. Coster, 1 Bea. 202. See Heysham v. Heysham, 1 Cox, 179; Hamley v. Gilbert, Jac. 354.