natural presumption, that a father, bound by natural duty to provide for the child, must intend that it should be maintained, though the payment of the legacy be postponed to twenty-one.(a) In Incledon v. Northcote(b) a testator devised his real estate and the residue of his personalty upon trust to raise 5000l. for such of his children as should attain twenty-one, and it was held that the children were entitled to interest on their shares for their maintenance during their minority. So where a testator devised the residue of his real and personal estate to such of his children as should attain twenty-one, or marry under that age, with consent; all the children are entitled, although their interests are contingent, to have allowances' out of the residue for their maintenance during their minority.(c) An allowance out of the residue, which was directed to be accumulated, was made for the support of a legatee in the interval between the time when the legatee attained his full age, and the time fixed for the distribution of the accumulated fund.(d)

In general, where children have a common interest to a fund, the income of the fund, if necessary, may be applied to their maintenance. Although the words of the will do not authorize

[ *699 ] *the application of interest to the maintenance of the

infants, yet if the court can collect before it all the individuals who may be entitled to the fund, so as to make to each a compensation for taking from him part, it will grant an allowance for maintenance; but if the will contains successive limitations, under which persons not in being may become entitled, it is not sufficient that all the parties then living, presumptively entitled, are before the court, for none of the living may be the parties eventually entitled to the enjoyment of the property. In such a case an order for maintenance would be in effect, to give for maintenance of one person the property of another.(e) The case in which maintenance has been allowed, though not given by the will, is where there are children, some or one of whom must take the property, and all have an equal chance of surviving, and a present interest. But it cannot be done if there is a gift over, or if the children are not all the persons among whom it is to go, but future unborn children may become entitled to part of the fund. Lord Eldon said there is no case in which interest of property directed to accumulate has been applied to maintenance, except where it was one principal sum in which all were interested.(f) The result is, that if the chance of surviving is equal among all, and no other interest that upon any contingency would take effect will be defeated, maintenance shall be allowed out of the interest; but it is impossible to give it where, in any event under the operation and construction of the will, that interest may possibly belong to other persons.(g) In such cases the court will not order

(a) Mitchell v. Bower, 3 Ves. 287; Chambers v. Goldwin, 11 Ves. 1; Crickett v. Dolby, 3 Ves. 10; Tyrrell v. Tyrrell, 4 Ves. 1; Greenwell v. Greenwell, 5 Ves. 194; Collis v. Blackburn, 9 Ves. 470.

(b) 3 Atk. 433, 438.

(c) Brown v. Temperley, 3 Russ. 263. (d) M'Dermott v. Kealy, 3 Russ. 264.

(e) Per Lord Eldon in Marshall v. Hollo way, 2 Swanst. 436; Kime v. Welfitt, 3 Sim. 533.

(f) Ex parte Kebble, 11 Ves. 604; Aynsworth v. Pratchett, 13 Ves. 321.

(g) Lord Eldon, Errat v. Barlow, 14 Ves. 204; cited in Turner v. Turner, 4 Sim. 437.

maintenance without the consent of the persons who may ultimately become entitled.(h) Where the shares of children in a fund were contingent on the sons attaining twenty-four, or dying under that age, leaving issue, and on the daughters attaining twenty-four or marrying; but the legacy was not given over in the event of no child acquiring a vested interest; the court refused to order maintenance for the children, unless the testator's next of kin would consent.(i)

[ *700

As to the Father's Ability to maintain his Children.]-In general the court will not order maintenance out of a fund to which children are entitled, if the father be able to maintain them.(k) If the father is not of sufficient ability, the court will allow maintenance for the children, although the mother has a competent separate estate.(?) Where the father in consequence of bankruptcy was wholly unable to maintain his children, maintenance, with the consent of the person entitled in reversion, was directed by the court out of a fund bequeathed to grandchildren payable at twenty-one or marriage, or to the issue of those who were dead, with survivorship and accumulation till the time of payment, and a limitation over absolutely in case of the death of all without issue before that time.(m) Where a father had deserted his children, and was not of ability to maintain them, the court, on the petition of the children, will make an order referring it to the master to approve of a proper person to act in the nature of a guardian, and to inquire whether it will be for the benefit of the infants. that a certain sum shall be raised out of property to which they are absolutely entitled under a will; and upon the master's report that it is for their benefit, and with the consent of the executors of that will, the court will order the sum to be raised accordingly.(n) So maintenance was ordered for the children where the father's income, though considerable, bore no proportion to the fortune which was bequeathed to the children. In this case the residuary bequest to a very large amount was in favour of infant grandchildren, payable at twenty-one or marriage, with survivorship, the interest to accumulate and to be paid with the capital; and in case of the death of all the children before payment, there was a gift over to their mother absolutely. The court directed maintenance with the mother's consent.(o) *In many families the eldest infant is in possession of a [ *701 ] large property, while the younger infants have only a small provision, in such a case the court does not measure the duty of

(h) Fairman v. Green, 10 Ves. 47; Errington v. Chapman, 12 Ves. 20.

(i) Cannings v. Flower, 7 Sim. 523. (k) Andrews v. Partington, 3 Br. C. C. 60; Mundy v. Earl Howe, 4 Br. C. C. 226; sce 2 Roper on Leg. 266, 3d ed. By a marriage settlement personal property was settled, by the father of the wife, in trust for her for life, with remainder to her chil. dren equally as tenants in common; and in default of a child obtaining a vested interest, in trust for the husband, with a direction that after the wife's death the trustees should apply the income at their discretion for the

maintenance and education of the children during their minorities. It was held, that after the wife's death the husband was entitled to require that the income should be applied to the maintenance and education of the children, notwithstanding that he was himself of ample ability to maintain and educate them. Stocken v. Stocken, 4 M. & Cr. 95; 4 Sim. 152; 2 M. & Keen, 489.

(1) Haley v. Bannister, 4 Madd. 275. (m) Fendall v. Nash, 5 Ves. 197, n. (n) In Re England, 1 Russ. & M. 499. (0) Cavendish v. Mercer, 5 Ves. 195, n. See Jervoice v. Silk, Coop. C. C. 52.

maintaining the eldest child by looking at him only, but it considers that it is for his interest that his brothers and sisters should be brought up in respectable stations. The principle on which the court acts in such a case, by giving for the maintenance of the eldest infant son a much greater sum than he can possibly require, is in order that all the children may be educated in a liberal way, and placed in such situations as may be creditable to such son.(n)

Courts of Equity authorized to make Orders as to the Mother's Access to and Custody of Infant's in certain Cases.]-The statute 2 & 3 Vict. c. 54, after reciting that it was expedient to amend the law relating to the custody of infants, enacts, "that after the passing of this act, it shall be lawful for the lord chancellor and the master of the rolls in England, and for the lord chancellor and the master of the rolls in Ireland, respectively, upon hearing the petition of the mother of any infant or infants being in the sole custody or control of the father thereof, or of any person by his authority, or of any guardian after the death of the father, if he shall see fit, to make order for the access of the petitioner to such infant or infants, at such times and subject to such regulations as he shall deem convenient and just; and if such infant or infants shall be within the age of seven years, to make order that such infant or infants shall be delivered to and remain in the custody of the petitioner until attaining such age, subject to such regulations, as he shall deem convenient and just."

Affidavits may be received.]-The second section enacts, "That on all complaints made under this act, that it shall be lawful for the lord chancellor or the master of the rolls in England, and for the lord chancellor or the master of the rolls in Ireland, to receive affidavits sworn before any master in ordinary or master extraordinary of the court of chancery; and that any person who shall depose falsely and corruptly in any affidavit so sworn, shall be deemed guilty of perjury, and incur the penalties thereof."

*Orders may be enforced by Process of Contempt.]— [ *702 ] The third section enacts, "That all orders which shall be made by virtue of this act, by the lord chancellor or the master of the rolls in England, and by the lord chancellor or the master of the rolls in Ireland, shall be enforced by process of contempt of the High court of chancery in England and Ireland respectively."

Adulteress excluded from Benefit of Act.]-The fourth section enacts, "That no order shall be made by virtue of this act, whereby, any mother, against whom adultery shall be established, by judgment in an action for criminal conversation at the suit of her husband, (o) or by the sentence of an ecclesiastical court,(p) shall have the custody of any infant or access to any infant."(q) Under the custody of infants' Act (2 & 3 Vict. c. 54,) although jurisdiction is expressly given to the "lord chancellor and the master of the rolls," (the vicechancellor being omitted,) still the vice chancellor has jurisdiction by virtue of the Vice Chancellor's Act (53 Geo. 3, c. 34), which in express terms gives jurisdiction to the vice chancellor in all those

(n) 1 Turn. & Russ. 13; 2 Russ. 28; Lanoy v. Duke of Atholl, 2 Atk. 447. (0) See ante, pp. 387. 393.

(p) See ante, p. 395.

(9) See Hans. Parl. Deb. 3d series, Vol. 40, p. 1114; vol. 42, p. 1050; vol. 43, p.

144.

cases where, by any subsequently made statutes, jurisdiction might be given to the lord chancellor.(0)

The common law right of the father to the custody of the children(r) is not altered by this statute, but a discretionary power is given to the judges of the court of chancery to permit the mother to have access to her children and in some cases to have the custody of them.

Cases in which the court refused to interfere.]—In a petition which has been presented under this statute, it appeared that the parties were married in 1829, of which marriage there were six children, five of whom were living, the eldest being nine years old, and the youngest three. In October, 1837, the wife left her husband's house under a charge of his infidelity, which was afterwards retracted, on discovering that it was without foundation. In consequence of this separation, the husband in the year 1838 left England, and had substantially lived abroad with his children since that time. In July, 1838, the wife commenced her suit in the ecclesiastical court for the restitution of conjugal rights, the husband's defensive allegation was rejected, and the court decided in favour of the wife's claim. The husband appealed to the Court of Arches, which affirmed the decision of the court below, and an appeal from that judgment was then pending before the privy council. The wife presented a petition under statute 2 & 3 Vict. c. 54, *praying that the three youngest chil[ *703. ] dren, who were under the age of seven years, might be delivered to her, and that the court would declare her entitled to see and have free access to the other two who were above that age, at such times and subject to such regulations as the court should deem convenient and just. Sir L. Shadwell, V. C., thought that with reference to the jurisdiction the recent act had given to the court, that as it was to be exercised solely at the discretion of the court, it would hardly be a right thing for him to declare the wife entitled to have access to her children, pending the question in the ecclesiastical court for the restitution of conjugal rights. The conduct of the husband had been in his honour's opinion bona fide throughout. He went to France, and began the foreign residence prior to the institution of the suit in the ecclesiastical court, and if the court of chancery were to direct access at its discretion, "at such times and subject to such regulations as it should deem convenient and just," the court ought to be reasonably assured, before it interfered at all, that it could carry the sentence into execution. It might be true, if the children were here, the court might see its way with some facility as to the mode of executing its order; but he doubted very much whether the act was ever meant to be applicable to a case where the husband bona fide, before the presentation of any petition by the wife, had accidentally removed his children to a foreign country, that this court would interfere. It seemed to him rather to be inferred from the act, that as far as the husband and the children were concerned, their residence was to remain the same. It never meant that should be altered, and his honour did not foresee how, consistently with the fact of the husband persevering in his residence abroad (which, as far as the

(0) In re Taylor, 4 Juri t, 983.

(r) See ante, p. 677.

law at present stood, he might lawfully do) the court could ever succeed in making any order which would be capable of being carried into effect. The circumstance that at present it appeared to him that there ought to be no jurisdiction exercised under the act of parliament pending the question in the ecclesiastical court, combined with the difficulty of making any order which would be effectual, appeared to him a sufficient reason for not interfering. Under all the circumstances his honour left the parties at present *to deal with [ *704 ] the circumstances in which they were placed as they thought proper; and would not make any order until he was further informed of the result of the proceedings in the ecclesiastical court. (s)

In another application under this act access was refused on the ground that it would affect the interest of the children, as it appeared that the grandmother, by whom the children were supported, would have ceased to maintain them if the mother had been allowed access.(t)

Education of Infant Felons entrusted to the Court of Chancery.]— The jurisdiction of the court of chancery has been further extended by statute 3 & 4 Vict. c. 90, entitled "An act for the care and education of infants who may be convicted of felony," which, after reciting that it is expedient that every facility should be offered for the improvement and better education of infants under the age of twentyone, who have been or may be convicted of felony, enacts, "That in every case in which any person being under the age of twenty-one years shall hereafter (10 Aug. 1840) be convicted of felony, it shall be lawful for her majesty's High Court of Chancery, upon the application of any person or persons who may be willing to take charge of such infant, and to provide for his or her maintenance and education, if such court shall find that the same will be for the benefit of such infant, due regard being had to the age of the infant, and to the circumstances, habits and character of the parents, testamentary or natural guardian, of such infant, to assign the care and custody of such infant, during his or her minority, or any part thereof, to such person or persons, upon such terms and conditions, and subject to such regulations respecting the maintenance, education and care of such infant, as the said court of chancery shall think proper to prescribe and direct: and upon any order for that purpose being made, and so long as the same shall remain in force, the same shall be binding and obligatory upon the father, and upon every testamentary or natural guardian of such infant, and no person or persons shall be [ *705 ] entitled to use or *exercise any power or control over such infant which may be inconsistent with such order

of the said court of chancery."

Power to rescind or alter such Assignment, and award Costs.]Provided always, that the said court may at any time rescind such assignment, or from time to time rescind, alter or vary any such terms or conditions, or such regulations, as to the said court may seem fit; and provided also, that the said High Court of Chancery shall and may award such costs as to it may seem fit, against any such

(8) Taylor v. Taylor, 4 Jurist, 959, Aug. 1840.

(t) In re Shaw, cited in Taylor v. Taylor, 4 Jurist, 960; see ante, pp. 692–695.