honor, and for the honor of the family committed to his next of kin, and there-
fore is inherent to the blood, and can't be assignable.
^Because a stranger could not have that interest to take care of the
L -I ward, nor have it at heart.
The guardian in socage was accountable to the infant when he came to the
age of fourteen, and he could not transfer that account to another.
The testamentary guardian, as is said, is formed after the manner of guar-
dian in socage, and comes instead of him, and is in loco parentis.
Therefore, though it be not assignable, nor transferable, yet it is such an
interest as shall survive.
The fourth question is, whether the ladies, or either of them, are in /con-
tempt of the Court ?
And it is very plainly sworn upon the Lady Shaftsbury, that she has owned
that she has seen him married and bedded.
The mother's being present in this case, is a plain evidence of assent.
And the mother can't marry her child without the consent of the testamen-
For the father, who had the power over his child by law, has placed it under
the power of the testamentary guardian.
Therefore it is taken out of the power of the mother.
But it is objected, that this Lord Shaftsbury has married the Lady Susanna
EYRE V. COUNTESS OF SII AFTSBUR Y. 225
Noel, a lady of birth, quality, and furtune, and therefore is married without
disparagement, and that this will be no contempt of the Court.
When the ward is put under the protection of this Court by the testamen-
tary guardian, it is a contempt of the Court to marry him without the consent
of the guardian.
It is a breach of filial duty for children to marry without the consent of the
The testamentary guardian is in loco parentis, and he having put the ward
under the protection of the Court, it is then a contempt to marry him without
the guardian's consent, and the contempt being in marrying him without the
consent of the guardian, an improvident marriage *is only an aggra-
vation of the offence, if that had been the case. L J
There is nothing in the objection, that the mother has the natural power
over her son, and that jura sanguinis nulla lege civili possunt dirimi.
For the father, whilst living, was the head of the family : he had power
over his child, and he might dispose of him by law. And it is the duty even
of the mother to pay that respect to the memory of her deceased husband, as
not to marry her son without the consent of the guardian appointed by the
And when the child is by the guardian put under the protection of this
Court, it will be a contempt even of the mother to marry him without the
consent of the guardian.
As to the Lady Gainsborough this contempt is not sworn upon her.
For an order for sequestration in the case of a peer, or a commitment in the
case of a common person, is a judicial act of the Court, and therefore must be
founded on a proper affidavit, as I apprehend.
The order is the judgment of the Court, the sequestration or commitment
is but the execution of it.
And therefore the judgment is to be founded upon truth, and not upon con-
For if she be examined upon subsequent interrogatories, this will not make
good the determination of the Court by a matter ex post facto.
Wherefore he agreed with Lord Jekyll in toto, as did also Lord Commis-
sioner Raymond. 1
No part of the jurisdiction of equity is more important or beneficial than
that which is exercised over infants, whether it be in guiding or controlling
the acts of their guardians or of themselves, limiting, and, when necessary,
even abrogating entirely the natural and legal rights and authority of a father.
The principal case is often referred to, on account of the important investiga-
tion which this branch of the law then received by the distinguished Judges
who decided it.
Passing over the different species of guardianships, discussed with so much
1 See 2 P. Wms. 125.
VOL. III. — 15
226 GUARDIANSHIP OF MINORS.
learning in the principal *case, some of which have been either
[*564] gjjQiighed by statute, have fallen into disuse, or have become of little
practical importance, such as guardianship in chivalry, guardianship in socage,
o-uardianship by custom, guardianship by the appointment of the spiritual
courts guardianship by election, and guardianship under stat. 4 & 5 Phil. &
Mar. c. 8, (as to which the reader is referred to the notes of Mr. Hargrave to
Co. Litt. 88, b,) it is indisputable that the father is by nature and nurture
the o-uardian of his children during their infancy, (Ex parte Hopkins, 3 P.
Wms. 152, 154 ; Stileman v. Ashdown, 2 Atk. 480 ; Wellesley v. Duke of
Beaufort, 2 Russ. 21 ;) and it seems in accordance with the observation of
Lord Commissioner Jekyll, in the principal case, that, after the death of the
father, without appointing a testamentary guardian, the mother is also their
"•uardian by nature and nurture : Villareal v. Mellish, 2 Swanst. 533 ; Mettish
v. He Costa, 2 Atk. 14; Roach v. Garvan, 1 Yes. 158; Mendes v. Mendes,
3 Atk. 624; 1 Ves. 91.
Testamentary Guardian. — An important power was, by 12 Car. 2, c. 24,
conferred upon the father, even although he was a minor, of appointing, by
deed or will, guardians for his legitimate children ; these are usually termed
By the late Statute of "Wills, (1 Yict. c. 26,) the power of making a will is
taken from minors, who can, therefore, it seems, now only appoint guardians
for their children by deed.
No power was given to the mother of appointing a testamentary guardian,
and the appointment of one by her husband supersedes her guardianship by
nature and nurture. She may, however, be appointed a testamentary guardian.
A testamentary guardian will not be disabled from exercising the office from
having been a witness to the execution of the deed by which he was appointed :
Morgan v. Hatchell, 19 Beav. 86.
The office of testamentary guardian, as decided in the principal case, where
there are more than one, goes to the survivor; and although, as it also appears
there, it does not determine on the marriage of a male, it does on the mar-
riage of a female ward : Mendes v. Mendes, 1 Yes. 91.
The religious tenets of the person appointing, or of the persons appointed,
testamentary guardians will not be any obstacle to the validity of the appoint-
ment. Thus, an appointment by a Jew, ( Villareal v. Mellish, 3 Swanst. 538,)
or of a Roman Catholic, (Talbot v. Earl of Shrewsbury, 4 My. & Cr. 672,)
or of a Dissenter, (Corbett v. Tottenham, 1 Ball & B. 59,) will be valid.
As to what amounts to an appointment, since express words are not neces-
r* 565 1 sai 7> see Mendes v. Mendes, *1 Yes. 89 ; 3 Atk. 619 ; Selby v. Selby,
L 0J 2 Eq. Ca. Ab. 488, pi. 22 ; In re Park, 14 Sim. 89 ; Miller v. Harris,
14 Sim. 540.
A testamentary guardian is a trustee, and therefore the Statute of Limita-
tions is inapplicable to accounts as between him and his ward : Mathcw v
Brise, 14 Beav. 341.
Scotch testamentary tutors are not testamentary guardians, according to 12
EYRE V. COUNTESS OF SHAFTSBURY. 227
Car. 2, c. 24 : Johnstone v. Seattle, 10 C. & F. 42 : Scott v. Bentley, 1 K. &
J. 281, 284.
Guardian appointed hi/ a Stranger. — Although a mere stranger lias no
legal right to appoint guardians for an infant during the life of his father,
(see Ex parte Hopkins, 3 P. Wms. 152 ; Powel v. Cleaver, 2 Bro. C. C.
510,) nevertheless, a father may act in such a manner as to render an appoint-
ment by a stranger effectual. Thus, where a person confers a benefit upon
the father, or upon the children, for their maintenance or otherwise, upon
condition that the father gives up the guardianship of them, if he accepts the
benefit himself, or commits the care of his children to the guardian nominated
by the stranger, he will not afterwards be allowed to prejudice their interests
by asserting his legal rights, either by interfering with their education or
enforcing the delivery up to him of their persons. Thus, in Colston v. Morris,
Jac. 257, n., the testator left a sum of money to the infant, and gave and com-
mitted, so far as it was in his power so to do, the guardianship, custody, care,
tuition, management, and education of the infant to the trustees ; and he gave
a legacy to the father, on condition of his not interfering with the manage-
ment and direction of the trustees respecting the education of the infant.
The cause having been heard by Sir J. Leach, V. C, it was declared by the
decree, that, 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 infant, such undertaking to be given in the manner and
form approved by the Master, he should 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 were entitled to the
guardianship, custody, or tuition and management of the infant during her
minority ; and in that case the Master was to approve of a proper scheme for
the education and bringing up of the infant, according to the meaning and
intent of the testator, as expressed in his will, regard being had to her rank
and expectations in life : Reg. Lib. A., 1818, fol. 1444. The *father r *r rn
entered into a recognizance not to interfere in the education of the
infant'as directed by the decree, and the decree made on further directions
ordered the costs of so much of the suit as related to his recognizance to be
paid out of his legacy : Reg. Lib. A., 1820, fol. 889.
So, in Potts y. Norton, 2 P. Wms. 109, n., at the Rolls, 24th April, 1792,
the testator by his will left considerable legacies to the infant children of his
brother, and also an annuity to the brother himself, making it his particular
request to his brother, that he would commit the education of the children to
his the testator's executors, and revoking the gift of the said annuity in case
the brother should refuse to comply. Several of the children were taken from
the brother by the executors, without any objection being made, and were
placed by the executors at different schools, and the brother received his
annuity. Upon an application to the Court for maintenance for the infants,
it was ordered, that the Master should inquire whether the brother was will-
228 GUARDIANSHIP OF MINORS.
ino- to commit the education of the children to the executors ; and in that case
the Master was to inquire what was proper to be allowed for their maintenance.
The Master reported that the brother had appeared before him, and consented
thereto • and this report was afterwards confirmed, and certain sums allowed
for their maintenance. The brother having afterwards taken away two of the
children from the schools where they had been placed, the executors, by peti-
tion, prayed that he might be ordered to replace them. The brother appeared
to the petition, and insisted that he had never given his consent that the care
of his children should be taken from him ; and it was strongly insisted on his
behalf, that the Court had no jurisdiction to take a child from his parent with-
out the parent's consent. But his Honor said he would not go into this ques-
tion while the Master's report of the brother's consent remained in force ; the
brother must make such application as he should think fit. to take off the effect
of that proceeding ; but for the present his Honor ordered the brother to re-
place the children.
So, in Blake v. Blake, Amb. 306, Lord Hardwicke says, " The grandfather
had no power to appoint guardians of his grandson, it being a right vested in
the father; but any one can give his estate on what conditions he pleases;
and the father has in this case submitted to the will. There are instances
where a grandfather has given his estate to his grandchild, and appointed
guardians of his estate and person ; and if the father did 'not submit to the
will, the Court has made the father's opposition work a forfeiture of his son's
r*W7~\ esta * e - But if there is any gift to the father *in the will, and he sub-
mits to it, the Court directs and appoints a guardian on his submission.
In the present case, the Court has interposed* after the father had waived his
parental right ; therefore, here is no ground to alter what was done with the
consent of all parties."
In Powell v. Cleaver, 2 Bro. C. C. 499, J. P. by will gave considerable
benefits to his sister, her husband, and their infant children, upon the express
condition that his executor should have the care, guardianship, tuition, and
management of the persons of the infants during their minority. The father,
during the testator's life, permitted the children to be brought up by and at
his expense, and after his decease he took the benefits conferred upon him by
the will, acquiesced in the arrangement of the guardianship, and not only
yielded the management of his sons to the executors, but called for and re-
ceived the maintenance provided for them. Afterwards, the father preferring
another person to the gentleman appointed by the executors for superin-
tending the education of his eldest son, resumed his right of guardianship over
him. But Lord Thurlow said, that the Court would take care that the child
should be properly educated for his expectations, and that it must be laid
before the Court how the son was disposed of.
Lord Eldon, with reference to this case, has observed, " that it was con-
tended that the bounty given to the father had put him to his election, and he
could not, after receiving the legacy, withhold compliance with the condition
for the education of his children ; but that argument could not sustain the
EYRE V. COUNTESS OF SHAFTSBURY. 229
jurisdiction. The father, not knowing that he was making the election, was
at full liberty to pay back the money. But Lord Thurlow's opinion went
upon this, that the law imposed a duty upon parents, and, in general, gives
them credit for ability and inclination to execute it. But that presumption,
like all others, would fail in particular instances ; and if an instance occurred
in which the father was unable or unwilling to execute that duty, and, further,
was actively proceeding against it, of necessity the state must place somewhere
a superintending power over those who cannot take care of themselves, and
have not the benefit of that care which is presumed to be generally effectual.
In those cases there was a struggle between the feelings of the father and a
due attention to the interests of the child, upon the condition that his educa-
tion should be conducted in the manner prescribed, which was the course of
maintenance and education the best calculated to promote his happiness in the
state in which that fortune would place him. But Lord Thurlow took upon
him the jurisdiction on this *ground, that he would not suffer the r*5 6 gj
feelings of the parent to have effect against that duty which, upon a
tender, just, and legitimate deliberation, the parent owed to the true interests
of the child ; and his Lordship separated the person of the child from the
father ; always taking care, that the separation shall not have a greater effect
than the case requires, and that the intercourse shall be as frequent and full
as the case requiring the separation will permit :" 10 Ves. 63.
In Lyons v. Blenkin, Jac. 245, a grandmother by will made a provision for
her grand-daughters, by a devise of real estate, and a gift of pecuniary lega-
cies, the management of which, during the minority of her grand-daughters,
she committed to their aunt M. B., with a discretionary power to apply the
issues and proceeds towards their maintenance and education ; and she ap-
pointed her daughter M. B. executrix, and also guardian of her said grand-
children. During the testatrix's lifetime, the infants were committed to the
care of the testatrix by their father, and the expenses of their education were
defrayed by her. After her death they, continued to reside in the same man-
ner, under the care of their auut M. B. - , who, three years afterwards, married.
The infants were of the respective ages of nineteen, fourteen, and twelve, and
had been educated by their aunt in the Baptist persuasion, which she and her
husband professed. The father, it appears, was a Unitarian minister, having
formerly been a Baptist, and had, upon the death of the infant's mother, mar-
ried again, and his income, independent of that arising from his wife's pro-
perty, appears to have been very limited. About this time, some difference
having arisen between the father and M. B., he required that his daughters
should be delivered up to him, and called for an account of their fortunes, and
in November, 1819, filed a bill in their names, as their next friend, against
M. B. and her husband, praying the accounts, and insisting that his daughters
ought to be placed under his care, and that, not being of ability to maintain
them, a proper sum should be allowed to him for that purpose. Lord Eldon
having declined to decide the question upon habeas corpus, a petition was
presented by the father, praying that the infants might be restored to him.
230 GUARDIANSHIP OF MINORS.
Lord Eldon, however, refused the application. " It is always," observed his
Lordship, " a delicate thing for the Court to interfere against the parental
authority; yet we know that the Court will do it in cases where the parent is
capriciously interfering in what is clearly for their benefit. In the case of
Powell v. Cleaver, the principles on which the Court proceeds were fully dis-
cussed. In a case of this hind this Court *would not feel itself at
*- liberty to deliver back the infants to the custody of their father, and
for the reasons I shall notice. It has been stated that he is a dissenting
minister. I mentiou that again, guarding myself against its being supposed
that his bearing that character furnished the least ground why he should not
have the care of his children; but it furnishes this observation, that his situa-
tion in life leaves him without the means of so educating them as they ought
to be educated, regard being had to their fortune and estate. The father
objected to the aunt, because she married : she objected to delivering over the
children to their father, because their mother died, and the father had taken
another wife ; but the circumstance that decides me about not removing the
children is this, that, although the testatrix could not impose the terms of
appointing a guardian where the father was living, yet the father, by his con-
sent, might enable the guardian to act ; and by his consent, it appears that he
has enabled the guardian to act, and, by such consent, these children have,
with very little interruption, continued under the care and guardianship of
the aunt. All their habits have been acquired under the roof of their aunt —
all their connections have been formed under their aunt; and it appears to me
that the father has so far given his consent to this course of education, as to
preclude him from saying that he shall now be permitted to break in and in-
troduce a new system of education, which cannot be consistent with the system
to which they have been habituated, and where so much depends upon the
quantum of supply for the purpose which the discretion of this lady may lead
her to apply, if the testatrix has left her the discretion of regulating the
means for their education.
" It, therefore, does appear to me that the testatrix, by the benefits she has
given these children out of her property, has purchased the power of educating
them in the way and under the control and guardianship which she has pointed
out and the parent has consented to; and I cannot help thinking that, unless
this gentleman can bring before the Court some complaint on the ground of
improper conduct, he must be taken to have given his consent to the course
of education which has been pursued."
In Fagnani v. Selwyn, Jac. 2(38, n., a settlement was made on an infant,
(whose father was dead and whose mother resided abroad,) on condition of her
being under the care of the settlor, who had for some years maintained and
educated her at his own expense only. It was referred to the Master to con-
sider whether he should be appointed guardian, taking the settlement into
r*5701 But the Court wil1 not cle P rive * a fa tb.er of the custody of his chil-
J dren merely because a person makes an offer to maintain them, even
EYRE V. COUNTESS OF SHAFTSBURY. 281
although it might be for the benefit of the children that such offer should be
acceded to. Thus, in a case heard in private before Lord Eldon, in August,
1821, the mother of the infants, who was possessed of a considerable property,
settled to her separate use, was living separate from her husband, whose in-
come was small. A petition was presented by the mother, in the name of
herself and the infants, praying that they might be placed with her, or that it
might be referred to the Master to approve of a plan for their education, and
to appoint a proper person to have the care of them, the mother offering to
provide for their maintenance out of her separate income. It was urged as
one of the grounds in support of the petition, that the father's income was not
sufficient to enable him to give the infants an education suitable to their situa-
tion in life and to their expectations, and that it would therefore be for their
benefit that their mother's proposal should be acceded to. On this part of
the case the Lord Chancellor said, " that there were cases where, without any
provision antecedently made, the Court would remove a child from the parent ;
.... but wherever the Court had interfered against the father, upon pecu-
niary considerations, they had been solid considerations, — not merely expecta-
tions. In all the cases which his Lordship remembered, there had been some
immediate irrevocable provision, by which the child could be brought up in
a manner suitable to its future prospects. The Court had there said, that it
would not permit the father wantonly and capriciously to deprive the child of
that benefit j as in Powcl v. Cleaver, where benefits were given to a child on
condition that he should be educated in a particular manner, the father was
not allowed to defeat the gift. So in the case of the young lady whom Mr.
George Selwyn had provided for. But the Court could not interfere upon a
mere offer:" Jac. 261; and see Hill v. Gomme, 1 Beav. 510; Cr. & Ph.
250 ; In re Fynn, 2 De Gr. & Sm. 157 ; Clavering v. Ellison, 3 Drew. 151 ;
3 Jur. N. S. 277 ; 26 L. J., N. S. (Ch.) 335.
Ward of the Court — Guardian hy appointment of the Court. — The juris-
diction of the Lord Chancellor to appoint guardians for infants is undoubted,
although Mr. Hargrave, in a learned note, attempted to show that it was not,
as far as yet appears, of ancient date ; and that, though unquestionable, yet it
seems at first to have been a usurpation, for which the best excuse was, that
the case was not otherwise sufficiently provided for. See Co. Litt. 88, b,
This opinion of Mr. Hargrave is controverted in a very able note of
*Mr. Fonblanque, who comes to the conclusion, " that the superinten- *- l -•
dence and protective jurisdiction of the Court in the case of infants, is a dele-
gation of the duty of the Crown; that its general jurisdiction was not even
suspended by the statutes of Henry 8, erecting the Courts of Wards and Live-
ries. That the case of idiots and lunatics is distinguishable; the jurisdiction
exercised in Chancery as to the first, being the grant of an interest, and in
the latter, the delegation of a power conferred by Parliament:" 2 Fonb. 232.
Lord Eldon, in De Manneville v. De Manneville, 10 Ves. 63, has observed, " that
Mr. Fonblanque has stated the principle very correctly; for in Butler v. Free-
232 GUARDIANSHIP OF MINORS.
man, (Amb. 301,) Lord Hardwicke, professing not to go upon guardianship,
and disclaiming wardship, puts it upon this : that the Court represents the
kin^ as parens patriae." And see Powel v. Cleaver, 2 Bro. C. C. 499; Wel-
lesley v. Duke of Beaufort, 2 Russ. 21 ; 2 Bligh, N. S. 124.
The Court of Chancery has jurisdiction over the custody of the children of
English subjects, though such children were born and are resident abroad :
Hope v. Hope, 4 De G. Mac. & G. 328 ; S. C, 19 Beav. 237.