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 de-
livered to and remain in the custody of the petitioner until attaining such age,
subject to such regulations as he shall deem convenient and just."
By the 4th section it is provided, " 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,
or by the sentence of an Ecclesiastical Court, shall have the custody of any
infant, or access to any infant."
The object of this act was very clearly laid down by Lord Cottenham, in
the case of Warde v. Warde, 2 Ph. 786, where, upon an application by a wife
who had obtained a sentence of divorce against her husband, for the custody
of her children, the conduct of her husband appeared to be such as clearly to
render it improper that he should have the custody of the eldest girl, a child
of eleven years old, the Court made an order for the delivery of all the chil-
dren (two of whom were under seven years of age) to the mother, his Lord-
ship holding it unnecessary to consider whether he would have made the same
order with respect to the second child, who was a boy of nine years old, if his
240 GUARDIANSHIP OF MINORS.
case had stood alone, as the effect of children being brought up in different
custodies would be likely to create factions in the family. lt The object," said
his Lordship, " of the Act, and of the promoters of it, and that which I think
appears upon the face of the *Act itself, was, to protect mothers from
L ^ the tyranny of those husbands who ill-used them. Unfortunately, as
the law stood before, however much a woman might have been injured, she
was precluded from seeking justice from her husband by the terror of that
power which the law gave to him of taking her children from her. That was
felt to be so great a hardship and injustice, that Parliament thought the
mother ought to have the protection of the law with respect to her children,
up to a certain age, and that she should be at libetry to assert her rights as a
wife, without the risk of any injury being done to her feelings as a mother.
That was the object with which the Act was introduced, and that is the con-
struction to be put upon it. It gives the Court the power of interfering; and
when the Court sees that the maternal feelings are tortured for the purpose of
obtaining anything like an unjust advantage over the mother, that is precisely
the case in which it would be called upon, and would interfere. When the
parties, therefore, are considering the suggestion which I have thrown out, I
wish them to bear in mind that this is not, as in Wellesley v. The Duke of
Beaufort, (2 Russ. 1,) a question merely as to the general jurisdiction of this
Court to interfere with the legal rights of the father, but that I have now an
absolute authority over the children under seven years of age, and a larger
power than the Court then had with regard to children above that age."
In Ex parte Bartlett, 2 Coll. G61, where it appears that the conduct of the
husband had been in general harsh and unkrnd to his wife, and that he had
struck her in the face with the back of his hand, in consequence of which she
left his house, upon a petition being presented by the wife, by her next friend,
praying that the husband might be ordered to deliver to her two of her chil-
dren, a boy and girl, who were under the age of seven years, and that she
might have access to the others, four in number, Sir J. L. K. Bruce, V. C,
was of opinion, that she was only entitled to the custody of the youngest child,
a daughter, under the age of two years, but not later than the age of seven
years, and that she should have access, under proper regulations, to the other
children, and that the husband should, at convenient seasons, have access to
the daughter. " The statute in question," observed his Honor, " does not, as
a condition of the interference of the Court, require that the wife should have
obtained or should be entitled to obtain a divorce a mensa et thoro; and the
existence of cases in which it may be right to interfere without a divorce,
must, I apprehend, be considered possible.
I"*5821 "^ ut tue C° urt w ^ make no order under the Act, if the wife leaves
*her husband without sufficient cause : In re Taylor, 11 Sim. 178.
Where the mother of an infant under seven years of age, and having cus-
tody of it, is living separate from the father, and has a good defence to a suit
by him for restitution of conjugal rights, the Court may make an order con-
tinuing to the mother the custody of the infant, such a case, although not
EYRE V. COUNTESS OF SHAFTSBURY. 241
within the letter, being within the equity of the statute 2 & 3 Vict. c. 54: Re
Tomlinson, 3 De G. & Sin. 371.
It is not necessary to name a next friend of the petitioner, on the petition
of a married woman, under the stat. 2 & 3 Vict. c. 54, for access to infants in
the custody of the father, (Re Groom, 7 Hare, 38,) even where the applica-
tion is made in forma pauperis : In re Hahewill, 3 De Gr. Mac. & Gr. 116. And
see Page v. Page, 16 Beav. 591. If independently of the Act of 2 & 3 Vict.
c. 54, the Court can exercise jurisdiction upon the petition of a mother having
the custody of her infant child, for the continuance of such custody, it may do
so although the petition is entitled in the matter of the Act as well as in the
matter of the infant: Re Tomlinson , 3 De Gr. & Sm. 371.
As in the case of a father, so in that of a testamentary guardian, the Court
will interfere, if his conduct be improper, (Duke of Beaufort v. Bertie, 1 P.
"Wins. 704 ;) although it will not do so ordinarily, as in the case of guardians
appointed by itself: In re Goode, 1 Ir. Ch. Rep. 256. And it seems to be
the better opinion, that a testamentary guardian cannot be actually removed
from his office, though upon a proper case being made out, he will be sus-
pended, and a proper person will be appointed to act as guardian, and to super-
intend the maintenance and education of the infant, (Foster v. Denny, 2 Ch.
Ca. 327; S. C, 1 Eq. Ca. Ab. 260, pi. 3; Ingham v. Bickerdike, 6 Madd.
275 ;) and orders are frequently made, regulating the conduct both of testa-
mentary guardians and guardians appointed by the Court, (Roach v. Garvan,
1 Ves. 160; Spencer v. Earl of Chesterfield, Amb. 146; O'Keefe v. Casey,
1 S. & L. 106 ; Ex parte The Earl of llchester, 7 Ves. 381 ;) but, as was
decided in the principal case, the pecuniary interest which a testamentary
guardian may have in the death of the ward, will be no ground for superseding
him : Morgan v. Dillon, 9 Mod. 135 ; Dillon v. Lady Mount Cashel, 4 Bro.
P. C. 306, Toml. edit : Corbet v. Tottenham, 1 Ball & B. 59.
On the bankruptcy or insolvency of a testamentary guardian, a proper per-
son will be appointed to have the care of the person of the infant : Smith v.
Bate, 2 Dick. 631 ; Heysham v. Ileysham, 1 Cox, 179.
The marriage of a female testamentary guardian does not determine the
guardianship: Roach v. Garvan, *1 Ves. 160; Dillon v. Lady Mount
Cashel, 4 Bro. P. C 306, Toml. edit. But in a recent case, it has L J
been said by Lord Langdale, M. R., that, although the Court does not ordi-
narily interfere with a testamentary guardian, it has an undoubted control over
any allowance directed to be paid to him ; and if such a guardian, being a
feme sole, marries, it seems right to see what ought to be done. It might
probably be the most beneficial thing to continue the feme covert guardian ;
but it ought in some way or other to appear. In that case, therefore, on a
petition for increased maintenance, he thought that he must require it to be
shown by affidavit, that it would be for the benefit of the infants to continue
to reside with their mother, who was one of their testamentary guardians, not-
withstanding her second marriage : Jones v. Powell, 9 Beav. 345.
In general, the testamentary guardian, or guardian appointed by the Court,
VOL. III. — 16
242 GUARDIANSHIP OF MINORS.
will be entitled to the custody of the infant's person, but the Court, as in the
principal case, will exercise its discretion either in ordering the ward to be
delivered up to the guardian, or in permitting him to reside with the mother,
or that she may have access to him; Ex parte The Earl of llchester, 7 Ves.
380; W right Y.Naylor, 5Madd.77; Talbot x. The Earl of Shrewsbury, 4My.&
Cr. 672, 683; for "though," as Lord Eldon observes, "the effect of the ap-
pointment of a guardian is to commit the cusody of the guardianship, this Court
looks with great anxiety to the execution of the duty belonging to the guar-
dian, and the attention expected to be paid to the reasonable wishes of the
uatural parent. Though it is not necessary in this instance, upon such a con-
test, it is important to observe, that it can never end happily but by implanting
in the hearts of the children filial and dutiful feelings towards the parent; the
best and mostimportant duty imposed upon the guardian by the deceased parent :"
Ex parte The Earl of llchester, 7 Ves. 381. In Courtois v. Vincent, Jac. 268,
access to her children was allowed to the mother of illegitimate children,
although a guardian was appointed by the Court. Access will also be allowed
to the friends of a deceased parent : Hunter v. Macrae, Macphers. 112.
The guardian will be allowed to regulate the mode and select the place for
the education of his ward, whose obedience will be enforced by the Court. See
Hall v. Hall, 3 Atk. 721, where a boy was compelled to return to Eton, and
Tremain's case, 1 Stra. 173, where, " being an infant, he went to Oxford,
contrary to the orders of his guardian, who would have him go to Cambridge,
and the Court sent a messenger to carry him from Oxford to Cambridge ;
*and upon his returning to Oxford there went another tarn to carry
L -" him to Cambridge, quam to keep him there."
Where the guardians differ as to the mode of education, the Court will de-
cide : Duke of Beaufort v. Bertie, 1 P. Wms. 702; and in the appointment
of guardians by the Court, much weight will be given to the wishes of the
deceased father, ( Campbell v. Mackay, 2 My. & Cr. 34 ;) of which parol proof
was received in Anon., 2 Ves. 56, but rejected in Storke v. Storke, 3 P.
In Knott v. Cottee, 2 Ph. 192, a father appointed his wife and two other
persons guardians of his children ; and in the event of his wife dying before
his son should attain twenty-one, or the daughter should attain that age or
marry, then he recommended that the surviving guardian or guardians should
place the children or such of them as should be minors at the death of his
wife, under the eare of his cousin Mary P., to be assisted by their aunt Sophia
B. Upon a contest between those ladies and the surviving testamentary guar-
dian, in reference to the custody and management of the children after the
mother's death, it was held by Lord Cottenham, that the Court was bound to
give effect to the recommendation, but not further than might be consistent
with preserving the testamentary guardian the general superintendence and
control over the children and their fortunes, which, by virtue of his office, it
was his right and duty to exercise. " I see no objection," said his Lordship,
" to leaving the immediate custody of the children with Miss P., who, being
EYRE V. COUNTESS OF SHAFTSBURY. 243
with the children, may be better able to judge what they actually want; but
that there should be no change of residence, and no change of governess, with-
out communication with the testamentary guardian. I think it will be better
not to give him the control, but to give him information, in order that he may,
if he thinks there is a cause for it, come to the Court for direction ; and also,
that half-yearly accounts should be rendered to him, as to the mode in which
the allowance has been expended for the benefit of the children ; for I think
that is a right which he has as testamentary guardian. This, I think, will
give him as much control and superintendence as the testator intended he
should have, while it will give effect to the expressed wish of the testator, as
to the persons to whom the immediate care of the children should be intrusted."
See Duke of Beaufort v. Berty, 1 P. Wms. 706.
The wishes of the father, whether express or implied, as to the religion in
which his children are to be educated, will be attended to by the Court ; and
as the time is now happily past when the vain attempt was made to influence
*the religion of families by penal statutes, the Court will not control ^rnr-,
a guardian in bringing up a child in a different faith from that of the
Established Church, if it be the religion of the father. Thus in Talbot v.
The Earl of Shrewsbury, 4 My. & Cr. 672, where a Roman Catholic father,
whose wife was a Protestant, had appointed a Roman Catholic priest sole tes-
tamentary guardian of his children, Lord Cottenham refused to interfere with
the discretion of the testamentary guardian as to the faith in which he educated
his wards. " In the first place," said his Lordship, " I find this child born
of a Roman Catholic father, who, though he married a Protestant lady, did
not, on that marriage, enter into any stipulation as to the faith in which his
children should be brought up. I find the father, who had the power of regu-
lating the method of bringing up his children, and of extending that power
after his death, appointing, as a testamentary guardian, a clergyman of the
Roman Catholic Church, and I think it impossible that the father could more
distinctly indicate his wishes as to the faith in which his child should be
brought up. Although the father has not the power of regulating, after his
death, the faith in which his child should be brought up, the Court will pay
great attention to the expression of his wishes, and he can exercise that power
indirectly by appointing a guardian of that faith. When, therefore, a Roman
Catholic father appoints a Roman Catholic guardian, there can be no doubt as
to the father's intention; and if I were to interfere with the exercise of the
guardian's discretion as to the faith in which the child should be educated, I
should be doing an act of very great injustice. Nothing can be more dear to
a father than regulating the religious education of his child; and if I were to
interfere in the manner which is desired, I should adopt a course to induce
those dissenting from the Established Church to suppose that this Court would
interfere to control the education of their children." See In re Cornwalls,t
minors, 2 Ir. Jur. N. S. 148 : In re Browne, a minor, 2 Ir. Ch. Rep. 151 ; In
re Kellers, 5 Ir. Ch. Rep. 328.
Where the father has not left or expressed any direction or instruction as
244 GUARDIANSHIP OF MINORS.
to the religion in which his infant children are to he educated, the Court will
presume that his wishes were that they should be educated in his own religion.
Re North, 11 Jur. 17.
No pecuniary benefit will it seems, induce the Court to interfere with the
course of religious education pointed out by the father. The religious faith
in which a child is to be brought up will not be a matter of barter in the
Court. See Talbot v. Earl of Shrewsbury, 4 My. & Cr. 672, 686, 688, 689.
The circumstance, however, that children have for several years after
*the father's death, been brought up in a particular faith, is one
['OobJ w ] a £ c } 1 should have weight with the Court as to those of the children
who are of age to have formed opinions upon religious subjects. Thus, where
an infant was brought up till he was fifteen in a faith different from that pro-
fessed by his father and his testamentary guardian, and even contrary to the
express injunctions of his father, as the infant expressed a preference for the
faith in which he was educated, the Court undertook to see and converse with
the infant before making any order with reference to his religious education :
Witty v. Marshall, 1 Y. & C. C. C. 68 ; and see Stourton v. Stourton, 3 Jur.
N. S. 527; 26 L. J. N. S. (Ch.) 354; In re Fallons, minors, 5 Ir. Ch. Rep.
339, cited ; In re Kellers, minors, 5 Ir. Ch. Rep. 328.
A mere verbal contract by the husband before marriage, that the children
shall be brought up in a particular religion, is not it seems binding on the
husband, and will not be enforced in equity. In re Browne, a minor, 2 Ir.
Ch. Rep. 151.
It will be observed that in the case of Talbot v. The Earl of Shrewsbury,
a Roman Catholic Priest had been appointed sole testamentary guardian ; nor
is there anything in our law which may prevent a dying father from commit-
ting the care of his children to the regulator of his conscience. In other
countries it has been found advisable to legislate upon this subject. Thus it
appears in the Institutes of the Laws of Spain by Asso and Manuel, " that
bishops, monks, and religious persons cannot be guardians." Though, "if
the Clergy are relations of the pupil or minor, and pray the appointment within
four months, they are eligible." Asso and Man. Inst, by Johnstone, p. 8.
In general the Court will not allow its wards to be taken out of its jurisdic-
tion. And in Mountstuart v. Mountstuart, 6 Ves. 363, Lord Eldon is reported
to have said, that the Court never makes an order for taking an infant out of
the jurisdiction. And in Be Manneville v. Be Manneville, 10 Ves. 52, his
Lordship restrained a father from removing his child to a foreign country.
Exceptions, however, are sometimes made to the rule; but Lord Cottenham
has observed, that such exceptions are and ought to be very rare, and that,
since he had held the Great Seal, he had had reason to lament that the rule
had not been more strictly adhered to : 2 My. & Cr. 32. But in such cases
»the Court will always take security for the return of the ward, and, if a stay
of some duration will be for its benefit, for its proper education. In Jeffrys v.
Vanteswarstwarth, Barnard. Ch. Rep. 141, 144, two young ladies, wards of
EYRE V. COUNTESS OF SHAFTSBURY. 245
the Court, whose nearest relation resided at Dantzic, applied for leave to pay
them a visit, *Lord Hardwicke referred it to the Master to consider ^-j, - .
what would be a proper time for them to stay there, and what security L
should be given for their return into England within that time, and that they
should not marry without the leave of the Court.
In an anonymous case, Jac. 265, n., on the petition of the father of infant
wards of the Court, who, being appointed to a situation in the king's service,
was about to reside abroad for several years, Lord Eldon, after much hesitation,
ordered that he should be at liberty to take them abroad with him, under-
taking to bring them or such of them as should be living, back with him;
and he was half yearly to transmit, properly vouched, to be laid before the
Court, the plan of tuition and education for each of the infants, actually
adopted and in practice at the time of such half-yearly returns, specifying
particularly where and with whom they resided : and see Logan v. Fairlie,
Jac. 193 ; Stephens v. James, 1 My. & K. 627 J Be Weever v. Roclxport, 6
Beav. 391; In re Levinge, 6 Beav. 392, n.; In re Daly, 6 Beav. 393, n. ;
Hart v. Tribe, 19 Beav. 149. In Lethem v. Hall, 7 Sim. 147, an infant, a
native of Ireland, whose father (then afflicted with mental and bodily in-
firmity) and sisters were resident there, was desirous that he might be in his
native country, and near them, was allowed to be placed at the University of
Dublin during his minority, or until further order of the Court, the guardians
entering into a recognizance, to be approved of and certified by the Master,
to bring the infant within the jurisdiction whenever they should be required
so to do, and that the allowance should be paid to them ; and the fact of the
infant's having been so placed at the university, and his continuing there,
was to be, from time to time, verified by affidavit. In Biggs v. Terry, 1 My. &
Cr. 675, Lord Cottenham made an order, that an infant, of the age of eighteen,
might be at liberty to go abroad for a short period to visit his father, on satis-
factory security being given that he should be restored to the jurisdiction
within a limited time.
When the health of the ward imperatively requires another climate, the
Court will allow a removal there, (see Wyndham v. Ennismore, 1 Kee. '467;)
but when the ward's state of health does not require a permanent residence
abroad, he will be allowed to remain there only so long as it will be beneficial
to him ; see Campbell v. Ilackay, 2 My. & Cr. 31, where Lord Cottenham
observed, that, "independently of the well-established rule of the Court, and the
principle on which it proceeds, he was convinced that scarcely anything could
be more injurious to the future prospects of English children, and particularly
of English boys, than a permanent residence *abroad ; without the
proper opportunities of attending the religious services of the Church •- 1
to which they belong, separated from their natural connections, estranged from
the members of their own families, withdrawn from those courses of education
which their contemporaries are pursuing, and accustomed to habits and man-
ners which are not those of their own country, they must be becoming, from
246 GUARDIANSHIP OF MINORS.
day to day, less and less adapted to the position which, it is to be wished, they
should hereafter occupy in their native land."
Although the Court will under special circumstances, allow an infant ward
to go out of the jurisdiction, yet it will never compel his removal ; Dawson v.
Jay, 3 De G. Mac. & G. 764 ; S. C, 2 Sm. & G. 199.
The clandestine removal of a ward of Court from the custody of the person
with whom such ward is residing, under the authority of the Court, is, in its
nature, a criminal attempt, and privilege of Parliament will be no protection
against an attachment for it. Thus, in Wellesley v. Duke of Beaufort, 2 Iluss. &
My. 039, a member of the House of Commons who had carried off his infant
daughter, a ward of the Court, from the house of the ladies under whose care
she had been placed by the guardians appointed by the Court, and who, on
being personally examined by the Court, admitted the fact, and refused to
state the present residence of his daughter, was ordered to be committed to
the Fleet, although he was not a party to the suit.
As it is obviously impossible for the Court of Chancery, with .the number
of wards which it has under its care, to be aware of their conduct, it requires
the guardians from time to time, to give general information of what is taking-
place. If, for instance, a ward of the Court goes out of the jurisdiction, or
from extravagant habits gets into difficulties, it becomes the duty of the
guardians at once to apply to the Court in Chambers, where such assistance
will be afforded as will extricate the ward from his difficulties, and put him
in a better course of conduct : Kay v. Johnston, 21 Beav. 538.
It is a contempt of the Court to remove an infant out of the jurisdiction,
even when he has enlisted in the army without the leave of the Court, (Roch-
ford v. Haclcman, Kay, 308; Harrison v. Goodall, lb. 310, note (a), but if
it appears to be beneficial to the infant, he will be allowed to remain in the
Marriage of ward of Court.'] — In the case of wards of the Court, whether
male or female, even when they have parents living, or guardians, it is neces-
sary to apply to the Court by petition, for leave for them to marry, which will
only be granted upon its appearing that the marriage is suitable, and that the
l~*5891 settlement P ro P osed * is proper, (Smith v. Smith, 3 Atk. 305; The
L ° -I Earl of Plymouth v. Lewis, 2 Dick, 8G1 ; Wellesley v. The Duke of
Beaufort, 2 Russ. 29 ;) and the Court will prevent, as far as it can, a clandestine
marriage, by ordering that the ward shall not be married without leave of the
Court, and that the person desirous of marrying the ward shall not have access