DOE d. v. FORD. [ *990 ] contingency on which the first limitation was to take effect was extended to the subsequent limitations; but the intention of the testator or settlor was fulfilled by the construction adopted; while, in the present case, by the application of the rule the expressed intention of the settlor would be certainly contravened. That intention may, in my opinion, be carried into effect according to the rules of law. Husband and wife taking an estate for life to them and the survivor, with a contingent remainder in fee to an only son surviving his parents, with a contingent remainder in tail if there should be several children surviving, or one child and the child of a deceased child, and a contingent remainder in fee to the wife's brothers and sisters if, at the death of the survivor of the husband and wife, there should not be surviving any child or children of the marriage, or any child of such children, the two former contingencies failed, the last has come to pass: and therefore I agree with the majority of the Court in thinking that there ought to be judgment for the defendants. Judgment for the defendants. CHANCERY. IN RE HALLIDAY'S ESTATE (1). (17 Jurist, 56-57; S. C. 1 W. R. 59.) The stat. 2 & 3 Vict. c. 54 (2) introduced, as controlling the paternal right to the exclusive custody of his infant child, two considerations, viz. of marital duty to be observed towards the wife, and of the interests of the child to be consulted. But if these two objects can be attained consistently with the father's retaining the custody of the child, his common-law paternal right will not be disturbed. THIS was a dispute between husband and wife for the custody of their infant child of four years of age. The father had been a cowkeeper at Hampstead, and was now a clerk in the Telegraph Office at Crewe, at 18s. per week; the mother was a charwoman at Hampstead. Each accused the other of drunkenness and dissipated habits; and, in addition, the wife accused her husband of adultery. It appeared that they had lived together at Hampstead happily enough until about a year previous, when a legacy of 540l. had been left to the wife, which it was alleged the husband had since squandered in dissipation. The money being all gone, and his wife becoming chargeable to the parish, he was taken up for deserting his wife, convicted, and sentenced to six weeks' imprisonment. Shortly after coming out of prison, he made his way, in the absence of his wife, to the lodgings where she was living, maintaining herself by going out as laundress, &c., and took away their child. He refused to state what had become of it, except that it was at board in Essex; but allowed his wife out of his salary 5s. a week towards her maintenance. The wife now presented a petition under the 2 & 3 Vict. c. 54, for the custody of the infant. Hardy, for the petition. Selwyn, for the husband. Hardy, in reply. [In re Spence (3); Warde v. Warde (4), and In re Fynn (5), were cited.] (1) In re Taylor (1876) 4 Ch. D. 157, 46 L. J. Ch. 399, 36 L. T. 169; In re Elderton (1883) 25 Ch. D. 220, 53 L. J. Ch. 258, 50 L. T. 26; Smart v. Smart [1892] A. C. 425, 61 L. J. C. P. 38, 67 L. T. 510. (2) Rep. 36 & 37 Vict. c. 12, s. 3. 1852 Nov. 24, 25. TURNER, [56] In re HALLIDAY'S ESTATE. The facts and arguments, so far as not contained in the above summary, sufficiently appear in the judgment. SIR G. J. TURNER, V.-C.: The question in this case is undoubtedly of very great importance, and not the less entitled to the attention of the Court because the parties who raise it are of low condition. Perhaps no question brought before the Court is more difficult to be dealt with than the preservation of the relations and rights of parent and child, and of husband and wife, with respect to the children. The question is raised by the petition of the wife to have delivered to her the custody of a child under seven years of age, under the Act 2 & 3 Vict. c. 54, the first section of which empowers the Court, "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 the Court shall see fit, to make order for the access of the petitioner to such infant or infants, at such time and subject to such regulations as the Court 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 the Court shall deem convenient and just." It will necessarily be important, in the first place, to look at the principles on which the Act proceeds. When this Act came into operation, it was the undoubted law of the country that the father is entitled to the sole custody of his infant child, controllable only by this Court in cases of gross misconduct. With this right the Act does not, as I understand it, interfere, so far as to have destroyed the right, but it introduces new elements and considerations under which that right is to be exercised. The Act proceeds upon three grounds. First, it assumes and proceeds upon the existence of the paternal right. Secondly, it connects the paternal right with the marital duty, and imposes the marital duty as the condition of recognising the paternal right. Thirdly, the Act regards the interest of the child; for on no other grounds can I account for the distinction taken between the cases of children above and under seven years of age, it being perfectly obvious that the comfort of the mother was as much affected whether the child were over or under seven years of age. These three grounds, then-the paternal right, the marital duty, and the interest of the child-are to be kept in mind in deciding any case under this statute. And in confirmation of this view I may refer to Warde v. Warde (1), to the effect that the mother will be allowed to assert her right as a wife without injury to her feelings as a mother. On the true construction of the Act, therefore, I think that the marital duty is imposed as a term controlling the paternal right. On the extent of that right, as it originally existed at common law, no one entertains any doubt. It was an unlimited right in the father, subject only to the control of this Court in cases of gross breach of duty. It may be questioned, therefore, whether in this case any relief could have been sought independently of the statute. I think there is very great difficulty in calling on the Court to exercise its power to restrain a man in his legal right; because, assuming all the circumstances alleged against the husband to be true, they relate wholly to the past, and only prove that antecedently to May, 1852, he was living a life of idleness, profligacy, and drunkenness; but they fail to prove that since May there has been any such idleness, profligacy or drunkenness as to warrant the interference of the Court. It is not because a man has at one time been guilty of these habits that the Court will at any future time interfere to deprive him of the custody of his children. Then, the only other ground would be his desertion of his family. That will make it necessary to examine into all the circumstances of the case with reference to the conduct and character of the parties, and also to consider how provision is made for the child; and, a provision being made for the child of 5s. per week, if the jurisdiction had not rested on the Act, and on a proper observance of the marital duty, I do not think that the Court would have interfered. There are, however, two grounds on which the Court has jurisdiction under the Act, viz. breach of marital duty and the interest of the child. That Woodward did desert his wife previously to May, 1851, he does not deny, but he justifies the desertion as necessary. It is, therefore, incumbent to look into the conduct of the wife. The charge against the wife is that of habitual drunkenness. affidavits in support of that charge, so far as they go to prove the habit, are founded on information and belief, but they go positively to instances of occasional intoxication. I am not here to see whether the charge be exactly true or not, but looking at the position in life of the parties, and admitting that the wife was guilty of occasional intoxication, the question is, whether such a course of (1) 78 R. R. 293 (2 Ph. 787). The In re HALLIDAY'S ESTATE, In re HALLIDAY'S ESTATE. [ *57 ] habitual drunkenness is made out against her as to warrant the *Court in depriving her of the benefit given her by the statute, of the custody, that is to say, or of occasional access to the child. Now, I think, looking at the whole of the evidence here before me, that the charge of habitual drunkenness wholly fails, and that the affidavits sworn on the wife's side enormously preponderate over those sworn on the side of the husband. Among the latter is that of Mr. K. and his wife, and I think it my duty to say that I do not believe one statement contained in it. That affidavit seems to me to throw a shade on the whole of the evidence brought forward by the husband. But it is not necessary to draw the conclusion that the wife never was drunk, though I think this more likely than that he never was so. What has been the conduct of the husband with reference to the child itself? In December, 1851, he deserted his wife, for which he was convicted and committed in 1852. Immediately after his discharge he goes to the house of his wife in her absence, takes possession of the child, and to this hour she never has been able to discover where or in whose custody the child is ; and he does not now inform the Court where the child is, except that it is at board in Essex. Is it, or is it not, in contravention of the marital duty, which the Act has placed in competition with the paternal right, that the husband should thus take away his children, and keep them, without any communication with the mother as to the mode, or place, or circumstances of their maintenance? The natural right must be held to have been modified by this Act, and the same opportunities must now be given to the mother as to the father of communicating with the offspring. Then there is to be considered the question of access only, or custody of the child. That depends on what is most for the interest of the child, in the position of the parties. The husband has 18s. a week, out of which he has to allow his wife 5s. The wife earns, in addition, 5s. by her labour. There is here no such difference of means as to make it necessarily for the benefit of the infant that he should remain with the father rather than with the mother. But I shall decide, if possible, rather in favour of the paternal right than against it, and I therefore give now an option to the father to place the child to be taken care of where the mother can have access to it, and see that it is properly attended to, so that she may have the benefit intended by the Act. Unless it be shown, by affidavit, on the next seal-day, that this has been done, I shall direct the child to be delivered over to the mother. |