Examination of child by the Court.

imbibed so thoroughly the doctrines in which it has been raised up as to make it dangerous to change its religious training.' So where the acts of a deceased Protestant father indicated that he had not only abandoned his right to have his child brought up in his own faith, but that he intended that it should be brought up in the Roman Catholic faith, and the Court was of opinion that it would be most for the benefit of the child to be brought up in the latter faith, its education in it was continued. But where the parent has not abandoned or forfeited his rights, the Court has no power to inquire whether the enforcement of his rights would or would not be for the happiness and benefit of his child.3 No definition can be framed of what is a forfeiture or abandonment by the parent; but it is a question on which the Court must pronounce from the facts proved in evidence before it. It may be seen from the cases cited below that the Court has frequently applied the rule where the father is dead, but where he is alive, even though he had apparently waived his rights, it would hesitate long before it acted upon the waiver, if it did not altogether refuse to do so, except where manifest injury to the child would result. An ante-nuptial agreement by a father waiving his rights, which had been acted upon by him, would after his death, though legally not binding on him, be taken into consideration as affording evidence of such abandonment and waiver,' and if the child has imbibed strong religious opinions so that to alter its religious views might be to imperil them altogether, the Court will refuse to decree such change. The Court would apply these principles to the case of a child whose widowed mother had for a long time abdicated her right to control its religious education.'

10

The Court, in former days, if it thought fit, was wont to examine the child privately, to ascertain whether or not it had received such definite impressions as would render a change dangerous. The more recent practice was certainly to discountenance such private examination as not being conducive to the child's welfare, for it might tend to inculcate controversial opinions in its mind, especially where the father is alive;" yet 1 Andrews v. Salt, L. R. 8 Ch. App. 622. 2 Re Clarke, 21 Ch. D. 817.

3 Andrews v. Salt (ubi sup.).

4 Hill v. Hill, 31 L. J. Ch. 505; Re Meades, 5 Ir. Eq. 98; Re O'Malleys, 8 Ir. Ch. Rep. 162; Re Garnett, 20 W. R. 222; Andrews v. Salt (ubi sup.); Re AgarEllis, Agar-Ellis v. Lascelles, 10 Ch. D. 49.

5 Re Meades (ubi sup.); see Re Besant, 11 Ch. D. 508.

6 Thomas v. Roberts, 19 L. J. Ch. 506.

7 Andrews v. Salt (ubi sup.).

8 Stourton v. Stourton, 26 L. J. Ch. 354

See Reg. v. Williams, 58 L. J. Q. B. 176.

10 Stourton v. Stourton (ubi sup.); Re Hunt, 2 Con. & Law, 373.

11 Hawksworth v. Hawksworth, L. R. 6 Ch. App. 539; Re Agar-Ellis, Agar-Ellis v. Lascelles (ubi sup.).

under the very recent Custody of Children's Act,' the Court has power to inquire into the religious opinions of the child itself; and the Court has in a late case had an interview with a young girl of fifteen for the purpose of ascertaining her religious views.2 The Court will, however, disregard the opinions of a mere child of eight years old or thereabouts."

To sum this branch of the subject. (1) The father cannot Summary. make a binding contract to bring up or not to bring up his children in a particular faith. (2) Where the parent has not abandoned, or forfeited, or waived his rights, the Court has no power to inquire whether the enforcement of the parental rights would or would not be for the happiness and benefit of the child. (3) If, on the contrary, he has abandoned or forfeited his rights (whether in pursuance of an agreement or not), the Court will consider only the happiness and benefit of the child, and order it to be continued to be educated in the religion in which it had been brought up, and the child need not have imbibed so thoroughly the doctrines inculcated into it as to make it dangerous to change its religious training. (4) Where a father has died leaving no directions for the religious education of his children, who since his death have been thoroughly educated in opinions other than the father's, and who have arrived at such an age that to alter their course of teaching would be perilous to their religious faith, the court will not decree that they should be educated in their father's religion. (5) An agreement by a father to surrender his control over the custody and education of his children will be taken into consideration by the Court after his death, as to whether or not he has abandoned his right to educate his children in his own religion. (6) The Court will examine the children. for the purpose of eliciting their religious opinions, but will disregard those of infants of tender age.

1 54 Vict. c. s. 4.

2 Reg. v. Gyngall, 9 Times L. R. 422.

3 Witty v. Marshall, 1 Y. & C. C. C. 68; Davies v. Davies, 10 W. R. 245; Re Hunt (ubi sup.) (girl fifteen years old); Re Newbury, L. R. 1 Eq. 431 and 1 Ch. App. 263; Hawksworth v. Hawksworth (ubi sup.).

WHEN BARGAINS BETWEEN PARENT AND CHILD INVALID RELIEF AGAINST DEFECTIVE EXECUTION OF POWERS TRANSACTIONS IN FRAUD OF PARENTAL RIGHT SET ASIDE EQUITY OF THE HEIR THE GROUND OF RELIEF

547

547

548

548

THIS chapter will deal with the rights of parents so far as they extend over the property of their children; and the duties and obligations laid upon them to protect and safeguard it, and not in any way to use their position to prejudice the interests or fortunes of their offspring. The chapter according to its subjectmatter is divided into three sections. (1) Rights of Parents

over Child's Property; (2) Gifts and Transactions between Parent and Child; (3) Transactions in Fraud of Parental Rights.

(1) Rights of Parents over Child's Property.

1

parents over

As to Real Estate.-The rights of a father over the realty accru- Rights of ing to his infant child by purchase have not been defined with child's much clearness or at any length, both because the father was by the property. Real property. common law guardian in socage of any socage land which came to his child by descent, and so had superintendence of it; and because before the Statute of Wills, which gave for the first time. a power of testamentary alienation over real estate, there must have been very few instances of an infant being enfeoffed by deed inter vivos of land which he could not manage. Blackstone, citing Coke, says, "If an estate be left to an infant, the father is by common law the guardian, and must account to his child

4

996

3

for the profits; "5 and " a father has no other power over his
son's estate than as his trustee or guardian, for though he may
receive the profits during the child's minority, yet he must
account for them when he
comes of age.
Fitzherbert 7
also says that where the father occupies the land of the infant
which the infant has by purchase, the infant shall have an
account against him as bailiff of his lands. It may, then, be
taken to be the law that where a father enters on the estate of
his infant children, he is presumed to do so as bailiff or guardian,
and in a fiduciary position; and a decree ordering an account
of the profits will be made against him,' though such an account
may be presumed to have been settled where the child has lived
for many years with the father, and the rents have been applied
in maintaining the common establishment.10 The Statute of
Limitations will not run in favour of the parent as against the
child until the latter has reached majority."

12

8

The father acquires no legal or beneficial interest in the real estate by reason of his control and superintendence as natural guardian. A father who is tenant for life of his children's property will be in no better position than an ordinary tenant for life, and as tenant by the curtesy he may be restrained from committing waste.13 When a child becomes entitled to an

8 Re Hobbs, Hobbs v. Wade, 36 Ch. D. 553.

9 Morgan v. Morgan, 1 Atk. 489.

5 I Com. 461.

10 Smith v. Smith, 23 Beav. 554.

11 Re Hobbs, Hobbs v. Wade (ubi sup.); Wall v. Stanwick, 34 Ch. D. 763; Tinker

y. Rodwell, 69 L. T. 591.

13 Roberts v. Roberts, Hardre, 96.

12 Rex v. Sherrington, 3 B. & A. 714.

Mother.

Personal property.

estate, and dies intestate and without issue in its father's lifetime, the latter succeeds to the property as the nearest lineal ancestor entitled to take.1

Where a mother enters upon the land of her children, her position, with respect to them, is, like the father's, that of a trustee, and she will be accountable as such, and all the rights of a cestui qui trust will be enforced against her in favour of her children. On the death of a child intestate, and without issue, entitled in fee, and on the exhaustion of all paternal heirs whatsoever, the mother will be entitled to succeed to her child as the nearest lineal ancestor entitled to take.3

2

Personal Property.-As a rule, the parent has no rights over the child's general property of a personal nature, and property which comes to a child under age will (unless there is a direction to the contrary) vest in him as though he were an adult. When property comes to an infant child, and the instrument of donation does not so provide, the proper step is to have a guardian appointed to receive and manage the property; in such a case the parent will usually be appointed as guardian. Where parents hold personal property belonging to their children, they are only trustees for them, and are bound to conform to the general duties and obligations imposed upon persons in a fiduciary position. Though parents are the natural guardians of their children, yet, owing to the possible abuse of that office, they are not under ordinary circumstances the proper persons to receive legacies left to their infant children; but the executors or administrators charged with their payment should retain them in their own hands till the infants come of age. Parents cannot, in consequence, give a valid receipt for the legacies, so as to discharge the executors. The latter can no more justify paying a legacy to the parents of an infant than to the infant himself, unless the testator has marked out the parents as the proper persons to receive the legacies, or they act under the sanction of the Court of Chancery, and payment to the father of a child who has not attained majority is not good, even where the child after age ratifies the payment by his course of conduct. Where the parent is the person marked out to receive the legacy, he is deemed to be a trustee for the child, and entitled to receive the money, and his receipt will be a good discharge to the executor."

3 Ibid.

6

2 Wall v. Stanwick, 34 Ch. D. 763.

4 Cooper v. Thornton, 3 B. C. C. 96, 186. See post, Part III. chap. vi. 5 Dagley v. Tolferry, 1 P. Wms. 285; S. C. Doyley v. Tolferry, I Eq. Cas. Abr. 300, pl. 2; S. C. Dawley v. Ballfrey, Gilb. Eq. Rep. 103; Hill v. Chapman, 2 Bro. 6 Cooper v. Thornton (ubi sup.).

C. C. 612.
7 Fane v. Fane, 1 Vern. 30; Cooper v. Thornton (ubi sup.).