case morgan against Dillon S c reverse sub nom Dillon v Mountcashell bro p c  and ed the husband devise his real estate to his three daughter and their heir  and then by a codicil he devise it to his wife if his three child shall die  without issue modern report er p and make her guardian to his child and die  she marry again the guardianship be take from her by the court S c viner ab S  c Eq ab S c bro p c upon a petition to have the three child of sir Arthur  shean remove from the defendant Dillon and to be deliver to the plaintiff or  to some other person who the court shall appoint the case be thus sir Arthur  shean be seize of a considerable real estate and be likewise possess of a  great personal estate marry the plaintiff Morgan daughter by who he have issue  three child and be advance in year and his wife a young woman he devise his  real estate to his three daughter and their heir and by his will appoint his  wife to be their guardian bind he devise a hundred pound ayear to each of they  during their infancy for their maintenance and two part of all his personal  estate to his say three child and the three part to his wife about three hour  before his death the say sir Arthur shean make a codicil by which he confirm  his will but devise his real estate over to his wife in case his three child  shall die without issue of their body and soon after die and about six month  after his death his widow marry the defendant Dillon in the argument of this  case there be two point very well debate which though in Ireland yet seem very  useful to explain the law concern guardian modern report first whether this  lady who be a testamentary guardian be removable by the Lord chancellor second  whether her marriage with the defendant Dill on be such a act as will amount  to a breach of that trust repose in her by the testator so as to render her  incapable of such trust and to be remove by this court on account of the  marriage and the remainder limit to her in fee on the death of the three child  without issue as to the first point it be argue for the plaintiff that this  lady be to enjoy the estate on the death of these child without issue it will  be dangerous to continue her in the guardianship especial since she be marry  to a young gentleman who in her right will be guardian to they and who child  by her will be entitle to inherit this remainder therefore it be certain in  the power of this court to remove a testamentary guardian in case of such  unforeseen accident the civil law which the testator understand very well  ought to be the rule in this case now by that law if the mother of infant  marry a second husband the education of her child may be take from her a roof  a it be argue for the defendant that this lady be a testamentary guardian  accord to the statute car c by which it be enact that the parent of a child  under age and not marry may by deed or will dispose the custody of such child  for and during such time as the child shall remain a infant or for any lesser  time to any person other than a popish recusant and that such disposition  shall be good against any person claim the custody of the child as guardian in  socage or otherwise and that the person to who it be dispose may maintain a  action of ravishment of ware or trespass against any other who shall wrongful  take away or detain such child for the recovery of the child and shall recover  damage for the use of the child and the person to who it be dispose shall and  may take into his custody the profit of all the infant land and the management  of his personal estate till his age of twentyone year or any lesser time  accord to such disposition and may bring action in relation thereunto as by  law a guardian in common socage may do that this court can not remove such  guardian unless guilty of some misdemeanour which may render her incapable  modern report of perform the trust repose in her and as to the objection that  her second marriage will make her incapable it be probable it may be so by the  civil law which will not hold in this case because this lady be appoint  guardian by the will of the father of these child and by virtue of a statute  which give he power so to do and the testator at the time of make his will see  all the inconvenience which be now suggest in behalf of the modern report er p  plaintiff for he must necessary presume this guardian be very young will marry  again nor can the presumption of illnature or destroy the infant be apply to a  mother as they may to another who be next of kin because it must be presume  that whatever parent can get will be for the benefit of their own child now  since the testator have by this appointment in his will adjudge the mother to  be a proper person to be entrust with the education of her own child a court  of equity will not break through such a will for that will be to make a new  will after the death of the testator it will likewise be a break through that  power which the subject have purchase at a great rate and that be by settle a  perpetual revenue of tonnage and poundage on the crown in consideration of  take away the court of ware and livery and turn all the old tenor into free  and common socage and to prevent dispute which may be make by dispose by will  or otherwise land hold in knightsservice give man power to dispose the custody  of their child during their minority which be a privilege that can be take  from they since the make that statute which be plain imply by the word of the  statute itself for power give to parent to dispose their child to any person  except to popish recusant be a implication that any other person who be  appoint to be guardian by virtue of this statute can be remove by this court  it be true where there be a guardian by the commonlaw a court of equity may  interpose but where by the statute it can a Peer wms Com dig chancery oh a as  for instance the testator devise the guardianship of his son to his  motherinlaw and die afterward the widow marry a servant and be poor the uncle  of the child get the possession of the infant and send he beyond sea but the  court order he to restore the child to the guardian b salk Cas Ch b for that  they can neither remove the child or the guardian but will make her give  security modern report not to marry the infant without first acquaint the  court c Cas Ch Peer wms case t t Com dig chancery oh c and as a guardian be  not removable so the guardianship be not assignable neither shall it go to the  executor or administrator of the guardian d bedell v constable Vaugh d because  it be a personal trust repose in he and therefore not to be determine but by  his death as to the second point it be argue that the marriage of this  guardian do not make her incapable of the guardianship because as it have be  already observe it be a personal trust repose in her and the marriage can be a  assignment thereof because it run in personal privity and therefore it can be  forfeit by the attainder or other misdemeanour of the husband it be like the  case where a feme sole be make trustee or where she have good as executrix or  administratrix her marriage be no reason to remove her from such trust or  executorship now if the devise of the guardianship to this lady shall be void  the maintenance devise to her child will likewise be void and then she will be  guardian to these child by nature and certain her marriage without some other  default will not have determine such guardian ship and here can be any  convince reason why it shall be determine by her marriage now she be a  testamentary guardian than it will have be if she have be a guardian at  commonlaw for the devise of the remainder in fee to her can be any objection  upon this statute for at commonlaw the lord as guardian in chivalry will have  the wardship of the body and the land though if the ware have die without heir  he be to have his land by escheat in which case it can be deny but the lord be  to have some benefit by the death of the ware as the guardian be to have in  the principal case if her child shall all die without issue the limitation of  such a remainder to a guardian will have be no objection at commonlaw to  remove her from the guardianship for if it shall it must arise from a  presumption that the guardian may destroy the child but in this case neither  the testator nor any other person can or can presume that the mother will  destroy her own child but any man may imagine she will marry again be young  and in the prime of her youth now the reason of remove a guardian at modern  report er p commonlaw be because the guardianship may be cast on one who be  worth modern report nothing or all idiot or madman and therefore it be  reasonable that this court shall interpose and grant relief to the infant by  appoint a guardian who may educate he suitable to his degree and quality and  this statute be intend to remedy those inconvenience by give the parent power  to ascertain the person and to appoint such a person to be guardian to their  child in who they can best repose that trust which appointment be not like a  bare power but it be couple with the great interest which a parent have in his  child therefore such a guardian be not to be remove by this court the court  there be two point in this case first whether this court can remove a  testamentary guardian second as this case be circumstance whether there be a  sufficient foundation for this court to remove those child from the custody of  the defendant if they be removable at all at commonlaw before the statute  Henry c by which the court of ware and livery be erect the Lord chancellor be  the sole judge of wardship but with this difference that where they be  lucrative to the crown there the Lord treasurer act who have a concurrent  jurisdiction with the chancellor but where wardship be not lucrative to the  crown but only for the benefit of the ware there the chancellor alone have the  disposition and management of the ware therefore as the law now stand the load  feudorum be extinct and the court of ware abolish and all the old tenor be  turn into free and common socage a see car c a all wardsbips which be  beneficial for the ware must return to this court as to their original  fountain b Cas Ch b it be true there be some statute which alter the commonlaw  as to the person of ware as for instance a guardian in socage or in chivalry  have the custody of the person at commonlaw but by the statute of Edward c it  appear that the father of any maid or womanchild unmarried and within the age  of sixteen may by his last will and testament or by any other act in his  lifetime appoint assign bequeathe give or grant the order keep education or  government of such maid or womanchild but not of the male probable because the  female be more expose to contingency than the other modern report that statute  relate only to the person of infant but the statute Henry c of will relate to  their land for whereas before that statute a guardian in socage have the  custody both of the person and land of the ware now by that statute the father  have power by his last will and testament or by any act lawful execute in his  lifetime to dispose all his land hold in socage at his free will and pleasure  and by virtue of that act father do usual devise their socage land by will to  some person in trust for the heir during his infancy and by this mean the  guardian in socage perceive there be no benefit to he have by the guardianship  very often decline it so that the heir be without any guardian which be a very  great inconveniency be intend to be remedy by the aforesaid statute car c  which give the father a power either by deed or will to appoint a guardian but  this be only as to the modus to have for it give the guardian thus appoint no  new authority which he have not before it do not describe his power but  explain its prevalency against guardian in socage who be the next of kin to  who the inheritance can not descend and who claim the guardianship before this  statute be make the spiritual court may appoint a guardian to a infant c  bishop of Carlisle v well lev c who have only a personal estate but where be  bath such a estate and also land such a appointment be void this court may  likewise appoint a guardian where there be not a rightful one before and even  where there be a real as well as a personal estate and can remove such  guardian though make by the appointment of this court if he afterward become  not fit or improper to be a guardian but a rightful guardian be not removable  ad it pleases as guardian appoint by this court or by the spiritual court may  a statute guardian may be likewise remove for a just cause and for this there  be a plain authority in side which be but nine year after the mature the  statute and contemporary exposition have be always think the best method of  explain the meaning of statute now in that case it be hold that a statute  guardian may be remove which show that modern report er p it have be admit  even in a court of commonlaw that a testamentary guardian be under the control  and inspection of a court of equity as superintendent of all guardianships and  in the case of foster v Denny a Eq Abr Chan case a modern report this court  order a guardian to give bail and if such a order be good it may compel he to  do any other act which may be think necessary for the benefit of the infant at  commonlaw there be four sort of guardian and every one of they removable first  there be a guardian by nature and this be the father who be the root out of  which all other guardian spring and there be instance where the father have be  remove from the guardianship of his child b Hardres b or have be compel to  give security for the benefit of the infant and if so then certain a  derivative guardian may be remove for he can have no great privilege or  immunity than a primitive and original guardian from who he derive and even a  guardian in chivalry who at commonlaw have the wardship both of the body and  land of the ware may be remove by this court for any misbehaviour or ill usage  of the person of the ware because a guardian never have any interest in the  body of a infant but for the benefit of such infant and whenever he misuse  that interest this court can remove the petsoil out of his custody it be true  as far as such wardship be lucrative the guardian as they have a interest by  the law do enjoy the same without the interposition of this court there be  likewise at commonlaw a guardian in socage which be pure for the benefit of  the infant and Accountable to he and removable by this court upon any  misbehaviour or oblige to give such security to account as the court think  proper there be also a guardian by nurture and this be the mother and she be  removable as the father and for the same cause and so be a testamentary  guardian the next question may be whether there be ground in the present case  to remove this testamentary guardian now as to that matter it have be right  observe at the bar that this petition be bring because to fear but in this  case as well as at commonlaw there be a difference between a wardship as it  work upon the person of the ware and as it work on his estate for that which  operate on the person must be help by anticipate the evil and in such case a  remedy be to be seek because to fear for there can be no reparation ex post  facto but as it operate on the estate of the ware a reparation may be make and  a application be proper in this court ex post facto nay that be the only time  for that purpose as for instance modern report the father of a infant be  indebt to the defendant grant the guardianship of his child to he the  defendant with a covenant in the deed not to revoke it the bill be to bring  the guardian to account and to remove he but because there be a just debt due  from the father to the guardian the court will not restrain he from receive  the rend of the infant estate but only from abuse his person a Lecone v shire  vern a now if this court can interpose in any case where there be a  testamentary guardian why not in this if it be think necessary so to do the  proposition be general either a guardian can or can be remove at all that he  can be false if he can in any one case and that it can in some case have be  already prove by the authority cite therefore it may be do in this case it be  true here be a remainder limit to the mother and it must be admit that at  commonlaw this be a good objection to remove a guardian in socage upon a  presumption that such a guardian who be the next of kin may destroy the ware  but such a presumption can never prevail in the case where a parent be  guardian for it will be a monstrous presumption that a man shall destroy his  own child to inherit his estate neither can the want of goodnature be presume  in this lady towards her own child so as for any man to imagine she can be  guilty of such a act but she be marry and under the control of her husband who  in her right will be guardian and his child by her will inherit those land if  the child by her first husband shall die without issue and how call the mother  show her affection or goodnature to those child who have nothing for they but  what be under the power and control of her husband and who in reality be  guardian which certain be go out of the will and what the testator never  intend modern report er p therefore it be decree that those child shall be  remove from the mother their guardian and that the court will appoint some  proper person among their relation to receive they but that the mother shall  be at liberty to see they as often as she will as to the guardianship of the  land there be no decree make because there be another bill depend as to that  matter but the chancellor declare that a person breed to hardship and penury  and who afterward make his own fortune and keep it be more likely to deal fair  with infant than one bear to a estate and who become necessitous by squander  it away for modern report such person rare retrieve their fortune but be  always necessitous but the decree in this case be reverse in the house of lord  upon a appeal and lady shean confirm in the guardianship b but that a guardian  appoint by will pursuant to the car c be within the preventive and control  power of the court of chancery see the duke of Beaufort v pretty Peer wms hark    light note see also darcy v Lord Holderness Trinity term in person king Lord  chancellor butler v freeman Ambl curry v hunter Peer wms notorious facts ex  part Richard atk b