brown case lady Teynham appellant Dacre barrett Lennard respondent that April  Mews dig seven see guardianship of infant Act and Vict c custody of child Act  and Vict c and in re ecclesiastical commissioner marquis of Salisbury Ch d in  re more ir c l n S a declaration of a father upon his deathbed that he expect  a his father will take care to see his child educate in the protestant  religion be a sufficient appointment to make the grandfather guardian of the  infant order of the Lord chancellor reverse which have be make for deliver the  infant to two person name by the grandfather under a brown er p allegation of  his the grandfather ill state of health the judgement of the house of lord be  that the grandfather shall take the guardianship upon himself in person for  that he can not assign his power to another the appointment of a guardian be a  bare power and trust and not assignable as be resolve in bedell v constable  Vaugh in which case and in Lord shaftesbury p wms pale yellow the nature of  guardianship by statute c c be particular discuss see Eq can ab c in n where  it be say that in the duke of beauforts case his father have appoint the duke  of Ormond guardian but he be attaint of high treason and so incapable another  guardian be appoint by act of parliament it be not to be do by any other power  see also foster v Denny Ch can Eq can ab pl that a guardian appoint under the  statute can be remove see further the succeed case and I Eq can ab title  guardian and Spencer v Chesterfield Ambl Mod viner vol p note to can Eq can ab  can report in all these book by the name of Reynolds and lady tenham Richard  barrett Esq be seize of a estate of upward of pound per and in England and  Ireland upon the marriage of his son the respondent with the lady jane  daughter of the earl of donnegall by indenture of bargain and sale and release  date the that and that of April settle the say estate upon his say son the  respondent for life without impeachment of waste remainder to the first and  other son of that marriage with diverse remainder over the respondent have  issue by lady jane Richard his only son who without his father consent  intermarry with the appellant a Roman Catholic the say Richard barrett the son  die soon after his marriage leave the appellant ensient who on the that of  April be deliver of a son name Thomas Lennard barrett and who by virtue of the  say settlement will be entitle to the say estate in possession after the  decease of the respondent the tenant for life the say Richard barrett the  respondent son be sensible of the prejudice it may be not only to his child  and family but also to the protestant interest especial in Ireland shall such  child be bring up a Roman Catholic do in his last sickness and not long before  his death direct that the respondent shall have the care and tuition of such  child when bear allege that the appellant have always promise it shall be  breed up a protestant and this direction be then reduce into write by way of  memorandum or instruction for a will but before the same can be prepare in  form the say Richard barrett die brown the infant be near seven year of age  the respondent pursuant to the request and direction of his say son do on the  that of December petition the Lord chancellor Macclesfield for the removal of  his say grandson from his mother the appellant and in regard that the  respondent ill state of health be such as will not permit he to attend the  education of the child himself he do therefore recommend the care of he to Mr  baines and Mr milner two of his intimate acquaintance and offer to make a  proper allowance for his maintenance upon hear this petition on the saint of  the same month the Lord chancellor be please to order that it shall be refer  to one of the master of the court to examine if the appellant have any  reasonable objection against the say Mr baines and Mr milner and if none shall  appear that then inasmuch as the say infant father have direct that the  respondent shall have the care of he and the respondent have recommend the say  Mr baines and Mr milner they shall therefore have the guardianship of the say  infant and his lordship do likewise further order that the say master shall  examine what the respondent be Willing to allow yearly for the infant  maintenance and whether the same will be sufficient consider his quality and  the estate he will be entitle to the master by his report date the that of  February certify that no objection have be make against Mr baines and Mr  milner have the custody of the infant and that as he can find the infant have  no other estate than what he be entitle to under the say settlement that the  respondent have offer to brown er p allow pound per and for the infant  maintenance and that the same be a sufficient maintenance for he on the that  of march follow the respondent again apply to the Lord chancellor for the  removal of the infant from the appellant and commit he to the care of Mr  baines and Mr milner and the appellant have also petition that the order of  the saint of December may be discharge and that she may have the guardianship  of her son under such restriction as the Lord chancellor shall see proper both  these petition be hear on the that of march when the Lord chancellor order  that the infant shall be forthwith deliver to Mr milner and Mr baines by his  say mother the appellant that the master report of the that of February then  last shall be absolute confirm and that pound per and shall be pay by the  respondent to the say Mr baines and Mr milner for the infant maintenance from  these order of the saint of December and the that of march lady Teynham appeal  insist I Darnall I Hungerford that thereby her child of but six year and  eleven month old be take from her to the endanger of his life or health as  appear by the affidavit of person acquaint with he and be to be put under  brown the care of two gentleman no way acquaint with or of kin to he or his  family and who be make guardian upon pretence only that they be appoint for  that purpose by the respondent who it be conceive have no right to be the  guardian himself and consequent not right to appoint any and the rather for  that the remainder in fee of the say estate belong to the respondent if the  appellant son shall die without issue that there seem to be the less reason  for this proceed because by the appellant care the infant have be hitherto  bring up a protestant that she offer the utmost caution or security to  continue so to do and it be to her care and tenderness that the infant owe  what share of health he now enjoy that as to the recommendation of the  appellant late husband touch the care and tuition of the infant and which the  respondent have so strong insist on in the court of chancery it be prove only  by the affidavit of Mr milner himself and be what the appellant never hear of  before nor have any reason to believe for her husband have be so severe use by  the respondent his father that it do not seem probable he will trust he with  the care of his child but if that transaction be true yet it will not amount  to a devise or disposition of the guardianship of the infant it be admit that  the appellant do promise her husband before his death that the child she be  then ensient with shall be educate a protestant and accord she cause he to be  Christian by a minister of the church of England and have protestant godfather  for he of which the right honourable the earl of Litchfield be one she also  have he teach the protestant catechism and instruct he in protestant book and  in the protestant religion so far as his year and capacity will admit and have  always send he to protestant church but never to mass that the appellant have  no jointure or dower nor have her son any maintenance out of the estate or  from the respondent but the appellant have sole maintain and educate he ever  since he be bear out of her own fortune and have also thereout in honour of  her husband memory voluntary pay about pound for his debt of which the  respondent refuse to pay any part though he have never allow her husband to  the time of his death more than pound a year for his maintenance nor have ever  show the least regard for his grandson nor so much as see he the appellant  therefore pray that the say order may be reverse and that her say son may be  continue under her care at least for two or three year she offer to give good  security for his be educate in the protestant religion and also at her own  expense to maintain he and such protestant tutor and servant as may be think  necessary for he or in case her say son shall be remove from her then she  humble pray that he may be put under the care of the right honourable Charles  duke of Grafton and the say earl of Litchfield they be both of equal degree of  kindred to her and her say son brown to this it be answer p York c Wearg on  the part of the respondent that the appellant neither have or pretend to have  any testamentary right to the guardianship of the infant or that he will be  entitle to any estate from her nor do she deny her be a Roman Catholic by  reason whereof she brown er p will if convict be absolute disable from have  the custody of any child and consequent be in the high degree improper to have  the education of a youth who be not only entitle to so good a estate but will  in all probability be a peer of the realm that the child be now near seven  year old be of a age most liable to receive such impression of erroneous  principle as may be very difficult if not impossible to remove that the  appellant design be obvious for though she recommend the earl of Litchfield  for the guardianship of her son if it be not grant to herself yet she desire  that the child may be continue with her till he be more establish in his  health but how long that pretence may continue or what may be the consequence  of it will be difficult to determine that suppose the appellant shall  religious observe her promise in educate her son a protestant yet she will not  be able to prevent her attendant or other of the Romish persuasion from have  access to he and instil the principle of that religion into he notwithstanding  his have have protestant godfather and be never send to mass that the  respondent son marry the appellant without his consent and die before the  misunderstand thereby occasion be remove be the reason why no settlement be  make on that marriage but on the other hand the appellant fortune consist in  land only remain entire to her at the death of her husband and it be believe  that by his personal estate which the appellant possess herself of she have  more than sufficient to pay his debt that the respondent have always a very  great concern for his say grandson which be apparent from his have preserve  for he upon the estate which he will be entitle to in Essex timber to the  value of pound and upward which have be some time of full growth and may have  be fall by the respondent for the purpose of increase his daughter fortune  that as to the person recommend by the respondent to have the guardianship of  his grandson though they be not of kin to the respondent yet be his intimate  acquaintance and gentleman of such know integrity that the appellant own  solicitor give the unexceptionableness of their character as a reason why he  do not attend the master upon the reference that all these matter have be full  hear and determine by the Lord chancellor who be entrust with the exercise of  that part of the prerogative of the crown which concern the guardianship of  the person and estate of infant and to who by the law of the land it her long  to appoint guardian and therefore it be hope that the appeal will be dismiss  and that the respondent shall be at liberty to carry the say order into  execution brown but after hear counsel on this appeal it be order and adjudge  that the order therein complain of shall be reverse and it be further order  that the respondent the grandfather of the infant shall have the guardianship  of he and that the person of the say infant shall be forthwith deliver by the  appellant to the respondent or such person as he shall appoint to receive he  and that the court of chancery shall give proper direction in pursuance of  this order jour vol p