case robert Dillon and another appellant lady MOUNTCASHELL and other  respondent that February Mews dig way seven see guardianship of infant Act and  Vict c S and custody of child Act and Vict c where the father of a infant  devise the guardianship to the mother the court of chancery have no power to  control this will unless upon complaint and proof make of misbehaviour in the  mother the follow be a full and more accurate state of the case as far as  relate to the question of guardianship as to the other part of it see the  argument and the judgement bro p c a devise his real estate to his three  daughter and their heir and after brown er p ware by a codicil he devise it  over to his wife in case his three child shall die without issue of their body  and make his wife guardian to his child and die the wife be very young and in  six month after a s death marry again the Lord chancellor of Ireland decree  that the 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 but as to  the guardianship of the land there be no decree make but there be another bill  depend as to that point but the decree of the Lord chancellor be reverse in  the house of lord and the mother confirm in the guardianship see the note at  the head of precede case Eq ab c Mod by the name of Morgan v Dillon sir Arthur  shaen Bart be seize in fee of a real estate of the yearly value of pound and  possess of a personal estate to the amount of pound or pound do in the year be  then advance in year intermarry with the appellant the lady shaen then  Susannah magan the respondent Morgan Magans old daughter with who sir Arthur  have pound portion by article previous to the marriage date the d of December  sir Arthur shaen agree that the appellant the lady shaen shall have pound per  and jointure issue out of his real estate in case she survive he and that his  real estate Chargeable with such jointure shall be settle to the use of  himself for life remainder to his first and every other son to be beget on the  body of the appellant in tail male successive accord to the usual form of  family settlement the appellant lady shaen behave herself with great  tenderness and affection towards her husband and by he have issue three  daughter namely the respondent Frances Elizabeth and Susannah shaen brown by a  act of parliament pass in Ireland car two entitle a act for take away the  court of ware and livery and tenor in capite and by knight service to the same  effect with a act pass in England car two sir Arthur be enable to dispose of  the guardianship of his child by his will accord on the that of September sir  Arthur make his will and thereof appoint his lady sole executrix and devise to  her by the name of his dear belove wife Susannah lady shaen one three part of  his personal estate and pound per and in addition to her jointure provide for  her by her marriage article and thereby leave it at her election to pay all  his debt and legacy out of his real or personal estate and devise that in case  he shall have no son his real estate shall be equal divide between his three  daughter Frances Elizabeth and Susannah and their heir and appoint pound per  and maintenance for each of they until their respective marriage or age of and  appoint his lady their guardian sir Arthur shaen on the that of June make and  execute a codicil to his will and thereby devise that in case his three  daughter shall die without issue the appellant his lady shall have all his  real and personal estate in the kingdom of England and Ireland to her and her  heir for ever and soon after die after the death of sir Arthur the appellant  lady shaen with her child live for some time with the respondent Morgan magan  heir father but she have afterward intermarry with the appellant Robert Dillon  her father be please to express so much dislike thereat that the appellant be  force to remove from his house and to leave the three child with he and he  also detain all the plate which belong to sir Arthur shaen in his lifetime Mr  magan with a view to have the management of the child and their estate and  fortune do on the that of march petition the Lord chancellor of Ireland pray  his lordship to order that he the say Morgan magan or such other person as his  lordship shall think proper may be assign guardian to the minor and have the  care and tuition of their person and the management of their estate and  fortune and that the care custody and tuition of they may be commit to he or  such person as his lordship shall appoint upon his enter into a recognizance  with security as by the stand order of the court brown er p be direct  whereupon it be order that the appellant lady shaen shall show cause the first  seal before the then next easter term wherefore the say Morgan magan shall not  be appoint guardian to the minor as desire and that in the mean time the say  minor shall continue under his custody and care by a order date the that of  may it be order that the order of the that of march shall be discharge and  that the brown minor shall remain where they then be videlicet in the custody  of the say Morgan magan until the further order of the court to the contrary  with liberty for the lady shaen to visit they when and as often as she shall  think fit and his lordship be please to direct that the name of some of the  near relation of the say minor to who their estate can not descend and who be  of distinction and fortune shall be give to his lordship and that he will then  appoint some person to take care of their person and education and by another  order of the that of the same month it be order that the right honourable  Catherine viscountess dowager mount cashell shall be appoint guardian to the  say minor Frances Elizabeth and Susannah shaen to take care of their person  and education upon her give security by recognizance such as one of the master  of the court shall approve of condition that the say minor or any of they  shall not be dispose of in marriage by the say lady mount cashell or that she  shall not be privy or consent thereto without the leave of the court and the  appellant the lady shaen shall have liberty to visit they when and as often as  she shall think fit pen the proceed on the petition for the guardianship of  the child the say Morgan magan on the that of march procure a bill to be file  in the court of chancery in Ireland against the appellant and the tenant of  sir Arthur Shaens estate and other in the name of the minor by Thomas magan  his son their prochein any charge the appellant with misapplication of sir  Arthur Shaens estate and pray a discovery and account of his real and personal  estate that a receiver may be appoint thereof and that the personal estate may  be divide accord to sir Arthur will and charge that the appellant be sue at  law for the plate and part of the asset of sir Arthur which be in the hand of  the say Morgan magan a injunction be pray to stop such proceed at law and any  other suit for the say personal estate and on the appellant take out a dedimus  to put in their answer the plaintiff obtain a injunction as of course accord  to the prayer of their bill the appellant by their answer set forth the whole  personal estate come to their hand and also the rend of the real estate with  the tenant name and insist that they have not since the death of sir Arthur  receive so much of the rend as answer the pound per and due to the appellant  they also full deny any misapplication of sir Arthur Shaens estate and insist  that the appellant lady shaen be sole executrix of her say husband will and  have thereby power to pay his debt out of the real or personal estate as she  think fit and be likewise testamentary guardian to the minor she have in both  capacity a right to the receipt of the rend and management of the personal  estate during their minority the tenant refuse to pay their rend to the  appellant although they have not receive so much as be due to they on brown  account of lady Shaens pound per and on affidavit make thereof it be on the  saint of July order that the appellant shall be at liberty to distrain for the  rend and arrear of rend of the say estate notwithstanding the injunction soon  afterward the plaintiff prefer a petition set forth that when the motion be  make on the saint of July his lordship as they apprehend declare that the  injunction which have before issue in the cause be only a injunction to stay  proceed at law as to the plate and other personal asset and that therefore the  motion be needless and yet that a order be make upon the say motion that the  appellant shall be at liberty to distrain for the rend and arrear of rend of  the real estate notwithstanding the injunction and that they be apprehensive  the appellant under colour of that order will oblige the tenant to pay their  rend and arrear to they which be as they allege very considerable and will not  as they be advice be safe in the appellant hand and be not intend by his  lordship and the rather for that the appellant have give no brown er p  security to be Accountable for the same and therefore pray that the order of  the saint of July may be set aside and this petition be hear on the that of  the same month the say order of the saint of July be set aside accord though  the plaintiff do not support any of the allegation of their petition by  affidavit or otherwise the plaintiff have afterward amend their bill by pray a  injunction against the appellant sue or distrain for title rend or molest the  tenant they again petition the Lord chancellor set forth their have so amend  their bill and that the appellant have not put in their answer thereto and be  distrain and harass the tenant with a intent to receive their rend and  therefore pray a injunction to prevent the appellant receive any part of the  rend or profit of the say estate and distrain or molest the tenant till they  have answer the say amend bill and his lordship further order to the contrary  upon the hear of which petition on the that of September though there be no  affidavit to support the allegation thereof it be order that such injunction  shall issue unless in a fortnight after service of that order good cause shall  be show to the contrary and that the appellant shall stop receive any part of  the rend or profit of the say estate and from distrain or molest any of the  tenant thereof in the mean time the appellant put in a full answer to the  amend bill and on the that of October come to show cause against the  injunction when his lordship be please to order that the say order of the that  of September shall be discharge upon the appellant give such security by  recognizance as one of the master of the court shall approve of condition to  account for such part of the rend and profit of the minor real estate as shall  come to their hand and it be further order that such brown security shall be  give by the first seal before the then next term or in default thereof that a  injunction shall be and be thereby award to stop all proceed at law against  the respondent for the plate and other effect in the bill mention and to stop  all proceed at law by distress action of debt covenant or otherwise for  recovery of the rend of the minor estate the same to continue till the  appellant shall file full and perfect answer to the bill and the further order  of the court to the contrary on the that of November follow the plaintiff move  the court that in regard the appellant have give no security as by the order  of the that of October they be direct to do that the say order may be make  absolute which be order and a injunction award accord these proceed occasion  two separate appeal by lady shaen and her husband Mr Dillon one front the  several order make relative to the guardianship of the infant and the other  from the order make concern the testator personal estate in support of the  first appeal it be argue c Talbot t Lutwyche that the appellant lady shaen be  of the communion of the church of England have a undoubted right to the  guardianship of her child by the will of their father who by virtue and in  pursuance of the power give he by the statute have regular devise the sole  guardianship of his child to his lady their mother and natural guardian and  this will the court of chancery have no power to control especial as there be  not the least ground to complain of any misbehaviour in lady shaen towards her  child as to the objection that lady shaen have by the will a remainder limit  to her of her child estate in case of their death without issue and that  therefore she be not a proper person to have the care and custody of they it  be say that this objection ought to have have no weight with the court as it  have none with sir Arthur the father of the child the right to the  guardianship vest in lady shaen by sir Arthur will and the remainder devise to  her by the same will can not destroy that right beside this objection can not  ordinary prevail in any case against the parent of the child but lady Shaens  second marriage have be urge as a objection because it may lessen her  affection for the child and in time destroy it this marriage however do not  necessary infer a prejudice to the child nor be there any restraint put upon  lady shaen in that respect by sir Arthur will or any limitation of her right  of guardianship her marriage therefore with Mr Dillon against who there be no  real objection brown er p be not a sufficient reason for take away from her  the guardianship which be vest in her both by the testator will and the act of  parliament against this reason it be urge p York n fazakerley that lady shaen  have entire quit and relinquish the minor and by her marriage with the  appellant Dillon have put it out of her power to execute the trust repose in  her by sir Arthur shaen that Mr Dillon brown have great mismanage his own  fortune and be thereby in very needy circumstance be a very improper person to  be trust with the person or fortune of the minor that lady shaen have a  remainder limit to her of the minor estate upon their die without issue be the  less proper to be their guardian and have it not in her power be she ever so  well incline to take the necessary care of their health maintenance and  education and last that it may be of the utmost ill consequence to the minor  to be put into the hand of the appellant Dillon because his interest be  apparent inconsistent with they in support of the second appeal it be insist c  Talbot t Lutwyche that sir Arthur shaen have by his will pursuant to the power  give to parent by the statute make in Ireland and car two appoint the  appellant lady shaen guardian to the minor and it be by that act express  provide that the person to who the custody of such minor shall be devise shall  and may receive as well the rend and profit of the minor real estate as the  personal estate for their use and bring such action in relation thereto as by  law a guardian in socage may do the appellant lady shaen ought not to be  restrain from exercise the power give to her by that act nor can she be divest  of the estate during the minority of the child or at least until she have  commit some act in breach of the trust repose in her by sir Arthur Shaens will  and which be not attempt to be make out nor be there any affidavit to prove  that the respondent even apprehend the rend and profit to be unsafe in the  appellant hand and as neither the testator will or the act of parliament  require any security the court of chancery ought not to have direct any to be  give that the appellant lady shaen be executrix of sir Arthur will and  likewise a devisee of a three part of his real estate and have authority to  pay his debt and legacy either out of his real or personal estate at her  election she ought not to be turn out of the receipt of either of they or  restrain from the recovery thereof at least without some misbehaviour which be  not so much as pretend that a executrix be under no obligation to give any  security nor be it usual for a court of equity to compel a executrix who be in  trust by the testator with his personal estate to give security or at least  not upon a bare motion without any affidavit of insolvency or misconduct that  lady shaen be entitle to pound per and as her jointure out of the real estate  and to pound per and thereout for the maintenance of the minor she ought not  to be restrain from receive the same or from take any legal course for the  recovery thereof and therefore it be hope that the say several restrain order  will be reverse on the other side it be contend p York n fazakerley that two  three of the personal estate of sir Arthur shaen belong to the minor and ought  to be lie out on good security for their benefit and that the rend and profit  of the real estate subject to the pound a year Payable brown to the appellant  lady shaen likewise belong to they and ought to be receive and secure for  their benefit that Mr Dillon have mismanage and spend his own fortune and be  very much in debt ought not to be entrust with the receipt or management of  the minor estate and his be either unable or unwilling to give security for  what shall come to his hand out of the real or personal estate plain show that  he be not a fit person to be trust therewith beside the appellant be in  contempt for want of a sufficient answer and the injunction be only to  continue until answer and further order after hear counsel on both these  appeal which come on together it be order and adjudge that the several order  therein respective complain of shall be reverse and the injunction dissolve  and that the custody of the lady Shaens child shall be forthwith give to her  as their guardian and that the court of chancery in Ireland shall out of the  money appoint for the maintenance of the child direct the lady viscountess  mount cashell to be satisfy for brown er p the time the child be in her  custody and that the say court of chancery shall appoint a receiver to  continue till the hear of the cause or further order of the court to collect  in such part of the rend and profit of the real estate and also the personal  estate of the testator sir Arthur shaen as have not be receive by the  appellant or either of they and that the say court shall in the appointment of  such receiver prefer the nominee of the appellant in case the person propose  by they shall be fit and the say receiver shall give such security as the  court shall direct and it be further order that in the mean time and until the  hear of the cause the say court shall order the annuity due to lady shaen to  be pay to the appellant and also order payment of the maintenance due by the  will unto the child as the same shall grow due as also payment of the testator  debt and legacy accord to the will and from time to time give such other order  and direction relate to the testator estate and the collect in and secure the  same as shall be just and necessary and that at the hear of the cause the say  court shall order and appoint what shall appear to they on the whole to be  just and proper jour vol p