In re the Guardianship of Van Houten

The Chancellor. From the petitions filed in this case, and the statement of facts agreed upon, it appears that the question to be settled between the parties is as to the power claimed by each over the person of the infant. The mother, Rachel Van Houten, claims as natural guardian, and also under the authority and appointment of the orphans’ court of the county of Essex. Her letter of guardianship bears date the third day of July, 1826. The executors claim under the will of the testator. After making provision for bis wife, and disposing of certain parts of his estate, he gives all the residue of his property to his son Abraham, (the infant,) and orders his executors to rent out all his property lying in the towns of Paterson and Hackensack, and all his other houses and lots, and the proceeds thereof, with the personal estate, to put out to interest, for the benefit of his son, until he should arrive to the age of twenty-one years. Then follows this clause : "And I do farther order that my executors — 226 — give unto my said son, Abraham Yan Houten, out of my estate» a good college education, and a decent support, until he arrives at the age of twenty-one years.” The father, while living, is the natural guardian and protector of his ehild; and he cannot be divested of the privilege, except under extraordinary circumstances. The statute of Car. 2d conferred on the father a power to appoint testamentary guardians, and the same right exists ia this state under an act of the legislature. Where such guardians are appointed, they stand in loco parentis, and supersede those appointed by the orphans’ court. In case of the father’s death, the mother succeeds to him as guardian by nature ; but when a testamentary guardian is constituted by the father, the natural right of the mother must yield to the will of the father. It is paramount, and is considered a continuation of the father’s authority. To take away from the mother this natural privilege, the father’s intention should be manifest. The words are not important, for the intention will govern : Swinb. pt. iii. c. 12. This is a question of construction, and if the rule of law were settled the court would conform to it ;■ but the cases on the subject are few and unsatisfactory., In Bridges v. Hales et al., Moseley, 108, the testator said} “ I desire that my son and daughter may be under the care and direction of sir Thomas Hales and Mrs. Halesq” and it was held to amount to the appointment of a guardian. That case is more full, and leaves less room for doubt, than the present. The care and' direction- of an infant, would seem almost necessarily to imV:ply the guardianship; and it does not appear in that case that the mother was living. Ia Mendes v. Mendes, 1 Vesey, 90, lord Hardwicke said, the declaration that the wife shall have the education of the children, may amount to a devise of the guardiauship; but he does not decide that it will in all cases, or even as a general rule. It might have done so in that particular case, for the person claiming was the mother, who had the natural right. _ , — 227 — It is given in 3 Salk. 176, as a rule of the civil law, that the guardian is to educate his pupil, pro facúltate patrimonii el digrátate natalium; and this word, education, is said to comprehend food, raiment, lodging', physic and schooling. In these authorities there is nothing definite to guide us ; yet it would seem that the leaning of the courts has been rather in favor of the right set up by the executors. Not being bound by any judicial decisions or course of-practice in the courts, I feel at liberty to take such order in the premises, as a fair interpretation of the will and the justice and equity of the case before me appear to require. And 1 think, in the first place, that by a just construction of the will in question, the executors are not constituted guardians of the person of the infant, so as entirely to supersede t.he natural rights of the mother, or those derived under the authority of the orphans’court. The intention of the testator is mot, so apparent to my mind, as to justify such construction. When the will was made, the infant was at the breast, and it-cannot be presumed that the father intended to give the absolute guardianship of him to strangers in preference to the mother. I am, nevertheless, clearly of opinion, that, the duties of the •executors are not limited to the mere furnishing of the money necessary for the education of the infant. They are to give him a good college education. They are not only to provide the means, but they are to see that the thing is done ; and for this purpose it is necessary that they should have some power. This must be either a power of supervision, or a power of direction. •If of supervision merely, then it will be the duty of the executors to supply the necessary means; and if they are improperly appropriated, or not appropriated at all, to make application to this court for such aid as may be suitable to the exigency of the case. If of direction, then k appertains to the executors, when the infant has attained a proper age, to direct and control his education, by selecting the place or places where he shall be instructed. In my judgment, it is the power of direction, and not of supervision merely, that belongs to the executors in this case. This — 228 — opinion is founded on what I consider to be a just construction of the will, as well as in the reason of the thing. The executors are to give the education out of the estate. It is a duty coupled with a trust. They are bound to supply means, but the amount and the manner of application, in its fullest extent, is clearly within their discretion. To give a good education, it is necessary that proper steps be taken early in life, and they must be diligently pursued till the matter is accomplished. In taking and pursuing these, soundness of judgment is to be preferred to tenderness of affection. There must be laid down and maintained a course of moral discipline, as well as mental training; and for this purpose much discretion is needed in selecting the persons under whose immediate care and government the infant is to be placed. Generally speaking, the mother of an only son, is not the most suitable person to be charged with these important trusts ; and hence it frequently happens that fathers, by their last wills, give the care and guardianship of their children to friends. In this case, the testator does not order the mother to give the education to the infant, and that the executors shall defray the expense out of the estate. If he had so ordered, it would hare been conclusive. Not having done so, it affords ground for the opinion that such was not his intention. This opinion accords with what 1 consider to be the reason of the thing ; and I feel satisfied, under these circumstances, to say, that the power of directing the education of the infant is vested in the exec-utors. Having settled the principle, the court feels bound to add, that the power of the executors is very far from being an absolute power, to be exercised arbitrarily and at their mere caprice. It should be exerted tenderly and discreetly, and with a constant reference to the views and feelings of the mother. It is right that she should be consulted as to the disposition of her son, and her desires gratified, if they may be consistently with his interest. In case of a difference of opinion, that of the executors is to prevail. But the mother ought to know, and the executors — 229 — -should always remember, that in case of any abuse of power, .or any impropriety of conduct on the part of the executors, this court will always be open to hear complaints and redress grievances. It will look with a vigilant eye upon the conduct of those who are entrusted with the education of orphans, and whatever is wrong will speedily be made right. The general jurisdiction ■of chancery over them is complete, and the mother has a right to come in at any time and be heard as against these executors. If, to use the language of lord Macclesfield, the court shall have reason to suspect that the infant is likely to suffer by the conduct of the executors, or if they choose to make use of methods that may turn to the prejudice of the infant, the court will interpose and order the contrary: Duke of Beaufort v. Berty, 1 P. W. 705. The executors are invested with a delicate and responsible trust, and the court will interfere against their acts, if acting in a manner inconsistent with their duty: 2 Kent, 186 ; Jac. R. 245 : 4 Cond. Chan. R. 119, Lyons v. Blenkin. So the chancellor may at any time inquire whether the course of education pursued is such as it ought to be, and whether the school at which the infant is placed is a proper one. It may be remarked, also, that the power of the executors is not to be extended by implication beyond what is reasonable and proper. It is not that of a guardian, and therefore when the child is not at school, he is to be under the care and protection of the mother ; and she is at no time to be deprived of access to him, or prevented from ministering to his wants. In no event is he to be removed without the jurisdiction of the court without the consent of the mother, or the leave of the court. The infant has been at the school in Caldwell upwards of a year. The court does not think it necessary to remove him thence, simply as evidence that the executors are reclothed with their proper authority. He must be considered as from this time under their control while he remains there. And as changes are frequently injurious, and no complaint has been made of the school where his mother placed him, he is not to be removed Jhence without having it referred to a master to report upon the — 230 — expediency of such a measure. Such reference will be made at any time, upon proper application. The executors will refund to the mother the amount disbursed by her since the first of July, 1833; and, as the court sees no cause to censure either party, it is right that the costs of both petitions, and the proceedings thereon, be paid by the executors out of the infant’s estate. Something was said at the hearing as to the jurisdiction of this court, seeing that the mother claimed authority under a letter of guardianship issued by the orphans’ court. Ido not perceive that this appointment creates any difficulty. It gives the guardian all the power over the person of the ward, that could be given under the circumstances of the case; and this may be exercised consistently with the rights of the executors. These, although limited in extent, are, as far as they go, paramount and superior. Nor is it necessary for the executors to resort to a certiorari to have the letters revoked. The parties are now before the proper tribunal, and this court has power to do equal justice to all parties concerned, and regulate their respective rights and duties. The letters of guardianship are general, extending to both person and property, and they can be in no other form when emanating from the orphans’ court: Ten Brook v. M’Colm and ux., 7 Hals. 97. Yet it will hardly be contended that they give a power to the guardian over the property of the ward; or that the executors, who have the power under the will, cannot exercise it until these letters are annulled and set aside. It is accordingly declared, that the right and power of directing the education of Abraham Yan Houten, the infant, is by the last will and testament of Abraham Yan Houten, deceased, vested in his executors, and that they are entitled to the custody of his person so far as is necessary and proper for the purposes of education. And it is ordered that the said infant shall at no time be taken without the jurisdiction of this court, unless by the consent of the mother or the leave of the court; and that the mother shall at all times have free access to him, and when not at school he shall .be under her care; that he be not removed from bis present school — 231 — without a reference to a master; and that all parties be at liberty to apply to this court for direction. And it is further ordered, that the expenses of the mother sines' the first of July, 1833, and the costs of both petitions and the proceedings thereon, be paid by the executors out of the estate of said infant.