HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0639 and id is 1 raw text is: EYRE V. SHAFTSBURY (COUNTESS OF)
[1033 Case 24.-Mr. Justice EYRE versus Countess of SHAFTSBtURY. [1722.]
[S. C. 1 Wh. & T. L. C. 7th ed. 473. Referred to, Attorney-General v. Magdalen
College, Oxford, 1854, 18 Beav. 245; Bell v. Holtby, 1873, L. R. 15 Eq. 192.]
Lord Macclesfield.,
2 Eq. Ca. Ab. 710, pl. 3; 755, pl. 4.
A guardianship devised to three, without saying, and to the survivors or
survivor of them, yet the survivor shall have it.
The late Earl of Shaftsbury, by his will dated 10th November 1710, devised the
guardianship of the person and estate of his infant child (the present Earl) to Mr.
Justice Eyre and two others (since deceased) without saying and to the survivor of them;
and this devise of the guardianship was until the child should come to 21 years of age.
Lord Shaftsbury died beyond sea, and the infant Earl was now twelve years of age,
when Mr. Justice Eyre, perceiving that his lordship had not a proper governor provided
for him by the Countess his mother, and that the person who was ordered to attend
him as his gentleman, was not a fit person for that purpose, petitioned the Lord Chan-
csllor, that he, as sole surviving guardian, might have the ordering, as he should think
proper, of such governor, gentleman and other servants to attend the said infant Earl,
and that the person of the said infant Earl might be delivered over to the petitioner.
On the behalf of the Countess it was insisted by the solicitor general, Mr. Lutwiche,
Mr. Cowper, and Mr. Talbot, that the guardianship being devised to three, without
saying and to the survivor of them, the same did not survive; that it was but a bare
authority, and no interest, in regard no profit could be'made thereof ; that if a power
were given to three, and one of them should die, the survivor could not execute such
power; that if two were made committees of a lunatic, on the death. of one of them,
the commitment would determine ; that this was a trust annexed to the person, and
not assignable, nor was it reasonable it should survive, forasmuch as the testator might
think it proper to trust three, but not to invest a smaller number with a charge of that
importance,
Also it was said, that if-the infant Earl should die without issue under age, in Auch
case the late Earl by his will had given an annuity of £500 per annum to Mr. Justice
Eyre, which made it improper, that he alone should be intrusted with the [104] person
of the infant Earl, who would be gainer on his dying without issue and under age;
that the will having appointed three guardians to the infant, it was the same thing,
as if the testator had appointed those three jointly, and then it was plain, that if one
should die, the survivors could not act ; that according to auditor Curl's case (11 Co. 2 b),
where an office is granted to two, on the death of one of the grantees the office determines.
And though it might be attended with some inconvenience, were such guardianship
or authority to determine on the death of one of the persons intrusted, yet it must be
allowed to have been in the power of the testator to have prevented this inconvenience,
by limiting the guardianship to the survivor by express words. Salk. 465.
It was moreover urged, that this was a matter of trust, for every guardianship was
a trust (see vol. 1, 704, Duke of Beaufort v. Berty, and Frederick v. Frederick, 721);
that the Crown, as parens patriw, was the supreme guardian and superintendent over
all infants; and since this was a trust, it was consequently in the discretion of the
Court, whether or no they would do so hard a thing, as to take away an infant under
thirteen years of age, from so careful a mother as the Countess was ; that the tender calls
of nature were on the mother's side; and then there were two physicians (Doctor
Robinson and Doctor Friend), who both testified, that the infant Earl was of a tender
and sickly constitution ; so that at least the Court might refuse to grant this in a suim-
mary way, or otherwise than upon a bill.
Also with regard to the servants, it was represented to be a very hard thing to
turn away such as the Countess had experienced to be good servants, and to take persons
in their [105] room, whom she had no experience of, particularly, that Doctor Stubbs
the governor came in at first, with the approbation of Mr. Justic6 Lyre, and that he was a
man of learning, probity, and piety, and a clergyman.
On the other side it was said, that this guardianship was not devised to three jointly,
but to three until the infant Earl should come to twenty-one ; that a guardian had not
2 ' WI S.'103.](ViewImageLocal?handle=hein.slavery/ssactsengr0639&div=1&collection=&method=preview&ext=.png&size=3)