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![handle is hein.slavery/ssactsengr0765 and id is 1 raw text is: and the other by the mother, that very circumstance would create factions in the
family, which it is the bounden duty of the Court as far as possible to guard against.
As to the other children who are under seven years of age, the Court has an
absolute control over them, with regard to the peculiar common law right of the
father to the custody of all his children. I think that is the true construction of
the Act; but, whether it be so (792] or not, the principle to which I have adverted
with respect to the second child would apply equally to the other two; and, as I am
obliged to remove one, I must remove all.
I understand that Mrs. Warde will undertake to maintain the children, and that
her brother is willing to concur in that undertaking, which will obviate any objection
to its being merely the undertaking of a married woman. The order, therefore, which
I shall make will be that the children now in the custody of the father be delivered
to the mother, she and her brother undertaking to maintain them till further
order.
I see that in some cases, and, amongst others, in that of Shelley v. lVestbrooke, that
has been accompanied by a restraint on the father from applying for a habeas COpus,
as otherwise the order might be reversed by a Judge at common law. Whether a
Judge would interfere or not, it is not for me to say: but I wish Mr. Stuart to
consider what should be the form of the order in this respect.
Mr. Stuart. I should wish the order to be in the same form as in Shelley v.
NVestbrooke.
THE LORD CHANCELLOR. Let it be so.
(1) This paragraph is transcribed from the shorthand writer's note, the reporter
not having been present as the case was heard in private.. He has been informed
that the only cases which had been referred to in the argument were those of In re
iTaylor (11 Sim. 178) and Exparte Bartlett (2 Coll. 661).
[793] MArP v. ELCOCK. Jan. 31, 1849.
[S. C. 15 Sim. 568 ; 3 H. L. C. 492 ; 18 L. J. Ch. 217 ; 13 Jur. (0. S.), 290. Discussed
and followed, tead v. Stedman, 1859, 26 Beav. 501. Qf. In re West [1900], 1 Ch.
84. See Clarke v. Hilton, 1866, L. R. 2 Eq. 815 : Williams v. Arkle, 1875, L. R.
7 H. L. 619.]
A will, not affected by the 11 G. 4 & 1 W. 4, c. 40, commenced as follows :- I give,
devise and bequeath all my estate, real and personal, to W. E., his heirs, executors
or administrators, to and for the uses, intents, and purposes following. Then
followed certain declarations of trust, but which were applicable only to particular
portions of the personal estate, and the will concluded by appointing W. E. sole
executor. Held (reversing the decision below), that W. E. took the residue as
trustee for the next of kin.
,Observations on the conflicting opinions of Sir W. Grant and Lord Eldon in Dawson
v. Clark (15 Ves. 409, and 18 Ves. 247) and the opinion of Lord Eldon confirmed.
This was an appeal from part of a decree of the Vice-Chancellor of England, by
which it was declared that, according to the true construction of the will of Samuel
Henry Pare, who died before the passing of the Act of 11 G. 4 & 1 W. 4, c. 40,
Edward Elcock the executor was not a trustee of the residuary personal estate of the
testator, but was absolutely entitled thereto for his own use and benefit.
The will, which was made in the island of Barbadoes, was as follows :-I give all
my estate, both real and personal, in this island to Edward Elcock, his executors,
.administrators, or assigns, to and for the several uses, intents, and purposes following;
that is to say, out of the rents, issues, and profits, and interest of all debts due to me,
to pay unto my dear wife Anna Maria £300 yearly, in addition to her own fortune
which survives to her; and in trust, likewise to permit her to have the full use and
.enjoyment of all my negro slaves, except Jackey, whom I direct to be freed at the
expense of my estate; and in trust, also to permit her to use all my household
1150
2NAPP V. ELCOCK
2 PH. 792.](ViewImageLocal?handle=hein.slavery/ssactsengr0765&div=1&collection=&method=preview&ext=.png&size=3)