Austin v Austin
| Jurisdiction | England & Wales |
| Judgment Date | 18 January 1865 |
| Date | 18 January 1865 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 634
ROLLS COURT
S. C., on appeal, 4 De G. J. & S. 716; 46 E. R. 1098; 34 L. J. Ch. 499; 11 L. T. 616; 11 Jur. (N. S.) 536; 13 W. R. 761. See Hawkesworth v. Hawkeswvrth, 1871, L. R. 6 Ch. 543; In re Scanlan, 1888, 40 Ch. D. 212.
[257] austin v. auhtin. Jan. 14, 18, 1865. [S. C., on appeal, 4 De G. J. & S. 716; 46 E. R. 1098; 34 L. J. Ch. 499; 11 L. T. 616; 11 Jur. (N. S.) 536; 13 W. R. 761. See Hawkesworth v. Hawkeswvrth, 1871, L. R. 6 Ch. 543; In re Scanlan, 1888, 40 Ch. D. 212.] The father of an infant of two and a half years, originally a Protestant, had died a Roman Catholic. His widow married again and was a Protestant. The Court refused to remove the child from the custody of the mother on the ground of her religious opinions. This was an application, adjourned into Court from Chambers, for the appointment of a guardian to Mary A. Austin, an infant ward of Court, about two and a half years old, under the following circumstances :- Mr. William Austin, the father of the infant, was educated as a Protestant, his parents being of that persuasion; but, in 1847, he became a Roman Catholic. In July 1861 he married a Protestant young lady, having about a week previously made his public profession as a Roman Catholic. The ceremony of marriage was performed both according to the Roman Catholic and Protestant forms, and his wife, during his life, had conformed to the worship of her husband's church. In November 1861 Mr. Austin caused a draft of a will to be prepared, which, however, he never executed, in which he said, " And it is my wish, and I hereby direct, that all and every child and children of mine shall be educated and instructed in the principles and tenets of the Roman Catholic religion." [258] The infant was born on the 14th of June 1862, and was baptized by a Roman Catholic priest, one of her sponsors, however, being a Protestant. 34BEAV.JB9. AUSTIN V. AUSTIN 635 Mr. Austin died on the 27th of December 1862, and in October 1864 his widow married Mr. Seager, a Protestant gentleman, and she then became a Protestant. Tie infant's lather not having appointed a guardian. Cross-summonses for her guardianship were taken out, one by the mother, atid the other by the father's brother John Austin, a rigid Roman Catholic. The application of the brother of the deceased was, that he or some other proper person or persons might be appointed guardians " of the person and estate of the infant during her minority, or until further order, and that proper directions might be given as to her maintenance, residence and education during her minority." His application was founded on the importance of the child being educated in the Roman Catholic faith, which was that of her father at his death. He stated in his affidavit, that" in the Roman Catholic faith, the education of a child, in matters of doctrine and belief, commences at the age of five years, or earlier, according to the capacity of the child." The brother also adduced evidence that the education of a Roman Catholic child commenced at an early age, and that, as soon as it was old enough to...
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