The Duke of Beaufort v Berty
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1721 |
| Date | 01 January 1721 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 579
LORD CHANCELLOR MACCLESFIELD.
[703] Case 205.-The Duke of beaufort versus berty. [1721.] Lord Chancellor Macclesfield. Guardians appointed by will according to the statute of 12 Car. 2, c. 24, have no more power than guardians in socage, and are but trustees, on whose misbehaviour, or giving occasion of suspicion, the Court of Chancery will interpose. (Vide Harg. Co. Litt. 88 b, notes 12, 13, 14, 15, 16. 2 Fonb. Eq. B. 2, Part*2, c. 2, s. 1.) The late Duke of Beaufort by his will appointed James Berty and Doddington Grevill esquires, guardians of his two sons, the present Duke and his younger son the Lord Noel Somerset; and upon a petition by the Duke and Duchess of Graf ton, and the Duke and Duchess of Portland (being near relations of the present Duke of Beaufort and his brother the Lord Noel, both infants) praying that the Lord Noel, who at this time went to Westminster school, might be removed to Eton, I objected, that the two guardians being appointed so by the will of the late Duke,' until these noble infants should come to the age of 21, were in loco parentis, and had the parental authority delegated over to them by the father's will, who by the statute of 12 Car. 2, cap. 24, had as much power to dispose of the guardianship of his children as by the statute of 32 H. 8, a man hath to dispose of his lands ; that the two guardians desiring that the Lord Noel should continue at Westminster school, until he was fit to go from thence to the university; and this being also the desire of his fa/ther the late Duke, it was submitted, whether the Court would interpose in this case. That indeed, formerly, when Mr. Grevill, one of the guardians, certified that he thought it proper, upon Lord Noel's first coming to Westminster school, and being much indisposed in his health, to remove him from thence, and while the two guardians differed (the other guardian Mr. Berty being against his removal), it was reasonable that the great (1) seal, [704] which has a superintendency over all infants, should interpose ; else there would be a failure in the due education of the infant; but when both the guardians had agreed that Westminster school was the properest school for Lord Noel, it was hoped the Court would not send him to Eton. It was admitted, that in case the guardians should misbehave, the Court might interpose, upon a presumption, that the testator himself would not have intrusted the...
To continue reading
Request your trial
-
Clay v Clay
...is not a trust.’ 39 It is true that in eighteenth century authorities, beginning with the judgment of Lord Macclesfield LC inThe Duke of Beaufort v Berty36, guardianship in socage (a common law guardianship which could arise only in the case of a legal estate37) and under the statute 12 Car......
-
Birmingham City Council v SK (by her Children's Guardian)
...as strong as any authority that any law could give, But it is above a century ago, since, in the case of the ( Duke of Beaufort v Berty 1 P Wms. 703), the Lord Chancellor of that day, Lord Macclesfield determined that the statute guardian was subject to all the jurisdiction of this Court…….......
-
Meades, Minors
...App. 263. Talbot v. The Earl of ShrewsburyENR 4 My. & Cr. 672. Wellesley v. Duke of BeaufortENR 2 Russ. 1. Duke of Beaufort v. BertieENR 1 P. Wms. 703. Whitfield v. Hales 12 Ves. 493. Talbot v. The Earl of Shrewsbury 4 M. & C. 672. Re Browne, a MinorUNK 2 Ir. Ch. Rep. 151. Davis v. Davis 10......
-
M'Dowell v Bergin
...4 Co. 93. Lambert v. TaylorENR 4 B. & C. 138. The King v. DeathENR Cro. Jac. 513. Powys v. WilliamsENR 2 Lutw. 1601. Beaufort v. BertyENR 1 P. Wms. 703. Swan v. PorterENR Hardr. 60. Bullen v. GervisENR Hutt. 53. Rex v. MildmayENR 5 B. & Ad. 254. Slade's caseENR 4 Co. Rep. 92 b. Bate's case ......