Whether the mother or the tutors of infant-pupils are entitled to direct their education and place of residence?
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A gentleman, by a deed executed some time before his death, nominated and appointed his relict, her father, and her two brothers, and another gentleman, to be tutors and curators to his children during their pupillarity and minority; any two of them to be a quorum.
The children surviving the father, viz. two sons and three daughters, were very young when he died, and remained with their mother in the country for some time. When the eldest boy was six years old, and the second five, the grandfather and one of his sons, two of the tutors, gave directions for taking away the two boys from the mother, and bringing them to Edinburgh, to be there boarded, and put to school for their education. The mother refused to comply with this measure, and insisted, That she was the proper custodier of her infant-children; especially as she was named one of the tutors to them: That as the children were too young, and their constitutions very weakly, Edinburgh was not a proper place for their education, and their health would be endangered by their close residence there; or, at any rate, that it would be more proper to put them to school at a town healthfully situated, in the near neighboured of her residence in the country, where they might be properly boarded with a master of every good character, and at the same time be under her inspection.
The mother having, for these reasons, refused to give up the children, the two tutors applied by petition to the court, for a warrant to obtain the custody of the boys. Answers were given in on the part of the mother, setting forth the above-mentioned reasons for opposing the desire of the petition; and also objecting, 1mo, That it was not competent to any two of five tutors, four of whom had accepted, to insist in a summary application of this kind: That it was necessary that a proper action should be brought before the Court, in which the whole tutors should be called, and their opinions heard and considered; and that there was no reason in this case, why the ordinary rules of proceeding ought to be dispensed with. 2 do, If this application were competent at the petitioners' instance, still the mother is by law entitled to the custody of her children till they arrive at a greater age than either of them has attained to. Balfour observes several cases where this point was determined, in the Title, Of keeping minors' persons, Cap. 24. p. 336*. “The care and keeping of an heir, being minor, and of all other minors, pertains to the mother, after the decease of their father; and the mother, in this case, ought and should be preferred to the minor's goodsire, and to all the rest of his friends and kinsmen.” This rule, established above two hundered years ago, has not been altered against the mother in any case where she continued unmarried; and far less ought it to be so, where she has been entrusted by her husband with the care of her children, as one of their tutors; and as the maternal care is dictated by nature, and is far preferable to all others on many accounts, she ought therefore to be preferred to the custody of these pupils in their present infant state.
Observed on the bench: None of the other tutors named are here joining with the mother; therefore the petitioners are a quorum, and entitled to make the application. It was anciently, indeed, our law, that the mother should have the custody of pupils; but that will not now take place universally. The rule admits
* See the cases alluded to, supra h. t.
of many exceptions. But the question here is not so much, Who shall have the custody of the children? who shall have the direction of the place of their education? of which the petitioners are more proper judges than the mother.
“The Lords found the petitioners entitled to the custody of the children.”
Act. J. Craigie.Alt. Ferguson.
Fac. Coll. No. 171. p. 305.
