The father has primâ facie a right to the custody of his children while under the age of sixteen years; after that age, if they are able to maintain themselves, they may be emancipated from his control. But a mother can apply to the court for an order that she may have the exclusive care of her children while they are respectively under seven years of age; and after that age, for leave of access to them at reasonable times, in cases where husband and wife do not live together. In case of the divorce of the parents, the court will give directions as to the custody of the children of the marriage, taking into consideration the offence against morality of the guilty parent, but also what is best for the children’s education and upbringing and prospects in life.
A parent is bound to maintain and educate his children according to his station; and if the father should neglect his duty in this respect, the mother—if living with her husband—may, as his agent, order what is necessary, and he would be responsible for the expense thus incurred, which must be strictly limited to what is reasonably necessary. If a child should become chargeable upon the poor-rates, both father and grandfather are responsible for repayment of the cost incurred; the former primarily, and the latter secondarily, in case of the absence or inability of the father. In like manner, a child may be compelled to repay to the poor-rates authorities the cost of maintenance of his parents, if he have the means of doing so.
A child while under the age of twenty-one years cannot enter into a binding contract, even with the consent and concurrence of its parent, except for special purposes. One of these purposes is the acquisition of knowledge which will enable the child to earn its livelihood when it arrives at maturity. Thus apprentices and articled clerks may be bound in such a manner as to render it compulsory for them to serve until they respectively attain the age of twenty-one years; but the binding cannot be extended beyond that age. As soon as an apprentice attains his majority, he may elect to vacate his indenture, and be free from any further compulsory service. This is founded upon the well-known principle, that a minor can only be compelled to perform contracts entered into on his behalf during his minority; and that when he attains the age of twenty-one years, he is free to enter into contracts on his own behalf, which stand upon an entirely different footing, and are entirely inconsistent with the former contract. It may also be mentioned here that a minor, when he becomes of age, is free to elect whether he will perform any other contracts which he may have entered into during his minority. If any such contract be beneficial, he may allow it to stand; and if it be otherwise, he may cancel it; but the other party, if of full age, will be bound by his contract.
In this connection we may notice the Infants Relief Act, 1874. Although primarily aimed at the protection of ‘infants’ from the consequences of their own imprudence, this statute, the operation of which extends to the whole of the United Kingdom, has been found very useful in relieving children against a cruel but not uncommon kind of pressure by impecunious parents, who in many cases induced their children to encumber their expectant property in order to assist them (the parents) when in difficulties. The manner was this: The son would while under age sign a promise to execute a valid charge, which would accordingly be executed the day after he attained his majority; and though the first promise was worthless, the deed was binding. But it was enacted that all contracts entered into by ‘infants’ for the repayment of money lent or to be lent, and all accounts stated with ‘infants,’ should be not merely voidable, but absolutely void; and further, the ratification when of full age of any such promise should be void also, and the ratified promise should be incapable of being enforced.
A parent may lawfully maintain an action on behalf of his child, whether such child be an infant or of full age, without being liable to be prosecuted for the offence of maintenance or champerty. In like manner, a child if of full age may maintain an action on behalf of his parent, even though he may have no personal interest in the subject-matter of the action.
A parent may also protect his child, or a child protect his parent, from violence or assault, in such circumstances as would expose a stranger to the charge of officiously intermeddling with strife which did not concern him.
The power of an Englishman to dispose of his property by will being absolute, the consideration of a parent’s will as affecting his children need not detain us long. The principal peculiarity is this: In case of the death of a child or grandchild of a testator in the lifetime of the latter, leaving lawful issue, any devise or bequest in the will in favour of the deceased child or grandchild will take effect in favour of his issue in the same manner as if he had survived the testator and died immediately afterwards. In similar circumstances, a gift in favour of any other person who died in the testator’s lifetime would lapse, that is to say, it would altogether fail to take effect.
But in Scotland, the power of a father to dispose of his property by will is much more restricted, being confined to what is called the ‘dead man’s’ part—namely, so much as remains after setting aside one-third of the personal property or movable goods for the widow; and one-third for the children of the testator. Or if there be no widow, then the share of the children is one-half, which is divisible among them equally. The rights of either widow or child may be renounced by an antenuptial marriage contract, or for some equivalent provision given in such a contract, or by will; and a child of full age may by deed discharge his claim for legitim, as the children’s share of the succession is called.
In case of intestacy, the eldest son is by the common law his father’s heir-at-law, subject to his mother’s dower, if not barred or discharged. But in some localities, special customs exist, such as Borough English—prevalent at Maldon in Essex and elsewhere, by virtue of which the youngest son is the heir—and Gavelkind, which affects most of the land in Kent, where all the sons inherit in equal shares. Returning to the common-law rule, where there are both sons and daughters, the eldest son inherits to the exclusion of his younger brothers, and his sisters whether elder or younger. But if the intestate had no son, but several daughters, they would take as co-parceners in equal undivided shares. It will be understood that heirs and co-heiresses take freehold houses and land; but that leaseholds are personal property, and like money and goods, stocks and shares, are distributable, subject as hereinafter mentioned, among the widow (if any) and relatives of the deceased. Copyhold property is real estate, and the descent is in each case regulated by the custom of the manor of which the property is holden; Borough English and Gavelkind being much more common as affecting copyhold than freehold estates, though even in the case of copyholds the common-law rule is by far the most general.
The personal property of an intestate is the primary fund for payment of funeral and other expenses, costs of administration, and debts. When these have been paid, the widow (if any) is entitled to one-third of what is left; and the other two-thirds are divisible among the children. If there be no widow, the children take all, the collateral relatives having no claim. If any of the testator’s children have died before him, leaving issue, such issue take in equal shares the portion which their parent would have taken if living.