The opinion of the court was delivered by
Rogers, J.— The act of 8th April, 1833, Dunlop 571, an act relating to last wills and testaments, provides, That every person competent to make a will, being the father of any minor child, unmarried, may devise the custody of such child, during his or her minority, or for any shorter period. From the words of the statute, an inference arises that no person, except the father, has authority to exercise that right, and such is the construction of the statute, Charles 2, ch. 21, sec. 8. Thus, it is ruled in Ex parte Edwards, 3 Athyns 519, that the mother’s appointment of a guardian to her son by will is void, the statute confining the power of appointing a testamentary guardian to the father. So far as the custody and care of the person of the infant is concerned, it cannot be doubted that a testamentary appointment by a grandfather, mother, or stranger, is simply void. But although a grandfather may not appoint, under the statute, a guardian for his grandson, in derogation of the unquestioned right of the father, yet there is nothing to prevent him from giving his estate to him on that condition. Thus, it is said, in Blake v. Leigh, Ambler 306, the grandfather has no power to appoint guardians of his grandson, it being a right vested in the father. But any one can give his estate on what conditions he pleases; and the father, in this case, submitted to the conditions of the will. There are instances where a grandfather has given his estate to his grandchild, and appointed guardians of his estate and person; and if the father did not submit to the will, the court has made the testator’s opposition work a forfeiture of the son’s estate. But if there is any gift to the father in the will and he submits to it, the court directs and appoints a guardian on his submission. In the present case, the court has interposed, after the father had waived his parental right; therefore, there is no ground to alter what was done with the consent of all parties.
Even conceding that the testator has appointed a guardian for the persons of his grandchildren, as well as a trustee or curator of the estate devised, yet the appointment would be good, inasmuch as the father has submitted to the will by an enjoyment of the estate devised, in right of his wife, during her life. For it is only since her death that he has acted in opposition to the will. But be this as it may, here the testator devises an estate to his grand*388children, and, for satisfactory reasons best known to himself, chooses to commit the custody and management of it to his own son, instead of to his son-in-law. It does not need the authority of Lord Hardwick® for the position that any one can give his estate on what conditions he pleases.
It is plain the testator does not mean to interfere with the natural right of the father to the custody and care of his children. All that is intended is to commit the management of the estate to his executors, who are appointed guardians of the children. It is of no sort of consequence that he designates them as guardians, rather than as trustees or curators of the estate for the benefit of the infants. The will must receive such a construction as is beneficial to the minors, at the same time carrying out the intention of the testator. The disposition in the will does not require the assent of the father, as none of his rights are affected by it, nor is it in his power to defeat its provisions, or, by any opposition, woi'k a forfeiture of the estate, as perhaps might be the case if the grandfather had undertaken to deprive him of the care and management of his children. What right then has he to complain, when a grandfather or mother, or even a stranger, devises an estate to his children, coupled with a condition that its care and management shall be intrusted to another rather than to him.
The Orphans’ Court have disregarded this distinction. They have treated the appointment by the grandfather as null and void, and have proceeded to appoint a stranger as guardian, without any notice whatever to the testamentary guardian. But so far from being void, it is not even voidable, except on proof of fraud or gross mismanagement, or some personable disability of the guardian. This we think altogether irregular and erroneous, and for this reason the proceedings in the Orphans’ Court must be reversed.
The testator devised a farm in Bucks county to his daughter, the wife of George Yanartsdalen, for life, and, after her death, to her children in fee. He appointed David Cornell, his son, executor of his will and guardian of his grandchildren, and provided that $2000 should be a charge upon the land, to be paid by the children, unless a moderate rent, which he directed his executor to charge to his daughter, should sink this sum. George Yanartsdalen and his wife remained in possession of the premises during her life, without paying any rent. The wife died, and after her death, George Yanartsdalen, with whom the children lived on the farm, refused to become a tenant and pay rent. David Cornell, as the guardian of the children, brought an ejectment, as he was bound to do, against Yanartsdalen. The ejectment was tried in the Court of Common Pleas, and the case being arbitrated, an award (from which the defendant appealed) was made for the plaintiff. C. W. Biles was the surety in the recognizance on the appeal. The case was marked for trial at the Sept, term, 1848, *389and when called, on the 11th Sept., it was said by defendant’s counsel that the case had been discontinued by the guardian of the children. It then appeared that, on the petition of Vanartsdalen, Charles W. Biles was appointed guardian for two of the children, and one, having arrived at the age of fourteen, chose Biles for her guardian. On the same day, Biles filed a paper in the prothonotary’s office of Bucks county, directing the action of ejectment to be discontinued. After this history of the case, it is impossible to shut our eyes to the fact that this whole proceeding, in the Orphans’ Court, and in the Common Pleas, was concocted in fraud, a mere scheme or contrivance of Biles and Vanartsdalen, entered into with the object and intent of enabling the latter to retain possession of the estate, without paying any rent; the inevitable result of which will be to deprive the children of all benefit from the bounty of their grandfather, and, in fact, to set aside his will. For if no rent is paid, and applied to the ex-tinguishment of the charge on the estate, as is directed by the will, the accumulation of the debt by accruing interest must necessarily absorb the whole estate, and leave the children destitute of any property whatever. This, of itself, would be sufficient to induce the court to lay their hands upon it and arrest the proceeding. What right had Biles to discontinue the suit ? He had nothing to do with the estate devised to the children. The testator had thought proper to intrust that office solely to another’, who was then pursuing his duty, by an action of ejectment to recover the possession of the property from a person who would neither surrender it nor pay rent for it.
Whether raising the money charged on the land, by mortgage, was right or wrong, it is not the time now to inquire, as the mortgage is not before the court. We are therefore of the opinion, that the court erred in refusing to strike off the discontinuance directed to be entered by C. W. Biles.
It is ordered that the decree of the Orphans’ Court be reversed, the discontinuance of the ejectment be stricken off, the cause reinstated, and procedendo awarded.