¶1Alexander died in December, 1851, leaving a daughter aged thirteen, and a son aged eight years. In his last sickness he requested Shoup to take charge of and educate the daughter; and he made a like request of Handsby respecting the son. In January, 1852, Smith was appointed guardian of the children, and claimed the right to control them, which was denied by Shoup" and Handsby. He then sued out a writ of habeas corpus from this court for the purpose of obtaining the custody of the children. The application is resisted by Shoup and Handsby. It appears, from the evidence, that the children prefer to remain with Shoup and Handsby, from whom they receive proper care and attention. The evidence also tends to show that Smith is not a suitable person to have the custody of the children. In this state of the case, the court will not interfere, but leave the children where their father placed them, and where they desire to remain. It is the duty of the court, on this application, to consult the best interests of the children; and that would not be done by putting them under the control of the petitioner. 2 Kent’s Comm. 194. See also Cowls v. Cowls, 3 Gilm. 435, and Miner v. Miner, 11 Ill. 43.
¶2Under the circumstances of the case, the children are not improperly detained, "and the application of the guardian must be refused.
¶3Application refused.