SECTION 3.

Of Illegitimate Children.

Marriage is the only source of legitimacy; and parents must sustain to each other the relations of husband and wife, to make the offspring legitimate. Neither is it sufficient that they sustain to each other that relation de facto: they must be lawfully married. Where, therefore, marriage has been solemnized between parties, and they have cohabited as husband and wife, supposing themselves to be really such, if it turns out that either of them had, although unknown to them, a former husband or wife living, children born to them. during such cohabitation will be illegitimate.

Marriage and cohabitation of parents raises a presumption of legitimacy, which can be rebutted only by showing circumstances rendering it impossible that the husband should be the father; as absence from the country, impotency, and the like. An illegitimate child has no right of inheritance at common law; and this is so, even where the father acknowledges him to be his son, or intermarries with the mother after his birth. This rule is reversed, as to the effect of a subsequent intermarriage, by the Civil Code of Louisiana, and by statute in many of the other States. It is also frequently provided, by statute regulation, that an illegitimate child may be heir to his mother: and this rule of inheritance is sometimes reciprocal between the mother and such son. In most of the States there are statute provisions for the public indemnity, by charging the support of such children on the real father. If such child is adopted by his reputed father, he may thereby become liable upon implied contracts for the necessary maintenance of such child, without compulsory order and as if he were legitimate. Such adoption must be voluntary, and with the consent of the mother, for she has a right to the custody and control of an illegitimate child, as against the father, and is its natural guardian.

This subject is fully considered by Chancellor Kent, in his 29th Lecture, and by Chief Justice Reeve, in his work on the Domestic Relations.

CHAPTER XXXV.

OF GUARDIAN AND WARD.

SECTION 1.-Guardians by Nature.

THE relation of guardian and ward is not, like that of parent and child, founded in nature, but owes its origin to legal provision. It usually takes place on the death of the father, and the guardian is intended to supply his place. It may also exist during the life of the father, where the minor has separate property which needs care. It, therefore, sometimes happens, that one person is guardian of the person, and another of the estate of the minor, though the same person may properly fill both places. A minor, when under this relation, is denominated a ward, and the guardian is authorized to act for him, in all matters where the law requires action, and where the ward is incapable of acting for himself.

There are two general kinds of guardianships: one by the common law, and the other by statute. And guardianship at common law is again divided into several kinds, as guardians by nature, guardians for nurture, and guardians in socage; of which it will not be necessary for us separately to treat. The father, during his life, and on his death the mother, is guardian by nature, their authority extending over the person only. It was a doubtful question for some time, whether a guardian by nature was entitled to the possession and control of the estate of the infant, and could discharge an executor on account of a legacy due to the child: but it is now generally held that he cannot. If, therefore, a child become vested with personal property, no person is strictly entitled to take it, till a guardian has been duly appointed by proper authority. The law in Connecticut was declared to be differ ent, in a case in the 31 Conn.: but the rule has been changed by statute in that State, and now conforms to the common law doctrine, as generally received. The father has the first

claim to guardianship of the estate of his child, and, if a suitable person, is usually appointed, upon giving proper security for the care and preservation thereof. The mother has the claim next in order.

Guardianship is a personal trust, not transmissible by succession or assignment. They are generally appointed in this country by courts of probate, in pursuance of special statute regulations.

The guardian has the entire control of the personal estate of his ward, so far as its investment, reinvestment, and general management are concerned, subject, however, to the authority appointing him, during the guardianship, and at its close. He has no further concern with the real estate, than to attend to the leasing thereof and the receipt of the rents and profits. His authority to lease is only during the minority of the ward, and he can never sell real estate without special authorization of the authority appointing him, or of a court of chancery.

The condition of the guardian is one of care, obligation, and duty, and can, in no case, be made one of speculation and profit. He can never act for his own benefit in any contract, purchase, or sale of the estate of his ward, nor derive personal benefit from the use of the ward's money. If a debt be settled by him upon beneficial terms, or purchased at a discount, the benefit results entirely to the ward. If he is guilty of negligence, and loss results therefrom, he must sustain it. He may be called to an account, at common law, by the infant, within a period usually limited by statute, after he comes of age; and the infant may while under age, by his next friend, call him to account by bill in chancery.

If a guardian trades with his ward's money, the ward will be entitled at his majority to elect to take the profits, or the principal sum employed with interest. So, if he negligently omits to invest the ward's money, he will, in all cases, be chargeable with interest, and the court, in a case of gross delinquency, will compound it.

No guardian, as such, is bound to maintain his ward at his own expense; and any expense incurred by him in support

ing the minor, properly and according to his condition, he is entitled to have refunded to him out of the ward's estate. Ordinary personal property coming into the hands of the guardian, which does not bring in income or interest, it is his duty to sell, and so invest it that it shall produce such income. This rule, however, does not apply to family pictures, plate, watches, ornaments, and other property of like nature, which is usually kept on account of the memories connected with it, rather than as a subject of profit.

SECTION 2.

Guardians Appointed by Will or Judicial Decree. The father has general power to appoint a guardian to his minor children by his will. This power was given in England by a statute passed in the reign of Charles II., which has been quite extensively adopted in this country; and such a guardian may be appointed by a father, who is himself a minor. These testamentary guardians have substantially the same powers, and are subject to the same responsibilities, as those differently appointed. Guardians are also appointed by decree of court, to take care of the interests of a minor depending in any suit before such court. These are called guardians ad litem. Idiots, lunatics, and spendthrifts, and such persons generally as are laboring under mental incapacity disqualifying them from the care of their own estates, may have guardians appointed, upon the applications of their friends or of the officers of the towns where they live, under statute provisions in most of the States; and in the absence of such provision, courts of probate or chancery would exercise jurisdiction over such cases, upon proper application made to them. Such guardianships are, however, generally controlled by local statute regulations, which may be easily referred to, but which differ so much in detail in the different States, and are so liable to be changed from time to time, that it is not desirable to refer to them here.

CHAPTER XXXVI.

OF EXECUTORS AND ADMINISTRATORS.

SECTION 1. Of Executors, their Powers, Duties, and

Liabilities.

When a person dies, it is necessary that some one be authorized to settle his affairs. This may have been provided for by the deceased by will, in which case the party so appointed is designated the executor, and the party making the appointment is called the testator. If no such provision is made before death, the law makes it. The person appointed is then called the administrator, and the person deceased, the

intestate.

The first duty of an executor is, to have the will proved; and when so proved, it becomes the charter of his powers and authority, subject always to the regulations of the local law. An executor is usually required to give bond, for the care and preservation of property, the payment of debts, and for the due exercise, in all respects, of the powers and authority reposed in him by the law, and by the will of the testator. The bond may, in many of the States, be dispensed with by express provision in the will, except so far as is required to secure payment of debts. Such bonds may also be legally dispensed with, where all the persons interested in the estate certify their consent thereto. In some of the States, where the executor is also a residuary legatee (a residuary legatee is one who is entitled to the balance of the estate, after the payment of debts and specific legacies and devises,) he is permitted, instead of giving the general bond, which includes, in its condition, the preparing and filing a true inventory of all estate and property, to file a general bond for the payment of debts and legacies, and to omit the filing of an inventory.