LECTURE XXX.

OF GUARDIAN AND WARD.

THE relation of guardian and ward is nearly allied to that of parent and child. It applies to children during their minority, and may exist during the lives of the parents, if the infant becomes vested with property; but it usually takes place on the death of the father, and the guardian is intended to supply his place.

There are two kinds of guardianship; one by the common law, and the other by statute; and there were three kinds of guardians at common law, viz.: guardian by nature, guardian by nurture, and guardian in socage. (a)

(1.) Guardian by nature is the father, and, on his death, the mother;1 and this guardianship extends to the age of twenty-one years of the child, and it extends only to the custody of his person, and it yielded to guardianship in socage. (b) It was doubted for some time in the books, whether the guardian by nature was entitled to the possession of the personal estate of the infant, and could give a competent discharge to an executor on the payment of a legacy belonging to the child; and it was finally understood that he could not. (e) It would seem, therefore, that if a child becomes vested with personal property only, in the lifetime of the father, there is no person strictly entitled to take it as guardian,

(a) Co. Litt. 88 b. (b) Litt. sec. 123.

Thorp, 5 Mod. 221.

3 Co. 37 b.

Co. Litt. 87 b, 88. Hargrave's note, 12, No. 66. The King v.
Jackson v. Combs, 7 Cowen, 36. 2 Wend. 153, S. C.

(c) Dagley v. Talferry, 1 P. Wms. 285. Cunningham v. Harris, cited in 3 Bro. C. C. 186. Genet v. Tallmadge, 1 Johns. Ch. 3. Fonda v. Van Horn, 15 Wendell, 631. Miles v. Boyden, 3 Pick. 213.

1 At common law, the mother, as guardian by nature or for nurture, has no control over the estate of the minor. Perkins v. Dyer, 6 Geo. 401.

2 In Texas, the father's power is extended by statute to his child's estate. Byrne v. Love, 14 Texas, 81.

until a guardian has been duly appointed by some public authority; though if real estate vests in the infant, the guardian in socage, or a substitute for such a guardian provided by statute, will be authorized to take charge of the whole estate, real and personal. The father has the first title to guardianship by nature, and the mother the second; and, according to the strict language of our law, says Mr. Hargrave, (d) only the heir apparent can be the subject of guardianship by nature, and therefore it is doubted whether such a guardianship can be of a daughter, whose heirship is presumptive, and not apparent. But as all children, male and female, equally inherit with us, the guardianship by nature would seem to extend to all the children, and this may be said to be a natural and inherent right in the father, as to all his children, during their minority. (e) The Court of Chancery, for just cause, may interpose and control that authority and discretion which the father has in general in the education and management of his child. (f) In De Manneville v. Manneville, (g) Lord Eldon restrained a father from doing any act towards removal of his infant child out of the kingdom, and he said that the jurisdiction of the Court of Chancery to control the right of the father prima facie to the person of the child, was unquestionably established. He admitted, however, that the jurisdiction was questioned

3

(d) Note 66 to lib. 2 Co. Litt.

(e) Macpherson on Infants, p. 61.

(f) 2 Fonb. Tr. of Equity, 235, note. Creuze v. Hunter, 2 Cox, 242.

(g) 10 Vesey, 52. The principle recognized and enforced by the cases of Creuze v. Hunter, Rex v. De Manneville, 5 East, 221, and De Manneville v. De Manneville, and by the case of The People, ex relat. Barry v. Mercein, decided upon habeas corpus by the chancellor of the state of New York, in 1839, 8 Paige, 47, and afterwards by Judge Inglis, in New York, in 1840, is, that the Court of Chancery will not permit an infant too young to choose for itself, and being a natural-born citizen, to be taken from its mother against her consent, to be delivered to an alien father, to be carried abroad out of the country, whatever may be the merits of the difficulties causing a separation between husband and wife, and notwithstanding the domicil of the wife be that of her husband. The child born in the United States owes natural allegiance and has independent rights, and one is to reside where he was born, when the mother, born here also, and lawfully and actually a resident here, will not consent to his removal, and he is too young to choose for himself.

Such conduct on the part of a parent as shows him destitute of parental affection has been declared sufficient to authorize a court of chancery to place his children in the custody of a guardian. Cowls v. Cowls, 3 Gilm. 435. See a case "Anonymous," 11 E. L. & Eq. 282.

In the matter of Flyn, 12 English Jurist (Chy.) 713, (1848,) the paramount right of the father was maintained in a striking case. See Regina v. Smith, 16 E. L. & Eq. 221.

by Mr. Hargrave; (h) but it was, on the other hand, supported with equal ability by Mr. Fonblanque. In the case of Wellesley v. Duke of Beaufort, (i) the lord chancellor, after a very able and

thorough investigation, refused to restore to a father the * 221 custody of his infant * children, on the ground that his character and immoral conduct rendered him unfit to be their guardian; and the decision was, in 1828, affirmed by the House of Lords. The jurisdiction of chancery, and the fitness of its exercise in that instance, were finally established. (a)

(2.) Guardianship by nurture occurs only when the infant is without any other guardian, and it belongs exclusively to the parents, first to the father, and then to the mother. It extends only to the person, and determines when the infant arrives at the age of fourteen, in the case both of males and females. As it is concurrent with guardianship by nature, it is in effect merged in the higher and more durable title of guardian by nature. (b) This guardianship is said to apply only to the younger children, who are not heirs apparent; and as all the children inherit equally under our laws, it would seem that this species of guardianship has become obsolete.

(λ) Note 70 to Co. Litt. 89 a.

(i) 2 Russ. 1. Wood v. Wood, 5 Paige, 605, S. P.

(a) Wellesley v. Wellesley, 1 Dow N. S. 152. 2 Bligh's Parl. R. N. S. 124, S. C. That case was accompanied and followed by very profound discussion. In a pamphlet, attributed to the pen of Mr. Beames, entitled "Observations upon the power exercised by the Court of Chancery, of depriving a father of the custody of his children," the power was deemed very questionable in point of authority as well as policy. On the other hand, in a treatise published by Mr. Ram, a barrister, and in an article in the Quarterly Review, No. 77, the policy and wisdom of the jurisdiction, as asserted in the Court of Chancery and confirmed in the House of Lords, were ably vindicated, and shown to be connected with the great moral considerations arising out of the nearest ties of social life. Attempts have been made to control the father's right to the custody of his infant children, by a legacy given by a stranger to an infant, and the appointment by him of a guardian in consequence thereof. But it is settled that a legacy or gift to a child confers no right to control the father's care of the child, and no person can defeat the father's right of guardianship by such means. If, however, the father accedes to the conditions of the gift, and surrenders up his control of the child's education, the Court of Chancery will not suffer him to retract it. Lord Thurlow, in Powel v. Cleaver, 2 Bro. C. C. 500. Colston v. Morris, 6 Madd. 89. Lyons v. Blenkin, Jac. 245.1 See, also, The Etna, Ware, 464, and 2 Story Eq. Jur. §§ 1341 to 1351, where the jurisdiction of the Court of Chancery on this subject is fully examined and sustained.

(b) 3 Co. 38 b. Harg. note 67 to lib. 2 Co. Litt. Com. Dig. tit. Guardian, D.

1 Vanartsdalen v. Vanartsdalen, 14 Penn. 384.

*

(3.) Guardian in socage has the custody of the infant's * 222 lands, as well as of his person. (a) It applies only to lands which the infant acquires by descent; (b) and the common law gave this guardianship to the next of blood to the child, to whom the inheritance could not possibly descend; and therefore, if the land descended to the heir on the part of the father, the mother, or other next relation on the part of the mother, had the wardship; and so if the land descended to the heir on the part of the mother, the father, or his next of blood, had the wardship. (c) These guardians in socage cease when the child arrives at the age of fourteen years, for he is then entitled to elect his own guardian, and oust the guardian in socage, and they are then accountable to the heir for the rents and profits of the estate. (d) If the infant, at that age, does not elect a guardian, the guardian in socage continues. (e) The common law, like the law of Solon, (ƒ) was strenuous in rejecting all persons to whom the inheritance might possibly arrive, and its advocates triumph in this respect over the civil law, (g) which committed the burden of the guardianship to the person who was entitled to the emolument of the succession. As we have admitted the half-blood to inherit equally with the whole-blood, this jealous rule would, still more extensively with us, prevent relations by blood from being guardians in socage. The law of Scotland and the ancient law of France took a middle course, and may be supposed, in that respect, to have been founded in more wisdom than either the civil or the common law. They committed the pupil's estate to the person entitled to the legal succession, because he is most interested in preserving it from waste; but excluded him from the custody of the pupil's person, because *his interest is placed in opposition to the * 223 life of the pupil. (a) And yet, perhaps, the English, the Scotch, and the French laws equally proceed on too great a dis

(a) Com. Dig. tit. Guardian, B.

(b) Quadring v. Downs, 2 Mod. 176.

(c) Litt. sec. 123. Quadring v. Downs, 2 Mod. 176.

(d) Litt. Ibid.

(e) The King v. Pierson, Andr. 313. The guardian in socage has lawful possession of the lands, and he may maintain actions of trespass or ejectment in respect to the lands of the ward. Byrne v. Van Hoesen, 5 Johns. 66. Jackson v. De Waltz, 1 Idem, 157. (f) Potter's Greek Antiq. vol. i. 574.

(g) Co. Litt. 88 b. 1 Blacks. Com. 462.

(a) Erskine's Inst. p. 79. Hallam on the Middle Ages, vol. i. p. 106.

trust of the ordinary integrity of mankind. They might, with equal propriety, have deprived children of the custody and maintenance of their aged and impotent parents. It is equally a mistake in politics and in law, to consider mankind degraded to the lowest depths of vice, or to suppose them acting under the uniform government of virtue. Man has a mixed character, and practical wisdom does not admit of such extreme conclusions. The old rule against committing the custody of the person and estate of a lunatic to the heir at law, has been overruled as unreasonable. (b) If a presumption must be indulged, as was observed in one of the cases, it would be in favor of kinder treatment, and more patient fortitude, from a daughter as committee of the person and estate of an aged and afflicted mother, than from the collateral kindred. The fears and precautions of the lawgiver on this subject imply, according to Montesquieu, a melancholy consciousness of the corruption of public morals. (c)

This guardianship is a personal trust, and is not transmissible by succession, nor devisable, nor assignable. It extends, not only to the person and all the socage estate, but to hereditaments which do not lie in tenure, and to the personal estate. This is the opinion of Mr. Hargrave, and he supports it by strong reasons; (d) notwithstanding, it is admitted, that the title to guardianship in socage cannot arise unless the infant be seised of lands held in socage. This guardianship in socage may be considered as gone into dis

use, and it can hardly be said to exist in this country, for *224 the guardian* must be some relation by blood, who cannot

possibly inherit, and such a case can rarely exist. By the New York Revised Statutes, (a) where an estate in lands becomes vested in an infant, the guardianship of such infant, with the rights, powers, and duties of a guardian in socage, belong to the father of the infant; and if there be no father, to the mother; and if there be neither, then to the nearest and eldest relative of full age, not being under any legal incapacity; and as between relatives of the same degree of consanguinity, males are preferred. But the rights and authority of every such guardian are

(b) Dormer's case, 2 P. Wms. 262. In the matter of Livingston, 1 Johns. Ch. 436. Lord Hardwicke, in 2 Atk. 14.

(c) Esprit des Lois, liv. 19, ch. 24.

(d) Note 67 to lib. Co. Litt.

(a) Vol. ii. 3d edit. p. 2, Sylvester v. Ralston, 31 Barb. (N. Y.) 286.