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superseded in all cases where a guardian is appointed by the deed or last will of the father of the infant, or in default thereof, by the surrogate of the county where the minor resides. (6) Surrogates have the same power to allow and appoint guardians as is possessed by the chancellor; and as the powers and jurisdiction of the Court of Chancery are declared (c) to be co-extensive with the same powers and jurisdiction in England, with the exceptions, additions, and limitations created and imposed by the constitution and laws, it is to be inferred that the chancellor of New York retains the jurisdiction over infants, which belongs to the chancellor in England, and which belonged to the chancellor of New York prior to the first of January, 1830, when the Revised Statutes took effect.

(4.) Testamentary guardianships, to which I have already alluded, are founded on the deed or last will of the father, and they supersede the claims of any other guardian, and extend to the person and real and personal estate of the child, and continue until the child arrives at full age. This power in the father to constitute a guardian by deed or will, was given by the statute of 12 Charles II., and it has been pretty extensively * adopted in * 225 this country. It is a personal trust, and is not assignable. (a) A will merely appointing a testamentary guardian need not be proved; and though the statute speaks of appointment by deed, as well as by will, yet such a disposition by deed may be revoked by will; and it is evident, from the language of the English statute, and from the reason of the thing, that the deed there mentioned is only a testamentary instrument in the form of a deed, and to operate only in the event of the father's death. (6)

(6) N. Y. Revised Statutes, vol. i. p. 719, § 7. Vol. ii. p. 151, sec. 4, 5, 6. (c) Ibid. vol. ii. p. 173, sec. 36.

(a) Eyre v. Countess of Shaftesbury, 2 P. Wms. 171. Gilchrist J., in Balch v. Smith, 12 N. Hamp. 441.

(6) Lord Shaftesbury v. Hannam, Finch, 323. Lord Eldon, in Ex parte The Earl of Ilchester, 7 Vesey, 367. The statute of Ohio, in 1831, very properly drops the word deed, and gives the father the power of appointing, by will, a testamentary guardian to his infant and unmarried child. But the statute in North Carolina, Georgia, and Tennessee, says expressly, that the father may by deed, executed in his lifetime, or by his last will and testament, in writing, dispose of the custody and tuition of his children during

1 A grandfather cannot appoint a guardian. Hoyt v. Hellen, 2 Edw. Ch. 202. Nor can a mother. Matter of Pierce, 12 How. Pr. 632.

Though the statute laws in this country, which have adopted or followed the provisions in the English statute, may have abridged its explanatory and verbose phraseology, it is not to be presumed that they intended to vary the construction of it. These parental guardians may be appointed by the father, whether he be of full age or a minor, and to any child being a minor, and unmarried. (c) The better opinion is, that such testamentary guardian will continue till the age of twenty-one, though the infant be a female, and marry in the meantime, if the will be explicit as to the duration of the trust; for the statute gives that authority to the father. It has been held, that the marriage of a daughter will determine the guardianship as to her, though not so as to a son until he comes of age; and Lord Hardwicke said, in Mendes v. Mendes, (d) that it had been so adjudged in Lord Shaftesbury's

But in the subsequent case of Roach v. Garvan, (e) the

case.

their minority. N. C. R. S. 1837, vol. i. p. 306. Statute Laws of Tennessee, 1836, p. 366. Hotchkiss, Code of Georgia, 1845, p. 333.1

(c) N. Y. Revised Statutes, vol. ii. p. 150, sec. 1, 2, 3;2 Statutes of New Jersey of 1795; Elmer's Digest, 598; Act of Virginia, 1792; V. R. C. vol. i. p. 240; Statute of Pennsylvania, 1833; Pardon's Dig. 971; Chase's Statutes of Ohio, vol. iii. 1788. Statute of Alabama, of 1822, all allow a father, being a minor, to appoint a testamentary guardian, who should have the powers of a guardian in common socage. This testamentary power was copied from the statute 12 Car. II. c. 24. The statute of i Vict. C. 26, has taken away from an infant father the power to appoint a testamentary guardian. But it is said that the power given by the statute of 12 Car. II., to the infant father, to appoint a guardian by deed, is still retained. The Massachusetts Revised Statutes of 1836, part 2, tit. 4, ch. 69. Ibid. tit. 7, ch. 79, requires security from every testamentary guardian or trustee, appointed by will, for minors or others, unless the will directs otherwise, and the trustee's power and duties are prescribed with considerable minuteness. It was declared by statute in Massachusetts, in 1837, that the marriage of a female guardian operated as an extinguishment of her authority as guardian, and that the husband did not succeed as guardian in her right. The statute of Illinois, of 1835, gives the power by deed, or last will, to the mother as well as to the father, if she be sole, and the father has made no such disposition. Though a testator by will directs his executors, out of the proceeds of a specified bequest to his infant son, to educate him, that provision does not of itself make the executors testamentary guardians, for it is only instruction or direction as to the education of the infant, and does not imply the custody or charge of the person. Kevan v. Walker, 11 Leigh, 414.

(d) i Vesey, 89. 3 Atk. 619. (e) i Vesey, 160.

1 In Texas, a father cannot, as guardian by nature over the person and estate of his minor child, assign his power by deed. Byrne v. Love, 14 Texas, 81.

2 In New York, by a law of 1862, the consent of the mother, if living, is necessary to the appointment of a testamentary guardian by the father. Ante, 206, note 2.

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language of the chancellor was, that the marriage would not of itself, determine a guardianship, though the court would never appoint a guardian to a married female infant. The latter cases lead to the conclusion that the marriage of a female infant does not absolutely determine the guardianship, and that it * 226 would require a special * order in chancery to do it. (a) The cases are not very clear and consistent on this point. It would be quite reasonable that the marriage of a female ward should determine the guardianship, both as to her person and her estate, if she married an adult. It ought to be so as to her person, but not as to her estate, if she married a minor. Upon the marriage of a male ward, the guardianship continues as to his estate, though it has been thought otherwise as to his person. (6) 3

(5.) The distinction of guardians by nature, and by socage, seems now to be lost or gone into oblivion, and those several kinds of guardian have become essentially superseded in practice by the chancery guardians, or guardians appointed by the Court of Chancery, or by the surrogates in the respective counties of New York, and by courts of similar character, and having jurisdiction

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(a) In the matter of Whitaker, 4 Johns. 380. It was decided in Jones v. Ward, 10 Yerger, 160, that guardianship as to a female ward ceases upon her marriage under age. In England it is quite of course to appoint a new guardian in such a case. 8 Sim. 346. The Court of Chancery rarely removes a testamentary guardian duly appointed, though it will interfere and impose such restrictions as will prevent an abuse of the trust. Goodall v. Harris, 2 P. Wms. 560. Roach v. Garvan, 1 Vesey, 160, and the note of Mr. Bell, Ibid. There seems to be no sufficient ground for the doubt, in some of the books, that a testamentary guardian cannot be removed. 2 Story Eq. Jur. ġ 1339, note. When a feme sole, appointed guardian of her infant, married, the court directed an inquiry whether she had not thereby deprived herself of the guardianship, as she was no longer sui juris ; though it seems she might be reappointed under new sureties. Gornall, matter of, Rolls Court at Westminster, May, 1839. i Beav. 347.

(6) Reeve's Domestic Relations, p. 328. By the civil law, marriage did not confer on a minor the privileges of majority. Dig. 4, 4, 2. Code, 5, 37, 12. But the laws of modern nations are very diverse on the effect of marriage upon minors. Marriage is an emancipation of the minor to full rights by the French and Dutch laws. Code Civil, art. 476. Voet, ad Pand. 4, 4, 6. Van Der Linden's Inst. b. 1, ch. 5, sec. 7.

· Nicholson v. Wilborn, 13 Geo. 467.

: A married woman may be made a guardian with the assent of her husband, but not otherwise. Palmer v. Oakley, 2 Doug. (Mich.) 433. Farrer v. Clark, 29 Miss. (7 Cush.) 195.

3 Where there are two guardians, one of them can maintain an action against the other for removing the ward from the custody of the former without her consent. Gilbert 0. Schwenck, 14 Mecs. & W. 488.

21

VOL. II.

of testamentary matters, in the other states of the Union. (c) Testamentary guardians are not very common, and all other guardians are now appointed by the one or the other of those jurisdictions. The power of the chancellor to appoint guardians for infants who have no testamentary or statute guardian, is a branch of his general jurisdiction over minors and their estates, and that jurisdiction has been long and unquestionably settled. (d) The chancery guardian continues until the majority of the infant, and is not controlled by the election of the infant when he arrives

at the age of fourteen. (e) If there be no testamentary * 227 * guardian, the surrogate or judge of probate is authorized

to allow of guardians who shall be chosen by infants of the age of fourteen years, and to appoint guardians for such as shall be within that age, in as full and ample a manner as the chancellor may appoint or allow the same, upon the guardian giving adequate security for the faithful discharge of his trust; and upon due cause shown, and due inquiry made, the surrogate, who appointed a guardian, may remove him from his trust, and appoint

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(c) In Pennsylvania, the orphans' court has plenary power to appoint and control guardians, and regulate the maintenance of infants; and in Ohio, the courts of common pleas; and in New Jersey, the ordinary or orphans' court, or the surrogate, as the case may be ; and in Massachusetts, Connecticut, and other states, the courts of probate of the county have the power. In North Carolina, the superior and county courts and the court of chancery, seem to have concurrent jurisdiction over orphans and their estates. N. C. R. S. 1837, pp. 307, 313.4 (d) Harg. n. 16 to Co. Litt. 88 b, No. 70. 2 Fonb. Tr. Eq. 288, n. 10 Vesey, 63. Sir J. Jekyll, in Eyre v. Countess of Shaftesbury, 2 P. Wms. 118, 119. The usual order in the appointment of a guardian for a minor under fourteen, the father is, (1.) to the mother, if unmarried; (2.) the paternal, and (3.) the maternal grandfather; (4.) to the one or more uncles on the father's side ; (5.) to the one or more uncles on the mother's side ; (6.) to any other proper person.

(e) In the matter of Nicoll, 1 Johns. Ch. 25. N. Y. Revised Statutes, vol. ii. p. 151, sec. 10. In Maryland, it is provided by statute that infant females, at the age of sixteen, shall be entitled to demand and receive from their guardians, possession of their real and personal estate, and at the age of eighteen they have a capacity to devise real estate. But these are exceptions to the general rule of the common law, and in other respects the legal minority and disability of infancy of females as well as of males, continues until the age of twenty-one. Davis v. Jaquin, 5 Harr. & Johns. 100. She cannot execute a release to her guardian under the age of twenty-one. Fridge v. The State, 3 Gill & Johns. 103,5

4 In California, the district courts have, by the constitution of that state, the same control over the persons of minors and their estates, that the Court of Chancery, in England, pos

Wilson v. Roach, 4 Cal. 362.

at the age of eighteen, execute a valid release to one who has been her guardian. McClellan v. Kennedy, 8 Maryl. Ch. 230. S. C. 3 Maryl. Ch. 234.

sesses.

5 She may,

another in his stead. (a)' Guardians are liable to be cited and compelled to account before the surrogate, but his powers in these respects are not exclusive. The general jurisdiction over every guardian, however appointed, still resides in chancery; and a guardian appointed by the surrogate, or by will, is as much under the superintendence and control of the Court of Chancery, and of the power of removal by it, as if he were appointed by the court. (6) 3

(a) N. Y. Revised Statutes, vol. ii. pp. 150–152, sec. 4, 5, 6, 10–19. Mass. Revised Statutes, 1836. The competent age of the infant for choosing a guardian is usually fixed at fourteen in males, and when a difference is made between the age of the sexes in this case, it is twelve in females. This was the ancient statute rule in Connecticut, and it was declared by statute in 1821, and in Ohio by statute in 1824.

(6) In the matter of Andrews, 1 Johns. Ch. 99. Ex parte Crumb, 2 Johns. Ch. 439. Duke of Beaufort v. Berty, 1 P. Wms. 703. N. Y. Revised Statutes, vol. ii. pp. 152 153, 220. The rights and powers of the guardians over the person and property of their wards are, like the rights and authorities of executors and administrators, strictly local, and cannot be exercised in other states, for they come within the same reasoning and authority. Morrell v. Dickey, 1 Johns. Ch. 156. Sabin v. Gilman, 1 N. Hamp. 193. Armstrong v. Lear, 13 Wheaton, 169. Story's Com. on the Conflict of Laws, $ 494 et seq. 594. Nor have they any authority over the real property of their wards situated in other countries, for such property is governed by the law rei sitæ. Story Ibid. 504. But a guardian may change the domicil of his ward, so as to affect the right of succession to personal property, if it be done in good faith. Ibid. 505. See Potinger v. Wightman, 3 Meriv. 67, where the question as to the power of the guardian, being also a widow and mother of the minor, to transfer the domicil of the minor, is discussed by counsel with great learning, and the competency of the surviving parent, as a guardian, to do it, is shown to rest not only upon principle, but upon the soundest foreign authority; and J. Voet, Rodenburgh, Bynkershoek, and Pothier, are cited for the purpose. The same principle is adopted in this country. Holyoke v. Haskins, 5 Pick. 20. The case decided by Sir William Grant was one in which the guardian was also the mother of the infant, and the continental authorities referred to speak of the power of the surviving parent to change the domicil of the child, if not done fraudulently, with a view to change the succession. Pothier agrees to that, but denies that a guardian only in that character can do it. The French and Louisiana civil codes declared that the minor has his domicil at that of his father, mother, or tutor. Code Civil of France, n. 108; of Louisiana, art. 48. A contrary decision was made in School Directors v. James, 2 Watts & Serg. 568; and it was held, that though the domicil of the parent was the domicil of the child, it was not necessarily so in the case of a guardian. The parent's influence in this case springs from the institution of marriage

1 A surrogate in New York has no jurisdiction over the appointment of a guardian, unless the minor resides in his county. Brown v. Lynch, 2 Bradf. (N. Y.) 214.

2 Williams 1. Storrs, 6 Johns. Ch. 353. Loskey v. Reed, 4 Bradf. (N. Y.) 334. Where a guardian removed from the state in which he received his appointment, carrying with him a part of the infant's property, the court, without notice to him, appointed another in his place. Cooke v. Beale, 11 Ired. (N. C.) 36. Loskey v. Reed, 4 Bradf. (N. Y.) 334.

3 Wilcox v. Wilcox, 4 Kernan, 14 (N. Y.) 575.

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