The practice in chancery, on the appointment of a guardian, is to require a master's report approving of the person and security offered. The court may, in its discretion, appoint one person guardian of the person, and another guardian of the estate; in like manner, as in the cases of idiots and lunatics, there may be one committee of the person, and another of the estate. The guardian or committee of the estate always is required to give adequate security, but the guardian or committee of the person gives none.4

* 228

* The guardian of the estate has no further concern with, or control over, the real estate, than what relates to the leasing of it, and the reception of the rents and profits, and it is his duty to place the ward's land upon lease. (a) He has such an interest in the estate of his ward as to enable him to avow for damage feasant, and to bring trespass or ejectment in his own name. These were common-law rights belonging to the guardian in socage, and they apply to the general guardian at the present day. (6) He may lease during the minority of the ward, and no longer; (c) but he cannot sell without the authority of the Court

and families; and the learned Ch. J. Gibson followed the doubt of Mr. Justice Story, and confined the power of changing the infant's domicil to the parent, qua parent. It would rather seem to me, that if there be no competent parent living, and the guardian be duly appointed, that he may and ought, when acting in good faith and reasonably in his character of guardian, to be able to shift the infant's domicil with his own, and that the foreign authorities to that point have the best reason on their side. The objection against the guardian's power in such a case appears to me to be too refined and speculative.

Jones v. Ward, 10 Yerger, 160.

(a) Genet v. Tallmadge, 1 Johns. Ch. 561. (b) Shopland v. Ryoler, Cro. J. 98. Byrne v. Van Hoesen, 5 Johns. 66. The King v. Inhabitants of Oakley, 10 East, 491. But the guardian or committee of a lunatic cannot make leases and bring ejectments in his own name without special statute authority. This was the rule at common law. Knipe v. Palmer, 2 Wilson, 130; and it is the rule in North Carolina, (3 Ired. 389,) whose courts follow more strictly the English law, and are less influenced by American state decisions than perhaps any state in the Union.1

(c) Roe v. Hodgson, 2 Wils. 129, 135. Field v. Schieffelin, 7 Johns. Ch. 154. But the guardian's lease of the infant's lands for a term of years, extending beyond the infant's age of 14 years, is voidable, provided the infant be then entitled to choose his own guardian, and it may be avoided by the subsequent guardian chosen by the infant. Snook v. Sutton, 5 Halst. (N. J.) 133.

4 One who, without authority, acts as guardian, may be treated as a wrong-doer, or compelled to account as a guardian, at the infant's election. Mason v. Roosevelt, 5 Johns. Ch. 534. Sherman v. Ballou, 8 Cow. 304.

Patton v. Thompson, 2 Jones Eq. (N. C.) 411.

of Chancery. He may sell the personal estate, for the purposes of the trust, without a previous order of the court. (d) Whenever it becomes necessary to have the real estate of an infant sold, there must be a guardian specially appointed for that purpose; and the sale is made under the direction of the Court of Chancery, and the application and disposition of the proceeds are to be under its order; for in respect to such proceedings, the infant is considered a ward of the court. (e) The only material restriction in New York on the power and discretion of the Court of Chancery in this case is, that no estate of an infant can be sold against the provisions of any last will, or of any conveyance by which the estate was vested in the infant. But the provisions of the law have been held not to apply ordinarily to the case of a female infant who is married. The power given to the court to order a sale of the real estate of infants, was * 229 intended for their better maintenance and education, and not that the proceeds should be placed at the disposition of the husband. (a)

(d) Field v. Schieffelin, 7 Johns. Ch. 150. Ellis v. Essex M. Bridge, 2 Pick. 243. The sale of personal estate of the infant cestui que trust, without a previous order in chancery, if fair, would undoubtedly be good as to the purchaser; but the safer course for the guardian is, to have a previous order in chancery.

(e) N. Y. Revised Statutes, vol. ii. p. 194, sec. 170-180. Act of Congress of March 3d, 1843, c. 87, as to the chancery sale of the real estate of infants within the District of Columbia. In Maryland, the chancellor, by a statute provision, may order the real estate descending to infants to be sold for the payment of debts. And in Ohio, the courts of common pleas appoint guardians, and may authorize them to sell the real and personal estate of the ward in any county of the state; and all guardians, whether appointed by the courts or testamentary, must account before the court every two years; but the ward may open the accounts within two years after he comes of age. Act of Maryland, 1785. Statute of Ohio, February 6, 1824. Lessee of Maxom v. Sawyer, 12 Ohio, 195.3

(a) Matter of Whittaker, 4 Johns. Ch. 378. The Revised Statutes of New York have not altered, essentially, the phraseology of the law as it stood when the decision in the case of Whittaker was made. The language of the statute is sufficiently compre hensive to embrace the case, and there may be instances in which it would be necessary that the estate of a female married infant should be sold, as where the husband absconds and leaves her destitute. The case referred to presumed that the power to direct a sale still resided in the Court of Chancery, to be exercised in special cases. In Connecticut, the courts of probate, on due application and for reasonable cause, may order the sale

* Hunter v. Lawrence, 11 Gratt. 111. Woodward v. Donally, 27 Ala. 198.

3 In Mississippi, a guardian is bound by law to render an annual account, and oftener, if required. Reynolds v. Walker. 29 Miss. (7 Cush.) 250.

In addition to these general guardians, every court has the incidental power to appoint a guardian ad litem; and in many cases the general guardian will not be received as of course, without a special order for the purpose. (b) 1

The guardian's trust is one of obligation and duty, and not one of speculation and profit. He cannot reap any benefit from the use of the ward's money. He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust.2 If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the infant's benefit. He is liable to an action of account at common law by the infant, after he comes of age; and the infant, while under age, may, by his next friend, call the guardian to account by a bill in chancery. (c) Every guardian in socage, and every gen

3

of the real estate of any minor. Statutes of Connecticut, 1838, p. 331; and this power is generally conferred by statute in the several states, in the courts of consistorial jurisdiction.

(b) Harg. note 70, and note 220 to lib. 2 Co. Litt. Huckle v. Wye, Carth. 255. Whoever enters upon the estate of an infant, is considered in equity as entering in the character of guardian; and after the infant comes of age, he may, by a bill in chancery, recover the mesne profits. Morgan v. Morgan, 1 Atk. 489. Drury v. Connor, 1 Harr. & Gill, 220.

(c) By the practice in chancery, an infant is allowed one year after he arrives of age to investigate the guardian's accounts, and to surcharge and falsify if they be found wrong; and the guardian is not entitled to an absolute discharge until the expiration of that time. In the matter of Van Horne, 7 Paige, 46. The courts of equity throw a vigilant and jealous care over the dealings of guardians with infants on their coming of age. If there be a pecuniary transaction between guardian and child just after the latter becomes of age, and without any benefit moving to the child, as in the case of gifts, the presumption is, that undue influence has been employed, and that presumption must be rebutted by adequate proof. Archer v. Hudson, 7 Beavan, 551. The courts

1 Mathewson v. Sprague, 1 Curt. C. C. 457. The court will not appoint a person, who is not interested in the infant or in the suit. Foster v. Cautley, 19 E. El. & Eq. 437. So a guardian ad litem, appointed without the consent or knowledge of the infant defendants, was removed, and one of their own choice substituted. Matter of the Water Commissioners, 4 Edw. Ch. 545.

Dietterich v. Heft, 5 Barr, 87. Clowes v. Van Antwerp, 4 Barb. (N. Y.) 416. Lefevre v. Laraway, 22 Barb. (N. Y.) 168. Kennard v. Adams, 11 B. Mon. 102. Sparhawk v. Allen, 1 Foster, 9. A guardian's purchase of his ward's lands cannot be avoided by the latter as against the guardian's mortgagee, who paid a valuable consideration, and had no notice of the circumstances of the sale. Wyman v. Hooper, 2 Gray, 141. The guardian of an infant has not the power to enter into marriage articles with her intended husband, which shall be obligatory on her. Healy v. Rowan, 5 Gratt. 414. Lefevre v. Laraway, 22 Barb. (N. Y.) 167.

3 So, if the guardian be removed during the infant's majority. Richards v. Swan, 7 Gill, 366. Swan v. Dent, 2 Md. Ch. 111.

*

eral guardian, whether testamentary or appointed, is bound to keep safely the real and personal estate of his ward, and to account for the personal estate, and the issues and profits of the real estate; and if he makes or suffers any waste, sale, or destruction of the inheritance, he is liable to be removed, *230 and to answer in treble damages. (a) If the guardian has been guilty of negligence in the keeping or disposition of the infant's money, whereby the estate has incurred loss, the guardian will be obliged to sustain that loss. (b) The guardian must not

set aside such transactions on the ground of public utility and policy, though there be no actual unfairness in the case. Hylton v. Hylton, 2 Vesey, 547. See Gale v. Wells, 12 Barb. (N. Y.) 84. A settlement out of court, between a guardian and his former ward, is a release to the guardian, but has been held not to be a compliance with the guardian's bond to render an account when required by the court. Kittredge v. Betton, 14 N. Hamp. 401. Gregg v. Gregg, 15 N. Hamp. 190.

(a) N. Y. Revised statutes, vol. ii. p. 153, sec. 20, 21. The statute law of Tennessee is very strict and monitory respecting the fidelity of executors, administrators, and guardians. The Act of 1837, ch. 125, requires them to settle their accounts with the clerk of the county court once a year; and if they neglect to do so for thirty days after being called upon by the clerk, they are liable to indictment, and the attorney-general is bound ex officio to prefer the indictment. The Supreme Court thinks the laws to be admirably adapted to preserve the property of cestui que trusts, and the fidelity of these trustees. State v. Parrish, Nashville, Dec. 1843, 4 Humph. 285. Guardians are allowed for their reasonable expenses, and the same rates of compensation (N. Y. Revised Statutes, vol. ii. p. 153, sec. 22; Mass. Revised Statutes, part 2, tit. 7, ch. 79) for their services, as provided by law for executors; and for that, see infra, p. 420.

(b) Guardians and trustees of the moneyed concerns of others are answerable for any misapplication or unauthorized dealings with the trust moneys or stock. The rule on this subject is very strict. All persons acting in a fiduciary character are bound to use the same care and management that a prudent man would exercise over his own affairs. What is the requisite diligence, will depend on the attendant circumstances. Glover v. Glover, 1 McMull. (S. C.) 153. A receiver in chancery is answerable for the loss of moneys by the failure of a banker with whom they were deposited for security, if the receiver parts with the absolute control over the fund, and lets a stranger in to control his absolute discretion in the case. Salway v. Salway, 2 Russ. & M. 215. So, Lord Eldon, in Ware v. Polhil, 11 Vesey, 278, and in Phillips, ex parte,

• Wright v. Arnold, 14 B. Mon. (Ky.) 638.

1 So Laws of Connecticut, 1853, c. 62.

2 Trustees who paid out money, on the evidence of a forged certificate of marriage, were held liable. Eaves v. Hickson, 30 Beavan, 136. The receiver of an insolvent corporation can. not impeach or disaffirm the lawful acts of the company. Hyde v. Lynde, 4 Comst. 387.

3 Collins v. Champ, 15 B. Mon. 118. When an infant's lands are sold by order of the court, the proceeds are, with respect to descents, impressed with the character of realty during the infant's minority. Shumway v. Cooper, 16 Barb. (N. Y.) 566. Forman v. Marsh, 1 Kernan, 544. Sweezy v. Thayer, 1 Duer, 286. March v. Berrier, 6 Ired. Eq. 524. This • Will's Appeal, 22 Penn. 325. McLean v. Hosea, 14 Ala. 194.

248

OF THE RIGHTS OF PERSONS.

[PART IV. convert the personal estate of the infant into real, or buy land with the infant's money, without the direction of the Court of Chancery. The power resides in that court to change the property of infants from real into personal, and from personal into real, whenever it appears to be manifestly for the infant's benefit. (c) 5

19 Vesey, 122, was very guarded in laying down the power of the court in changing infant's property, so as not to affect the infant's power over it when he comes of age, or to change its descendible character. But as a general rule, in respect to stocks

held in trust, such trustees are not to look beyond the legal title, or to take notice aliunde of trusts chargeable upon the stock. Hartga v. Bank of England, 3 Vesey, 55. Bank v. Parson, 5 Ibid. 665. Franklin v. The Bank of England, 1 Russ. 575.

(c) Earl of Winchelsea v. Norcliffe, 1 Vern. 434. Inwood v. Twyne, Amb. 417. 2 Eden, 148, 153, S. C. Ashburton v. Ashburton, Vesey, 6. Huger v. Huger,

3 Desaus. Eq. 18. Dorsey v. Gilbert, 11 Gill & Johns. 87. 3 Johns. Ch. 348, 370. Hedges v. Riker, 5 Id. 163. By the English statute of 8 & 9 Vict. ch. 97, trustees of stock belonging to an infant or lunatic may give power to receive dividends. Equity will not interfere in adversum to change real into personal estate by a sale, without requiring it to retain throughout the character of the original fund. Foster v. Hilliard, 1 Story C. C. 77.6 And it is a well-settled rule in chancery, that when land is directed to be sold and turned into money, or money is directed to be employed in the purchase of lands, courts of equity, in dealing with the subject, will consider it that species of property into which it is directed to be converted. What is legally agreed to be done, is considered as done. Wheldale v. Partridge, 5 Vesey, 396. Craig v. Leslie, 3 Wheaton, 563, 577-588. Peter v. Beverley, 10 Peters U. S. 533. Hawley v. James, 5 Paige, 320. Walworth, Chancellor, in Gott v. Cook, 7 Paige, 534. Cowen J., in Kane v. Gott, 24 Wendell, 660. Rutherford v. Green, 2 Ired. (N. C.) Eq. 122. Reading v. Blackwell, Bald. C. C. U. S. 166. Rhinehart v. Harrison, Ibid. 177. infra, p. 476, n. The English authorities on this subject are collected in Fonblanque See, also, Eq. vol. i. b. 1, ch. 6, sec. 9, notes, s. t. Newland on Contracts, ch. 3, pp. 48-64. 2 Story on Equity, 99, 585-587, Burge's Com. on Colonial and Foreign Laws, vol. ii. 53– 57. 2 Jarman's Powell on Devises, ch. 4, p. 60. Leigh & Dalz. on Eq. Conversion, 48, &c. The constitution of New Jersey, in 1844, art. 4, sec. 7, prohibits the passing of any private or special law for the sale of lands belonging to any minor, or other persons under no legal disability to act for themselves. Before this constitutional provision, the legislature had the authority in its discretion, and the Court of Chancery had that authority in the case of infants and lunatics; and I presume it has it still. hill v. Snowhill, 2 Greene Ch. (N. J.) 20. If, under a power to sell real estate for certain Snowpurposes, a sale be made, and if there be a surplus undisposed of, it goes to the heir at law as real estate. Leigh & Dalz. on Conversion, 92. Estate of Tilghman, 5 Wharton, 44. Snowhill v. Ex'r of S., 1 Greene Ch. (N. J.) 30. The doctrine of equitable conversion, as applied to the change of real into personal estate, seems to rest upon the

fictitious character ceases when the party attains his majority and receives possession of the property. Forman v. Marsh, ubi supra.

5 Stanley's Appeal, 8 Barr, 431.

• Ex parte Jewett, 16 Ala. 409.

Worrell's Appeal, 6 Id. 508. S. C. 23 Penn. 44.

Troy v. Troy, 1 Busbee Eq. 85. This power is not inherent in the original jurisdiction of chancery, but is wholly derived from statutes. Baker v. Lorillard, 4 Comst. 257. Forman v. Marsh, 1 Kernan, 544.

7 Meakings v. Cromwell, 1 Seld. (N. Y.) 136.