assert a right to the custody of the child as against a stranger. (a)

There are cases in which the courts of equity have regarded bastards as having strong claims to equitable protection, and have decreed a specific performance of voluntary settlements made by the father in favor of the mother of her natural child. (b) On the other hand, there are cases in which the courts of equity have withheld from the illegitimate child every favorable intendment which the lawful heir would have been entitled to as of course. Thus, in Fursaker v. Robinson, (c) a natural daughter brought her bill against the heir at law, to supply a defective conveyance from her father to her, but the chancellor refused to assist her, on the ground that she was a mere stranger, being nullius filia, and not taken notice of by the law as a daughter, and that the father was not under any legal obligation to provide for her as a child, though he might be obliged by the law of nature, and so the conveyance was voluntary, and without any consideration. This hard decision was made by Lord Cowper, in 1717; but the language of Lord Ch. J. King, in a subsequent case, to which I have just alluded, (d) is certainly

much more conformable to justice and humanity. "If a *217 man," says he, "does mislead an innocent woman, it is

both reason and justice that he should make her reparation. The case is stronger in respect to the innocent child, whom the father has occasioned to be brought into the world in this shameful manner, and for whom, in justice, he ought to provide." In Knye v. Moore, (e) the vice-chancellor, in pursuance of the doctrine of Lord King, assisted to uphold and enforce a deed by the father, making provision for the mother and his illegitimate children after his death. So, in Pratt v.

(a) Rex v. Cornforth, Str. Rep. 1162. A person standing in loco parentis has been allowed to maintain an action on the case per quod servitium amisit, for the abduction of his daughter's illegitimate offspring. Moritz v. Garnhart, 7 Watts, 302.

(b) Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432. Harten v. Gibson, 4 Desaus. Rep. 139. Bunn v. Winthrop, 1 Johns. Ch. Rep. 338.

(c) Prec. in Ch. 475. 1 Eq. Cas. Abr. 123, pl. 9. Gilb. Eq. Rep. 139. Gilb. F. R. 256.

(d) Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432.

(e) 1 Simons's & Stuart's Rep. 61.

Flamer, (a) a devise by the father to an unborn illegitimate child, in which the mother was described, was held valid; and there are other cases in which bequests by will, in favor of illegitimate children, have been liberally sustained. (b)

(a) 5 Harr. & Johns. Rep. 10.

(b) Beachcroft v. Beachcroft, 1 Madd. Rep. 234, Phil. ed. 430, London ed. Gardner v. Heyer, 2 Paige's Rep. 11. But in Wilkinson v. Wilkinson, before V. Ch. Bruce, 1842, a provision in favor of future illegitimate children was held to be clearly void. N. Y. Legal Observer, vol. i. 191. 1 Younge & C. Cas. in Ch. 657.

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; and this guardianship extends to the age of twentyone 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. (c) It would seem, there

(a) Co. Litt. 88, b. 3 Co. 37, b.

(b) Litt. sec. 123. Co. Litt. 87, b, 88. Hargrave's note, 12, No. 66. The King v. Thorp, 5 Mod. Rep. 221. Jackson v. Combs, 7 Cowen's Rep. 36. 2 Wendell's Rep. 153, S. C.

(c) Dagley v. Talferry, 1 P. Wms. 285. Cunningham v. Harris, cited in 3 Bro. 186. Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Miles v. Boyden, 3 Pick. Rep.

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 Georgia R. 401.

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

fore, 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, 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, (a) 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 the 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. (b) 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. (c) In De Manneville v. De Manneville, (d) Lord Eldon

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

(b) Macpherson on Infants, p. 61.

(c) 2 Fonb. Tr. of Equity, 235, note. Creuze v. Hunter, 2 Cox's Rep. 242. (d) 10 Vesey, 52. The principle recognized and enforced by the cases of Crenze 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 August, 1839, 8 Paige's Rep. 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. R. 435. See a case" Anonymous," 11 E. L. & E. 282.

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

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 his child, was unquestionably established. He admitted, however, that the jurisdiction was questioned by Mr. Hargrave; (a) but it was, on the other hand, supported with equal ability by M. Fonblanque. In the case of Wellesley v. Duke of Beaufort, (b) the lord chancellor, after a very able and thorough investigation, refused to restore 221 to a father the 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 1823, affirmed by the house of lords. The jurisdiction of chancery, and the fitness of its exercise in that instance, were finally established. (c)

*

(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

(a) Note 70 to Co. Litt. 89, a.

(b) 2 Russell's Rep. 1. Wood v. Wood, 5 Paige, 605, S. P.

(c) 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. 500. Colston v. Morris, 6 Madd. 89. Lyons v. Blenkin, Jac. 245.1 See, also, The Etna, Ware's Rep. 464, and Story's Com. on Eq. Jurisprudence, vol. ii. 574-581, (or, 1341-1351,) where the jurisdiction of the court of chancery on this subject is fully examined and sustained.

1 Vanartsdalen v. Vanartsdalen, 14 Penn. 384.