ward, the guardianship continues as to his estate, though it has been thought otherwise as to his person. (a) 1

1

(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and by socage, seems now to be lost or gone into oblivion, and those several kinds of guardian have become essentially superseded in practice by the chancery guardians, or guardians appointed by the court of chancery, or by the surrogates in the respective counties of New York, and by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 of testamentary matters, in the other states of the Union. (b) 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. (c) 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 *227 fourteen. (d) If there be no testamentary guardian, the

(a) 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. Vanderlinden's Inst. b. 1, ch. 5, sec. 7.

(b) 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 court 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.

(c) 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 being dead, is, (1.) to the mother, if unmarried, (2.) the paternal, and (3.) the maternal grandfather, (4.) to 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.

(d) In the matter of Nicoll, 1 Johns. Ch. Rep. 25. N. Y. Revised Statutes, vol. ii. p. 151, sec. 10. In Maryland, it is provided by statute that infant females, at the age

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 v. Schwenck, 14 Mees. & Wels. R. 488.

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 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. (b)

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. Jacquin, 5 Harr. & Johns. Rep. 100. She cannot execute a release to her guardian under the age of twenty-one. Fridge v. The State, 3 Gill & Johns. Rep. 103.1

(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.

(b) In the matter of Andrews, 1 Johns. Ch. Rep. 99. Ex parte Crumb, 2 Johns. Ch. Rep. 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. Rep. 156. Sabin v. Gilman, 1 N. H. Rep. 193. Armstrong v. Lear, 12 Wheaton, 169. Story's Com. on the Conflict of Laws, § 494, et seq. 594.2 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 sita. Story, ibid. § 504. But a guardian may change the domi

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

2 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. 36.

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.

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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

cil 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 Merivale's Rep. 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. Rep. 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 declare 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 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.

(a) Genet v. Tallmadge, 1 Johns. Ch. Rep. 561. Jones v. Ward, 10 Yerger, 160.

at the present day. (a) He may lease during the minority of the ward, and no longer, (b) but he cannot sell without the authority of the court of chancery. He may sell the personal estate for the purposes of the trust, without a previous order of the court. (c) 1 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. (d) 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 ordi

(a) Shopland v. Ryoler, Cro. J. 98. Byrne v. Van Hoesen, 5 Johns. Rep. 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 Iredell, 389,) whose courts follow more strictly the English law, and are less influenced by American state decisions than perhaps any state in the Union.

(b) Roe v. Hodgson, 2 Wils. 129, 135. Field v. Schieffelin, 7 Johns. Ch. Rep. 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 nis own guardian, and it may be avoided by the subsequent guardian chosen by the infant. Snook v. Sutton, 5 Halsted, 133.

(c) Field v. Schieffelin, 7 Johns. Ch. Rep. 150. Ellis v. Essex M. Bridge, 2 Pick. Rep. 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.

(d) N. Y. Revised Statutes, vol. ii. p. 194, sec. 170-180. Act of congress of March 3d, 1843, ch. 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 Maxsom v. Sawyer, 12 Ohio R. 195.

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

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narily 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 intended for their better maintenance and education, and not that the proceeds should be placed at the disposition of the husband. (a)

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

(a) Matter of Whitaker, 4 Johns. Ch. Rep. 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 Whitaker was made. The language of the statute is sufficiently comprehensive 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 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 thé 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. Conner, 1 Harris & Gill, 220.

'Mathewson v. Sprague, 1 Curtis, 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. L. & Eq. 487. 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.

2 Dietterich v. Heft, 5 Barr's R. 87. Clowes v. Van Antwerp, 4 Barb. S. C. Rep. 416. Lefevre v. Laraway, 22 Barb. 168. Kennard v. Adams, 11 B. Mon. 102. Sparhawk v. Allen, 1 Foster, (N. H.) 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.