this respect. The examination of this point will lead us to review briefly the several kinds of guardians and their rights and duties, and then to consider especially the guardian's power with reference to the ward's domicil.

The law admits two general classes of guardians, those having the custody and care of the ward's person and those having the custody of his estate. The first class was known to the Roman law as tutors, the second as curators. Under the modified system of the common law, as it exists generally in England and the United States, there are three main classes of guardians: the guardian by nature, or natural guardian; the guardian by appointment of court, or the appointed guardian; and the testamentary guardian.

1. The guardian by nature has charge of the ward's person only, and the care of his education. The father is primarily the natural guardian of a legitimate child, or if he be dead, the mother, so long as she remains unmarried and is fit for the trust. If the child is illegitimate, the case is like that of a legitimate child whose father is dead; the mother is the natural guardian. If both parents be dead, then it seems, according to the common law, that any lineal ancestor of the minor to whom he is heir may be the natural guardian. The father has the first claim; the mother the second; and amongst more remote ancestors, such as grandparents, etc., he who first obtains possession of the infant, pursuant to the maxim, in æquali jure, melior est conditio possidentis.

2. The guardianship by appointment embraces both the care of the person and of the property of the ward. But it applies to the ward's person only in the event that there is no natural guardian. It must be observed that the appointed guardian,

2 See Jac. Dom. §§ 249 et seq.; Whart. Confl. L. §§ 41, 42; Dicey, Confi. L. 123.

8 Jac. Dom. § 245; 1 Minor's Insts. (4th ed.) 452; 1 Bl. Com. 461; Lamar v. Micou, 114 U. S. 218; Darden v. Wyatt, 15 Ga. 414. But see Marheineke v. Grothaus, 72 Mo. 204.

4 See 1 Minor's Insts. (4th ed.) 456-457; Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451. But see Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534.

even where there is no guardian by nature, has not the same ties of affection and influence to draw the ward to him as has the natural guardian, nor has he the same control over him in fact.5

3. Testamentary guardians are statutory guardians, depending for their authority upon the statutes of the various states. They are usually given control of the person and property of the ward. But, like an appointed guardian, a testamentary guardian does not supersede the natural guardian in the custody of the child's person, or the care of his education. Nor can he, in the nature of things, possess the same control over the ward that the parents would have.

In conclusion, it is proper to observe that, independently of statute, these guardianships terminate, as to male wards at twenty-one, and as to female wards at twenty-one or marriage." Even as to male wards, the common law seems to hold that marriage emancipates the person, but still leaves the property of the ward under the control of the guardian."

§ 41. Power of Guardian to alter Ward's Domicil. - From the brief summary, just given, of the various guardians, and remembering the principle that the law, in establishing a constructive domicil, looks to the actual probabilities of the case and the presumed choice of the incompetent party, as well as to the legal right to the custody and control of the ward, some deductions may be drawn of importance in the solution of the question, how far a guardian may influence the ward's domicil.

With respect to the natural guardian, united as he is to the infant by ties of parental love and obligation on the one hand, and filial dependence, respect, and duty on the other, it is not difficult to understand that all the presumptions of fact, as well as of law, are in favor of the general rule that the minor's domicil will be with the parent wherever he is, and will change with his. The infant is an integral part of his family. And

See Jac. Dom. §§ 251 et seq.

• Charlestown v. Boston, 13 Mass. 468, 472.

7 1 Minor's Insts. (4th ed.) 464. See Com. v. Graham, 157 Mass. 73, 75: Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.

1

such is the general rule, not only where the natural guardian is the father or the mother, but even in case of the grandparent also, at least where the infant actually resides with him." Hence, in the further consideration of this much vexed question we may eliminate from the discussion the right of the natural guardian to change the minor's domicil and confine our attention to the powers of the appointed and testamentary guardians in this respect, where there is no natural guardian.

Upon the rights of such guardians to change the ward's domicil during his minority there has been great division of opinion. Some courts have held that these guardians take in law the place of the parents of the infant, and succeed to all the powers of the parents amongst others, that of changing his domicil.8

Others have held with equal positiveness that the guardian's intentions or acts have no effect whatever upon the ward's domicil, which remains fixed where it was at the death of his last surviving parent or natural guardian.*

Some of the cases have made a distinction in this respect between testamentary guardians and those appointed by court,

1 Ante, §§ 37, 38.

2 Lamar v. Micou, 114 U. S. 218; Darden v. Wyatt, 15 Ga. 414; Kirkland v. Whately, 4 Allen (Mass.), 462; Dresser v. Illuminating Co., 49 Fed. 257; Jac. Dom. § 245. But see Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892.

8 Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534, 536; Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363, 365; Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451; White v. Howard, 52 Barb. (N. Y.) 294, 318; Woodworth v. Spring, 4 Allen (Mass.), 321. See Lamar v. Micou, 112 U. S. 452 ; Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254. These cases relate to national or quasi-national domicil. Other decisions hold that the guardian is permitted to change the municipal domicil of the ward. See Mills v. Hopkinsville (Ky.), 11 S. W. 776; Kirkland v. Whately, 4 Allen (Mass.), 462; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 25-26, 16 Am. Dec. 372.

4 Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896; Mears v. Sinclair, 1 W. Va. 185; Daniel v. Hill, 52 Ala. 430; Hiestand v. Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481. See Lamar v. Micou, 112 U. S. 452. As to municipal domicil, see School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525. See Jac. Dom. §§ 261 et seq.

permitting the change of the ward's domicil in the former case, but not in the latter. It is difficult to discover any valid basis for this distinction."

6

With regard to the ward's national or quasi-national domicil, since the guardian (whether testamentary or appointed) has no legal authority as of right over the person of the ward outside of the jurisdiction where he is appointed and qualifies as such, and since furthermore the ward is not generally in fact a member of his guardian's family, not expected and not intending to make his home permanently with him," it would seem reasonable to suppose that a change of such domicil on the part of the guardian would not ordinarily cause a corresponding change of the ward's.

But if the ward, as a matter of fact, is a member of the guardian's family, living with him as such, and actually removing with him to his new abode, his domicil, it is believed, will change with that of the guardian.

As between a natural and a testamentary or appointed guardian, it will be remembered that the legal custody of the infant's person belongs, by municipal law as well as by the law

5 Jac. Dom. § 260; Lamar v. Micou, 112 U. S. 452 (a dictum). The distinction rests upon this dictum of the Supreme Court, for which no reason is given and to sustain which only one case (Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 605, 28 Am. Dec. 451) is cited. The language of the latter case is applicable to all guardians. See contra, Mears v. Sinclair, 1 W. Va. 185.

Post, § 115. See Lamar v. Micou, 112 U. S. 452; Douglas v. Douglas, L. R. 12 Eq. 617, 625.

7 See Jac. Dom. § 251; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, 527.

Such were the facts in Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363; White v. Howard, 52 Barb. (N. Y.) 294, wherein it was held that the ward's domicil followed the guardian's. See also Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534, 536. But in Daniel v. Hill, 52 Ala. 430, where the same state of facts arose, the court decided against a change of domicil. So also in Mears v. Sinclair, 1 W. Va. 185, which was the case of a testamentary guardian. In Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451, the court refused to allow a testamentary guardian residing in another state to remove the wards from New York, where their mother lived. The language of the decision supports the proposition that a guardian may alter his ward's domicil, but the court clearly had in mind the state of facts referred to in the text.

of nature, to the former, so long as he remains fit for the trust. Hence we should expect to find that, so long as there is a natural guardian living, the child's domicil will follow his, rather than that of the testamentary or appointed guardian. And this conclusion is borne out by the cases."

It should be observed that the guardian herein alluded to, as competent to alter the ward's domicil with his own under certain circumstances, is the domiciliary guardian, the guardian appointed in the State where the ward is domiciled. If appointed in a State where the ward is resident, but not domiciled, his powers are strictly local. He may be able to change the ward's municipal domicil, but he cannot affect his national or quasi-national domicil.10

With respect to the municipal domicil of the ward, the guardian's power to alter or affect it is a matter of municipal law. It seems however to be generally conceded that the powers of the guardian in this respect, there being no natural guardian, 11 are much more extensive. There is indeed but little dissent from the proposition that a guardian may change an orphan ward's municipal residence whenever such a course is for the benefit of the ward, not necessarily, it seems, being confined in his choice to the place where he himself lives. 12

There are several reasons why the guardian's powers should here be extended. In the first place he has the powers of a guardian in every portion of the State of his appointment;` wherever he places the ward, he has the authority of guardian. This is not the case when he takes the ward to another State.18

9 Seiter v. Straub, 1 Demar. (N. Y.) 264; Sehool Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Kirkland v. Whately, 4 Allen (Mass.), 462; Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Ain. Dec. 451; Lamar v. Micou, 114 U. S. 218.

10 Lamar v. Micou, 112 U. S. 452.

11 In School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, it was held that a ward's personalty could not be taxed in the borough where the guardian lived, the ward residing with his mother in another borough.

12 Jac. Dom. § 257; Lamar v. Micou, 112 U. S. 452; Mills v. Hopkinsville (Ky.), 11 S. W. 776; Kirkland v. Whately, 4 Allen (Mass.), 462; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 25, 16 Am. Dec. 372.

18 Jac. Dom. § 261; Lamar v. Micou, 112 U. S. 452; Douglas v. Douglas, L. R. 12 Eq. 617.