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a guardian, the guardian in socage continues." The common law, like the law of Solon,b was strenuous in rejecting all persons to whom the inheritance might possibly arrive, and its advocates triumph in this respect over the civil law, which committed the burden of the guardianship to the person who was entitled to the emolument of the succession. As we have admitted the half blood to inherit equally with the whole blood, this jealous rule would, still more extensively with us, prevent relations by blood from being guardians in socage. The law of Scotland, and the ancient law of France, took a middle course, and may be supposed, in that respect, to have been founded in more wisdom than either the civil or the common law. They committed the pupil's estate to the person entitled to the legal succession, because he is most interested in preserving it from waste; but excluded him from the custody of the pupil's person, because his interest is placed in opposition to the life of the pupil. And yet, perhaps, the English, the Scots, and the French laws, equally proceeded on too great a distrust of the ordinary integrity of mankind. They might, with equal propriety, have deprived children of the custody and maintenance of their aged and impotent parents. It is equally a mistake in politics and in law, to consider mankind degraded to the lowest depths of vice, or to suppose them acting under the uniform government of virtue. Man has a mixed character, and practical wisdom does not admit of such extreme conclusions. The old rule against committing the custody of the person and estate of a luna tic, to the heir at law, has been overruled as unreasonable. If a presumption must be indulged, as was observed
a Andrews' Rep. 313. The King v. Pierson.
b Potter's Greek Antiq. vol. i. p. 174.
c Co. Litt. 88. b. 1 Blacks. Com. 462.
d Erskine's Inst. p. 79. Hallam on the Middle Ages, vol. 1. 100.
c Dormer's case, 2
Jons. Ch. Rep. 426.
P. Wms. 262. In the matter of Livingston, i
in one of the cases, it would be in favour of kinder treatment, and more patient fortitude, from a daughter, as committee of the person and estate of an aged and afflicted mother, than from the collateral kindred. The fears and precautions of the lawgiver on this subject, imply, according to Montesquieu, a melancholy consciousness of the corruption of public morals.a
This guardianship is a personal trust, and is not transmissible by succession, nor devisable, nor assignable. It extends, not only to the person, and all the socage estate, but to hereditaments, which do not lie in tenure and to the personal estate. This is the opinion of Mr. Hargrave, and he supports it by strong reasons ; notwithstanding, it is admitted, that the title to guardian in socage cannot arise unless the infant be seised of lands held in socage. This guardianship in socage may be considered as gone into disuse, and it can hardly be said to exist in this country, for the guardian must be some relation by blood who cannot possibly inherit, and such a case can rarely exist.
(4.) Testamentary guardians, 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 to constitute a guardian by will, was given by the statute of 12 Charles II., and it has been adopted in this state, and, probably, throughout this country. 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, as such a deed is ambulatory and revocable during the testator's life, it is nothing more than a testamentary instrument in the form of a deed. The better
a Esprit des Loir, liv. 19. ch. 24.
b Note 67. to lib. 2 Co. Litt.
e. Lanos of N. Y. sess. 36. ch. 23. scę. 15.
opinion is, that such a testamentary guardian will continue till the age of twenty-one, though the infant be a female, and marry in the mean time, 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,a that it had been so adjudged in Lord Shaftesbury's case. But in the subsequent case of Roach v. Garvan, the 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 would require a special order in chancery to do it. 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 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.d
(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 this state, and by courts of similar character, and having jurisdiction of testamen.
a 1 Ves. 89. 4 Atk. 619.
b 1 Vesey, 160.
o 4 Johns. Ch. Rep. 380. In the Matter of Whitaker.
d Reeve's Domestic Relations, p. 328.
tary matters, in the other states of the Union.
tary 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 father, is a branch of his general jurisdiction over minors and their estates, and that jurisdiction has been long and unquestionably settled.a 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. Though the surrogate is authorized by statute 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; yet the surrogate's power extends only to the appointment of the guardian. The general jurisdiction over every guardian, however appointed, resides exclusively 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 that court.d
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 case of idiots and lunatics, there may be one committee of the
a Harg. n. 70. to lib. 2 Co. Lill. 2 Fonb. Tr. Eq. 228. ̧n, 10. Vesey, 63.
b In the Matter of Nicoll, 1 Johns. Ch. Rep. 25.
e Laws of N. Y. sess. 36. ch. 79. s. 30.
d In the Matter of Andrews, 1 Johns. Ch. Rep. 99. Ex parte Cramb, 2 Johns. Ch. Rep. 439. Duke of Beaufort v. Berly, 1 P. Wms. 702.
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
The guardian of the estate has no further concern with, or control over, the real estate, than what relates to the rents and profits. He may lease it during the minority of the ward, and no longer, 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. Whenever it becomes necessary, in this state, to have the real estate of an infant sold, there must be a guardian specially appointed for that purpose, and the infant is declared, in such cases, to be deemed, in regard to that property, a ward of the court.d But the provisions of this act do not apply 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.e
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.f
The guardian's trust is one of obligation and duty, and not of speculation and profit. He cannot reap any benefit
a Genet v. Tallmadge, 1 Johns. Rep. 561.
Doe v. Hodgson, 2 Wils. 129. 135. Field v. Scheffelin, 7 Johns. Ch. Rep. 154.
c7 Johns. Ch. Rep. 150. Field v. Scheffelin. Ellis v. Essex M. Bridge, 2 Pickering, 243.
d Laws of N. Y. sess. 38. ch. 106.
e Matter of Whitaker, 4 Johns. Ch. Rep. 378.
f Harg. note 70. and note 220. to lib. 2 Co. Litt. Carth. 255. Huckle v. Wye.