Abbildungen der Seite

the controlling consideration. The courts consider, not only the fitness of the persons contending for the custody, but the condition and future prospects of the child, and the wishes of the child where it is old enough to decide intelligently.25

Where a divorce is granted either to the husband or to the wife, it does not follow as a matter of course that the complainant in the divorce suit is entitled to the custody of the minor children. Here, as in other cases, the best interests of the child will determine its custody.26

d. Parent's Right to Child's Services and Earnings. The father, and, by the weight of authority, the mother on his death, is entitled to a minor child's services and earnings, while the child lives with and is supported by them, and if he has not been emancipated.27 Since a parent is thus entitled to the earnings of his minor child, it follows that where he has not expressly or impliedly emancipated the child or consented to his receiving and enjoying his own earnings, he may maintain an action for the child's wages, notwithstanding payment to or a discharge by the child, against one who has employed the child, and the action is properly brought in the parent's name alone.28

e. Emancipation of Child. A child may be released from parental control, and become entitled to his earnings, in which event he is said to be emancipated. Emancipation may be effected: (1) By the consent of the parent, evidenced by written or oral agreement, or gathered from the circumstances; or (2) by operation of law (a) where the parent abandons or fails to support the child, (b) where the child contracts a valid marriage, either with or without the parent's consent, or (c) where the child attains his majority, which is at twenty-one years of age, or, in some jurisdictions, in the case of females, eighteen years; and (3) a parent, who, by his conduct, leads an employer of a child to believe that the child has a right to his earnings, and to pay the child, is concluded by the payment on the equitable principle of estoppel.2


The emancipation, if without consideration, may be revoked before it is acted upon by the child, but not afterward. If supported by a valuable consideration, or, at common law, if it is under seal, so as to require no consideration,30 it cannot be

25. See 29 Cyc. 1586 et seq.; Tiffany Pers. & Dom. Rel. 246.

26. See 14 Cyc. 805.

27. As to emancipation see infra,

§ 163, e.

28. See 29 Cyc. 1623 et seq.; Tiffany Pers. & Dom. Rel. 255.

29. Tiffany Pers. & Dom. Rel. 258; 29 Cyc. 1626, 1672 et seq.

30. As to the necessity of consideration and the effect of a seal see supra, 138.

revoked.31 Emancipation, as regards future services and earnings, is valid as against creditors of the parent.32

f. Action by Parent for Injuries to Child. Where a child is injured by the wrongful act or omission of another and the injury results in direct and proximate damage to the parent, the tort gives rise to two causes of action, one in the parent, and one in the child. The two causes of action are separate and distinct. The child cannot sue for the damage to the parent, nor can the parent sue for the damage to the child. Each must sue for his own damage, and neither action is a bar to the other. With respect to the parent's cause of action, the rule is that the father, or any other person standing in loco parentis, may maintain an action against the wrong-doer to recover for the resulting loss of service and incidental expenditures. In theory the action is based upon loss of service. The rules as to the necessity of showing the relationship of master and servant between parent and child to entitle the parent to sue may be stated thus:

(1) To recover for loss of service, the right to the child's services, and therefore the relationship of master and servant, actual or constructive, must be shown. The relationship exists constructively, if there is a right to service. Therefore: (a) If the child is a minor, living at home, service is presumed. (b) Temporary absence of the child from home will not prevent a recovery, if the parent has a right to its services. (c) By the weight of authority in this country, but not in England, the parent may recover if he has not relinquished his right to reclaim the child's services at any time, although the child, at the time of the injury, may be in the actual service of another, even with the parent's consent, and even though the child does not intend to return. (d) If the parent has relinquished his right to the child's services, he cannot recover on the theory of loss of service. (2) On the theory that loss of service at the time of action is the gist of an action by a parent for an injury to his child, it is held in England and in some of the United States that there can be no recovery at all where there has been no loss of service, as in the case where the child is too young to render any service; but, by the weight of authority in this country, there may be a recovery for incidental expenses in caring for the child, and there may be a recovery for prospective loss of services, however young the child may

31. See 29 Cyc. 1675; Tiffany Pers. & Dom. Rel. 263, 295.

32. See 29 Cyc. 1625.

be 33

33. Tiffany Pers. & Dom. Rel. 265; 29 Cyc. 1637 et seq.

At common law an action would not lie for an injury resulting in the immediate death of the child; but a right of action in such a case is very generally given by statute.34

g. Action by Parent for Seduction of Daughter. On the seduction or debauching of his daughter, resulting actually or constructively in loss of service, the father, or on his death the mother, or any one standing in loco parentis, has a right of action against the wrong-doer for the loss of service and incidental expenses. In such a case damages may also be given for all that the parent may suffer from the ruin of his daughter, the disgrace to his family, and the corrupting example to his other children. The same rules apply here as in the case of other injuries, as to the necessity to show that the daughter was in the actual or constructive service of the plaintiff at the time of the injury. But the necessity for loss of service has been dispensed with by statute in some States.35

h. Action by Parent for Abducting, Enticing, or Harboring Child. A parent, or any one standing in loco parentis, has a right of action for loss of services and incidental expenses against one who abducts or wrongfully entices away or harbors his child. The same rules apply here as in the case of an action by a parent for injuries to his child, as to the necessity to show actual or constructive loss of service.36

i. Parent's Rights in Child's Property. Apart from his child's earnings a parent, as such, has no rights in property acquired by the child. Whatever property a child may acquire in any manner, except as compensation for services rendered by him, belongs to him absolutely, and the parent has no claim to it.37

j. Gifts, Conveyances, and Contracts Between Parent and Child. Gifts, conveyances, and contracts between parent and child are as valid as if between strangers. But as a general rule, a gift or conveyance from child to parent, or a contract beneficial to the parent, is presumed to have been made under parental influence, and to be voidable by the child, if made before or shortly after attaining his majority; and the parent must show that there was no undue influence.38 And of course, gifts, conveyances, and contracts by a minor child are void or voidable at his option, on the ground of infancy, as in other cases.39

[blocks in formation]

k. Duty of Child to Support Parent. Although there is a strong moral obligation, a child is under no legal obligation at common law to support his parents, even though they are destitute and infirm. In some jurisdictions, however, the duty is expressly imposed by statute.40

1. Domicile of Child. The domicile of a legitimate child is originally that of its father, and, where the parent changes his domicile, the child's changes with it. The mother's domicile acquired after the father's death determines that of the child, except where she remarries, in which case the child's domicile continues as it was on the death of the father.41


§ 164. In General. A "guardian" is one who is intrusted by the law with the care of the person or estate of another who by reason of incompetency is disqualified from acting for himself. A person thus disqualified, by reason either of unsound mind, lack of age, or inexperience, and whose affairs have therefore been placed under the control of a guardian, is called a "ward." Guardianship may be over either the person or the estate of the ward. A guardian of the person has substantially the same rights over his minor ward as a parent has over his child, with the exception that he has no right to the ward's services or earnings. His duties correspond to those of the parent, except that he is not bound to support the ward. A guardian of the estate is a mere manager of the ward's property. He is bound, however, to support and educate the child out of the latter's estate. A guardian may be appointed to take charge both of the person and of the estate of a ward. The various kinds of guardians are as follows:

(1) Natural Guardians. The father, or, if he is dead, the mother, or, if both are dead, the next of kin, is the natural guardian of a child. A natural guardian is a guardian of the ward's person only, and not of his estate. 12

(2) Guardians in Socage. Guardianship in socage was where an infant acquired by descent land held in socage. The next of kin who could not possibly inherit became guardian, and had authority over the person of the infant as well as the land, and over personal property connected with it, but not over other personal property. On reaching the age of fourteen, the infant could select his own guardian, and terminate the guardianship. This

40. See 29 Cyc. 1619.

41. See 14 Cyc. 843-845. See also supra, § 61.

42. This form of guardianship takes the place of the similar but now


obsolete forms, "guardianship by nature" and guardianship for nurture." Tiffany Pers. & Dom. Rel. 296; 21 Cyc. 14, 15.

kind of guardianship is obsolete at common law, but there is a similar guardianship by statute in most jurisdictions.43

(3) Testamentary Guardians. By statute, a father, and in some states a mother, on his death, may, generally by will, and in some States by deed, appoint a guardian for a minor child. Such a guardianship extends to the person, and to the real and personal property of the ward, and continues until the ward's majority. Testamentary guardianship was created in England by the statute of 12 Car. II, c. 24, the provisions of which have been substantially enacted in many of the States in this country."


(4) Chancery Guardians. Courts of chancery, in the absence of statutory limitations, have jurisdiction to appoint guardians of the persons and estates of infants. In England chancery guardians were appointed by the court of chancery, and constituted the most important class of guardians. In this country courts of equity often retain a general jurisdiction over the persons and estates of infants, but, as a rule, the matter of guardianship is delegated by statute to the probate court, or other similar tribunal.45

(5) Statute Guardians. Guardians of the persons and estates of infants are generally appointed in this country by courts of special statutory jurisdiction, such as the probate, surrogate's, orphan's, or other similar court. Guardians appointed by these courts are now generally designated as "statute guardians," and form, in this country, by far the most important class.16

(6) Quasi-Guardians or Guardians by Estoppel. Such a guardian is one who, having no right to do so, assumes to act as guardian. When one who has not been regularly appointed a guardian assumes to act as such, or, by intermeddling, takes possession of an infant's estate, he may, at the election of the infant, be treated either as a wrong-doer or as a guardian.47

(7) Guardians of Persons Non Compos Mentis and Spendthrifts. Generally by statute, the probate or other similar court is given the power to appoint a guardian of the person and estate of persons who are non compos mentis, that is, of unsound mind. In some states the power is extended to include spendthrifts. Such a guardianship is governed by substantially the same rules as the guardianship of infants.48

(8) Guardians Ad Litem. Such a guardian is one appointed by a court of justice to prosecute or defend for an infant in a suit to which he is a party. Every court in which suit is brought

43. See 21 Cyc. 13; Tiffany Pers. & Dom. Rel. 297.

44. See 21 Cyc. 15; Tiffany Pers. & Dom. Rel. 298.

45. See 21 Cyc. 17; Tiffany Pers. & Dom. Rel. 300.

46. See 21 Cyc. 17, 23.

47. These are also called volunteer and de facto guardians. See 21 Cyc. 20; Tiffany Pers. & Dom. Rel. 301. 48. See 22 Cyc. 1139; and "Spendthrifts," Cyc.

« ZurückWeiter »