CHAPTER THE SEVENTEENTH.

OF GUARDIAN AND WARD.

THE only general private relation now remaining to be

discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent, that is, for so long time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law and lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.

1. THE guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the person, the curator the committee of the estate. But this office was frequently united in the civil law; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.

a Ff, 26, 4, 1.

Or the several species of guardians, the first are guardians by nature: viz. the father and (in some cases) the mother of the child. For if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits b (1). And, with regard to daughters, it seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a guardian to any woman-child under the age of sixteen, and, if none be so assigned, the mother shall in this case be guardian. There are also guardians for nurtured; which are, of course, the father or mother, till the infant attains the age of fourteen years and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education. Next are guardians in socage, (an appellation which will be fully explained in the second book of these commentaries,) who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian 8. For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust. The Roman laws

(1) But an executor is not justified in paying to the father a legacy left to the child; and if he pays it to the father, and the father becomes insolvent, he may be compelled to pay it over again. 1 P. Wms. 285.

proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be "summa providentiai." But in the

mean time they seem to have forgotten, how much [462] it is the guardian's interest to remove the incum

brance of his pupil's life from that estate for which he is supposed to have so great a regardk. And this affords Fortescue, and sir Edward Cokem, an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is " quasi agnum committere lupo, ad devorandum3 (2)." These guardians in socage, like those for nurture, continue only till the minor is four

i Ff. 26. 4. 1.

k The Roman satirist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian; -pupillum o utinam, quem proximus haeres Impello, expungam. Pers. 1. 12.

1. c. 44.

m 1 Inst. 88.

n See Stat. Hibern. 14 Hen. III. This policy of our English law is warranted by

the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1. c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's rela tions, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Leg. Att. I. 6. t. 7.)

(2) Lord chancellor Macclesfield has vehemently condemned the rule of our law, that the next of kin, to whom the land cannot descend, is to be the guardian in socage; and has declared that "it is not "grounded upon reason, but prevailed in barbarous times, before the "nation was civilized." 2 P. Wms. 262. But as the law has placed the custody of the infant under the care of one who is just as likely to be in a near degree of kindred as the heir; one who probably will have the same affection for his person, without having any interest in even wishing his death, and therefore removed from all suspicion, however ill-founded; I cannot but think there is more wisdom in placing the infant under the guardianship of such a relation, than under that of the next heir.

A socage guardian can only be where the infant takes lands by descent. If he has lands by descent both ex parte paterna and ex parte materna, then the next of kin on each side shall, respectively, be guar

teen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do, unless one be appointed by the father, by virtue of the statute 12 Car. II. c. 24. which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty-one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn,' to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years (3). These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London, and other places; but they are particular exceptions, and do not fall under the general law.

THE power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them but shall only add, that the guardian, when the ward comes of age, is bound to give

o Co. Litt, 88.

dians by socage of these lands; and of these two claimants the first occupant shall retain the custody of the infant's person. See Mr. Hargrave's notes to Co. Litt. 88. b. where these different kinds of guardianship are with great learning and perspicuity discriminated and discussed.

(3) By this statute, the father may dispose of the guardianship of any child unmarried under the age of twenty-one, by deed or will, executed in the presence of two or more witnesses, till such child attains the age of twenty-one, or for any less time. And the guardian so appointed has the tuition of the ward, and the management of his estate and property.

A father cannot appoint guardians under this statute to a natural child; but where he has named guardians by his will to an illegitimate child, the court of chancery will appoint the same persons guardians without any reference to a master for his approbation. 2 Bro. 583.

him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes will proceed to the removal of him, and appoint another in his stead P.

2. LET us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven years of age may be betrothed, or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's

p 1 Sid. 424. 1 P. Will, 703.