maintenance. In fact, as a usual rule, he performed his duty when he paid over the income of the property he had in charge to the immediate friends of the ward. His misconduct in the main was that of a defaulting trustee. An accusation against

him was open to any one, even to the female relatives, who might strive to save a youth from suffering harm "without seeming to be more forward than becomes their sex."

SECTION II. The different Kinds of Guardians in English and American Law. - Guardians are of various sorts; they may be classified under two general heads: first, those created by a mere rule of law; second, those appointed by some lawful authority. Those of the first class are: (1) guardians by nature; (2) by nurture; (3) in socage; (4) by estoppel. Those of the second class are: (1) testamentary guardians; (2) guardians appointed by the court of chancery; (3) probate or surrogate's guardians; (4) guardians ad litem and special guardians.

Guardians created by law. —(1) Guardianship by nature is another expression for the authority of the father. He has the care of the child's person, but not necessarily of his estate. This guardianship at common law was confined to the heir apparent. (2) Guardianship by nurture extended to the other children, but did not last beyond the age of fourteen. The mother would be entitled to this form of guardianship in case of the father's death. It was also confined to the person, and did not include the child's estate.

There is no basis for drawing these distinctions in this country, since all the children are equally "heirs apparent.

(3) The phrase in socage is a technical expression, referring to one of the principal tenures of land under the feudal system in England. While that system prevailed, land was held in England from some superior lord under two principal tenures; one was military, called "knight service;" the other was non-military, requiring fixed and certain services, called "socage." The former was highly favorable to the guardian, and very burdensome to the ward; the other was designed for the benefit of the ward, and the guardian corresponded to our modern notion of a trustee. The former continued until the ward was twentyone years of age; the latter, until he was fourteen. At the time of the English rebellion nearly two thirds of the land was held under the military tenures. These became extremely unpopular as being oppressive and unjust, and were abolished in 1660, at the time of the restoration of Charles II. (12 Car. II. c. 24, 1660), and all land then subject to military tenures was thenceforth held in free and common socage. From this time

forward, guardianship ceased to be a method of transferring the rents and profits of land to the pocket of the guardian for his own use, and became a trust enforceable like other trusts in the Court of Chancery.

The leading rules governing guardianship in socage are

1. It must be committed to a relative who can by no possibility inherit the land under guardianship in case of the ward's death. This rule is founded on the supposition that a relative who could inherit might be induced to take the ward's life. The old proverb was, "One must not commit the lamb to the wolf to be devoured." The courts formerly held that the rule was based on sound policy and humanity. The modern view is that it is the product of unnecessary suspicion and of too low a view of the motives of the average man. It could not well exist in a country like ours, where all of one's blood relatives may by possibility inherit, and it has accordingly been discarded.

2. This guardianship only exists when the ward has real estate. Still, if he also has personal property, that will be

included. (a)

3. It regularly continues until the ward is fourteen, when he may call the guardian to account. Still, if no other guardian be appointed, it may tacitly continue until the ward is twenty

4. It is a personal trust, and cannot be assigned by the guardian to another.

In New York this form of guardianship is regulated by statute. This statutory guardianship is more extensive than at common law, that being confined to lands acquired by descent. At common law, as applied to our rules of inheritance, a father could not be guardian in socage to his child, as he may inherit from him; under the statutes he may be." He may lease the land to a tenant so long as he continues guardian, the lease

1 Dormer's Case, 2 P. Wms. 262. 2 Byrne v. Van Hoesen, 5 Johns. 66; Emerson v. Spicer, 46 N. Y. 594, 596; Jackson v. Combs, 7 Cow. 36.

The guardianship vests by a rule of the statute, (1) in the father; (2) if there be no father, in the mother; (3) in default of a parent, in his nearest and eldest relative of full age, not being under legal incapacity. Where several relatives are of the

(a) Cf. Foley v. Mut. Life Ins. Co., 64 Hun, 63.

being defeasible on the appointment of another guardian and his election to avoid it. The powers of the guardian are also pointed out in the statutes.2

(4) The meaning of the expression guardianship by estoppel is, that a person who is not a guardian may so interfere with the estate of an infant as to be prevented from denying that he is a guardian. He sustains the liabilities of a guardian without being a guardian in truth. The object of this rule is to give the infant the same remedies against such a person as he would have against a guardian. He can accordingly be regarded as having acted in a fiduciary character. Still, he may be treated by the infant as a mere wrong-doer, so that the result is that the infant has an election to treat him as a guardian or as a wrong-doer.3 If several persons jointly take the profits of the infant's land without authority, the accounting should be had against them as if they had been joint guardians.4

Guardians appointed. (1) Testamentary guardians did not exist at common law, but originated in the English statute before referred to.5 It grew out of the abolition of the military tenures. The lands having been converted into socage tenure, minors came to have power to control their estates at the age of fourteen. As too much liberty was thought likely to be injurious, it was deemed wise to limit their power by authorizing fathers to appoint guardians by will or instruments of that nature. The Court of Chancery does not appear to have exercised the power of appointment of guardians until 1696. Since that time its jurisdiction has been constantly resorted to, while the testamentary guardianship also exists, at least in some of our States. The substance of the English statute is, that a father, whether of full age or a minor, may by deed or will dispose of the custody of his children during their minority or for a shorter period to any person either "in possession or remainder," and that this guardian shall be entitled to take the rents and profits of the ward's land for the latter's benefit while the guardianship continues, and also to have the custody and management of his personal estate.

These words of the statute permit the father, in case he appoints

1 Emerson v. Spicer, 46 N. Y. 594. 2 See in New York, 2 R. S. 153, §§ 3 and 20.

8 Van Epps v. Van Deusen, 4 Paige, 64; Sherman v. Ballou, 8 Cow. 304; Blomfield v. Eyre, 8 Beav. 250; Boddy v. Lefevre, 1 Hare, 602 n., and cases cited. Wyllie v. Ellice, 6 Hare, 505.

5 12 Car. II. c. 24, §§ 8, 9. This statute was drawn by Lord Chief Justice HALE. See Eyre v. Shaftsbury, 2 P. Wms. 102, 125.

6 The expression "remainder " means, "to commence at his death or at a later day."

two or more guardians, to authorize a survivor to appoint another in place of one deceased.1 The statute does not include illegitimate children. The mother of such a child has no power to act under the statute.3

The power of this kind of guardian is that of a guardian in socage. He is entitled to the custody of his ward, even as against the mother (subject to the discretion of the court), and may resort to a writ of habeas corpus to obtain possession of the ward's person in the same general way as a father may.5 (a)

A testamentary guardian is not regularly required to give security, the rule being that "he whom the father has trusted may be trusted by the court."6 Where there are suspicious circumstances, security will be required, and modern decisions in England have placed them nearly on a footing with other guardians.7

8

The court does not remove a testamentary guardian without cause. The English statute of 12 Car. II. is substantially re-enacted in New York. The power would not exist without a statute. The statute is intended solely for wills or deeds of residents, and is strictly local. The further provision is made that if the father be dead, having made no appointment, the mother may constitute a testamentary guardian, 10 and, if she survive her husband for one year, may displace by deed or will a testamentary guardian appointed by him. 11

A law of 1862 required the assent of the mother to a valid appointment by the father. 12 This rule has not been expressly repealed, though it has been held to be repealed by implication by the law of 1871, referred to in the note. 13 A married. woman has no power by deed or will to appoint her husband testamentary guardian of her children. 14

The Code of Civil Procedure provides detailed regulations for recording these appointments, - the "qualifications" of such a guardian, the special cases where security will be required for an

inventory of assets, for the judicial settlement of his accounts, his removal from office, his resignation, and the appointment of a successor.1

A grandfather cannot appoint a guardian to his grandchild. Accordingly, if he direct in his will that the rents and profits of land be applied by his executors to the education of his grandchild during his minority, the executors and not the guardian appointed by the court are entitled to apply the rents and profits according to the will.2

(2) General guardians appointed by the Court of Chancery constitute a second class of guardians by appointment. The Court of Chancery, in England, exercises this power on an assumed delegation of authority from the king as parens patria. There are several matters deemed to be under the care and superintendency of the king,- such as charities and the custody of idiots, lunatics, and infants. The king is supposed, under this doctrine, to have the care of all such persons as are not able to care for themselves.3

This authority of the court over infants must be considered to have existed from its origin. Though taken away for a time by the statute which created the Court of Wards and Liveries, yet when that court was abolished, in 1660, the authority returned, though its exercise was for a time dormant.

A court of equity in this country would have the same power as the Court of Chancery in England. In a number of the States the jurisdiction in law and equity is in the same court. This, in New York, is the Supreme Court. There are two classes of cases needing distinct consideration: one is where the infant is under fourteen; and the other, where he is fourteen and upwards.a In the first class of cases the jurisdiction of the court is broad and practically unlimited. The relatives have no control. They attend on an application for an appointment merely to give the court information of the fitness of a person to be selected by itself and to protect the infant's interests. The court in making an appointment will consider the welfare of the child, his

5

1 Code of Civ. Pro. §§ 2851-2860, both the origin of the jurisdiction of the court inclusive.

2 Fullerton v. Jackson, 5 Johns. Ch. 278; Hoyt v. Hilton, 2 Edw. Ch. 202.

8 Cary v. Bertie, 2 Vern. 333; Eyre v. Shaftsbury, 2 P. Wms. 102, 119; Butler v. Freeman, Ambler's R. 301; per LORD HARDWICKE. Mr. Hargrave in a note to Coke upon Littleton, 88b, regards the explanation given in the law books as to

as unsatisfactory, and deems it as an usurpation which was generally acquiesced in from the necessity of the case, the first authentic instance of appointment being in Hampden's Case, in 1696.

See, for the mode of appointment and other matters, Rules 52, 53, 54, and 59 of the Supreme Court of New York.

6 Underhill v. Dennis, 9 Paige, 202.