THE LAW OF GUARDIAN AND WARD GUARDIANSHIP 1. Definitions. A guardian is one to whom the law entrusts the duties of caring for and protecting the person or property, or both, of a minor child. A ward is a minor child, the care of whose person or property, or both, is entrusted to another; one who is under guardianship by legal direction or appointment. 2. The Relation. - The law has created a power or protective authority over those whose weaknesses on account of their youth and feebleness of will incapacitate them from protecting themselves and acting for themselves in the matters which pertain to their affairs. This authority is called guardianship, and, while the term is usually applied to minor children, in which sense it forms the specific purpose in the present instruction, it is applied, also, to lunatics, habitual drunkards, and the like. When the care of one of these last named classes is imposed on another individual the latter is usually designated the committee of the one to be cared for.' The law of guardianship is most naturally divided into guardianship of the person, which is essentially that of parent and child, and guardianship of the estate, which answers the purpose of trusteeship, to the extent, at least, of the management of the property of the minor child. But 1 Schoul. Dom. Rel. (5th Ed.), Sec. 283. For notice of copyright, see page immediately following the title page this distinction does not prevent the same person from officiating both as guardian of the person and of the estate. So, too, they may be kept distinct, that is, there may be a guardian for the one purpose and a guardian for the other, or it may be only necessary to constitute a person the guardian to manage the minor's estate. Besides, as in other trusts, there may be joint guardians.' CLASSIFICATION 3. The simplest classification of guardians is into the natural, who is either the father or mother of the minor, and the appointed, or judicial, guardian, one named by the court on petition, as provided by statute. 4. Guardian by Nature and Nurture. The natural guardian of a minor-the only natural guardian possible-is the father, and, on his death, the mother.' This kind of guardianship belongs exclusively to the parents, and the rights and duties of the guardian by nature are the same as those of parent and child. In default of both parents, the natural guardian of a minor is the grandfather or grandmother. At common law, the parental control extends only to the person of the minor; the father as guardian by nature has no right to the personal or real estate of his child, except such as is given him by statute." Hence, when property becomes vested in the child, it is necessary to have a guardian appointed. 5. Guardian by Appointment. - The greater number of guardians, by far, are those appointed by court, in conformity with statutes by which their powers and duties are regulated. In the absence of special provisions, their rights. and duties are governed by the general legal principles applicable to the relation of guardian and ward.' Guardians commonly designated as statutory guardians, or guardians 2 Schoul. Dom. Rel. (5th Ed.), Sec. 283. 3 Co. Litt. 88 b. 4 See The Law of Parent and Child. 5 114 U. S. 218 (1884). by statute, are of two kinds, (1) those appointed by deed or will, and (2) those appointed by court in pursuance of some statute. 6. Testamentary Guardian. - A guardian appointed by the deed or last will of the father of a minor child is a testamentary guardian. He supersedes the claims of all other guardians and has control of the person and of the real and personal estate of the child until it reaches full age; in the case of a male ward the guardianship continues during the ward's minority whether he marry or not. In England, the power and appointment of testamentary guardians is of statutory creation," and it has been extensively adopted in the United States, although, in some states, the appointment is limited to the will of the father. Under it, the father might thus dispose of his children, born or unborn, but not of his grandchildren; nor does it matter whether the father be a minor or not." 7. Guardian by Chancery. The guardian by chancery is unknown to the common law; it is the creation of statute and is well established in practice. In England, by virtue of the sovereign power of the king as father of his country, having the power of guardianship over persons under disabilities, the sovereign is presumed to have delegated to the chancellor, the officer appointed to preside over a court of chancery, the prerogative or power to appoint a guardian where there is none. The chancellor, likewise, exercises a superintending control over all guardians, however appointed, removing them for misconduct and appointing others in their stead, but only, it is said, where the minor has property." In the English practice, chancery guardians have assumed such. importance as almost to supersede the other kinds, except, perhaps, the testamentary guardian. An infant is constituted a ward in chancery whenever any one brings it in as a party plaintiff or defendant by a 888 Ga. 722 (1891). 9 Reeve Dom. Rel. 328. 10 12 Car. II, c. 24. 12 Bouv. Law Dict., citing Co. Litt. 89; 1 P. Wms. (Eng.) 703 (1721); 2 Kent's 11 Bouv. Law Dict., citing 7 Ves. (Eng.) 715 (1802); 5 Johns. (N. Y.) 278 (1821). bill in equity asking the directions of the court concerning its person or estate, or the administration of property in which it is interested." If an action be commenced in the name of an infant who has property, if an order be made on petition or summons for the appointment of a guardian, if an order be made in like manner for maintenance, or if a fund belonging to an infant be paid into court under the acts for the relief of trustees, such infant becomes a ward in chancery." In the United States, this power resides in courts of equity," but more commonly, by statute, in probate or surrogate courts.1o 17 8. Guardian in Socage. - Guardianship in socage is a trusteeship at common law as an incident to lands held by socage tenure.' It occurs where an infant under fourteen is seized, by descent, of land or other hereditaments holden by that tenure, and is conferred upon the next of kin to the infant who cannot possibly inherit the lands from it. Such guardian was guardian of the person of his ward as well as of his real estate; although the guardianship of the person did not arise unless the infant were seized of lands held in socage, yet when it did arise it extended to hereditaments which do not lie in tenure and to the ward's personal estate." The duties of a guardian in socage, besides caring for his ward and bringing it up well, include the receipt of the rents and profits of the real estate of his ward, until the latter reaches the age of fourteen years, when the ward can supersede him by a guardian of his own choice." Guardianship in socage has almost passed out of use, even in England, although there are still traces of it in some of the United States, notably in New York and New Jersey." Generally, in the United States, the rights and duties of such guardians are fulfilled by the ordinarily appointed, or judicial, guardians. 13 Macph. Inf. 103, cited in Schoul. Dom. Rel. (5th Ed.), Sec. 288. 14 Bouv. Law Dict., citing Brett L. Cas. Mod. Eq. 95; 1 Black. Comm. (Sharsw. Ed.), p. 462, note 8. 151 Johns. Ch. (N. Y.) 99 (1814). 162 Kent's Comm. 226; 30 Miss. 458 (1885). 18 Co. Litt. 87, 89, and note. 19 138 N. Y. 333 (1893). 205 Johns. (N. Y.) 66 (1809); 105 N. Y. 560 (1887). 9. Guardian ad Litem. - Minors are frequently interested in lawsuits or cases in the courts. As a minor, by itself, cannot prosecute or defend, it becomes necessary to have a person appointed to act for it and look after its interests in litigation. These persons are differently designated, according to the position of the minor in the suit. A guardian ad litem is a person appointed by the court to manage the defense of a minor in a lawsuit, or to protect its interests whenever they are concerned, though the suit be brought by a third person. Such guardian is regularly appointed by the court on motion; but it is frequently done without motion, the court instructing the court clerk to enter on the docket the name of some person to officiate in that capacity. And when a suit is instituted directly in behalf of a minor, it must be brought by or through its next friend, designated technically by the old French law term prochein ami. |