Contracts, which have been entered into betwixt parents and their children, soon after they have come of age, are always viewed in chancery with a jealous eye, when the parent has the advantage in the bargain. In 1 Ves. 400, there is a case, in which it is difficult to discover any fraud, where the mother and the child came to an agreement respecting the personal property of the husband of the mother, and father of the child; by which agreement, the child took £10,000, in full of her share of her father's estate. She, afterwards, married. It appeared, upon the settlement of her father's estate, that there was a very great disparity betwixt the share of the mother, and that of the daughter; for, what the daughter did not take, the mother took by the agreement. The daughter, with her husband, filed their bill in chancery, to be relieved against this contract, and the court set it aside. It is not pretended, that there was any direct fraud; and it is difficult to see any thing in the case, more than a bargain of hazard. There was nothing from whence to conclude, that the mother knew any thing more respecting the state of the property, than the daughter: But the case must have proceeded on the ground, that, probably, the mother might have known. more what would be the probable result, than the daughter did; and that she concealed this supposed knowledge, which she ought to have disclosed. Relief, in this case, was given, on the same ground that relief would have been given, where there is no such relation as there is here, of parent and child; viz. on the ground of a fraudulent concealment: yet, if there had been no

such relation, and the circumstances had been the same, 307 the court would not have considered it sufficient proof of a fraudulent concealment.

The relation of parent and child, is not, of itself, a sufficient ground for the interposition of a court of chancery; but unquestionably, chancery will set aside a contract, when this relation exists, on evidence of fraud, or taking an undue advantage,more slender than would be required in other cases. Lord Hard

tlements, 42, 45; Cape v. Adams, 1 Desaus. Ch. Rep. 567; Tubb v. Archer, and Randolph v. Randolph, 3 Hen. and Munf. 399. This is now questioned. 2 Kent's Com. In Milner v. Lord Harewood, 18 Ves. 259, it was held that a female infant was not bound by an agreement to settle her freehold estate on marriage, without an option, when she arrived at her majority, to avoid the settlement. A jointure, or other equitable provision, settled upon an infant as a jointure, is a good bar of dower. Drury v. Drury, 1 Eden's Rep. 39; M'Cartee v. Teller, 2 Paige's Ch. Rep. 511.

wicke, in a case, 2 Atk. 258, says, this is a case of a conveyance, obtained by the father from his child; and, when that is the case, says he, it is a strong circumstance to induce the granting of relief. There is a case in 2 Atk. 160, where the doctrine is maintained, that a beneficial bargain, obtained by a parent from a child, will be set aside, on slender evidence of fraud or imposed hardship. In 3 Bro. in Can. the father had a life estate of real property, of which his son was owner in fee in remainder. The son was poor, and actually dependent on the father. The father, by threats and promises, induced his son to convey his estate in the remainder to him; stating, falsely, that there was a consideration of £1000, which the son owed to him; for no debt was due from the son to the father. The son died; and the person who claimed under him, brought a bill to set aside the conveyance of the son to the father, which was accordingly done. The relationship must have been the sine qua non of that decree; for, however fraudulent it might be in another case, such decree could not have been made. Suppose A should prevail upon B to convey to him, under such false statement of a debt, it would be a valid conveyance betwixt A and B: although fraudulent as to creditors: and if B were dead, and his right had descended to C, C would be in no better situation than B. It was an essential ingredient in the case, that the contract was between the father and child. Where the influence of the father has 308 been exerted to procure a reasonable family settlement, or to prevent a son from ruining himself by his extravagance, chancery will not interfere, by setting aside contracts that have such beneficial tendency. 2 Atk. 85. Bro. in Can. 369. When a parent purchases an estate in the name of his child, this is considered as an advancement of the child, and as his property; there being no resulting trust for the benefit of the father. The law, in this respect, betwixt the father and the son, is different from what it is betwixt a purchaser and a stranger, where the purchase is made in the stranger's name: As where the stranger purchases in his own name, with the money of another person. In the latter case, a trust will result to the person who paid the money; and this trust may be proved by parol testimony. Being a resulting trust, it is not within the statute of frauds and perjuries. Pre. in Can. 84, 133. 1 Vern. 366. 2 Vern. 480. 2 Atk. 74.

Lord Hardwicke lays it down as law, that parol testimony may be admitted, to show the mean circumstances of the man, in whose name the purchase is made, whence to infer a trust. 2 Atk. 71. Whatever doubts may have been entertained on this sub

ject, the case of Linch v. Linch, in 10 Ves. jun. 311, seems to have dissipated them. The Master of the Rolls held, that, in such cases, parol evidence was clearly admissible; and said, that it was now settled, that in such cases, money may be followed into the land, in which it is invested; and a claim of this sort may be supported by parol testimony. The equitable presumption is, that he who was owner of the money, is entitled to the land purchased; and that the person to whom the legal title is conveyed, is a trustee of this title for him. But the equity, in

this case, as in all others, may be rebutted by parol testi309 mony, showing that it was the intention of the owner of the

purchase money, that he to whom the conveyance was made, should take, beneficially for himself, discharged of all trust. 10 Ves. jun. 360. Sugden's Law of Vendors and cases there cited, 418. This doctrine does not apply to the case where a man employs another to purchase for him, and the agent purchases; but no part of the purchase money is paid by the employer; and there is no written agreement. The employer, in such case cannot compel the agent to convey to him; for such a contract is void, by the statute of frauds. The case of a purchase by a pa. rent, in the name of a child, is altogether different from the cases before stated. In such case, there is no resulting trust. The conveyance, is, in law, deemed a gift to the child. Even if the child be illegitimate, and is not provided with property, the presumption is, that, as the parent is bound to provide for the child, he so intended. And, when the purchase money is not all paid in the life time of the father, his personal estate must pay it, for the benefit of the child. Sugd. 420. If the child had been advanced, (no expectancy is to be considered as an advancement, and when the child has not his full share of his parent's estate, he is not advanced,) he will be considered as a trustee for the parent; or, if the parent can show, in any case, that he intended that the child should be considered as a trustee, he shall be so considered. Sugd. 421. East, 260. Ld. Ray, 994. It has been supposed, that the parent's continuing in possession after the child came of age, was proof that the child was a trustee for the fa ther. This idea is now exploded. 1 P. Wms. 112. 2 Vern. 19. It has been urged, that the parent's laying out money in repairs, was evidence of a trust; and that a subsequent declaration of a trust, was also evidence; but the decisions are otherwise. 2 Free. 32, 252.

GUARDIAN AND WARD.

CHAPTER I.

Of the various kinds of Guardians.

311

A GUARDIAN is one, that legally has the care and management of the person, or estate, or both, of a child, during his minority, whose father has deceased. It is true, the father himself is guardian of the estate of his minor child. Such child is denominated a Ward at common law. It often happens that one person is guardian of the person, and another of the estate of the minor; and often the same person is guardian of both. There are various kinds of guardianship known to the common law.

1st. Guardianship in Chivalry. This is not now in use in England, and was never known in these States. This took place only where lands came to an infant by descent, which were holden by knight service. That tenure being abolished by the statute of Car. II, this kind of guardianship ceased to be used. Further observations, therefore, upon this kind, are unnecessary. I refer the reader to Co. Lit. 88, 11th note.

2d. Guardianship by Socage. This takes place when socage lands descend to an infant under fourteen years, and ceases when the infant arrives to the age of fourteen years. The person, entitled, by law, to the guardianship, in this case, is the next of kin, who by no possibility can inherit the estate. Suppose, for instance, John Stiles dies, and leaves Thomas his son 312 and heir; his uncle, George Stiles, his father's brother; and Anthony White, his mother's brother: in this case, George Stiles and Anthony White are both next of kin to Thomas; but George must be excluded; for he may, in the event of Thomas's dying without issue, inherit the estate; but Anthony White never can inherit it; for an estate that descended to Thomas, on the part of his father, cannot, by the English law, descend to any relation on the part of the mother. Anthony White is, therefore, in

the case put, guardian by Socage. Suppose again, that Thomas's relatives, were Samuel Stiles, a brother of the half blood, and Henry Stiles, a brother of the whole blood: these brothers are in an equal degree of kindred; yet Henry is excluded from the guardianship, for he is of the whole blood; but Samuel, being of the half blood, can never inherit; he therefore is entitled to the guardianship. Such a case may happen, where the lands are holden in borough English. The principle of this rule is, that it was dangerous to commit the care of a ward to one who would inherit his estate, in case of his death, lest it might prove a temptation to the guardian to destroy the life of the ward. Such a precaution might be proper, in the rude ages, when it was established to be law; but the present ameliorated state of society renders it useless. (a) There is no difference to be observed, in point of right to this guardianship, betwixt the whole and half blood, if they be equally qualified, by not being able ever to inherit the estate descended. As in the case put, of land descending from John Stiles to Thomas; if Anthony White had an half brother, Peter White, Peter would be as much entitled as Anthony, to the guardianship. If there are several, who are

next of kin, both males and females, the males are entitled 313 to the guardianship, in preference to the females. In all oth

er cases, where brothers are equally entitled, the eldest is preferred; but in this case, the one who first takes possession of the ward, has the right; as in the case of Thomas Stiles, having lands descended to him, as in the last case, if Anthony White had two sisters, Sally and Susan White; in that case, Anthony and Peter would be preferred to Sally and Susan; and that one, whether Anthony or Peter, who takes possession of the ward, would be entitled to the guardianship; but Anthony and Peter being dead, then Sally and Susan would be entitled; and that one who got Thomas into her possession, would be the guardian. But in the case put, of lands descending in borough English, if Samuel Stiles, the brother of Thomas, had a brother, Richard Stiles, of the whole blood, and Samuel was the eldest, Samuel would be preferred to Richard, although Richard should get possession of Thomas. (b)

The guardian in socage is guardian of the person of the ward, as well as of his estate. (c)

The guardian in socage cannot assign his guardianship. At (a) 1 Plow. 467. Co. Lit. 88. 1 and 2 Mod. 176. (b) Co. Lit. 88, note 15.

(c) Co. Lit. 87, 89.