sue by his guardian, or prochein ami. In a criminal case, no guardian is appointed, ad litem: the court is guardian for the accused infant. In Connecticut, the court appoint a guardian to the accused. (1)

10th. By letters patent, a guardian has been appointed for all suits; but the court has power to appoint only for the suit then depending before the court. (a)

Of the Kinds of Guardians in Connecticut. Of the Power of a Court of Chancery, and of Surrogates of Probate Courts, to appoint and remove Guardians. Of the Right of Election of a Guardian by the Ward. Of the Guardian's giving Bond for the faithful Discharge of his Trust; and his Liability to account for the Infant's Estate.

IN Connecticut, there is no guardian by chivalry; nor, indeed, in the Union. Neither is there, in this state, any guardian by socage; for kindred of the deceased, of every description, can, in some event, inherit any estate, of which he died the proprietor. Neither can such a character exist in the Union, only in those states where some of the kindred of the deceased are excluded from inheriting, in any event. There is, in Connecticut, no guardian by testament: neither can there be, in any state in the Union, unless there is a particular statute for this purpose; for such a guardian is wholly unknown to the common law, and (a) Co. Lit. 89, Note 16.

(1) The cases involving a consideration of the powers and duties of a guardian, ad litem, will be found principally collected in a note to judge Bouvier's edition of Bacon's Abridgement, title Guardian. These powers and duties, being regulated by the common law, do not essentially differ in the several States. Larkin v. Mann, 2 Paige's Rep. 27; Wood v. Wood, do. 108; Knickerbacker v. De Freest, do. 304; do. 301; do 85; Roberts v. Stanton, 2 Munf. 129; Wills v. Winfree, 2 do. 342; Turner v. Partridge, 3 Penn. R. 172. Such guardian has not authority by virtue of his office to discharge the interest of a witness. Walker v. Ferrin, 4 Vt. Rep. 523.

was introduced into England by the statute of 12 Car. II, which was after the emigration of our ancestors into this country, and never considered as having any binding force here. No ecclesiastical court in the Union pretends to possess the power of appointing guardians. The courts of chancery never appoint a guardian in Connecticut, or claim the power of removal. There can be no guardian by nurture, in the United States; for no person is a subject of this, but a child who is not an 320 heir apparent; and, in these states, all the children are heirs apparent.

The only guardians known in Connecticut, are, 1st. Guardians by nature. 2d. Guardians by the appointment of a court of probate. 3d. Guardians, ad litem.

A guardian by nature, in this country, differs widely from such guardian in England. In that country, it extends only to the eldest male child; he, alone, being heir apparent. In this country, it extends to all the children, males and females; for all of them are heirs apparent. His authority there, is over the person only; but here, it is also over the estate. It is no uncommon thing, in England, for a court of chancery to appoint such guardian to the whole estate. The same powers of removal of any guardian, as are exercised in England, in a court of chancery; in Connecticut, belong to the court of probate. If a father be living, he is guardian by nature to his child, until he is twentyone years of age; but he is liable to be removed by the court of probate, as to his estate, but not as to his person. If the father die, the mother is guardian by nature, to her minor children, both males and females. But the mother is not in the same situation as the father: she has no right to the personal services of her children, only when she maintains them. If they have property of their own, they are to be maintained from that. The mother has no right to the person of her child, as the father has.* The court of probate may, therefore, remove her from this guardianship, as well as from the guardianship of his estate; and this is done by appointing another guardian. I know that it has been said, that she cannot be removed from her guardianship of. females; but I know of no law or usage that warrants that idea. (1)

(1) Substantially the same provisions for the appointment and removal of guardians exist in Vermont. Rev. Stat. Vt. 1839. See also 2 Kent's Com. 222; and ante chap. 1, and notes.

When there is a mother, it is not, of course, the duty of the court to appoint a guardian; for she will remain guardian, 321 until one is appointed; but if there be no father || or mother,

it is the duty of the court to appoint a guardian; for here is no such usage that the next of kin is guardian. If the infant be under the age of choosing a guardian, (which, by our statute, is fourteen years of age in males, and twelve in females,) the court, without any process to call the infant before it, appoints a guardian. If the infant has arrived, as before mentioned, to the age of choice, the court issues a summons to call him before the court, to elect a guardian. If the infant neglect or refuse to elect, the court appoints a guardian. If the infant elect a proper person, in the opinion of the court, such person is appointed guardian; but the infant's choice is not conclusive upon the court. For, if the person chosen, in the opinion of the court, be an improper person, the court will reject him; and if the infant will not choose a proper person, the court appoints one. The same method may be pursued, where the mother is living; but I never heard of an instance, in which, if the child chose the mother, his choice was not sanctioned by the court. An infant ward, having no father, may live where he pleases with his guardian; and cannot be removed to his place of settlement; but gains no settlement where he lives with his guardian. But if the father be living, and guardian, he will gain a settlement wherever his father gains one. (1)

When the court appoints a guardian to an infant, under the age of choice, the infant, when he arrives, at that age, (and, I presume, at any after time,) may appear before the court of probate, and choose a guardian, which choice will be sanctioned, or not, as the discretion of the court shall direct. But if no choice be made, the guardian first appointed, remains guardian, until the ward arrive to the age of twenty-one years. (2)

(1) See ante page 317, note 1.

(2) The right of the infant to elect a guardian at the age of fourteen, exists by the common law, and in most if not all of the United States. In Ohio, it is said that the power of the guardian over a minor female, expires when she arrives at the age of twelve years; and if he sell her land after she arrive at that age, without any new appointment under an order of court, such sale is void, for the court have no jurisdiction. Perry's Lessee v. Brainard, 11 Ohio Rep. 442; Maxom's Lessee v. Lowry, 12 Ohio Rep.

I The guardian, appointed by the court of probate, must give bonds for the faithful discharge of his trust, provided the infant has any estate; and is liable to account before the court of probate, both before and after his guardianship has terminated. (1)

At common law, he is, also, liable to an action of account, brought by the minor, before the common law courts, after he has arrived at the age of twenty-one years. (a) This action, by the ward, is yet in use in Connecticut; but, in England, the. practice has been for a long time, for the ward to file a bill in. chancery, calling the guardian to an account; and the court takes jurisdiction of this matter, on the ground that a guardian is a trustee; and a court of chancery will always enforce the faithful discharge of a trust. In this court, the guardian is examined, under oath; and is compelled to produce books, and other writ-" ten documents, that may lead to a thorough investigation of the case, and a just decision of the controversy; (b) and this court will compel the guardian to account annually, if there be any apprehension of failure, on the part of the guardian. (2) ·

In Connecticut, it is not usual to file a bill in chancery, but to bring an action of account: but I can see no objection to such a practice, if a case should arise where the action of account would not be as extensively remedial as a bill in chancery. There are not, it must be admitted, as strong reasons for going into chancery here, as in England; for our statute has rendered the action of account more remedial, and less perplexed, than this action is at common law. Whenever a guardian is sued as bailiff, his appointment as guardian, and his undertaking the trust, is sufficient evidence to warrant a judgment of quod computet against (a) Co. Lit. 89.

(b) 1 Bl. Com. 463. 2 Bac. 679, 687. Co. Lit. 88.

(1) Rev. Stat. Vt., 1839; 2 Rev. Stat. New York, 150; Mass. Rev. Stat., 1835. In chancery, the practice is to require a master's report approving of the security offered by the guardian before the court will appoint. 2 Kent's Com. 227.

(2) Earl of Pomfret v. Lord Windsor, 2 Ves. 484. If the property of the ward is destroyed through inevitable accident, the guardian will not be chargeable with the loss. 8 Co. Rep. 84. But the court will use diligence in protecting the interests of the infant. Jenkins v. Walter, 8 Gill. & John., 218; Say's Executors v. Barnes, 4 Serg. & Rawle, 114.

The guardian being considered merely as an officer of the court, will be at all times liable to account. In re Burke, 1 Ball & Beat. 74.

him. The case then goes before auditors, who have power to

summon the parties before them; and if the guardian do not 323 appear, the auditors may render || judgment against him for

the whole demand of the plaintiff, without any investigation of the demand; and if he do appear, he must answer upon oath to all such interrogatories as are put to him; and if he refuse to do this, the auditors may imprison him. A court of chancery in England can compel a guardian to account as often as the court chooses. (a) A court of chancery in England, and the court of probate in Connecticut, in the exercise of their powers of removal, - will remove a guardian for any abuse of the person of the ward, as well as for misconduct respecting his estate; also, when any event renders him incompetent to manage the concerns of the ward, as lunacy, gross intemperance, or other profligate immorality, or bankruptcy: (b) but they will never remove a man whose character for integrity is fair, merely on the ground that he is probably in failing circumstances, if he will find surety to secure the interest of the ward. In Connecticut, such surety is unnecessary, if the bond, given for the faithful discharge of his trust, remain good. (1)

324

CHAPTER III.

Of the particular Duty of a Father, when Guardian; and of the Mother, when Guardian. Of the Manner in which the Guardian must manage the Estate of the Ward.

No guardian is bound to maintain his ward at his own expense, except when he is a father; but whatever expense he is at for the ward's maintenance, the guardian shall be reimbursed (a) 2 Mod. 177. 2 Bac. 279.

(b) 1 P. W. 703. 1 Vez. 160. 1 Salk. 44. 2 Mod. 177.

(1) 2 Kent's Com. 229. In Vermont, although the courts of probate have power to remove a guardian, yet their proceedings in this behalf are subject to the revision of a higher court. Pepper v. Stone, 10 Vt. Rep. 427. There are some acts which, ipso facto, extinguish the power of the guardian, as for instance, the marriage of a feme sole guardian. Field et ux. v. Torrey, 7 Vt. Rep. 372.