out of the ward's estate. If the father be guardian, he must support his child, if of sufficient ability; but he is not bound to give him an expensive education: but if he do, it is not uncommon for a court of chancery to allow the father a reward out of the ward's estate. This, however, will depend upon the circumstances of the father. If he be a man of wealth, and the education is not more expensive than is correspondent with his circumstances, and such a one as in that respect it was proper for him to have afforded to his child, if his child had been destitute of property; the court will, in such case, make no allowance to him out of the ward's estate. It is not, therefore, a matter of course, that an allowance will be made to the father in such case. The safest way for such a guardian, is for him to apply to chancery in the first instance, and procure the sanction of that court for the expenditures he is about to make. (a) If the mother be the guardian, by nature, there is no obligation on her, when her ward has estate sufficient to maintain him: her expenditures for maintenance and education will be allowed; and whatever chancery does in these respects, I apprehend may be done 325 in Connecticut by the court of probate. (1)

When any money is paid, which is due on a mortgage, an infant mortgagee may reconvey, and the conveyance is valid, on the principle that such infant is compellable in equity to reconvey; and if he do that without compulsion, which he is compellable to do, it shall be deemed valid. (b) So too, his deed of partition is valid on the same ground. In Connecticut, by statute, his guardian is impowered to convey, in both those cases: but (a) 1 Br. in Can. 387. 1 Vez. 160. 2 Vent. 353. 2 Ver. 137, do. 255. 3 Atk. 399.

(b) 3 Bur. 1794.

(1) The allowance to the father of a sum out of the ward's estate, in payment of his support of the ward, seems to be entirely discretionary with the court of chancery or the probate court; and in the exercise of this discretion, they will have reference to the estate of the ward, and the circumstances of the father. It is said in the text, that if the mother be the guardian by nature, there is no obligation of this kind upon her, when the ward is possessed of sufficient estate for its maintenance. This may be true, though it has been held that the presumption arising from the mother's maintenance of her child, is, that such maintenance is intended as a gift, and the circumstances of the mother's having no property of her own, and of the child's having an estate and guardian, are not sufficient to rebut the presumption. Cummings v. Cummings, 8 Watt's Rep. 367.

this provision, I apprehend, does not proceed upon the ground that such conveyance by a minor would be invalid; but it was enacted to extend the remedy. It would often happen, that the infant mortgagee, or infant tenant in common, was of such tender years, that he could not perform the corporal act of executing a deed; and the reason why it should be done, was as obvious in such case, as where he could execute a deed. (1)

It is a principle, that the guardian is not to reap any benefit from the use of the ward's money. (a) If any benefit have been received from the use of the ward's money, the ward is to receive that benefit. If the guardian should pay a debt due from the ward, by a compromise with the creditor, with a sum smaller than the debt, the ward must have the benefit of such compromise. The guardian ought to put out the ward's money at interest, if he can; and if he do not, (as the presumption is that he can do it,) he must show that he could not. If he put the ward's property in the public funds, or at private interest, the guardian discharges his duty; unless he is guilty of negligence by placing it in the hands of an improper person. (2)

The guardian has no authority to purchase real property for the ward, with the ward's money. If he do, the ward, when he

arrives at the age of twenty-one years, may elect to take the 326 lands, or may refuse to take them, and demand his money

with interest; and in the last case, chancery will consider the ward as trustee of the lands for the guardian, and will direct

(a) 2 Comy. 230. 2 Ch. Ca. 245.

(1) This power of the guardian to convey, seems to be entirely unnecessary, for it is well established, that the infant may discharge a mortgage upon full payment of the mortgage debt. 2 Kent's Com. 342. So, being a tenant in common, he is by law capable of making a reasonable partition. Barrington v. Clarke, 2 Penn. Rep. 115.

(2) The office of a guardian is one of obligation and duty, and not of speculation and profit. 2 Kent's Com. 229. He is appointed to keep his ward's funds safely, and to render them productive, and if he fails to invest them profitably when he can do so, he is to be charged with interest. Armstrong v. Miller, 6 Ohio Rep. 118; Baker v. Richards, 8 Serg. & Rawle, 12. The court of chancery is always watchful of the interests of its wards; it will give them one year after they become of age, to examine the accounts of their guardians, and the guardian will not be entitled to a discharge before the expiration of that time..

the ward to convey the lands to the guardian. (a) (1) If the guardian should put the ward's money into trade, the ward, when he arrives of age, may demand his money with interest, or may elect to have the profits of the trade. (b) This right of election, dies with the ward; for if he should die without making an election, it is not in the power of the heir to elect; for, on the death of the ward, the personal property vests in the executor; and such property in the hands of the guardian is personal, until the ward has, by his election, turned it into real; it then vests, therefore, in the executor of the ward, a right to demand of the guardian, the money with interest. It would be unreasonable that the heir should have this power of election, and by this means disappoint the just expectation of creditors, legatees, or those who are entitled to a distributary share under the statute. (c) (2)

When personal property of the ward comes into the hands of a guardian, which is not money on interest, it is a general rule, that the guardian ought to sell it, and put it at interest; or if there are debts which the ward must pay, he ought to apply it to the payment of debts: for such property produces no interest, whilst the debt of the ward is increasing, by reason of the accumulating interest. (3) This will not apply to every species of property. It is not usual to sell family pictures, plate, watches, (a) Ver. 435. (c) 1 Ver. 403. do. 535.

(b) Vez. 629.

(1) It has been intimated, and in one or two instances held, that the guardian may, in a strong case, change the property of the infant from personal to real, without a previous order of a court of competent jurisdiction. 2 Eden's Rep. 152, 153; 1 Rawle's Rep. 266. The exercise of this power, however, if it exists at all, is very hazardous on the part of the guardian and not to be recommended. Indeed the balance of authorities seems to be against the power of its exercise at all. The court of chancery undoubtedly has power thus to order this change, and will so order it, whenever it is apparent that it is for the infant's benefit. Ashburton v. Ashburton, 6 Ves. 6; 3 John. Ch. Rep. 348, 370. Where the guardian performs this act without the order of court, the ward will generally have the right, on coming of age, to elect to ratify the act of the guardian, or refuse to do so and require the restoration of the property to its original form. 2 Kent's Com. 230.

(2) Docker v. Somes, 2 Mylne & Keene, 665.

(3) The principle here laid down is established and sustained by numerous authorities. It will apply not only to guardians, but to trustees of varipus other descriptions. Rex v. Villers, 11 Price's Rep. 575. And the

ornaments, &c.; but to keep them, (as they are not of a perishable nature,) by which to remember their former proprietors: Nor would it be improper, in other cases, to preserve other property; as where a ward was nearly of age, and soon to enter upon a farm well stocked, which was his property; the guardian would be justified in not selling this stock.

Of the Power of the Courts of Chancery, respecting the Marriage of their Wards. Of the Effect which the Marriage of a Female Ward has on her Guardian's Power over her Person and Estate, both when the Husband is an Adult and when he is a Minor. Of the Effect which the Marriage of a Male Infant has upon the Guardian's Power over his Person and Estate.

THE power of the court of chancery in England, to restrain the marriage of wards, is very extensive. It is not uncommon for this court to forbid the marriage of a ward, unless the guardian consents thereto; and frequently they forbid it, if he should consent: for he may consent to answer interested purposes of his own, and thus be accessory to the disparagement of the ward. And while there is a well grounded suspicion of disparagement of the ward by the guardian, this court will not only forbid the marriage, but will take the ward out of the hands of the guardian: and every person, who is concerned in the marriage, after this prohibition, will be considered guilty of a contempt of court. When the father is guardian, they do not take the ward from him. (a)

In chancery, the guardian is viewed as trustee of the minor's person and estate; and that court will not suffer him to abuse his trust, but will compel him to perform it with fidelity. At law he is considered as a bailiff, and is liable to account. Marriage by a ward, in all instances, affects the rights of a guardian, (a) Tal. Ca. 58; 1 P. Wms. 562; 2 do. 112; 1 Ves. 160; 3 Atk. 314. doctrine pervades all the following cases, with some differences upon minor points, as they have been agitated before various courts. Rogers v. Rogers, 1 Hopkins' Ch. Rep. 515; Smith v. Smith, 4 John. Ch. Rep. 281; Evertson v. Tappan, 5 John. Ch. Rep. 497; Clarkson v. De Payster, 1 Hopkins' Ch. Rep. 424; 5 Com. Rep. 475; 2 New Hampshire, 218.

more or less. If a female ward marry, the guardian's power must cease, both as it respects her person and property. This, I apprehend, has never been questioned, when she married an adult: for such husband has a right to her person, with an uncontrollable right to her property. If she marry a minor, it seems to be admitted, that the guardianship of her person ceases; for she has contracted a relation inconsistent with the power of a guardian over her person: for her husband was of age to contract marriage; and acquired the same right to her person, that any husband acquires to the person of his wife. There has been some difference of opinion with respect to her estate. The better opinion is, that her estate is, by marriage, transferred to the minor; for his marriage is as effectual as the marriage of an adult; and all the same consequences follow. The personal property of the wife, in possession, becomes his absolutely. If choses in action, they are at his control. If real property, he is entitled to the usufruct. Her rights are passed to her husband; and her guardian can have no further control over them. If a male ward marry, I apprehend he has contracted a relation, and one that he had a right to contract, wholly inconsistent with a guardianship of his person. As to his estate, marriage does not vary his situation. His guardian retains his usual power over his estate; and if he married a female ward, as her property has become his, his guardian's power extends to that also. (1)

(1) Some of the older cases have gone the length that chancery would take the ward from the custody of the guardian, whenever the habits and character of the guardian appear to be such as to render him unfit to protect and guard the interests of the ward, and even that the child would sometimes be taken from the custody of the father: as when he was an avowed atheist, and lived in a state of adultery. Shelley v. Westbrook, Jacob's Rep. 267. See, also, ex parte Warner, 4 Brown's Ch. R.; Whitfield v. Hales, 12 Ves. 492; 3 Russ. Rep. 1; 10 Ves. 52; 5 East's Rep. 1. The doctrine, that the authority of the guardian over the estate of his female ward ceases upon her marriage, has been recognized in the United States. Kettletas v. Gardner, 1 Paige's Rep. 488. In the matter of Whittaker, 4 Johns. Ch. Rep. 378. The marriage does not, however, ipso facto, determine the authority of the guardian. An order of court, transferring the custody of the property to the husband, is first necessary, though the husband will be entitled to such order, upon motion. 4 John. Ch. R. 378. See, also, Leuder's case, Orphan's Ct., Philadelphia, 1822, cited in Wharton's Digest, tit. Infant.