337. The age at which man no longer requires aid and advice for his conduct, is not the same in every individual; some being precocious, and others slow at arriving at maturity; but as the law cannot ascertain all these diversities, a period has been fixed which is uniform as to all.

338. The time fixed by law when all individuals of both sexes arrive at their full age, and acquire fully all their political and civil rights, is the completion of their twenty-first year.

48

But it is to be observed that by the civil computation of time, which differs from the natural computation, a man is reputed to be twenty-one years of age, the first instant of the last day of the twenty-first year next before the anniversary of his birth, because the last part of the day having once commenced, it is considered as ended." If, for example, a person were born at any hour of the first day of January, 1830 (even but a few minutes before twelve o'clock of the night of that day), he would be of full age at the first instant of the thirty-first day of December, 1850, although nearly forty-eight hours before he had actually attained the full age, according to years, months, days, hours and minutes, because there is, in this case, no fraction of a day.50

339. There are several kinds of guardians: these must be particularly described and distinguished; to benefit the ward, the guardian must be a man capable of protecting and taking care of him; the guardian is required to perform a variety of duties, and is bound by certain obligations; his power must end. These several subjects will be examined in order.

340. Of the several kinds of guardians at common law, some are obsolete, and others have been superseded. They will be here enumerated, together with others created by statute.

52

341. Guardian by nature is the father, and, on his death, the mother; this guardianship extends only to the custody of the person, and continues till the child shall arrive at the age of twenty-one years. 53

Guardianship by nature must not be confounded with paternal power; the former is instituted in favor of the child and is a burden; the latter is a right, and is in favor of the father and mother.

A guardian by nature has no power to lease the lands of the infant," nor to receive a legacy due to him."

342. Guardian by nurture is one who becomes guardian when the infant is without any other, and the right belongs exclusively to the parents, first to the father, and then to the mother.56 It extends only to the person, and determines at the age of fourteen years. This species of guardianship has become obsolete.57

343. Guardian in socage is one who has the custody of the infant's lands as well as his person. This guardianship was given by the common law to the next of blood of the child to whom the inheritance could not possibly descend. This species of guardianship has become obsolete, and never perhaps existed 48 Coke, Litt. 171.

49

Savigny, Dr. Rom. 8 182.

50 Herbert v. Torball, 1 Sid. 162; 1 Kebl. 589; 1 Sharswood, Blackst. Comm. 464; 1 Lill. 57; Comyn, Dig. Enfant A; Savigny, Dr. Rom. 8 383, 384; Coventry, Conv. Ev. 182; State v. Clarke, 3 Harr. Del. 557; Hamlin v. Stevenson, 4 Dan. Ky. 597.

51 The mother of a bastard child is its natural guardian. Somerset v. Dighton, 12 Mass. 383.

52 Genet v. Talmadge, 1 Johns. Ch. N. Y. 3; Miles v. Boyden, 3 Pick. Mass. 213; Hyde v. Stone, 7 Wend. N. Y. 354.

53

Coke, Litt. 84 a; South v. Williamson, 1 Harr. & J. Md. 147.

5 May v. Calder, 2 Mass. 55; Anderson v. Darby, 1 Nev. & M. 369.

55 Miles v. Boyden, 3 Pick. Mass. 213.

56 Kline v. Beebe, 6 Conn. 494.

57 At common law guardianship by nurture extended to the younger children, not heirs apparent; guardianship by nature extended only to the heir apparent. As in this country all the children are heirs, the former is merged in the latter.

in this country, for the guardian must be a relation by blood who cannot possibly inherit, and such case must rarely exist.58 It ceases at the age of fourteen years.

59

344. Testamentary guardians. The stat. of 12 Car. II, c. 24, the principles of which have been re-enacted generally throughout the United States, gave power to the father to appoint a guardian for his children by his last will and testament.60 And a guardian may be appointed whether the child be in esse or in ventre sa mère. These guardians supersede the claim of any other, and extend to the person, and real and personal estate of the child. They continue till the child arrives at full age. 61 It does not appear to be settled whether the marriage of a testamentary female ward would determine the guardianship before she acquired her full age.

62

In Connecticut the father cannot appoint a testamentary guardian.

63

345. Guardians appointed by the courts, by virtue of some statutory power. These are either guardians of the person, tutors; or guardians of the estate, curators. The distinction of guardians by nature and in socage appears to have become obsolete; they have been essentially superseded in practice by the appointment of guardians by courts of chancery, orphans' courts, probate courts, and such other tribunals as have jurisdiction to make such appointments. If the infant has arrived at the age of fourteen years he may select his own guardian, and he may upon arriving at that age apply to the court for the removal of his guardian and the appointment of a new one, but this is subject to the discretion of the court. The validity of the appointment of a guardian by a competent court cannot be questioned in a collateral proceeding."

346. A guardian ad litem is one appointed by the court, when an infant is sued in a civil action or proceeding, to defend him in the same. Every court, when an infant is sued in a civil action, has the power to appoint a guardian. ad litem, when he has no guardian, for, as an infant cannot appoint an attorney, he would be without a remedy if such a guardian were not appointed. The power and duty of a guardian ad litem are confined to the defence of the suit.66 A guardian ad litem differs from a prochein ami, or next friend, who, without being appointed guardian, sues in the name of the infant for the recovery of the rights of the latter, or does such other acts as are authorized by law.67 347. As the guardian is a mandatary appointed by law, to act in the place of the minor or infant, it is requisite that he should be sui juris and capable of performing the duties of his appointment." He cannot have any interest

68

69

58 Combs v. Jackson, 2 Wend. N. Y. 153; Fonda v. Vanhorne, 15 Wend. N. Y. 631; Putnam v. Ritchie, 6 Paige, Ch. N. Y. 390.

59

Byrne v. Van Hoeson, 5 Johns. N. Y. 66.

Balch v. Smith, 12 N. H. 437; Copp v. Copp, 20 N. H. 284.

They are not liable to be removed by the court and a new guardian appointed when the ward is fourteen years old, except for good cause. Sessions v. Kell, 30 Miss. 458.

62 Mendes v. Mendes, 1 Ves. Ch. 89; Reeve, Dom. Rel. 328; 2 Kent, Comm. 225; beyond, No. 362.

Swift, Dig. Conn. 48.

Lee's Appeal, 27 Penn. St. 229; Ham v. Ham, 12 Gratt. Va. 74; Dibble v. Dibble, Ind. 307.

8

Martin v. Jones, 12 La. Ann. 168; Warner v. Wilson, 4 Cal. 310. Fitzherbert, Nat. Brev. 27; Coke, Litt. 88 b, n. 16, 135 b, n. 1; Bacon, Abr. Bouvier ed., Guardian; Waterman v. Lawrence, 19 Cal. 210. If the infant's interest requires it, a guardian ad litem will be appointed even when there is a general guardian. Gronfier v. Puymirol, 19 Cal. 629; Alexander v Frary, 9 Ind. 481.

Commonwealth v Roach, 1 Ashm. Penn. 27; Edwards, Part. 182-204. An infant plaintiff must sue by prochein ami, and in this case no guardian ad litem is ever appointed. Clark v. Platt, 30 Conn. 282.

Granby v. Amherst, 7 Mass. 1; Manson v. Felton, 13 Pick. Mass. 206.
Coke, Litt. 886; Bacon, Abr. Guardian, B.

adverse to that of his ward, and if he is known to have any such, he will not be appointed.

An executor of an estate will not be appointed guardian of an infant who claims such estate, because they may have different interests, and the law does not put the duties of a man in opposition to his interest."

70

A person under his full age, or a minor, cannot of course be appointed to take care of another minor.

A married woman may be a guardian," but not without the consent of her husband.

348. The administration of a general guardian extends over the person and the property of the ward. In the first place let us examine what concerns the person; and, second, the duties which relate to the property of the ward.

349. In general the guardian stands to the ward in loco parentis; but he is not so in every respect, as for example, the father is entitled to his son's labor; on the contrary, if the ward earns anything it is not for the benefit of the guardian, but his own.72 All the acts of the guardian are to be for the benefit of the ward. He is bound

To take care of the person of the ward;

To exercise, when needful, proper power of restraint;

To place him apprentice or in some situation to earn his own living;

To represent him in all civil acts, and in actions.

The care of the person includes the obligation to provide for the support and education of the ward, and generally the guardian may use a sound discretion in these respects; but in cases of doubt or difficulty he may apply to the competent tribunal for directions.73

74

The guardian may properly restrain his ward from acts which are illegal or improper, and he is generally authorized to place him out apprentice, but in this he will use the precaution of consulting the mother, if living, or if not, some other relatives of the ward. The business to which the minor is bound must be a proper one; a guardian cannot bind his ward as a servant, unless by authority of some statute.75

He is bound to appear for him in all cases in which he sues or is sued, because the ward cannot appoint an attorney.7

He may reasonably change his ward's residence."

350. The acts of the guardian in relation to the property of his ward may be divided into two classes, namely, when he acts alone and of his own authority; and when he acts under the direction of a competent tribunal.

351. He may perform alone all acts of simple administration which do not extend beyond the time during which he is to be guardian; for example, he may lease the minor's real estate, but the lease must not extend beyond the time when the ward will be of full age.78 As he is, in all these acts, the legal

TO Jackson v. Sears, 10 Johns. N. Y. 435.

Cook v. Bybee, 24 Tex. 278; Ex parte Maxwell, 19 Ind. 88; Farrer v. Clark, 29 Miss. 195.

72 But see Bass v. Cook, 13 Ala. 390.

73 Harris v. Richardson, 4 Dev. No. C. 279; Ex parte Ralston, R. M. Charlt. Ga. 119; Bybec v. Thorp, 4 B. Monr. Ky. 313. The guardian is not bound personally to pay for his ward's maintenance, but only to apply his ward's property for that purpose. Spring v. Woodworth, 4 All. Mass. 326, and he cannot by advancing his own means for this purpose make the ward his debtor. Preble v. Longfellow, 48 Me. 279; Frost v. Winston, 32 Mo. 489. Where a father without property is guardian of his children who have property, he may charge their estates with part of the expense of their maintenance. Harring v. Coles, 2 Bradf. Surr. N. Y. 349.

Respublica v. Keppele, 1 Yeates, Penn. 233. "Ex parte Bartlett, 4 Bradf. Surr. N. Y. 221. Old, 6 Rand. Va. 256.

mandatary and representative of the ward, they have the same binding force as if they had been performed by the minor himself after he had attained his age of twenty-one years. Hence the maxim of the Roman law, which is founded in reason, tutor domini loco habetur."

79

His first duty is to make an inventory of all the property of his ward. This inventory should contain in detail a list of all the goods and claims belonging to his ward. And for all personal property which the guardian receives he must account, either for its value when he has parted with it and it cannot be found, or for the articles themselves when they are in his hands. As the guardian may sell or dispose of the personal estate, goods which he has sold for the purpose of the trust cannot be recovered by the ward in an action against the purchaser.80

352. With regard to the real estate, it may be observed that the guardian has no further control with, or concern over, the real estate than what relates to the leasing of it, and receiving the rents and profits, and keeping it in order. He may lease it, as has been observed, for the term during which he has a right to control it, and no longer.81

353. Guardians will not be permitted to turn the personal property of an infant into real property or real property into personalty, because it may not only affect the rights of the infant, but also of his representatives, if he should die under age. If the guardian should, under particular circumstances, make a change beneficial to the infant, such as the court would have ordered, it will afterward be sanctioned by the court.83

one.

82

354. As the guardian is bound to render an account, he is required to keep He cannot reap any benefit from the use of the ward's money, nor do anything adverse to his interest. If he settles a debt upon beneficial terms, or purchases a claim against the ward at a discount, he does not receive the benefit, but it accrues to the ward.84

355. For any wasteful expenditures the guardian would not probably be allowed; but the court would not weigh these in golden scales if the guardian acted in good faith.

356. Power is given to various tribunals, known by different names in the several states, to direct guardians in many instances, and to authorize them to perform acts which are of too much importance to be trusted to a single individual. Among these are the power to sell the real estate of the minor, to make improvements, and to spend certain sums beyond the income of a minor's estate for his support and on his account.

Sometimes, too, money ought to be invested in certain securities; the courts have in general authority to approve of such investment, and if the money happen to be lost, the loss will fall upon the ward and not upon the guardian, who has received the sanction of the court.

Dig. 26, 7, 27.

See Bonsall's Case, 1 Rawle, Penn. 266; Field v. Scheffelin, 7 Johns. Ch. N. Y. 150; Ellis v. Essex M. Bridge, 2 Pick. Mass. 263; Bowman's Appeal, 3 Watts, Penn. 369. In California the guardian cannot sell even the personal estate of the ward without an order of court. Kendall v. Miller, 9 Cal. 591.

Genet v. Tallmadge, 1 Johns. Ch. N. Y. 561; Jones v. Ward, 10 Yerg. Tenn. 160; 7 Johns. Ch. N. Y. 154; Doe v. Hodgson, 2 Wils. 129; Snook v. Sutton, 5 Halst. N. J. 133; Bacon, Abr. Leases, etc. I, 9.

1 Fonblanque Eq. B. 1, c. 2, 5, note (b), Jackson v. Todd, 1 Dutch. N. J. 121; Stall v. Manchester, 9 Ohio 19; Merchant v. Sunderlin, 3 Ired. No. C. 501; Ex parte Crutchfield, 3 Yerg. Tenn. 336.

Inwood v. Twyne, Ambl. Ch. 417; 2 Ed. Ch. 148.

84 2 Kent, Comm. 229.

These proceedings in court are ex parte, and the ward is not made a party. Davidson v. Lindsay, 16 Ind. 186; Fitzgibbon v. Lake, 29 Ill. 165. The ward must be a party; Moore *. Hood, 9 Rich. Eq. So. C. 311.

And it is the duty of the guardian to obtain the consent of the court before investing his ward's property.

86

357. The guardian is required to furnish an account to the tribunal which has jurisdiction of such matter whenever called upon, but always at the determination of his guardianship. During the minority of the ward, any one acting as the next friend of the ward may call upon the guardian to file his account for proper cause shown.

In this account must appear all the transactions which have taken place between the guardian and the ward," and if the guardian were indebted in his individual account to himself as guardian, he will be presumed to have received the amount in his capacity of guardian.88 It should contain all the moneys which have come to his hands, the dates when received, and show how the money has been employed. On the other hand, it ought to state all the moneys disbursed, for what purpose they have been paid out, the date when paid, and to whom. Interest ought to be charged on both sides. The guardian is entitled to commissions, the amount of which is regulated by the courts in proportion to his trouble and risk; but he is not allowed to pay any one for the management of the estate, which he ought to have done in person.

89

90

When one person is guardian of several wards, he is required to keep separate accounts with each.91

The guardian's accounts are fixed in court, but are not settled until the ward arrives at his majority and the guardianship has ceased. If settled soon after that time, they are prima facie correct, but are not favored, and may be impeached by the ward for any want of good faith on the guardian's part.

92

358. The duties of a guardian cease by lapse of time; by the removal or discharge of the guardian by a competent tribunal; by the death of the ward or guardian; and by operation of law.

359. A guardian may be appointed by testament until the minor shall attain a certain age, or until a condition shall be fulfilled; as for example, an appointment until the minor shall attain his age of fourteen years, and then allowing him to choose his own guardian under the authority of a competent court; or until another one of the testator's children shall arrive of full age, and that from that time the elder shall be guardian of the younger.

At common law, if a guardian be appointed for a child under fourteen years old, his duties and obligations cease when the infant arrives at the age of fourteen years, and chooses another guardian in his place.93 But until another is appointed, the first shall act.'

94

The guardianship ends, of course, when the minor attains his full age of twenty-one years, for no authority can be exercised over a freeman sui juris.

360. A guardian may be discharged at his own request, upon good cause shown, such as inability from age or other cause to attend to the duties of the trust; but this is never done until he has filed an account and offered to pay the balance in his hands to his successor.

86 Carlysle v. Carlysle, 10 Md. 440; Sherry v. Sansberry, 3 Ind. 320.

87 Crowell's Appeal, 2 Watts, Penn. 295.

88 O'Neill v. Herbert, Dudl. Eq. So. C. 30; Johnson v. Johnson, 2 Hill, Ch. So. C. 285; Neill v. Neill, 31 Miss. 36.

89

Hayward v. Ellis, 13 Pick. Mass. 272; Karr v. Karr, 6 Dan. Ky. 3; Hendricks v. Huddleston, 5 Smedes & M. Ch. Miss. 422.

90 Eichelberger's Appeal, 4 Watts, Penn. 84.

91 Baker v. Richards, Serg. & R. Penn. 12. See Hampton's Case, 17 Serg. & R. Penn. 144. 92 Sullivan v. Blackwell, 28 Miss. 737; McClellan v. Kennedy, 8 Md. 230; Hawkin's Appeal, 32 Penn. St. 263.

931 Sharswood, Blackst. Comm. 463.

94 7 Cow. N. Y. 36; Byrne v. Van Hoesen, 5 Johns. N. Y. 66.