XI. Guardian. use, in order to avoid the necessity of making any application to the Court, or using other means for the indemnity of the executors. As to legacies to infants, see Rop. Leg. by White, Vol. I. 879. A guardian by election, being a "guardian of the person Guardian's lawfully appointed," the question arises whether the consent of consent to the such a guardian would be a sufficient consent to the marriage of infant's marriage. the infant, where there is no father, or any other guardian. A testator appointed his wife sole guardian of his infant children, and bequeathed a legacy to each of his daughters on attaining twenty-one years or marrying with the consent of her " guardian or guardians." After the death of the wife one of the daughters married under twenty-one, without any consent. It was held that the daughter not having complied with the condition was not entitled to the legacy; and that the consent of a guardian appointed by the infant herself would not have satisfied the condition: Re Brown's Will (C. A.), 18 Ch. D. 61. The proper course is to apply to the Court on behalf of the infant, praying that a guardian may be appointed for the purpose of giving a legal consent to the marriage: In re Woolscombe, 1 Madd. 215. In Horner v. Liddiard, Sir Wm. Scott construes the words, a guardian lawfully appointed, to mean a guardian appointed by the father only. He cites no authority for this construction. See Dr. Croke's report of the case, p. 180. The Marriage Act, 4 Geo. 4, Marriage Act, c. 76, ss. 16, 17, authorizes the father, if living, and if dead, 4 Geo. 4, c. 76. the guardian appointed by the Court, and if there be no guardian, the mother, being unmarried, to give consent; and in case of incapacity, unreasonable refusal, &c., empowers the Lord Chancellor, Master of the Rolls, or Vice-Chancellor, upon petition, to decide upon the eligibility of the marriage. See 6 & 7 Will. 4, c. 85, s. 10. Marriage by licence, without consent, is valid, notwithstanding infancy: Rex v. Birmingham, 2 Man. & Ry. 230; 8 B. & Cr. 29. on. De and remove all kinds of guardians, for improper con duct. Where an infant is destitute of a guardian, the Court has the Court may power of appointing a guardian of his person and estate: Hargr. appoint n. Co. Litt. 88. b. (16); 2 Fonbl. Eq. 226; De Manneville v. a guardian, Manneville, 10 Ves. 52; Wellesley v. Duke of Beaufort, 2 Bligh, N. S. 124; 1 Dow & Cl. 152. And an appointment of a guardian by the infant will not supersede the duty and authority of the Court, whether the infant has socage lands or not: Curtis v. Rippon, 4 Mad. 462; Locker's case, cit. Ex parte Watkins, 2 Ves. sen. 470. An appointment by the infant, therefore, cannot be much relied If a guardian appointed by the father die, or refuse to take upon himself the guardianship, or becomes a lunatic, or is otherwise incapacitated to execute the trust reposed in him, the Court may appoint a proper guardian. So, if either a common-law guardian, or a guardian by election, or a testamentary guardian, abuse the trust by doing anything prejudicial either to the person of the infant or his estate, the Court may either totally remove him and appoint another guardian, or else impose such terms on him, by obliging him to give security, &c. as will effectually hinder him from doing anything prejudicial to the infant: Bac. Abr. Guardian (C.); Goodall XI. Guardian. Guardian of a v. Harris, 2 P. Wms. 561; Duke of Beaufort v. Berty, 1 P. Wms. 704; 1 Wooddes. 461. Where a feme guardian appointed by the Court marries, a reference is made to the master to appoint a new guardian, with liberty for the lady to propose herself: In re Gornell, 1 Beav. 347; Anon., 8 Sim. 346. The Court now appoints guardians upon summons without requiring a suit to be instituted (15 & 16 Vict. c. 80, s. 26). See Daniell's Chancery Practice, 6th ed. p. 1113 et seq.; Seton, p. 721 et seq. By the Rules of the Supreme Court, 1883, Ord. XVI. r. 16, guardians ad litem may be appointed to defend actions on behalf of infants: see also rr. 18, 19, and Ord. LV. r. 27. By Ord. LV. r. 2 (12) applications as to the guardianship and mainor advancement of infants are enumerated among matters assigned to the Chancery Division. See also Seton, p. 706 et seq. tenance Although a father cannot appoint testamentary or any other natural child. guardians to his natural child (see Sleeman v. Wilson, L. R., 13 Eq. 36), yet where he names persons in his will as guardians, the Court will generally appoint those persons guardians: Ward v. St. Paul, 2 Bro. C. C. 583; Peckham v. Peckham, ibid.; 2 Cox, 46. And generally an ineffectual appointment of a guardian by a parent will be regarded by the Court: Hall v. Storer, 1 You. & C., Ex. 556. See also Whitelock v. Finch, 3 You. & C., Ex. 724. But even while the father is living the Court will prefer the mother to the father of a natural child: R. v. Soper, 5 T. R. 278; R. v. Moseley, 5 East, 224 n.; Ex parte Knee, 1 B. & P., N. R. 148. But see Re White, 10 L. T. 349. And see the recent case of Reg. v. Nash (C. A.), 10 Q. B. D. 454. Where a natural child is destitute of a guardian, in order to save the expense of applying to the Court, he sometimes appoints one by election, both before and after fourteen, to enable the guardian to make leases of the infant's lands, and to take care of his property and person. For a bastard being considered, as it were, the first of his family, he cannot by law be heir either to his father or to his mother; consequently he cannot take by descent; in which case only guardianship in socage arises; ante, p. 796; and as he has no legal relations, excepting those who spring from his body, no person can claim the right of being his guardian: Vide Noy's Maxims, 238, 9th ed.; Hugh Revel's case, I Harg. Jurid. Arg. 397; Curtois v. Vincent, Jac. 268. XII. AN APPOINTMENT of GUARDIANS by several KNOW ALL MEN BY THESE PRESENTS, that we, the five of the age of twenty years, or thereabouts; C. B., of years, or thereabouts; and I. B., of though he (a) An infant having lands or hereditaments which do not In some cases attract guardianship in socage (vide ante, p. 796), may, it seems, an infant may elect a guarbefore fourteen, elect a guardian of such lands or hereditaments, notwithstanding his parents are living. So after fourteen, when dian, althe guardianship in socage terminates, the infant may exercise has parents. his right, although he has parents. For although guardianship by nature continues, notwithstanding the determination of guardianship in socage, yet guardianship by nature only attracts the custody of the infant's person; ante, p. 797; but it is not common to elect a guardian when there is a lawful parent living, except it be for the purpose of enabling the guardian to make leases. For whether a parent, Litt. s. 123; Morgan v. Morgan, Whoever 1 Atk. 489, or a stranger enter on the lands of an infant, and takes the protake the profits, he will be considered, both at law and in equity, fits of an inas entering as a guardian, and will be accountable as such, until fant's estate, the heir comes to the age of fourteen years: Hughs v. Harrys, Cro. countable as Car. 229. But for the profits received after the heir comes to guardian or the age of fourteen years, the person receiving must in that case bailiff. be charged as bailiff: F. N. B. 111 B.; Noy's Max. 38; Co. Litt. 89 a; Sullivan's Lect. 128, 129, 2nd ed.; Dormer v. Fortescue, 3 Atk. 131. (b) A guardianship devised to three, without saying and to the survivor of them, yet the survivor shall have it: 2 P. Wms. 103; ante, p. 801. will be ac dian by Several. XII. Guar all such acts, matters, and things whatsoever for us respectively, and in our behalf respectively, relating to us respectively, and our respective estates as guardians or guardian Guardianship may or ought to do (c). [But such guardianship to cease as to each, any, or either of the guardians who shall go to reside abroad, refuse, or become incapable to act in the said guardianship, or become bankrupt or insolvent (d).] to cease as to each guar dian who be comes inca pable to act, &c. SUBSEQUENT BE IT REMEMBERED, that on this present day, the RATIFICATION. above-named G. B., being now of the age of fourteen years, did ratify (e) and confirm the election, nomination, and appointment above made. The appointment of a guardian should be general. Stamp, 108. IN WITNESS, &C. XIII. APPOINTMENT of GUARDIAN by a Father. KNOW ALL MEN BY THESE PRESENTS that I [father] of &c., hereby nominate and appoint [mother] my wife to be the guardian of my children, from and after my decease, until, being sons, they shall respectively attain the age of twenty-one years, or being daughters, they shall respectively attain that age or marry, and I commit to my said wife the sole custody and tuition of my said children accordingly : PROVIDED ALWAYS, that if my said wife shall die or marry again after my decease and before the youngest of my children, being a son, shall attain twenty-one years of age, or being a daughter, shall attain that age or marry, then, and in either of such cases, I declare that the appointment hereby expressed to be made shall be void, and in lieu thereof I hereby appoint A. B. of &c., such guardian of my children as aforesaid, and commit to him the sole custody and tuition of them accordingly. IN WITNESS, &c. (ƒ). (c) Sometimes the appointment of a guardian by an infant authorizes the making of leases, &c. ; yet, as appears above, the guardian does not derive his authority from the infant, but from the law, it seems better to omit the enumeration of any particular act which he is to do. (d) The words in brackets will prevent the necessity of having recourse to the Court, in consequence of the guardian's incapacity or refusal to act. (e) Vide ante, p. 801. c. 24. This appointment must be by deed, under stat. 12 Car. 2, XIV. APPOINTMENT of a PROTECTOR of a SET- tire from pro TO ALL TO WHOM THESE PRESENTS SHALL COME, We [appointors], of &c., the protectors of the several estates tail created by the will of [testator], dated, &c., and proved, &c., send greeting: WHEREAS (g) the said [retiring protector] is Desire to redesirous of relinquishing the office of protector so imposed tectorship. upon him by the said will of the said [testator] deceased: AND WHEREAS the said [continuing protectors] are desirous of Desire to apappointing [new protector], to be a protector in the room of point new protector. the said [retiring protector]. NOW KNOW ALL MEN BY Retiring proTHESE PRESENTS, that I [retiring protector] hereby absolutely quishes his relinquish the office of protector of the said estates tail, so im- office. posed upon me by the said will. AND KNOW YE FURTHER, Appointment that we [continuing protectors], by virtue and in exercise of tector. the power in that behalf reserved to us by the said will, hereby appoint (h) [new protector], to be a protector of the tector relin of new pro MENT BY SE PARATE DEED. (g) If the protector has relinquished by a separate deed, say, "AND WHEREAS the said [retiring protector], by deed-poll, RELINQUISHunder his hand and seal, dated, &c., and duly inrolled in the High Court of Chancery, did absolutely relinquish and retire from the said office of protector so imposed upon him by the said will of the said [testator] deceased: AND WHEREAS the said [continuing protectors] are desirous," &c. NOW KNOW [following up the recital immediately by the appointment of the new protector as in the text]. If the former protector has died, say, "AND WHEREAS the said [deceased protector] departed this FORMER PROlife in the month of last, and is buried in AND WHEREAS the said [continuing protectors] are desirous,' &c. (h) See the statute 3 & 4 Will. 4, c. 74, s. 32, which restrains the number of protectors at one time to three. The persons appointed must not be aliens, and they must be in esse when they are appointed. The power of appointing new protectors TECTOR DE CEASED. |