only to the person, and determines when the infant arrives at the age of fourteen, in the case both of males and females. As it is concurrent with guardianship by nature, it is in effect merged in the higher and more durable title of guardian by nature. (a) This guardianship is said to apply only to the younger children, who are not heirs apparent; and as all the children inherit equally under our laws, it would seem that this species of guardianship has become obsolete.

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(3.) Guardian in socage has the custody of the *infant's lands, as well as of his person. (b) It applies only to lands which the infant acquires by descent; (c) and the common law gave this guardianship to the next of blood to the child, to whom the inheritance could not possibly descend; and therefore, if the land descended to the heir on the part of the father, the mother, or other next relation on the part of the mother, had the wardship; and so if the land descended to the heir on the part of the mother, the father, or his next of blood, had the wardship. () These guardians in socage cease when the child arrives at the age of fourteen years, for he is then entitled to elect his own guardian, and oust the guardian in socage, and they are then accountable to the heir for the rents and profits of the estate. (e) If the infant, at that age, does not elect a guardian, the guardian in socage continues. (f) The common law, like the law of Solon, (g) was strenuous in rejecting all persons to whom the inheritance might possibly arrive, and its advocates triumph in this respect over the civil law, (h) which committed the burden of the guardianship to the person who was entitled to the emolument of the succession. As we have admitted the half blood to inherit

(a) 3 Co. 38, b. Harg. note 67 to lib. 2 Co. Litt. Com. Dig. tit. Guardian, D. (b) Com. Dig. tit. Guardian, B.

(c) Quadring v. Downs, 2 Mod. Rep. 176.

(d) Litt. sec. 123. Quadring v. Downs, 2 Mod. Rep. 176.

(e) Litt. ibid.

(f) The King v. Pierson, Andrew's Rep. 313. The guardian in socage has lawful possession of the lands, and he may maintain actions of trespass or ejectment in respect to the lands of the ward. Byrne v. Van Hoesen, 5 Johns. Rep. 66. Jackson v. De Walts, 1 ibid. 157.

(g) Potter's Greek Antiq. vol. i. 574.

(h) Co. Litt. 88, b. 1 Blacks. Com. 462.

equally with the whole blood, this jealous rule would, still more extensively with us, prevent relations by blood from being guardians in socage. The law of Scotland and the ancient law of France took a middle course, and may be supposed, in that respect, to have been founded in more wisdom than either the civil or the common law. They committed the pupil's estate to the person entitled to the legal succession, because he is

most interested in preserving it from waste; but excluded *223 him from the custody of the pupil's person, because his

interest is placed in opposition to the life of the pupil. (a) And yet, perhaps, the English, the Scotch, and the French laws, equally proceeded on too great a distrust of the ordinary integrity of mankind. They might, with equal propriety, have dẹprived children of the custody and maintenance of their aged and impotent parents. It is equally a mistake in politics and in law, to consider mankind degraded to the lowest depths of vice, or to suppose them acting under the uniform government of virtue. Man has a mixed character, and practical wisdom does not admit of such extreme conclusions. The old rule against committing the custody of the person and estate of a lunatic to the heir at law, has been overruled as unreasonable. (b) If a presumption must be indulged, as was observed in one of the cases, it would be in favor of kinder treatment, and more patient fortitude, from a daughter as committee of the person and estate of an aged and afflicted mother, than from the collateral kindred. The fears and precautions of the lawgiver on this subject imply, according to Montesquieu, a melancholy consciousness of the corruption of public morals. (c)

This guardianship is a personal trust, and is not transmissible by succession, nor devisable, nor assignable. It extends, not only to the person and all the socage estate, but to hereditaments which do not lie in tenure, and to the personal estate. This is the opinion of Mr. Hargrave, and he supports it by strong reasons; (d) notwithstanding, it is admitted, that the

(a) Erskine's Inst. p. 79. Hallam on the Middle Ages, vol. i. p. 106.

(b) Dormer's Case, 2 P. Wms. 262. In the matter of Livingston, 1 Johns. Ch. Rep. 436. Lord Hardwicke, in 2 Atk. Rep. 14.

(c) Esprit des Loix, liv. 19, ch. 24.

(d) Note 67 to lib. 2 Co. Litt.

title to guardianship in socage cannot arise unless the infant be seised of lands held in socage. This guardianship in socage may be considered as gone into disuse, and it can hardly be said to exist in this country, for the guardian must *224 be some relation by blood, who cannot possibly inherit, and such a case can rarely exist. By the New York Revised Statutes, (a) where an estate in lands becomes vested in an infant, the guardianship of such infant, with the rights, powers, and duties of a guardian in socage, belong to the father of the infant; and if there be no father, to the mother; and if there be neither, then to the nearest and eldest relative of full age, not being under any legal incapacity; and as between relatives of the same degree of consanguinity, males are preferred. But the rights and authority of every such guardian are superseded in all cases where a guardian is appointed by the deed or last will of the father of the infant, or in default thereof, by the surrogate of the county where the minor resides. (b) Surrogates have the same power to allow and appoint guardians as is possessed by the chancellor; and as the powers and jurisdiction of the court of chancery are declared (c) to be coextensive with the same powers and jurisdiction in England, with the exceptions, additions, and limitations created and imposed by the constitution and laws, it is to be inferred that the chancellor of New York retains the jurisdiction over infants, which belongs to the chancellor in England, and which belonged to the chancellor of New York prior to the first of January, 1830, when the Revised Statutes took effect.

(4.) Testamentary guardianships, to which I have already alluded, are founded on the deed or last will of the father, and they supersede the claims of any other guardian, and extend to the person and real and personal estate of the child, and continue until the child arrives at full age. This power in the father to constitute a guardian by deed or will, was given by the statute of 12 Charles II., and it has been pretty extensively adopted in this country. It is a personal trust, *225

*

(a) Vol. ii. 3d edit. p. 2.

(b) N. Y. Revised Statutes, vol. i. p. 719, sec. 7. Vol. ii p. 151, sec. 4, 5, 6. (c) Ibid. vol. ii. p. 173, sec. 36.

and is not assignable. (a) A will merely appointing a testamentary guardian need not be proved; and though the statute speaks of appointment by deed, as well as by will, yet such a disposition by deed may be revoked by will; and it is evident, from the language of the English statute, and from the reason of the thing, that the deed there mentioned is only a testamentary instrument in the form of a deed, and to operate only in the event of the father's death. (b) Though the statute laws in this country, which have adopted or followed the provisions in the English statute, may have abridged its explanatory and verbose phraseology, it is not to be presumed that they intended to vary the construction of it. These parental guardians may be appointed by the father, whether he be of full age or a minor, and to any child being a minor, and unmarried. (c)

(a) Eyre v. Countess of Shaftesbury, 2 P. Wms. 121. Gilchrist, J., in Balch v. Smith, 12 N. H. Rep. 441.

(b) Lord Shaftesbury v. Hannam, Finch's Rep. 323. Lord Eldon, in Ex parte The Earl of Ilchester, 7 Vesey, 367. The statute of Ohio, in 1831, very properly drops the word deed, and gives the father the power of appointing, by will, a testamentary guardian to his infant and unmarried child. But the statute in North Carolina, Georgia, and Tennessee, says expressly, that the father may by deed, executed in his lifetime, or by his last will and testament, in writing, dispose of the custody and tuition of his children during their minority. N. C. R. S. 1837, vol. i. p. 306. Statute Laws of Tennessee, 1836, p. 366. Hotchkiss, Code of Georgia, 1845, p. 333. (c) N. Y. Revised Statutes, vol. ii. p. 150, sec. 1, 2, 3. Statutes of New Jersey of 1795. Elmer's Digest, 598. Act of Virginia, 1792. V. R. C. vol. i. p. 240. Statute of Pennsylvania, 1833. Purdon's Dig. 971. Chase's Statutes of Ohio, vol. iii. 1788. Statute of Alabama, of 1822, all allow a father, being a minor, to appoint a testamentary guardian, who should have the powers of a guardian in common socage. This testamentary power was copied from the statute 12 Car. II. c. 24. The statute of 1 Vict. c. 26, has taken away from an infant father the power to appoint a testamentary guardian. But it is said that the power given by the statute of 12 Car. II., to the infant father, to appoint a guardian by deed, is still retained. The Massachusetts Revised Statutes of 1836, part 2, tit. 4, ch. 69. Ibid. tit. 7, ch. 79, requires security from every testamentary guardian or trustee, appointed by will, for minors or others, unless the will directs otherwise, and the trustee's powers and duties are prescribed with considerable minuteness. It was declared by statute in Massachusetts, in 1837, that the marriage of a female guardian operated as an extinguishment of her authority as guardian, and that the husband did not succeed as guardian in her right. The statute of Illinois, of 1835, gives the power by deed or last will, to the mother as well as to the father, if she be sole, and the father has made no such disposition. Though a testator by will directs his executors, out of the proceeds of a specified bequest to his infant son, to educate him, that provision does not of itself make the executors testamentary guardians, for it is only instruction or direction as

The better opinion is, that such a testamentary guardian will continue till the age of twenty-one, though the infant be a female, and marry in the mean time, if the will be explicit as to the duration of the trust; for the statute gives that authority to the father. It has been held, that the marriage of a daughter will determine the guardianship as to her, though not so as to a son until he comes of age; and Lord Hardwicke said, in Mendes v. Mendes, (a) that it had been so adjudged in Lord Shaftesbury's case. But, in the subsequent case of Roach v. Garvan, (b) the language of the chancellor was, that the marriage would not, of itself, determine a guardianship, though the court would never appoint a guardian to a married female infant. The latter cases lead to the conclusion that the marriage of a female infant does not absolutely determine the guardianship, and that it would require a special order *226 in chancery to do it. (c) The cases are not very clear and consistent on this point. It would be quite reasonable that the marriage of a female ward should determine the guardianship, both as to her person and her estate, if she married an adult. It ought to be so as to her person, but not as to her estate, if she married a minor. Upon the marriage of a male

*

to the education of the infant, and does not imply the custody or charge of the person. Kevan v. Walker, 11 Leigh's Rep. 414.

(a) 1 Ves. 89. 3 Atk. Rep. 619.

(b) 1 Ves. 160.

(c) In the matter of Whitaker, 4 Johns. Ch. Rep. 380. It was decided in Jones v. Ward, 10 Yerger, 160, that guardianship as to a female ward ceases upon her marriage under age. In England it is quite of course to appoint a new guardian in such a case. 8 Simons, 346.1 The court of chancery rarely removes a testamentary guardian duly appointed, though it will interfere and impose such restrictions as will prevent an abuse of the trust. Goodall v. Harris, 2 P. Wms. 560. Roach v. Garvan, 1 Vesey, 160, and the note of Mr. Bell, ibid. There seems to be no sufficient ground for the doubt in some of the books, that a testamentary guardian cannot be removed. Story's Com. on Eq. Jurisprudence, vol. ii. p. 572, sec. 1339, note. When a feme sole, appointed guardian of her infant, married, the court directed an inquiry whether she had not thereby deprived herself of the guardianship, as she was no longer sui juris; though it seems she might be reappointed under new sureties. Gornall, matter of. Rolls Court at Westminster, May, 1839. 1 Beav. 347.

1 Nicholson v. Wilborn, 13 Geo. 467.

2 A married woman may be made a guardian with the assent of her husband, but not otherwise. Palmer v. Oakley, 2 Doug. Mich. R. 433.