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able. If a presumption must be indulged, as was observed in one of the cases, it would be in favour 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 melancholly consciousness of the corruption of public morals.b
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 ;c notwithstanding, it is admitted, that the 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 *224 exist in this country, for the guardian *must be
some relation by blood who cannot possibly inherit, and such a case can rarely exist. By the New York Revised Statutes,d 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 But the rights and authority of every such guardian are superseded in all cases where a guardian is appointed by the deed or last will of the father of the infant, or in default
• Dormer's case, 2 P. Wms. 262. In the matter of Livingston, 1 Johns. Ch. Rep. 436. Lord Hardwicke, in 2 Atk. Rep. 14.
b Esprit des Loix, liv. 19. ch. 24. c Note 67 to lib. 2 Co. Litt. d Vul. 2, 3d edit. p. 2.
thereof, by the surrogate of the county where the minor resides.a 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 declaredb to be co-extensive 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 in ferred 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 1st 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 guar . dian 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 and is not assignable. 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. Though the statute laws
a N. Y. Revised Statutes, vol. i. p. 719. sec. 7. Vol. ii. p. 151. sec. 4, 5, 6. b Ibid. vol. ii. p. 173. sec. 36.
Eyre v. Countess of Shaftsbury, 2 P. Wms. 121. Gilchrist, J. in Balch v. Smith, 12 N. H. Rep. 441.
à Lord Shaftesbury v. Hannam, Finch's Rep. 323. Lord Eldon, in Er 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 ap
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. 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
pointing 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 inay 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, p. 306. Statute Laws of Tennessee, 1836, p. 366. Hotchkiss Code of Georgia, 1845, p. 333.
a N. Y. Revised Statutes, vol. ii. p. 150, sec. 1, 2,3. Statutes of NewJersey, of 1795. Elmer's Digest, 598. Act of Virginia, 1792. V. R. C. vol. i. 240. Statute of Pennsylvania. Pardon'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. 2 to the infant father to appoint a guardian by deed is still retained. The Massachusetts Revised Statutes, of 1835, part 2. tit. 4. ch. 69. Ibid. tit. 7. ch. 79, require 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 testamen. tary guardians, for it is only instruction or direction as to the education of
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 in chancery to do it. The cases are not *226 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 ward, the guardianship continues as to his estate, though it has been thought otherwise as to his person.d
the infant, and does not imply the custody or charge of the person. Kevan
1 Vesey, 160.
d Reeve's Domestic Relations, p. 328. By the civil law, marriage did
(5.) The distinction of guardians by nature, and by socage, seems now to be lost or gone into oblivion, and those several kinds of guardian have become essentially superseded in practice by the chancery guardians, or guardians appointed by the court of chancery, or by the surrogates in the respective counties of New York, and by courts of similar character, and having jurisdiction of testamentary matters, in the other states of the Union.a Testamentary guardians are not very common, and all other guardians are now appointed by the one or the other of those jurisdictions. The power of the chancellor to appoint guardians for infants who have no testamentary or statute guardian, is a branch of his general jurisdiction over minors and their estates, and that jurisdiction has been long and unquestionably settled. The chancery guardian continues until the majority of the infant, and is not controlled by the election of the infant when he arrives at the age of fourteen. If there
not confer on a minor the privileges of majority. Dig. 4. 4. 2. Code, 5. 37. 12, but the laws of modern nations are very diverse on the effect of marriage upon minors. Marriage is an emancipation of the minor to full rights by the French and Dutch laws. Code Civil, art. 476. Voet ad Pand. 4. 4. 6. Vanderlinden's Inst. b. 1. ch. 5. sec. 7.
* In Pennsylvania, the orphan’s court has plenary power to appoint and control guardians, and regulate the maintenance of infants; and in Ohio, the courts of common pleas; and in New-Jersey, the ordinary or orphan's court, or the surrogate, as the case may be ; and in Massachusetts, Connecticut, and other states, the court of probate of the county have the power. In North Carolina, the superior and county courts and the court of chancery, seem to have concurrent jurisdiction over orphans and their estates. N. C. R. S. 1837, p. 307. 313.
b Harg. n. 16 to Co. Litt. 88.b. 2 Fonb. Tr. Eq. 228. n. 10 Vesey, 63. Sir J. Jekyll, in Eyre v. Countess of Shaftesbury, 2 P. Wms. 118, 119. The usual order in the appointment of a guardian for a minor under fourteen, the father being dead, is (1.) to the mother if unmarried, (2.) the paternal, and (3.) the maternal grandfather, (4.) to one or more uncles on the father's side, (5.) to the one or more uncles on the mother's side, (6.) to any other proper person.
c In the matter of Nicoll, 1 Johns. Ch. Rep. 25. N. Y. Revised Statutes, vol. ii. p. 151, sec. 10. In Maryland, it is provided by statute, that