Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding and this they boast to be "summa providentia." (i) But in the mean time they seem to have forgotten, how much it is the *guardian's [ *462] interest to remove the incumbrance of his pupil's life from that estate for which he is supposed to have so great a regard. (k) And this affords Fortescue, (7) and Sir Edward Coke, (m) an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is "quasi agnum committere lupo, ad devorandum." (n) These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do, unless one be appointed by the father, by virtue of the statute 12 Car. II, c. 24, which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty-one, and of which we shall speak hereafter), enacts that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. (6) These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London, and other places; (0) but they are particular exceptions, and do not fall under the general law. (7)

(i) Ff. 26, 4, 1.

(k) The Roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian: ―pupillum o utinam, quem proximus hæres Impello, expungam. Pers. 1, 12.

(7) C. 44.

(m) 1 Inst. 88.

(n) See stat. Hibern. 14 Hen. III. This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1, c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Leq. Att, l. 6, t. 7.) (0) Co. Litt. 88.

(6) [By this statute the father may dispose of the guardianship of any child unmarried under the age of twenty-one, by deed or will, executed in the presence of two or more witnesses, till such child attains the age of twenty-one, or for any less time. And the guardian so appointed has the tuition of the ward, and the management of his estate and property.

No material form of words is necessary to create the appointment. Swinb. p. 3, c. 12; see 2 Fonbl. on Eq. 5th ed. 246, 247, notes. But the power of the guardian exists only during the time for which he is expressly appointed. Vaugh. 184.

Though under this act a testamentary guardian has the custody of the infant's real estate, a lease granted by him of such real estate is absolutely void. 2 Wils. 129, 135.

The marriage of the infant before he becomes twenty-one years of age does not determine the guardianship. 3 Atk. 625.]

Since the statute 31 Geo. III, c. 32, a Roman Catholic priest is not precluded from being a testamentary guardian.

(7) [The king is also an universal guardian of infants, who delegates it to the lord chancellor. See 2 Fonbl. on Eq. 5th ed. 225.

By virtue of this power the chancellor may appoint guardians to such infants as are without them. Bac. Ab. Guardians, c.; 2 Fonbl. 5th ed. 225. And in a case where the infant, of the age of seventeen had appointed a guardian by deed, it was decided that the chancellor had still a power to appoint a guardian: 4 Mad. 462; and guardians at common law may be removed or compelled to give security, if there appear any danger of their abusing the person or estate of the ward: 3 Cha. Ca. 237; Style, 456; Hard. 96: 1 Sid. 424; 3 Salk. 177; but it has been considered that a statute guardian cannot be wholly removed. 3 Salk. 178; 1 P. W. 698; 2 id. 112; 2 Fonbl. 232. And guardians are appointed by him where such appointment is necessary to protect the infant's general interest, or to sustain a suit, or to consent to the infant's marriage: 1 Mad. 213; but he never appoints a guardian to a woman after marriage. 1 Ves. 157.

The infant himself may also appoint a guardian, and this right arises only when from a defect in the law (or rather in the execution of it), the infant finds himself wholly unprovided with a guardian. This may happen either before fourteen, when the infant has no such property as attracts a guardianship by tenure, and the father is dead without having executed his power of appointment, and there is no mother; or after fourteen, when the custody of the guardian in socage terminates, and there is no appointment by the father under the 12 Car. II.

The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them, (8) but shall only add, that the guardian, when the ward comes of age, is bound to give *him an account of all that he has transacted on his behalf, and must [ *463] answer for all losses by his wilful default or negligence. (9) In order

Lord Coke only takes notice of such election where the infant is under fourteen; and as to this, omits to state how or before whom it should be made. See 1 Inst. 87, b. Nor does this defect seem supplied by any prior or contemporary writer. As to a guardian under fourteen, it appears from the ending of guardianship in socage at that age, as if the common law deemed a guardian afterwards unnecessary. However, since the 12 Car. II, c. 24, it has been usual, in defect of an appointment under the statute, to allow the infant to elect one for himself; and this practice appears to have prevailed even in some degree before the restoration; such election is said to be frequently made before a judge on the circuit: 1 Ves. 375; but this form does not seem essential.

The late Lord Baltimore, when he was turned of eighteen, having no testamentary guardian, and being under the necessity of having one for special purposes, relative to his proprietary government of Maryland, named a guardian by deed, a mode adopted by the advice of counsel. It seems, in fact, as if there was no prescribed form of an infant's electing a guardian after fourteen, any more than there is before; and therefore election by parol, though unsolemn, might be legally sufficient. The deficiency in precedents on this occasion is easily accounted for, this kind of guardianship being of very late origin, unnoticed as it seems by any writer before Coke, except Swinburn. Testam. edit. 1590, 97, b. And there being yet no cases in print to explain the powers incident to it, or whether the infant may change a guardian so constituted by himself, Coke, though professing to enumerate the different sorts of guardianship, omits this in one case, whence perhaps it may be conjectured, that in his time it was in strictness scarcely recognized as legal. 1 Inst. 88, b, in notes. For these observations, see Toml. Law Dict. tit. Guardian. Though an infant thus appoint a guardian, yet it does not preclude the court of chancery from appointing another. 4 Mad. 462.

Guardians are also appointed ad litem. All courts of justice have a power to assign a guardian to an infant to sue or defend actions, if the infant comes into court and desires it; or a judge at his chambers, at the desire of the infant, may assign a person named by him to be his guardian. F. N. B. 27; 1 Inst. 88, b. n. 16, 135, b. 1.]

(8) But the legal position of a guardian differs essentially from that of a father, in the control which the former has over the ward's property. The real estate he has power to lease during the minority of the ward: Field v. Scheiffelin, 7 Johns. Ch. 154; and the personal estate he may sell and convert into money to invest for the benefit of the ward. Ellis v. Essex Bridge, 2 Pick. 243; Reeve Dom. Rel. 469. But he cannot turn real estate into personal, or personal into real, without the authority of the court of chancery or other court having jurisdiction in respect to this relation. Merchant v. Sunderlin, 3 Ired. 501; Stall's lessee v. Macalester, 9 Ohio, 19; Westbrook v. Comstock, Wal. Ch. 314; Sherry v. Lansberry, 3 Ind. 320; Hassard v. Rowe, 11 Barb. 25.

(9) [Under the general protection afforded to infants by the court of chancery, an infant may in that court, by his prochein amy, call his guardian to account, even during his minority. 2 Vern. 342; 2 P. Wms. 119; 1 Ves. 91.

Guardians in socage are by the common law accountable to the infant, either when he comes to the age of fourteen, or at any time after, as he thinks fit. Co. Litt. 87.

The guardian in his account shall have allowance of all reasonable expenses: if he is robbed of the rents and profits of the land without his default or negligence, he shall be discharged thereof in his account; for he is in the nature of a bailiff or servant to the infant, and undertakes no otherwise than for his diligence and fidelity. Co. Litt. 89, a 123.

If a man intrudes upon an infant, he shall receive the profits but as guardian, and the infant may have an account against him as guardian, or the infant may treat him as a disseisor; and if a person, during a person's infancy, receives the profits of an infant's estate, and continues to do so for several years after the infant comes of age before any entry is made on him, yet he shall account for the profits throughout, and not during the infancy only; and so it seems at law he should be charged in an action of account, as tutor alienus; 1 Vern 295; 1 Atk. 489; 2 Fonbl. 5th ed. 235, 236; and where a guardian, after his ward attains full age, continues to manage the property at the request of the ward, and before the accounts of his receipts and payments during the minority are settled, it is in effect a continuance of the guardianship as to the property, and he must account on the same principle as if they were transactions during the minority. And under these circumstances an injunction was granted on terms to restrain the guardian from proceeding in an action to recover the balance claimed by him on account of the transactions after his ward came of age. 1 Simons and Stu. Rep. 138.

A receiver to the guardian of an infant, whose account has been allowed by the guardian, shall not be obliged to account over again to the infant when he comes of age. Prec. Ch. 535.]

The guardian is not permitted to make a profit out of the estate of his ward, and if he fails to invest money received for him, he shall be charged interest upon it, and may even be

therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. (10) In case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes will proceed to the removal of him, and appoint another in his stead. (p) (11)

(p) 1 Sid. 424. 1 P. Wms. 703.

charged compound interest in a proper case: Fay v. Howe. 1 Pick. 528; Clarkson v. De Peyster, Hopk. Ch. 424. If he become purchaser on sales of the ward's property made by him, the sales are voidable by the ward. Clute v. Barron, 2 Mich. 192; Beaubien v. Poupard, Har. Ch. 206; Bostwick v. Atkins. 3 N. Y. 53. Eberts v. Eberts, 55 Penn. St. 110.

The court will not generally settle the guardian's accounts until some time after the ward comes of age, that the ward may have opportunity to investigate them. Matter of Van Horne, 7 Paige, 46. And if the guardian settles with the ward at once, the accounts may be opened afterwards, even though no fraud be charged. Fish v. Miller, 1 Hoff. Ch. 267; Wade v. Lobdell, 4 Cush. 510. And contracts not for the ward's interest, and which it is presumable the guardian must have obtained from him in consequence of the influence which he still possessed because of the relation, will be voidable. See Gale v. Wells, 12 Barb. 92.

(10) In many of the states of the United States, courts, variously designated probate courts, orphans' courts, surrogate courts, &c., have been vested with jurisdiction to appoint guardians, and to exercise a control over them similar to that exercised by the court of chancery in England: and sometimes the jurisdiction has been conferred in terms which would exclude any chancery jurisdiction. But where the terms are not thus exclusive, the court of chancery still retains its general supervision. Matter of Andrews, 1 Johns. Ch. 99; Westbrook v. Comstock, Wal. Ch. 314.

(11) [Testamentary guardians are within the preventive and controlling jurisdiction of this court; and if there be reason to apprehend that such a guardian meditates an injury to his ward, it will interfere, and prevent it. ÎP. Wms. 704, 705; 2 Fonbl. 5th ed. 249; 3 Bro. P. C. 341; 1 Sid. 424.

If a person appointed guardian under statute 12 Car. II, c. 24, dies, or refuses the office, the chancellor may appoint one: 1 Eq. Ca. Ab. 260, pl. 2; 1 P. Wms. 703; and if he become a lunatic, he may be removed. Ex parte Brydes, H. T. 1791. So if he become a bankrupt. But, generally speaking, a guardian appointed by statute cannot be removed by this court: 2 Cha. Ca. 227; 1 Ves. 158; 1 Vern. 442; unless the infant be a ward of the court. 2 P. Wms. 561.

The court of chancery will in some cases on petition make an order of maintenance of the infant: 3 Bro. C. C. 88; 12 Ves. 492; but, in general, payments to the infant during his minority are discountenanced. 4 Ves. 369.

In a case where a father left a legacy payable to a child at a future day, though he was silent respecting the interest, the court allowed maintenance: 11 Ves. 1; and so in a case where the interest was directed to accumulate. Dick. 310; 1 Mad. 253. But an order of maintenance was refused, though so directed, the father being living, and of sufficient ability to maintain the infant. 1 Bro. C. C. 387.

In allowing maintenance, the court will attend to the circumstances and state of the family. 2 P. Wms. 21; 1 Ves. 160.

In some cases it will allow the principal to be broken in upon for the maintenance of the infant. 1 Vern. 255; 2 P Wms. 22.

The court may interpose even against that authority and discretion which the father has in general in the education and management of the child: 1 P. Wms. 702; 2 id. 177; and cases citied in 2 Fonbl. 5th ed. 232; but quære if such child must not be a ward of the court. 4 Bro. C. C. 101, 102.

The court will permit a stranger to come in, and complain of the guardian's abuse of the infant's estate. 2 Ves. 484.

The court will not suffer an infant to be prejudiced by the laches of his trustee or guardian. 2 Vern. 368; Prec. Ch. 151.

Marrying a ward of the court of chancery without the consent of the court, is a contempt for which the party may be committed, or indicted, though he was ignorant of the wardship. 3 P. Wins. 116; 5 Ves. 15. But to render third persons so liable, it should appear that they were apprised of the party's being a ward, 2 Atk. 157; 16 Ves. 259.

A marriage in fact is sufficient to ground the contempt, though the validity of the marriage be questionable. 6 Ves. 572.

To clear such a contempt a proper settlement must be made on the ward. 1 Ves. Jun. 154. But the making such settlement does not necessarily cure the contempt. 8 Ves. 74. It is not cleared by the ward's attaining the age of twenty-one. 3 Ves. 89; 4 id. 386.]

2. Let us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twentyone is at his own disposal, and may alien his lands, goods, and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; (12) at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth, (q) who till that time is an infant, and so styled in law. Among the ancient Greeks and Romans women were never *of [*464] but age, subject to perpetual guardianship, (r) unless when married, "nisi convenissent in manum viri:" and when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years. (8) Thus by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; both probably copying from the old Saxon constitutions on the continent, which extended the age of minority "ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt;” (t) but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty; and in Holland at twenty-five.

3. Infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise: (u) (13) but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. (14) This prochein amy may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence: (w) but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima

(q) Salk. 44, 625. Lord Raym. 480, 1096. Toder v. Sansam, Dom. Proc. 27 Feb. 1775. (r) Pott. Antiq. b. 4, c. 11. Cic. pro Muren. 12.

(8) Inst. 1, 23, 1.

(t) Stiernhook de jure Sueonum, l. 2, c. 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii, 220, (2) Co. Litt. 135

(w) 1 Hal. P. C. 25.

(12) The power to bequeath personalty is taken from infants by statute 7 Wm. IV, and 1 Vic. c. 26, s. 7,

(13) [This is incorrectly expressed. 1st. The infant is sued in his own name alone as any other person, but he appears to defend his cause by guardian, being supposed without discretion to appoint an attorney for that purpose. 2d. He does not necessarily appear by his guardian as the text implies, but by any person whom the court shall appoint guardian ad litem to defend that particular suit. It is within the province of every court to appoint a guardian ad litem, where a party in a suit is an infant. See vol. III, p. 23, 24.]

(14) [An infant executor may sue by attorney. 2 Stra. 783; 2 Saund. 212.

And where a plaintiff, an infant, appears by attorney, it is cured after verdict for him by the 21 Jac. I, c. 13, s. 2, or by 4 Ann. c. 16, s. 2, after judgment by confession, nil dicit, non sum informatus, in any court of record, or after writ of inquiry executed.

If an infant sue by guardian, or prochein amy, he cannot afterwards remove his guardian, or disavow the action of his prochein amy: F. N. B. 63, K. 7th ed.; but he may either have a writ out of chancery to remove him, or, which is the usual course, may apply to the court, who may remove him at their discretion. Id.; Cro. Car. 261.]

facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or *discretion. (x) And Sir Mathew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; an- [* 465 ] other of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and in such cases the maxim of law is, that malitia supplet ætatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges. (y)

With regard to estates and civil property, an infant hath many privileges which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

It is generally true, that an infant can neither alien his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot alien their estates: but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint. (z) Also it is generally true, that an infant can do no legal act: yet an infant, who has had an advowson, may present to the benefice when it becomes void. (a) For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk, who, if unfit, may be rejected by the bishop, [ *466] rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement. (b) It is, farther, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable: yet in some cases (c) he may bind himself apprentice by deed indented or indentures, for seven years; and (d) he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him: (15) yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; (16) and likewise

(x) Ibid. 26. (b) Ibid. 2.

(y) Foster, 72.

(z) Stat. 7 Ann. c. 19. 4 Geo. III, c. 16. (a) Co. Litt. 172. (c) Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179. (d) Stat. 12 Car. II, c. 24.

(15) [It has been considered, that a bill of exchange, or negotiable security, given by an infant during his minority, is in no case binding on him, though given for necessaries: 2 Camp. 562, 563; Holt, C. N. P. 78; 1 T. R. 40; 4 Price, 300; Chit. on Bills, 5th ed. 22; and most clearly so, if not given for necessaries. Carth. 160. But infancy being a personal privilege, the infant only can take advantage of this. 4 Esp. 187.

An infant is not liable on an account stated, even though the particulars of the account were for necessaries. 1 T. R. 40; See 2 Stark. 36: otherwise in equity; 1 Eq. C. Abr. 286.]

(16) [The term necessaries is a relative one; and the question, as to what are necessaries, must be determined by the age, fortune, condition, and rank in life of the infant. See 8 T. R. 578; 1 Esp. Rep. 212; Carter, 315; which must be real and not apparent. Peake, 229; Esp. Rep. 211. The question, as to what are necessaries, is for a jury. 1 M. and S. 738.

An infant is liable for necessaries furnished to his wife and family, but not for articles furnished in order for the marriage. 1 Stra. 168. He is liable for so much goods supplied to him to trade with, as were consumed as necessaries in his own family. 1 Car. Rep. 94.1

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