*605

Guardianship at Common Law.

*CHAPTER XIV.

JURISDICTION OF THE COURT OF CHANCERY OVER INFANTS AND THEIR GUARDIANS.

SECTION I-Guardianship at the Common Law and by Statute.

SECTION II.--Jurisdiction of the Roman Prætor and President of the Province in respect of the Persons and the Property of Minors.

SECTION III-Jurisdiction of the Court of Chancery over the Persons and Property of Infants.

SECTION IV.-Rules of Practice and Procedure in suits in Chancery as regards Infants.

SECTION I.-Guardianship by the Common Law and by Statute. Guardian of Minor holding by Military tenure-By socage tenure-Guardian by Custom -Guardian by nature-Guardian for Nurture-By the Statute 12 Car. II. c. 24.— Ancient Jurisdiction of the Court of Chancery in regard to Infants.

THE jurisdiction exercised by the Court of Chancery in respect of infants, so far as relates to their property, is so intimately connected with its jurisdiction for enforcing the performance of trusts, that it may properly be the next subject for consideration. It may be useful first to state how guardianship stood at the common law.

At the time when the Court of Chancery was established there were several kinds of guardianship depending upon the condition of the minor in regard to his property. On the death of a feudatory holding by knight service, the lord was entitled to the custody of the person of the heir and his lands, until he arrived at the age of twenty-one; the lord might take to his own use all the profits which belonged to the minor, as he had to provide a substitute to perform the services, but this right was subject to the obligation of maintaining and bringing up the minor in a suitable manner. This guardianship therefore existed for the benefit of the lord as well as the minor, and it might be assigned by deed. [*606] It was in a great measure to avoid this description of guardianship, amongst other feudal burdens, that lands were conveyed to uses, so that the equitable interest only, to which these burdens did not attach, might descend. It was against this evasion that the statute 4 Henry VII. c. 17, before mentioned, was especially directed; and it was, as we have seen, one of the grievances put forward in the preamble to the Statute of Uses (a). Ultimately, by the statute 12 Car. II. c. 24, as before noticed, the Court of Wards and Liveries (b), and tenure in capite and by knight service and with it guardianship in chivalry was abolished, military tenures being in general turned into tenure by common socage. Wardship was also incident to tenure in socage, but as there was no

(a) Hargrave, note 11 to Co. Litt. 88 b; 2 Fonblanque, p. 226, note; Macpherson on Infants, p. 1 to 18; that, and another very learned and accurate work by Mr. Chambers, have left little to supply on the

subject of infants.

(b) The management of the King's Wards had been transferred to the Court of Wards and Liveries, which was created in the reign of Hen. VIII.

Testamentary Guardianship, Stat. 12 Car. II. c. 24. 606

military service to be performed, there was no occasion for the lord to take the profits in order to provide a substitute for his infant tenant (a); the guardianship in this case therefore went to the nearest relations, to whom the inheritance could not descend (b). Such a guardian, at least in Littleton's time, was in the nature of a trustee; he could not take any of the profits to his own use, but only to the use or profit of the heir (c), and of this he had to render an account to the heir on demand, but not till after he had accomplished the age of fourteen years; in default the heir might then have an action of account against him (d).

If a stranger entered on the lands of an infant under fourteen, he was equally liable to be charged as guardian in socage (e). The guardian in socage does not appear to have had any right, as such, to interfere with the chattels of the minor.

There were also guardianships by custom. Thus the heir of gavelkind lands, was, until the age of fifteen, which is still the full age according to the custom of Kent, under the guardianship of the nearest of blood to whom the inheritance would not descend (ƒ); this description of guardian was also liable to an action of account.

[*607]

As regards Copyhold Lands, then as now, who should be the guardian depended upon the custom of the manor, but whoever takes the office, he is, as it appears, universally in the nature of a trustee for the minor (g).

The last species of guardianship by custom is that which is, or was, till it fell into disuse, exercised over orphans within the City of London, and in other cities and boroughs, which is also in the nature of a trust (h).

There was also the guardianship of the father, and in some cases of the mother, by nature, which determined at twenty-one, and of the father and mother for nurture, which determined at fourteen, each of which extended to all children; however, these kinds of guardianship only related to the person of the minor (i).

By the law of the twelve tables, parents were authorized to dispose of the guardianship of their children by will (k), and there are some traces

(a) Litt. § 123; 2 Bla. Comm. 88.

(b) Lord Ch. Macclesfield disapproved of this rule, 1 P. W. 260; it was contrary to the rule of the Roman law which gave it to the next male relation or legal heir. Just. Inst. i. 15 pr. "quia plerumque ubi successionis est emolumentum, ibi et tutelæ onus esse debet," Inst. i. 17, pr. and see Fortescue de Laud. cap. 40, Co. Litt. 88 b. The Roman rule was found in practice to be of fatal consequence to minors; see the Commentary of Vinnius.

(c) Litt. § 123, Lucrum facere ex tutela [tutor] non debet," Dig. xxvi. 7. 58, though in Bracton's time it would appear that the office was to some extent one of profit, fol.

91 a.

(d) Litt. ubi sup. "Officio tutoris incumbit rationes aciâs sui conficere et reddere pupillo; cæterum si non fecit, aut si factas non exhibet, hoc nomine judicio tutelæ tenebitur." Dig. xxvii. 3. 1, 3. i. e. post pubertatem, Inst. i. 20, 7, and the Comm. of Vinn. p. 107 b.

(e) Litt. § 124, Co. Litt. 89 b.

(f) Macpherson, p. 44.

(g) Ibid. 45-48, Hargrave's Note, No. 16. Co. Litt. 88 b.

(h) Co. Litt. 88 b, Macpherson, 49. Lord Redesdale considered that this description of guardianship must have had its origin by grant from the crown, Wellesley v. Duke of Beaufort, 2 Bli. N. S. 124. It is however possible that it may have devolved with modifications from the time when the municipal magistrates of London exercised a similar jurisdiction under the Roman Viceroys.

(i) Bro. Guard. 70, 8 Edw. IV. 7. Co. Litt. 88 b, and see Hargrave's notes 12 and 13, and 2 Fonbl. 244; Comyn's Rep. 28, and other authorities, cited Macpherson 57 & 61, to 66; Mr. Hargrave considered that guardianship by nature extended to all children, note 12 to Co. Litt. 88 b, though this has been doubted.

(k) Dig. xxvii. 3. 9, 1, tit. 18, 1, 3.

607

Jurisdiction of Roman Prætor as to Infants.

of testamentary guardianship in England even before the statute of 12 Charles II. c. 24 (a), which is now to be noticed.

That statute enabled every person having a child or children under twenty-one, and not married at the time of his death, by deed executed in his lifetime, or by his will executed before two witnesses to dispose of the custody and tuition of such child or children until their ages of twenty-one, or for any lesser time, and such appointment is declared to be good against all persons claiming as guardian in socage or otherwise (b). By this statute the guardian so appointed may recover damages, but for the use of the child, for the wrongfully taking away or detaining such child, and may take into his or their custody, for the use of such child, the profits of all his lands and hereditaments, and also the custody, [*608] tuition, and management of the goods, chattels, and personal estate of every such child till the age of twenty-one; but the custom of the City of London is saved.

From this time, at least, guardianships were of two descriptions, answering in many respects to the legitime and testamentaria tutelæ of the Roman law. But it was necessary in England, as well as in Rome, to provide for those cases where there was no tutor either appointed by will or provided by the law, and where legal guardians existed, to secure on the part of such guardians the due performance of their trusts.

The Court of Chancery has for a long space of time, probably from the time of its first establishment, assumed this jurisdiction in cases which called for its exercise. This jurisdiction as now exercised in regard to infants has been the subject of some controversy (c). It exhibits so many analogies to that which was exercised by the Roman Prætors that I have thought it might be useful, or at least not out of place, to preface the account I am about to give of the general features of this branch of the jurisdiction of the Court of Chancery by a short summary of the principles on which the jurisdiction of the Roman Prætors in respect of the persons and property of infants was founded, and of the mode in which it was exercised, not doubting that it is from this model that the modern jurisdiction exercised by the Court of Chancery has to a considerable extent been framed.

SECTION II.-Jurisdiction of the Roman Prætor, and of the Prases in the Provinces, in respect of the persons and the property of Minors.

Guardianship purely an office of trust-Power to appoint did not attach to any Magistrate. unless specially conferred-Appointment of Tutors-Transferred to Prators and Prasides -Maintenance of Minors-Payment of Debts-Real Estate not to be converted into personal-Curators-Jurisdiction exercised extra ordinem.

Guardianship by the Roman law was purely an office of trust, for the

(a) See Macpherson, chap. v. p. 68-71. The age of fourteen, which was till lately the age of majority for disposing of personal estate, and for other purposes by the custom of particular places, appears to have been another of the customs which descended from the Roman-British institutions. The stat. 7 Will. IV. & 1 Vict. c. 26, as before observed, has abrogated all the

ancient customary law under which infants under twenty-one had the power of dispo sition by will of their personal estate, v. supra, p. 478.

(b) "Semper legitima tutela testimentariæ cedit." Dig. xxvii. 3. 9, 1.

(c) See Hargrave's note, Co. Litt. 128; 2 Fonbl. on Eq. p. 226, note (a).

Appointment of Guardians-Tutors-Maintenance.

608

execution of which the guardian, particularly of a minor under fourteen, who was called Tutor, was held rigidly liable to account (a).

*At no time did the power of appointing a guardian attach upon the office of any magistrate whatever, not even the governor of [*609] a province, unless it were conferred upon him under some law passed by the legislature during the Republic, or during the Empire by the Emperor as representing the state (b).

Especial laws were enacted to provide for the appointment of Tutors to those for whom no legitima tutela was provided (c). But as these laws did not require that any security should be taken from the Tutor that he should render an account, they were found to be insufficient (d). Claudius, therefore, in exercise of his imperial authority, authorized the consuls to appoint Tutors for minors in cases where there was no legitima tutela, ex inquisitione, that is, after a previous examination as to the responsibility of the proposed guardian and his fitness for the office (e). But the consuls not having any judicial authority, or the power of compelling, on the part of the guardians the due execution of their trust, the Emperor Antoninus Philosophus transferred this jurisdiction to the Prætor at Rome, and the Præsides in the Provinces, they having the power, under their ordinary and extraordinary jurisdiction, not only of effectually securing the due appointment of tutors, but of superintending the execution of their duties and compelling them duly to account (f).

From this time, if not before, the Prætor at Rome, and the Præses in the provinces, exercised a general control over all guardians (g), and exercised a general superintending power over the persons and property of minors, whoever might be their guardians.

Thus they gave directions as to the maintenance of minors (h), as to

(a) “Tutela est vis et potestas, in capite libero, ad tuendum eum qui propter ætatem suam sponte se defendere nequit, jure civili data et permissa," Dig. xxvi. 1, 1. pr. Lucrum facere ex tutela non debet [Tutor] ib. tit. 7, 1. 58. "In omnibus quæ fecit Tutor cum facere non deberet, item in his quæ non fecit, rationem reddere; hoc judicio præstanda dolum, culpam, et quantum in rebus suis diligentiam," Dig. xxvii. 3, 1. "Nisi bonam fidem in administratione præstiterint Tutores damnari debent, quamvis testamento comprehensum sit ut aneclogisti essent; et est vera illa sententia, nemo enim jus publicum remittere potest hujusmodi cautionibus, nec mutare formam antiquitus constitutam," Dig. xxvi. 7, 5, 7. The Tutor was bound to keep and render his accounts, supra, p. 606, note (f). Dig. xxvii. 3, 1, 3. He was answerable if by his neglect "minus idonei efficiantur debitores," ib. xxvi. 7,

15.

(b) "Tutoris datio neque imperii est neque jurisdictionis, sed ei soli competit cui nominatim hoc dedit vel lex vel senatus consultum vel princeps," Dig. xxvi. 1. 6, 2 tit. 18. 1, 3; Vinn. in 105 a, 106 a. The Tutor it is to be observed exercised the functions of guardian of the person and receiver and trustee of the estate, v. supra,

305.

(c) As Lex Atilia, Lex Julia, and Lex Titia, Just. Inst. i. 20, pr. ed Vinn. and Heinnec. p. 103.

(d) Inst. i. 20, 3, and the Commentary of Vinnius, 104 b.

(e) Vinn. Comm. p. 105 a, and the references.

(f) V. Just. Inst. 1, 20, 4; Vinnii Comm. 105 a, 106 a. They might delegate this power to the municipal magistrates in towns where the property of the minor was not to a large amount; hence the origin of the jurisdiction of appointing guardians, which was exercised by the municipal magistrates throughout almost every town in Europe, including possibly London.

(g) Justinian required that the Prætor should see that all magistrates who were authorized by law to appoint guardians, should take security for the due execution of the office, Just. i. tit. 24 pr., and the magistrate was liable to an action if he did not, ib. tit. 24, 2.

(h) "Modum autem patrimonii Prætor spectare debit cum alimenta decernit, et debet statuere tam moderatè ut non universum redditum patrimonii in alimenda decernat, sed semper sit ut aliquid ex reditu supersit," Dig. xxvii. 2. 3. 1, et v. princ.

609

Management of Minor's Estate-Curators.

how and with whom they should be brought up and educated; and in this respect, the Prætor might, if necessary for the interests of the minor, control even the express testamentary directions of the father (a). *The Prætor also exercised a general superintendence over the [*610] management of the estates of the minor. If the property of a minor were liable for debts, the Prætor or Præses gave directions as to the mode of payment; if it were necessary that the immovables, or as we say, real estate, should be resorted to, and without his authority this could not be done, it was in his power to direct a mortgage, or a sale as he might consider most beneficial to the minor; and the transaction was wholly void, if his directions were not strictly complied with (b). It may be observed, that no prospect of advantage would justify the guardians, or even the Prætor, in converting the immovable or real estate of the minor into personal, except for the payment of debts; nor could the land be sold, even under a decree of the Prætor, until the movables or personal estate were exhausted, and every other means of payment failed (c).

A person still continued to be a minor from 14 to 25, and until the latter age he could not contract without the authority of a curator. This office could not be conferred by will, but it was usual for the præses to confirm the testamentary appointment made by the parent (d). It would seem that it was not necessary that the minor above the age of 14, should have a curator, unless to enable him to contract (e). If a guardian misconducted himself, or there were just grounds of suspicion against him, the Prætor or Præses might displace him (ƒ).

This jurisdiction of the Prætor and the Præses, in these several cases, was exercised extra ordinem, that is, under their extraordinary, as distinguished from their ordinary, or as we should say, common law juris

diction.

A provision in a will, exempting the tutor from his liability imposed by law, was void (g); where the guardian was guilty of a breach of trust amounting to fraud, his heir, or as we should say, representative, was liable to make reparation (h). The guardian was bound to make out his accounts, and deliver them to his ward; till this was done, he could not relieve himself from his liabilities (i).

[*611] SECTION III.—Jurisdiction of the Court of Chancery in respect of the Person and Property of Infants.

Suits for calling Guardians to account-Against Legal Guardians-Appointment of Guerdians-Receivers-Maintenance and Education-Marriage of Wards-Jurisdiction ex€T

(a) "Causa cognita," Dig. xxvii. 2. 5; "Evitandi sunt qui pudicitiæ impuberi possunt insidiari," et v. ib. l. 6.

(b) Dig. xxvii. 9. 5, § 9, 10 & 13.

(c) Dig. xxvii. 9. 1, ib. tit. 9. 5, 14. From this and similar provisions, it appears that favor to the landed inheritance is not entirely of feudal origin. These provisions extended to the guardianship of the curator as well as of the tutor.

(d) Just. i. 23. 1; Heinnec. in Just. p. 116 b. As with us, a testamentary appointment to a natural child is confirmed, unless