an illegitimate child. This doubt, however, is considered as straining the objection too far, and the . generally admitted doctrine is that equity will uphold and enforce, as founded on a meritorious consideration, an imperfect deed by a father, providing for his natural children and their mother. (2 Kent's Com. 216-'17; Annandale v. Harris, 2 P. Wms. 432; Kruge v. Moore, 1 Sim. & Stu. (1 Eng. Ch.) 61.)

If a bastard die, seised of real estate of inheritance without having devised it, and without issue, the estate, at common law, escheats to the King, or other immediate lord of the fee; but in view of the apparent hardship of this doctrine, it is usual in such cases to transfer the rights of the crown for a trivial consideration, to some one of the relations. And so, likewise, in the case of personal estate, when a bastard dies intestate, and without issue, the King is entitled thereto, and it is customary for the Crown to grant the right of administration, and with it the right to the subject, to the next of kin, on whom letters of administration are conferred accordingly. (1 Bl. Com. 459, n (20); 1 Th. Co. Lit. 150, n (K.); Manning v. Napp, 1 Salk. 37; Jones v. Goodchild, 3 P. Wms. 33.)

A conveyance to a bastard and his heirs is a fee simple, although he can have no heirs but those of his own body. (1 Prest. Est. 468; Idle v. Cook, 2 Ld. Raym. 1152); and hence, a remainder limited after such an estate is void.

Bastards have their primary settlement in general, in their mother's proper parish, having no father; so that if she be illegally removed by the parish authorities to another county, or betake herself thither as a vagrant, or lie in there in a licensed hospital for pregnant women, and thus the child comes to he born out of her parish, yet notwithstanding, it has its legal settlement where her's is. (1 Bl. Com. 459.) 2h. The Incapacities of Bastards at Common Law.

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The incapacities of a bastard at common law resolve themselves principally into this, namely that he cannot be heir to any one, neither can he have heirs but of his own body; for being filius nullius, he is therefore in law of kin to nobody, not even to his own mother, and has no ancestor from whom any inheri table blood can be derived; and in all other respects there is no difference between a bastard and another man. (1 Bl. Com. 459.)

Lastly, a bastard's incapacities may be removed by making him legitimate, in which case he becomes capa

ble of inheriting and transmitting inheritance like other persons. But this can be effected no otherwise than by the transcendent power of an act of Parliament, as was done in the case of John of Gaunt's bastard children, by a statute of Richard the Second. (1 Bl. Com. 459.)

28. The Rights and Incapacities of Bastards in Virginia. The common law in few things offends so much against common reason and justice as in its doctrine touching bastards. That a bastard should inherit neither name nor estate from an unascertained father, is not unreasonable; but why should he not derive both estate and name from his mother, and transmit his own property to his maternal relatives? The pretension that the feudal barons would not be served by any vassal unless of stainless birth is in ridiculous contrast with their own habits of life; nor is the consideration that the doctrine in question encourages matrimony and discourages vice, and that it upholds purity of manners by enlisting on its side the sensibilities of nature for the reputatiou of one's offspring, sufficient to reconcile the understanding or the heart to the painful subversion which the doctrine occasions, of the obligations of kindred. The principle, indeed, seems to have no better real foundation than a desire to compound for personal immoralities by heaping marks of ignominy upon the innocent offspring of licentious love. The legislature of Virginia long since removed this stigma upon the good sense of the law, by declaring (V. C. 1873, c. 119, § 5) that "bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, as if lawfully begotten." Hence, where a bastard died seised and possessed of a considerable estate, real and personal, intestate, unmarried, and without issue, leaving as his nearest of kin his mother and two bastard brothers, his estate was distributed as it would have been had he and the brothers been all lawfully begotten, but by different fathers; that is, it was divided agreeably to the statute of Descents (V. C. 1873, c. 119, § 1, 2, 3, 10,) into four parts, of which each brother (as being of the half-blood) had one, and the mother, taking with reference to the halfblood, a double portion, had two. (Garland v. Harrison, 8 Leigh, 358; Hepburn v. Dundas, 13 Grat 219, 223-4; Lessee of Brewer v. Blougher, 14 Pet. 178.) It may be proper to remark that in Stevenson's heirs v. Sullivant, 5 Wheat. 255, the Supreme Court of the United States, when as yet there had been no

adjudication of Virginia courts upon the statute, interpreted its language as entitling bastards to inherit from the mother only, and not from the collateral line on the mother's side, as from a brother of the bastard. But this construction is wholly overruled in the above stated cases of Garland v. Harrison, 8 Leigh, 368; and Hepburn v. Dundas, 13 Grat. 226-'7; and in Lessee of Brewer v. Blougher, 14 Pet. 178, is abandoned by the Supreme Court itself.

For a learned abstract of the rights and disabilities of bastards in different ages and nations, see note by Mr. Wheaton to Stevenson's heirs v. Sullivant, 5 Wheat. 262. And for the Roman law on the subject, the reader is referred to Gibb. Decl. & Fall, c. xliv.

Notwithstanding the objections which seem fairly to lie to the doctrines of the common law, touching the disabilities of bastards, yet several of the States of the Union adhere to them in their rigor, and most have stopped considerably short of the provisions of our Virginia law. See 4 Kent's Com. 414-'15; 1 Rop. Leg. 80, n (10).

On the paternal side, the condition of bastards is unchanged in Virginia. As to the father, the bastard is still quasi filius nullius; the law indulges no presumption as to his paternity. A devise or bequest to him by his reputed or acquired name, or by a definite designation, is good, whether made by his father or by a stranger; but the well-established common law doctrine is still applicable on the father's side, namely, that the word children does not include bastards, even in a will, save where the intention to do so is plain, as where bastards are clearly designated, or when there are no children but bastards, nor any possibility of any. Ante p. 418, 1h.) On the mother's side, however, our statutes have placed him in a very different position. As to her, he does not remain nullius filius. It was the object of our law to give him what at common law he had not, a mother. He is her child in law, as in fact, and as to her the maxim, "qui ex damnato coitu nascuntur, inter liberos non computentur," has ceased to exist. He is to be counted amongst the children of his mother, and as a consequence will take by virtue of a devise or gift to his mother's children, just as if he were legitimate. (Bennett & ux v. Toler & als, 15 Grat. 631.)

CHAPTER XVII.

OF GUARDIAN AND WARD.

4. The Relation of Guardian and Ward.

This last of the private relations is nearly allied to that of parent and child. The popular idea of a guardian implies orphanage, or at least that the father is dead. This, however, is not the legal notion of a guardian. On the contrary, the first and most frequent instance of guardianship is that of the minor's parents. A guardian is defined to be one appointed, by the policy of the law, to take care of a minor's person or estate, or of both person and estate. (1 Bl. Com. 460; Bac. Abr. Guardian; 2 Kent's Com. 217.) The Roman law styles one charged with the custody of a minor's person, and the care of his education, a tutor, and one to whom his estate is committed, a curator. Our law unfortunately denominates both sets of fiduciaries guardians, thereby giving occasion to not a little confusion of thought. The student, therefore, must take care to fix in his memory, in respect to each class of guardian presently to be described, whether he has charge of the person only, or of the estate only, or of both person and estate. (1 Bl. Com. 360; Dig. xxvi, Tit. iv, § 1.)

It is proposed to consider the subject thus:

1st. The different kind of guardians, how they are appointed, and their power and duty, &c.

2d. The different ages of young persons for sundry purposes, as defined by the law; and

3d. The privileges and disabilities of a minor under age, and subject to guardianship;

W. C.

1o. The different kinds of Guardians, the Mode of their Appointment severally; the Circumstances under which the several kinds of Wardship occur; the Powers and Duties of Guardians; and Guardian's Accounts and Allowances; W. C.

1. The different kinds of Guardians, and Modes of their Appointment severally.

Under this head will be stated the different kinds of guardians, common law and statutory, existing in England, proceeding to show whether or not they are respectively found in Virginia, together with the modes of appointing them severally.

The several kinds of guardians are (1), Guardians by nature; (2), Guardians for nurture; (3), Guardians in chivalry; (4), Guardians in socage; (5), Guardians by election; (6), Guardians appointed by chancery courts;

(7), Guardians appointed by the Ecclesiastical court; (8), Guardians under the Statute 4 & 5 Ph. & Mary.; (9), Testamentary guardians; (10), Guardians by the custom of particular places; and, (11), Guardians ad litem. W. C.

18. Guardians by Nature.

These exist by the common law. They are the father; or if he be dead, the mother; and if she too be dead, any lineal ancestor of the minor, to whom he is heir; the father having the first claim, the mother the second; and amongst more remote ancestors, he who first obtains possession of the infant, pursuant to the maxim in æquali jure melior est conditio possidentis. (1 Bl. Com. 461.)

Guardianship by nature embraces only the custody of the minor's person and the care of his education, and does not include the care of his estate. It is applicable only to heirs apparent; and when exercised by the father or mother seems, as to the heir apparent, to be little more than the parental control treated of in the last chapter. As to infant children other than heirs apparent, this wardship is not applicable to them, but guardianship for nurture, presently to be described, until the age of fourteen. After the age of fourteen, during the rest of their minority, the younger children (not heirs apparent), although in general under no wardship to their parents, are yet subject to their parental control and authority, which, in its practical effects, seems to differ little, if at all, from a guardianship of the person.

The infant's estate, if he has any, is never committed to the guardian by nature, merely as such, but to some person duly appointed and qualified as guardian_by giving bond, &c., as required by law. (1 Th. Co. Lit. 155, n (2); Bac. Abr. Guardian (A), 1; Ratcliff's Case, 3 Co. 37 b, 38 a b; Armstrong v. Stone & ux, 9 Grat. 105, &c.)

In Virginia all children, male and female, without regard to primogeniture, are heirs apparent of father and mother by our statute of descents (V. C. 1873, c. 119, § 1), and hence all are with us subject to the guardianship by nature, and such guardianship is otherwise attended with the same incidents as at common law. Thus, it extends to the person only, and not the estate, and continues until the ward attains the age of twenty-one.

In consequence of its embracing all the children, we are spared the necessity of considering practically the