PART III.

GUARDIAN AND WARD

CHAPTER I.

Sec. 355. PERSONS IN LOCO PARENTIS.Sometimes it is necessary for the law to accept or designate a person to act for or in place of a parent, in the care, custody and control of infants, or of persons incapacitated to care for themselves. Such persons, as regards their general rights and duties, are said to be "in loco parentis," that is, a parent for the time being. Thus the relation of guardian and ward, Blackstone observes, bears a near resemblance to that of parent and child, and is plainly derived from it; the guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age. (1 Bl. Com. 460.) So the instructor or teacher who has the care of the minor's education and instruction, is said to stand in loco parentis, and to have the power to restrain and correct the pupil to the extent that may be necessary to answer the purpose for which he is employed. (1 Bl. Com. 453.) *

Sec. 356.

GUARDIANSHIP

DEFINED.

Guardianship arises when one person is entrusted by

*See post, Sec. 372.

law with the interests of another, who from youth, inexperience, mental weakness or other cause is disqualified from acting for himself. The person so entrusted is called the "guardian," and the individual whose person or property is entrusted to the guardian is called the "ward."

Sec. 357. GUARDIANSHIP AT COMMON LAW. At common law there were a variety of guardianships which are now obsolete, or are replaced by statutory enactments, or changed by the form of our institutions. (2 Kent Com. 221.) Blackstone mentions three species of guardians recognized by the common law, as, guardians by nature, guardians for nurture, and guardians in socage. (1 Bl. Com. 461.) The parents were the natural guardians; first the father and then the mother. The parents were also also the guardians for nurture, and this applied to the children who by the English law were not to be heirs; it continued until the child reached the age of fourteen. If there were no parents a discreet person was assigned to maintain and educate the infant. Guardianship in socage arose where the minor was entitled to an estate in lands, and the policy of the common law demanded that the guardianship should be entrusted to the next of kin incapable of inheriting from the ward, to remove the temptation for the guardian to abuse the trust. The guardian in socage retained possession of the ward's property until he attained the age of fourteen, when he could choose his own guardian.

By 12 Car. 2, c. 24, the father might appoint a testa

mentary guardian for the person and property of his minor children until they attain the age of twenty-one. (1 Bl. Com. 462.)

The lord chancellor as the delegated agent of the king was recognized as the general and supreme guardian of all infants, as well as idiots and lunatics. Guardians might act on the advice and direction of the chancellor in dealing with their ward's estate, and were responsible to the court of chancery for any abuse of their trust, and might be removed by such court. (1 Bl. Com. 463.) Sec. 358. GUARDIANSHIP IN THE UNITED STATES.-The common law relating to guardianship has been largely replaced by legislation in the various States of the Union. And the whole subject is controlled in a great measure by local statutes. There are fewer kinds of guardians, and outside of guardianship by nature, or the parental right of custody of the child's person, when not unfit, the common law is entirely superseded. (Schoul. Dom. Rel., Sec. 290.) We have testamentary guardians, and chancery or probate guardians, but the distinction lies in the method of appointment and not otherwise. There is a distinction between the various courts known as probate, orphans', ordinary's and surrogate's, and the chancery courts. While the former 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 to the exclusion of the chancery courts, yet unless the terms are exclusive the court of chancery still retains its general supervision. (Mat

ter of Andrews, I Johns. Ch. 99;* Rev. Stat. Ohio, Tit. II, Ch. 3.)

Sec. 359. SAME SUBJECT-THE PARENTS AS NATURAL GUARDIANS.-Quite generally the father, and on his death the mother, is regarded as the natural guardian of the person of the ward, but neither parent is recognized as the guardian of the property coming to the child by gift, devise, etc., unless so appointed by a court of competent jurisdiction. Johns. Ch. 3; Schoul. Dom. Rel., Sec. 298.)

(1

Sec. 360. APPOINTMENT OF GUARDIANS. -Guardians derive their authority either from the law, as in the case of natural guardians, or from a special appointment. The special appointment may be by the parent, by the infant himself, or by a competent court.

The legal authority of the parent to the custody of minor children we have already noticed under the head of parent and child. But at the death of the parents the next of kin do not succeed to their right of natural guardianship. The mother of a bastard child is its natural guardian and not the putative father. (Wright və Wright, 2 Mass. 109; 2 Kent Com. 223.)

*Schouler explains the origin of probate and other special courts with partial chancery jurisdiction, by the fact that at the origin of our country the ecclesiastical or spiritual courts had charge of testamentary matters and the control of orphans and their estate. Our system necessitated special courts with probate jurisdiction, as the church had been denied authority in temporal matters. Later a prejudice to the expensive chancery proceedings of England caused these courts to be given jurisdiction of equity matters also, and now their power has become so fixed as to oust, in some cases, the chancery courts. (Dom. Rel., Sec. 291.)

Sec. 360. SAME SUBJECT-APPOINTMENT BY THE PARENT.-A father or mother may, by a written instrument, usually a deed or will, appoint a guardian for the person or property, or both, of his or her minor children. This is called testamentary guardianship, and at the old law guardians thus appointed needed no further qualifications, not even the probate of the will appointing them. But as testamentary guardianship is now regulated by the local statutes, and as these usually require a decree confirming the appointment, the older rule is superseded. Usually before confirming such an appointment the court requires that sureties be furnished, unless exempted by the appointment. (Wadsworth v. Connell, 104 Ill. 269.) A parol appointment is insufficient.

A testator cannot appoint a testamentary guardian except to his own children; but an attempt to appoint one for others may create a trust. (Camp v. Pittman, 90 N. C. 615.) A firm cannot be made a testamentary guardian, nor a corporation formerly, but certain financial corporations are now chartered with power to assume fiduciary trusts. (Rice's Case, 42 Mich. 528; Schoul. Dom. Rel., 5th ed., Sec. 301.)

Sec. 361. SAME SUBJECT-APPOINTMENT BY THE COURT.-The appointment of a guardian solely by the infant himself, as at common law when the infant at fourteen chose to supersede a guardian in socage by one of his own choosing, is not now permitted. Infants have still the privilege of selecting a guardian when of this age, but the person selected must be