PART IV.

INFANCY.

CHAPTER I.

Sec. 373. WHO ARE

INFANTS-AGE OF

MAJORITY.—All persons are infants, in contemplation of law, until they have reached the age of majority. The age of majority is determined by the municipal law and varies in different countries. Thus by the civil law, which prevails in Spain, Holland, and parts of Germany, full majority is not attained until the person has completed his twenty-fourth year. (Inst. I, 23, 1.) By the common law, from the earliest times, the age of majority is fixed at twenty-one for both sexes. The period is completed at the beginning of the day next preceding the twenty-first anniversary of a person's birth. (1 Bl. Com. 463.) In most States the common law age of majority is followed, but in a number of States, as Ohio, Illinois, Vermont, etc., females become of age at eighteen.

By the age of majority is meant full age, "perfectæ ætatis," as the civil law expressed it, at which time the person is competent to have complete control of himself and his affairs. Persons under this age are competent for various purposes, as we shall see, but have certain

privileges which cease when majority is attained. The status of persons under the age of majority is called infancy.

Sec. 374. GENERAL DISABILITIES OF INFANTS.-An infant is presumed incapable from lack of age of acting with the ability and capacity of an adult. Hence an infant may not hold a legislative or judicial office; or be an executor or trustee, or be a juror or an attorney at law, or in general any office of pecuniary and public responsibility. (Schoul. Dom. Rel., Sec. 394.). But it is held that an infant may notary public. (U. S. v. Bixby, 9 Fed. Rep. 78.) Also a deputy sheriff, and an agent. (Browne Dom. Rel. 106.)

be a

Sec. 375. SAME SUBJECT-AS TO CRIMES. -A child under seven is conclusively incapable of crime, one between seven and fourteen only prima facie so, and one over fourteen prima facie capable as an adult. (Schoul. Dom. Rel., Sec. 395.) An infant under fourteen is generally held incapable of rape. (Bish. Crim. Law, Secs. 466, 672.) Between the ages of seven and fourteen the responsibility depends upon the capacity to distinguish between right and wrong in respect to the crime with which he is charged. The criminal intent will not be presumed but must be proven. (Williams v. State, 14 Ohio 222; Willis v. State, 89 Ga. 188.)

Sec. 376. SAME SUBJECT-AS TO TESTIFYING. The test of an infant's capacity to testify is the ability to appreciate the nature of an oath, and suf

Sec. 364. RIGHTS AND DUTIES OF GUARDIAN. Subject to the regulation of the court, a guardian of the person of a ward is entitled to the custody of his ward not only as against the wishes of near relatives, but also as against the wishes of a parent. (Senseman's Appeal, 21 Pa. St. 331; 31 Me. 196.) The rights of a guardian may be restrained by an order of court to conform to the best interests of the child.

The guardian may change the domicile of the ward, within the State, but a prejudicial removal of the ward from the State may be restrained. (2 Kent Com. 227; Wilcox v. Wilcox, 14 N. Y. 575.) The parent as guardian has more authority to change the domicile. The guardian may select the place of the ward's education, and may protect him from improper associates. (Wood v. Gale, 10 N. H. 247.) The guardian has no right to the ward's services, and cannot maintain an action for the seduction of a female ward. (Blanchard v. Ilsley, 120 Mass. 487.)

Sec. 365. SAME SUBJECT-DUTIES AS TO THE PERSON.-The guardian's duties are those of the parent, protection, education, and maintenance. But his duty differs in this that he is bound to maintain the ward only to the extent of the ward's own estate. If there is no estate the ward must be put to work, or, if too young, may be entrusted to a charitable institution. (Browne Dom. Rel., 95.) The guardian may bind himself for the ward's maintenance if he fails to limit the liability to the property in his hands. (Hutchinson v. Hutchinson, 19 Vt. 437.) The father as guard

ian cannot use the child's income or principal, save by authority of court, as ordinarily it is his duty as parent to support the child.

Sec. 366. SAME SUBJECT-AS TO THE WARD'S PROPERTY.-The guardian's trust is one of obligation and duty, and not of speculation and profit. (2 Kent Com. 229.) The guardian obligates himself to conform to the power of his appointment, and carry out the duties he assumes with the same prudence, care and diligence which a good business man would use in the management of his own property. The ward's interest being the constant consideration of the chancery court, it is held that unauthorized acts of the guardian may be sanctioned if they redound to the ward's benefit; but for unauthorized acts which cause a loss, the guardian is amenable. (Schoul. Dom. Rel., Sec. 341.)

As a general rule the guardian can expend no more than the income of his ward's estate without the sanction of the court. (State v. Clark, 16 Ind. 97.) The order in which the ward's property is to be supplied to his maintenance is, first, the interest or income, next, the personalty, and, last, if necessary, the real estate. But the real property is never to be sold unless necessary for maintenance, and then by the order of the court. (Strong v. Moe, 8 Allen 125.) The guardian is allowed a liberal discretion in expenditures for the ward's maintenance and education, if he does not encroach upon the ward's capital. (Karney v. Vale, 56 Ind. 542; Chubb v. Bradley, 58 Mich. 268.)

The guardian may render himself liable by acts of

ficient intelligence to comprehend as a witness. Greenl. Ev., Sec. 366.) The intelligence required is a just appreciation of the facts respecting which testimony is required and ability to relate them truly. (Johnson v. State, 61 Ga. 35.) Children have been permitted to testify at the age of seven, and even at five. (Peterson v. State, 47 Ga. 524.)

Sec. 377. SAME SUBJECT-AS TO MAKING A WILL.-At common law an infant could not devise realty, but males at fourteen could will personalty, and females at twelve; this was the rule of the civil law. The matter is now regulated by statute, and frequently a distinction is made between real and personal property, twenty-one being fixed as the age for devising realty, and a less age for disposing of personalty. (Schoul. Wills, Sec. 43.) In Ohio, Massachusetts, Indiana, Michigan and other States full age is required to dispose of either real or personal property.

Sec. 378. SAME SUBJECT-AS TO CONTRACTS.-A distinction is made between the contracts of an infant as regards their being absolutely void without disaffirmance; or merely voidable, and binding unless disaffirmed at majority. The early rule being that if for the benefit of the infant the contract is binding; where it is uncertain as to benefit it is voidable; and if prejudicial to the infant it is void. (2 Kent Com. 236.) But the modern rule is to treat all contracts of an infant as voidable, save those for necessaries, which may be binding, and those which would be void as between adults. (Harner v. Dipple, 31 Ohio St. 72.)