§ 163. A GUARDIAN is a person who by law has the custody of the person and estate of an infant, and the person who is under the care of a guardian is called a ward. The guardian in this. country and in England, performs the office both of the tutor and curator of the Roman laws, the former of which had the charge of the maintenance and education of the minor, and the latter the care of his fortune. The office was frequently united in the civil law, as it always is in our law with respect to minors.

The relation of guardian and ward bears a very near resemblance to that of parent and child, the guardian being a temporary parent, continuing the relation during the minority of the child.

There are two kinds of guardianship; one by the common law, and the other by statute. (2 Kent's Com. 218.)

Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which entered into that relation, are adopted in guardianship by statute. It is well, therefore, to consider briefly the different kinds of guardians known to the common law, as well as those recognized by statute. There were four kinds of guardians at common law, viz.: guardian in chivalry, guardian in socage, guardian by nature, and guardian by

nurture.

§ 164. Guardianship in chivalry arose out of the feudal practice of bestowing land in consideration of military service, and took place only when lands came to an infant by descent, which were held by knight service. It was natural that when military service was suspended on account of the infancy of the tenant, the lord should resume the fee which had originally moved from himself, until the heir male became capable of wearing heavy armor and doing knight service, or the heir female of having a husband who could perform the service for her. The infant, on the other hand, whose inheritance the lord enjoyed, had an obvious claim upon him for education and protection, and he was interested in training up his male vassals to arms, and in preventing his female

tenants from marrying his enemies. A system of guardianship based upon these principles, existed among the Normans, and was introduced into England after the conquest, (Coke's Copyholder, 22. McPherson on Inf. 2.)

When, upon the death of one holding by knight's service of a single lord, his or her land descended to an unmarried male heir under the age of twenty-one, the lord was entitled to the custody of the heir's person, and also of the land, until he arrived at the age of twenty-one, when the law supposed him to be fit for the services of chivalry.

The guardian might present to churches, bar the marriage of women, and take to his own use all other profits and incidents which belonged to the minor and his estates, but could make no alienation of the inheritance. He was obliged to maintain the infant, and was expected to see that he was "in his young years taught the deeds of chivalry and other virtuous and worthy sciences." Moreover, as he had all the emoluments of the heir, he was to act in all the concerns of the latter, and to prosecute all suits for the recovery of his rights. Finally, it was his duty to restore the inheritance in good condition, and also freed from the debts of the ancestor, in proportion to the duration of the custody and the value of the estate. (McPherson on Inf. 2, 3, and authorities cited.)

The lord's interest in controlling the marriage of his female wards led to his exacting a price for his consent, and at length it became customary to sell the marriage of wards of both sexes. (2 Black. Com. 70.)

If the king conferred knighthood upon an infant ward in chivalry, which might be as soon as he was baptized, this amounted to a judgment that he was able to do knight's service, and his body was immediately out of ward, but his land remained in ward till he reached twenty-one. (Sir Drue Drurie's case, 6 Coke's R. 74.)

When the male heir arrived to the age of twenty-one, or the heir female to that of sixteen, they might sue out their livery or ousterlemain, that is the delivery of their lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land, though Blackstone says this was expressly contrary to magna charta. (2 Black. Com. 68.)

When the heir thus came of full age, provided he held a knight's fee in capita under the crown, he was to receive the order of knighthood, and might be compelled to take it upon him, or else

pay a fine to the king. For in those heroical times no person was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and solemnity. (2 Black. Com. 69.)

Guardianship in chivalry might be forfeited by disparagement, waste, alienation, outlawry or attainder. There were various and peculiar qualities, fruits and consequences of tenure by knight's service, and many interesting incidents connected with this species of guardianship; but as the military part of the feudal constitution of England has been done away by statute, and as guardianship in chivalry was never known in the United States, nothing further need be said upon the subject.

€165. Guardianship in socage arises only when the infant has land by descent, and is very different from guardianship as an incident to knight service. (Quadring v. Downs, 2 Mod. R. 176.) It takes place when socage lands descend to the infant while under fourteen years of age, and ceases when the infant arrives at the age of fourteen years, unless no other guardian is appointed for him. The age of the tenant was originally fixed at fifteen, with reference to his fitness for agricultural employment, but fourteen has for many centuries been regarded as his full age. (McPherson on Inf. 19.) The guardian in socage is only appointed in the case of a legal estate, for otherwise difficulty might arise with respect to the obligations incident to the tenure. (Vide Rex v. Toddington, 1 Barnwell & Alderson's R. 560.)

The guardian in socage is guardian of the person of the ward as well as of his estate, and he cannot assign his guardianship. The guardian must be a person to whom the inheritance by no possibility can descend; as, when the estate descended from the father, in this case his uncle by the mother's side cannot possibly inherit the estate, and therefore he would be the guardian. For the law recognized in such cases judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him, that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust. (1 Black. Com. 461.)

Lord Chancellor Macclesfield vehemently condemned the rule that the next of kin, to whom the land cannot descend, is to be the guardian in socage, and declared that "it is not grounded upon reason, but prevailed in barbarous times, before the nation was civilized." (Dormer's case, 2 P. Wms. R. 262.)

If the infant has lands by descent both ex parte paterna and ex parte materna, then the next of kin on each side will respectively be guardians by socage of these lands; and of these two claimants, the first occupant will retain the custody of the infant's person. (1 Black. Com. 462, note 6.)

At the age of fourteen, the ward may oust the guardian and call him to account for the rents and profits of the estate, for at that age the law supposes him capable of choosing a guardian for himself.

Marriage, or the valor maritagii, was never in socage tenure any perquisite or advantage to the guardian, but rather the reverse. In this, and in many other respects, the socage tenures had much the advantage over the military ones.

If the guardian in socage dies before the ward has completed his fourteenth year, the wardship does not go to the executors, like wardship in chivalry, because it only exists for the benefit of the heir; but it devolves upon the next friend to whom the inheritance cannot descend. And the same is the rule when the guardian becomes incapable. (McPherson on Inf. 25.) The guardian in socage must take possession of the person of the heir, and of the lands and tenements which he had by descent, to keep the rents and profits for the heir until the latter reaches the age of fourteen, to keep his evidence of title safely, and to bring him up well.

Guardianship in socage is a trust reposed in the next friend by the law, and it has been said that the office cannot be refused. The guardian in socage has an actual estate and interest in the land, though not to his own use. He has a right, therefore, to elect whether he will let the estate or occupy it for the benefit of the ward; and unless he lets it, the law which imposes the duty of a guardian upon him, will necessarily protect him in the personal occupation and superintendence of it. The law considers a guardian in socage as entitled to the possession of the ward's property, and incapable of being removed from it by any person. (McPherson on Inf. 28.) He may in his own name bring trespass or ejectment, distrain for damage-feasant, or make a lease for years, until the heir attains the age of fourteen; and he may avow in his own name and right for rent upon a lease. (McP. on Inf. 35.)

It is laid down that a guardian in socage can make partition, and that this will bind the infant if it be equal; and, also, that if a tenant in socage mortgages his land, the guardian in socage of the

heir may tender the mortgage money in the ward's name, even without his consent. He may justify the occupation and governance of the land and likewise of the body, against the heir himself. (McP. on Inf. 37.)

The guardian must be charged upon his account as guardian and not as receiver, and is entitled to an allowance of his reasonable costs and expenses in all things. If he receives the rents and profit of the land, and is robbed of them without his own default or negligence, he will be discharged of them upon his account, and not be required to sustain the loss personally.

When a woman, guardian in socage, marries, the account lies against her and her husband for the profits taken before the coverture, and against the husband alone for those taken during coverture. (McP. on Inf. 39, and authorities cited.)

Neither an infant, an idiot, or a deaf-mute, can be guardian in socage. But if an individual be guardian in socage of an infant under fourteen years, the rule is that he must be guardian in socage of another infant of whom the first infant ought to be guardian. (Co. Litt. 88 b.)

There are many other suggestions which might be made with respect to guardianship in socage, but perhaps enough has been said, from the fact that this species of guardianship has become nearly or quite obsolete in this country, and therefore no particular interest is felt in the subject. This description of guardianship was never very common in the United States, and in those states where it was ever adopted it has now fallen into disuse. It is difficult to conceive how this species of guardianship can exist in this country, for the reason that none can be guardian except the next of kin, who cannot possibly inherit the estate, and such an instance can hardly occur under the laws of inheritance prevailing in the United States. (2 Kent's Com. 223. Vide also Combs v. Jackson, 2 Wend. R. 153.) In some instances, however, the rights, forms and duties of a guardian in socage, are conferred and imposed upon a species of guardian created by statute. (Vide Fonda v. Van Horne, 15 Wend. R. 631.)

§ 166. Guardianship by nature extends only to the person, and the subject of it only the heir apparent, and not the other children. Under the old law, a guardian by nature was entitled to the custody of his ward's person, up to the age of twenty-one, and could sell the marriage of his ward for his own benefit; but he