2.
- 1. A guardian of the person is one who has been lawfully invested
with the care of the person of an infant, whose father is dead.
3.
The guardian must be properly appointed he must be capable of serving;
he must be appointed guardian of an infant; and after his appointment he
must perform the duties imposed on him by his office.
4.
- 1st. In England, and in some of the states where the English law has
been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by
Stat. 12 Car. If. c. 24; power is given to the father to appoint a
testamentary guardian for his children, whether born or unborn.
According to Chancellor Kent, this statute has been adopted in the state of New York, and probably throughout this country. 2 Kent, Com. 184. The statute of Connecticut, however, is an exception; there the father cannot appoint a testamentary guardian. 1 Swift's Dig. 48.
5.
All other kinds of guardians, to be hereafter noticed, have been
superseded in practice by guardians appointed by courts having
jurisdiction of such matters. Courts of chancery, orphans courts, and
courts of a similar character having jurisdiction of testamentary
matters in the several states, are, generally, speaking, invested with
the power of appointing guardians.
6. - 2d. The person appointed must be capable of performing the duties; an idiot, therefore, cannot be appointed guardian.
7.
- 3d. The person over whom a guardian is appointed, must be an infant;
for after the party has attained his full age, he is entitled to all his
rights, if of sound mind, and, if not, the person appointed to take
care of him is called a committee. (q. v.) No guardian of the person can
be appointed over an infant whose father is alive, unless the latter be
non compos mentis, in which case one may be appointed, as if the latter
were dead.
8.
- 4th. After his appointment, the guardian of the person is considered
as standing in the place of the father, and of course the relative
powers and duties of guardian and ward correspond, in a great measure,
to those of parent and child; in one prominent matter they are
different. The father is entitled to the services of his child, and is
bound to support him; the guardian is not entitled to the ward's
services, and is not bound to maintain him out of his own estate.
9.
- 2. A guardian of the estate is one who has been lawfully invested
with the power of taking care and managing the estate of an infant. 1
John. R. 561; 7 John. Ch. R. 150. His appointment is made in the same
manner, as that of a guardian of a person. It is the duty of the
guardian to take reasonable and prudent care of the estate of the ward,
and manage it in the most advantageous manner; and when the guardianship
shall expire, to account with the ward for the administration of the
estate.
10.
Guardians have also been divided into guardians by nature; guardian's
by nurture; guardians in socage; testamentary guardians; statutory
guardians; and guardians ad litem.
11.
- 1. Guardian by nature, is the father, and, on his death, the mother;
this guardianship extends only to the custody of the person; 3 Bro. C.
C. 186; 1 John. Ch. R. 3; 3 Pick. R. 213; and continues till the child
shall acquire the age of twenty one years. Co. Litt. 84 a.
12.
- 2. Guardian by nurture, occurs only when the ifant is without any
other guardian, and the right belongs exclusively to the parents, first
to the father, and then to the mother. It extends only to the person,
and determines, in males and females, at the age of fourteen. This
species of guardianship has become obsolete.
13.
- 3. Guardian in socage, has the custody of the infant's lands as well
as his person. The common law gave this guardianship to the next of
blood to the child to whom the inheritance could not possibly descend.
This species of guardianship has become obsolete, and does not perhaps
exist in this country; for the guardian must be a relation by blood who
cannot possibly inherit, and such a case can rarely exist. 2 Wend. 153:
15 Wend. 631; 6 Paige, 390; 7 Cowen, 36; 5 John.66.
14.
- 4. Testamentary guardians; these are appointed under the stat. 12
Car. II., above mentioned; they supersede the claims of any other
guardian, and extend to the person, an real and personal estate of the
child, and continue till the ward arrives at full age.
15.
- 5. Guardians appointed by the courts, by virtue of statutory
authority. The distinction of guardians by nature, and by socage, appear
to have become obsolete, and have been essentially superseded in
practice by the appointment of guardians by courts of chancery, orphans'
courts, probate courts, and such other courts as have jurisdiction to,
make such appointments. Testamentary guardians might, as those of this
class, be considered as statutory guardians, inasmuch as their
appointment is authorized by a statute.
16.
- 6. Guardian ad litem, is pointed for the infant to defend him in an
action brought against him. Every court, when an infant is sued in a
civil action, has power to appoint a guardian ad litem when he has no
guardian, for as the infant cannot appoint an attorney, he would be
without assistance if such a guardian-were not appointed. The powers and
duties of a guardian ad litem are confined to the defence of the suit.
F. N. B. 27; Co. Litt. 88 b, note 16; Id. 135 b, note 1; see generally
Bouv. Inst. Index, h. t.; Coop. Inst. 445 to 455.
GUARDIANS OF THE POOR.
The name given to officers whose duties are very similar to those of
overseers of the poor, (q. v.) that is, generally to relieve the
distresses of such poor persons who are unable to take care of
themselves.
GUARDIANSHIP,
persons. The power or protective authority given by law, and imposed on
an individual who is free and in the enjoyment of his rights, over one
whose weakness on account of his age, renders him unable to protect
himself. Vide Tutor.
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