Commentaries on American Law (1826-30)

Chancellor James Kent

Of Guardian and Ward

THE relation of guardian and ward, is nearly allied to that of parent and child; and it takes place on the death of the father, and the guardian is intended to supply his place during the child’s minority.

Thee are two kinds of guardianship; one by the common law, and the other by statute; and there were three kinds of guardians at common law, viz.: guardian by nature, guardian by nurture, and guardian in socage.1

(1.) Guardian by nature, is the father, and on his death, the mother; and this guardianship on the part of the father extends to the age of twenty-one years of the child, and it extends only to the custody of his person.2 It was doubted for some time in the books, whether the guardian by nature was entitled to the possession of the personal estate of the infant, and could give a competent discharge to an executor on the payment of a legacy belonging to the child; and it was finally understood that he could not.3 The father has the first title to guardianship by nature, and the mother the second; and according to the strict language of our law, says Mr. Hargrave,4 only the heir apparent can be the subject of guardianship by nature, and therefore it is doubted whether such a guardianship can be of a daughter, whose heirship is presumptive, and not apparent. But as all the children, male and female, equally inherit with us, the guardianship by nature would seem to extend to all the children. The Court. of Chancery, for just cause, may interpose and control that authority and discretion which the father has in general in the education and management of his child.5

(2.) Guardian by nurture, occurs only when the infant is without any other guardian, and it belongs exclusively to the parents, first to the father, and then to the mother, It extends only to the person, and determines when the infant arrives at the age of fourteen, in the case both of males and females. As it is concurrent with guardianship by nature, it is in effect merged in the higher and more durable title of guardian by nature.6 This guardianship is said to apply only to the younger children, who are not heirs apparent; and as all the children inherit equally under our laws, it would seem that this species of guardianship has become obsolete.

(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 inheritance7 could not possibly descend; and therefore, if the land descended to the heir on the part of the father, the mother, or other next relation on the part of the mother, had the wardship; and so if the land descended to the heir on the part of the mother, the father, or his next of blood, had the wardship.8 These guardians in socage cease, when the child arrives at the age of fourteen years, for he is then entitled to elect his own guardian, and oust the guardian in socage, and they are then accountable to the heir for the rents and profits of the estate.9 If the infant, at that age, does not elect a guardian, the guardian in socage continues.10 The common law, like the law of Solon,11 was strenuous in rejecting all persons to whom the inheritance might possibly arrive, and its advocates triumph in this respect over the civil law,12 which committed the burden of the guardianship to the person who was entitled to the emolument of the succession. As we have admitted the half blood to inherit equally with the whole blood, this jealous rule would, still more extensively with us, prevent relations by blood from being guardians in socage. The law of Scotland, and the ancient law of France, took a middle course, and may be supposed, in that respect, to have been founded in more wisdom than either the civil or the common law. They committed the pupil’s estate to the person entitled to the legal succession, because he is most interested in preserving it from waste; but excluded him from the custody of the pupil’s person, because his interest is placed in opposition to the life of the pupil.13 And yet, perhaps, the English, the Scots, and the French laws, equally proceeded on too great a distrust of the ordinary integrity of mankind. They might, with equal propriety, have deprived children of the custody and maintenance of their aged and impotent parents. It is equally a mistake in politics and in law, to consider mankind degraded to the lowest depths of vice, or to suppose them acting under the uniform government of virtue. Man has a mixed character, and practical wisdom does not admit of such extreme conclusions.14 The old rule against committing the custody of the person and estate of a lunatic, to the heir at law, has been overruled as unreasonable. If a presumption must be indulged, as was observed in one of the cases, it would be in favor of kinder treatment, and more patient fortitude, from a daughter, as committee of the person and estate of an aged and afflicted mother, than from the collateral kindred. The fears and precautions of the lawgiver on this subject, imply, according to Montesquieu, a melancholy consciousness of the corruption of public morals.15

This guardianship is a personal trust, and is not transmissible by succession, nor devisable, nor assignable. It extends, not only to the person, and all the socage estate, but to hereditaments, which do not lie in tenure, and to the personal estate. This is the opinion of Mr. Hargrave, and he supports it by strong reasons;16 notwithstanding, it is admitted, that the title to guardian in socage cannot arise unless the infant be seized of lands held in socage. This guardianship in socage may be considered as gone into disuse, and it can hardly be said to exist in this country, for the guardian must be sonic relation by blood who cannot possibly inherit, and such a case can rarely exist.

(4.) Testamentary guardians, to which I have already alluded, are founded on the deed, or last will of the father, and they supersede the claims of any other guardian, and extend to the person, and real and personal estate of the child, and continue until the child arrives at full age. This power to constitute a guardian by will, was given by the statute of 12 Charles II,17 and it has been adopted in this state, and, probably, throughout this country. A will, merely appointing a testamentary guardian, need not be proved; and though the statute speaks of appointment by deeds as well as by will, yet, as such a deed is ambulatory and revocable during the testator’s life, it is nothing more than a testamentary instrument in the form of a deed. The better opinion is, that such a testamentary guardian will continue till the age of twenty-one, though the infant be a females and marry in the mean time, if the will be explicit as to the duration of the trust; for the statute gives that authority to the father. It has been held, that the marriage of a daughter will determine the guardianship as to her, though not so as to a son until he comes of age; and Lord Hardwicke said, in Mendes v. Mendes,18 that it had been so adjudged in Lord Shaftesbury’s case. But in the subsequent case of Roach v. Garvan,19 the language of the Chancellor was, that the marriage would not, of itself, determine a guardianship, though the court would never appoint a guardian to a married female infant. The latter cases lead to the conclusion, that the marriage of a female infant does not absolutely determine the guardianship, and that it would require a special order in chancery to do it.20 The cases are not very clear and consistent on this point. It would be quite reasonable, that the marriage of a female ward should determine the guardianship, both as to her person and estate, if she married an adult. It ought to be so as to her person, but not as to her estate, if she married a minor. Upon the marriage of a male ward, the guardianship continues as to his estate, though it has been thought otherwise as to his person.21

(5.) The distinction of guardians by nature, and by socage, seems now to be lost, or gone into oblivion, and those several kinds of guardian have become essentially superseded in practice by the chancery guardians, or guardians appointed by the Court of Chancery, or by the surrogates in the respective counties of this state, and by courts of similar character, and having jurisdiction of testamentary matters, in the other states of the Union. Testamentary guardians are not very common, and all other guardians are now appointed by the one or the other of those jurisdictions. The power of the Chancellor to appoint guardians for infants who have no father, is a branch of his general jurisdiction over minors and their estates, and that jurisdiction has been long and unquestionably settled.22 The chancery guardian continues until the majority of the infant, and is not controlled by the election of the infant when he arrives at the age of fourteen.23 Though the surrogate is authorized by statute24 to allow of guardians who shall be chosen by infants of the age of fourteen years, and to appoint guardians for such as shall be within that age, in as full and ample a manner as the Chancellor may appoint or allow the same, upon the guardian giving adequate security for the faithful discharge of his trust; yet the surrogate’s power extends only to the appointment of the guardian. The general jurisdiction over every guardian, however appointed, resides exclusively in chancery; and a guardian appointed by the surrogate, or by will, is as much under the superintendence and control of the Court of Chancery, and of the power of removal by it, as if he were appointed by that court.25

The practice in chancery, on the appointment of a guardian, is to require a master’s report approving of the person and security offered. The court may, in its discretion, appoint one person guardian of the person, and another guardian of the estate, in like manner as in the case of idiots and lunatics, there may be one committee of the person, and another of the estate. The guardian or committee of the estate always is required to give adequate security, but the guardian or committee of the person gives none.

The guardian of the estate has no further concern with, or control over, the real estate, than what relates to the rents and profits.26 He may lease it during the minority of the ward, and no longer,27 but he cannot sell without the authority of the Court of Chancery. He may sell the personal estate for the purposes of the trust, without a previous order of the court.28 Whenever it becomes necessary, in this state, to have the real estate of an infant sold, there must be a guardian specially appointed for that purpose, and the infant is declared, in such cases, to be deemed, in regard to that property, a ward of the court.29 But the provisions of this act do not apply to the case of a female infant who is married. The power given to the court to order a sale of the real estate of infants, was intended for their better maintenance and education, and not that the proceeds should be placed at the disposition of the husband.30

In addition to these general guardians, every court has the incidental power to appoint a guardian ad litem, and, in many cases, the general guardian will not be received as of course without a special order for the purpose.31

The guardian’s trust is one of obligation and duty, and not of speculation and profit. He cannot reap any benefit from the use of the ward’s money. He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust. If he settles a debt upon beneficial terms, or purchases it ai a discount, the advantage is to accrue entirely to the infant’s benefit. He is liable to an action of account at common law, by the infant, after he comes of age; and the infant, while under age, may, by his next friend, call the guardian to account by a bill in chancery. If the guardian has been guilty of negligence in the keeping or disposition of the infant’s money, whereby the estate has incurred loss, the guardian will be obliged to sustain that loss. The guardian must not convert the personal estate of the infant into real, or buy land with the infant’s money, without the direction of the Court of Chancery. If he does, the infant, when he arrives at fall age, will be entitled, at his election, to take the land, or the money, with interest; and if he elects the latter, chancery will take care that justice be done, by considering the ward as trustee for the guardian of the lands standing in his name, and will direct the ward to convey, And if the guardian puts the ward’s money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal, with compound interest, to meet those profits when the guardian will not disclose them. So, if he neglects to put the ward’s money at interest, but negligently, and for an unreasonable time, suffers it to lie idle, or mingle it with his own, the court will charge him with simple interest, and, in cases of gross delinquency, with compound interest. These principles are understood to be well established in the English equity system, and the principal authorities upon which they rest were collected and reviewed in the chancery decisions in this state, to which, I apprehend, it will be sufficient to refer, as they have recognized the same doctrine.32 Those doctrines, undoubtedly, pervade the jurisprudence of every part of the United States.33


     1.    Co. Litt. 88. b. 3 Co. 37. b.
     2.    Co. Litt. 84. a. Litt. sect. 123. Co. Lit. 87. b. 88. 5 Mod. 221. The King v. Thorp.
     3.    Cunningham v. Harris, cited in 3 Bro. 186. Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Miles v. Boyden, 3 Pickering, 213.
     4.    Note 66, to lib. 2 Co. Litt.
     5.    2 Fonb. Tr. of Equity, 234, note.
     6.    3 Co. 38. b. Harg. note 67, to lib. 2 Co. Litt. Com. Dig. Tit, Guardian, D.
     7.    Con. Dig. tit. Guardian, B.
     8.    Lift. sect. 123.
     9.    Ibid.
   10.    Andrews’ Rep. 313. The King v. Pierson.
   11.    Potter’s Greek Antiq. vol. i. p. 174.
   12.    Co. Litt. 88. b. 1 Blacks. Com. 462.
   13.    Erskine’s Inst. p. 79. Hallam on the Middle Ages, vol. 1, 106.
   14.    Dormer’s case, 2 P. Wins. 262. In the matter of Livingston, 1 Johns. Ch. Rep. 436. Lord Hardwicke, in 2 Atk. 14.
   15.    Esprit des Loix, liv. 19. ch. 24.
   16.    Note 67. to lib. 2 Co. Litt.
   17.    Laws of N.Y. sess. 36. ch. 23. sec. 16.
   18.    1 Ves. 89. 4 Atk. 619.
   19.    1 Vesey, 160.
   20.    4 Johns. Ch. Rep. 380. In the Matter of Whitaker.
   21.    Reeve’s Domestic Relations, p. 328.
   22.    Harg. n. 70. to lib. 2 Co. Litt. 2 Fonb. Tr. Eq. 228. n. 10. Vesey, 63.
   23.    In the Matter of Nicoll, 1 Johns. Ch. Rep. 25.
   24.    Laws of N. Y. sess. 36. ch. 79. s. 30.
   25.    In the Matter of Andrews, 1 Johns. Ch. Rep. 99. Ex parte Crumb. 2 Johns. Ch. Rep. 439. Duke of Beaufort v. Berly, 1 P. Wms. 702.
   26.    Genet v. Tallmadge, 1 Johns. Rep. 561.
   27.    Doe v. Hodgson, 2 Wits. 129, 135. Field v. Scheffelin, 7 Johns. Ch. Rep. 154.
   28.    7 Johns. Ch. Rep. 150. Field v. Scheffelin. Ellis v. Essex M. Bridge, 2 Pickering, 243.
   29.    Laws of N.Y. sess. 38. Ch. 106.
   30.    Matter of Whitaker, 4 Johns. Ch. Rep. 378.
   31.    Harg. note 70. and note 220 to lib. 2 Co. Litt. Carth. 255. Huckle v. Wye.
   32.    Green v. Winter, 1 Johns. Ch. Rep. 26. Dunscomb v. Dunscomb, ibid. 508. Schieffelin v. Stewart, ibid. 620. Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davone v. Fanning, ibid. 252. Smith v. Smith, 4 Johns. Ch. Rep. 281. Evertson v. Tappen. 5 Johns. Ch. Rep. 497. Clarkson v. De Peyster, 1 Hopkins, 424. Rogers v. Rogers, ibid. 515.
   33.    Reeve’s Domestic Relations, p. 325, 326. 2 N.H. Rep. 218. 1 Mason, 345. 5 Conn. Rep. 475. 1 Peters’ Rep. 364. 3 S.C. Eq. Rep. 241. 4 S.C. Eq. Rep. 702-705.