Commentaries on American Law (1826-30)

Chancellor James Kent

Of Infants

THE necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. Within that period, minors cannot, except in a few specified cases, make a binding contract, unless it be for necessaries, or in marriage. Nor can they do any act to the injury of their property, which they may not avoid, or rescind, when they arrive at full age. The responsibility of infants for crimes by them committed, depends less on their age, than on the extent of their discretion and capacity to discern right and wrong.

Most of the acts of infants are voidable only, and not absolutely void; and it is deemed sufficient, if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done, and contracts made, in infancy. But when we attempt to ascertain from the books the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contradiction and confusion. A late writer, who has compiled a professed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain, whether the act of an infant be void or voidable, is, “that acts which are capable of being legally ratified are voidable only; and acts which are incapable of being legally ratified are absolutely void.1

But, the criterion here given, does not appear to free the question from its embarrassment, or afford a clear and definite test. All the books are said to agree in one result, that whenever the act done may be for the benefit of the infant, it shall not be considered void, but he shall have his election when he comes of age, to affirm or avoid it; and this, says Ch. J. Parker,2 is the only clear and definite proposition, which can be extracted from the authorities. But we are involved in difficulty, as that learned judge admits, when we come also to the application of this principle. In Zouch v. Parsons,3 it was held by the K. B., after a full discussion and great consideration of the case, that an infant’s conveyance by lease and release, was voidable only; and yet Mr. Preston4 condemns that decision in the most peremptory terms, as confounding all distinctions and authorities on the point; and he says, that Lord Eldon repeatedly questioned its accuracy. On the other hand, Mr. Bingham5 undertakes to show, from reason and authority, that the decision in Burrow is well founded; and he insists6 that all the deeds, and acts, and contracts of an infant, except an account stated, a warrant of attorney, a will of lands, a release as executor, and a conveyance to his guardian, are, in judgment of law, voidable only, and not absolutely void. But the modern as well as ancient cases, are much broader in their exception. Thus it is held, that a negotiable note, given by an infant, even for necessaries, is void;7 and his acceptance of a bill of exchange is void;8 and his contract as security for another, is absolutely void;9 and a bond, with a penalty, though given for necessaries, is void.10 It must be admitted, however, that the tendency of the moderns decision is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election when they became of age, either to affirm or disallow them. If their contracts were absolutely void, it would follow as a consequence, that the contract could have no effect, and the party contracting with the infant, would be equally discharged.11 The doctrine of the case of Zouch v. Parsons, has been recognized as law in this country, and it is not now to be shaken. On the authority of that case, even the bond of an infant has been held to be voidable only at his election.12 It is an equitable rule, and most for the infant’s benefit, that his conveyances to and from himself, and his contracts, in most cases, should be considered to be voidable only.13 Lord Ch. J. Eyre, in Keane v. Boycott,14 undertook to reconcile the doctrine of void and voidable contracts, on the ground, that when the court could pronounce the contract to be to the infant’s prejudice, it was void, and when to his benefit, as for necessaries, it was good; and when the contract was of an uncertain nature as to benefit or prejudice, it was voidable only at the election of the infant. Judge Story declared these distinctions to be founded in solid reason,15 and they are considered to be so, and the point is not susceptible of greater precision.

If the deed or contract of an infant be voidable only, it is nevertheless binding on the adult with whom he dealt, so long as it remains executory, and is not rescinded by the infant.16 It is also a general rule, that no one but the infant himself, or his legal representatives, can avoid his voidable deed or contract; for while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit; and when dead, those alone should interfere who legally represent him.17 The infant’s privilege of avoiding acts which are matters of record, as fines, recoveries, and recognizances, is much more limited than his privilege of avoiding matters ex pais. The former must be avoided by him by writ of error, or audita querela, during his minority; but deeds, writings and parol contracts, may be avoided during infancy, or after he is of age, by his dissent, entry, suit, or plea, as the case may require.18 If any act of confirmation be requisite after he comes of age, to give binding force to a voidable act of his infancy, slight acts and circumstances will be a ground from which to infer the assent: but the books appear to leave the question in some obscurity, when and to what extent a positive act of confirmation on the part of the infant is requisite. In Holmes v. Blogg,19 the Ch. Justice observed, that in every instance of a contract, voidable only by an infant on coming of age, he was bound to give notice of disaffirmance of the contract in a reasonable time. The inference from that doctrine is, that without some act of dissent, all the voidable contracts of the infant would become binding. But there are other cases which assume that a voidable contract becomes binding upon an infant after he comes of age, only by reason of acts or circumstances, amounting to an affirmance of the contract.20 In the case of Jackson v. Carpenter, and Jackson v. Burchin,21 the infant had disaffirmed the voidable deed of his infancy, by an act equally solemn, after he became of age. This is the usual and the suitable course, when the infant does not mean to stand by his contract; and his confirmation of the act or deed of his infancy, may be justly inferred against him after he has been of age for a reasonable time, either from his positive acts in favor of the contract, or from his tacit assent under circumstances not to excuse his silence. In Curtin v. Patton,22 the court required some distinct act, by which the infant either received a benefit from the contract after he arrived at full age, or did some act of express and direct assent and ratification; but that was the case of a contract considered to be absolutely void. In the case of voidable contracts, it will depend upon circumstances, such as the nature of the contract, and the situation of the infant, whether any overt act of, assent or dissent on his part be requisite to determine the fact of his future responsibility.

Infants are capable, for their own benefit, and for the safety of the public, of doing many binding acts. Contracts for necessaries are binding upon an infant, and he may be sued and charged in execution on such a contract, provided the articles were necessary fur him under the circumstances and condition in which he was placed.23 The question of necessaries is governed by the real circumstances of the infant, and not by his ostensible situation; and, therefore, the tradesman who trusts him is bound to make due inquiry.24 Lord Coke considers the necessaries of the infant to include victuals, clothing, medical aid, and “good teaching or instruction, whereby he may profit himself afterwards.”25 If the infant lives with his father or guardian, and their care and protection are duly exercised, he cannot bind himself even for necessaries.26 It is also understood, that necessaries for the infant’s wife and children, are necessaries for him;27 and in all cases of contracts for necessaries, the real consideration may be inquired into. The infant is not bound to pay for the articles furnished, more than they were really worth to him as articles of necessity, and, consequently, he may not be bound to the extent of his contract; nor can he be precluded, by the form of the contract, from inquiring into the real value of the necessaries furnished.28

Infancy is not permitted to protect fraudulent acts; and, therefore, if an infant takes an estate, and agrees to pay rent, he cannot protect himself from the rent, after enjoying the estate, by pretense of infancy. If he pays money with his own hand, without a valuable consideration for it, he cannot get it back again. If he receives rents, he cannot demand them again when of age.29 There are, however, many hard cases in which the infant cannot be held bound by his contracts, though made in fraud; for infants would lose all protection if they were to be bound by their contracts made by improper artifices, in the heedlessness of youth, before they had learned the value of character, and the just obligation of moral duties. Where an infant had fraudulently represented himself to be of age when he gave a bond, it was held that the bond was void at law.30 But where he obtained goods upon his false and fraudulent affirmation that he was of age, though he avoided payment of the price of the goods, on the plea of infancy, the vendor was held entitled to reclaim the goods, as having never parted with his property in them;31 and it has been suggested, in a recent case,32 that there might be an instance of such gross and palpable fraud, committed by an infant arrived at the age of discretion, as would render a release of his right to land binding upon him. Infants are liable in actions arising ex delicto, whether founded on positive wrongs, or constructive torts, or frauds. But the fraudulent act, to charge him, must be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant in trover, or case, by a change in the form of the action.33 He is liable in trover for tortiously converting goods entrusted to him;34 and in detinue, for goods delivered upon a special contract for a specific purpose;35 and in assumpsit, for money which he has fraudulently embezzled.36

An infant has a capacity to do many other acts valid in law. He may bind himself as an apprentice, it being an act manifestly for his benefit; but, when bound, he cannot dissolve the relation.37 The weight of opinion is, that he may make a testament of chattels, if a male, at the age of fourteen, and if a female, at the age of twelve years.38 He may convey real estate, held as a naked trustee, under an order in chancery. The equity jurisdiction in this case, is grounded on the statute of 7 Ann, c 19. which has been re-enacted in this state, and extends only to plain and express trusts.39 Whatever an infant is bound to do by law, the general rule is, that the same will bind him, if he does it without suit at law.40 If, therefore, he be a tenant in common, he may make a reasonable partition. He may discharge a mortgage on due payment of the mortgage debt. His acts as executor, at the age of seventeen, will bind him, unless they be acts which would amount to a devastavit. There was no occasion, said Lord Mansfleld,41 to enumerate instances. The authorities are express, that if an infant does a right act, which he ought to do, and which he was compellable to do, it shall bind him. We have already seen, that an infant of fourteen, if a male, and twelve if a female, may enter into a valid contract of marriage; but he is not liable to an action, on his executory contract, to marry, though the infant may sue an adult on such a promise.42 In consequence of the capacity of infants, at the age of consent, to contract marriage, their marriage settlements, when reasonable, have been held valid in chancery; but it has long been an unsettled question, whether a female infant could bind her real estate by a settlement upon marriage. In Drury v. Drury,43 Lord Ch. Northington decided, that the statute of 27 Hen. VIII, which introduced jointures, extended to adult women only, and that, notwithstanding a jointure on an infant, she might waive the jointure, and elect to take her dower; and that a female infant could not, by any contract previous to her marriage, bar herself of a distributive share of her husband’s personal estate, in case of his dying intestate. This decree was reversed in the House of Lords, upon the strength of the opinions of Lord Hardwicke, Lord Mansfield, and the majority of the judges;44 and the great question finally settled in favor of the capacity of the female infant, to bar herself by her contract before marriage, of her right of dower in her husband’s lands, and to her distributive share of her husband’s personal estate. The question still remained, whether she had the capacity to bind her own real estate by a marriage settlement. Mr. Atherley,45 after reviewing the cases, concludes, that the weight of the conflicting authorities was in favor of her capacity so to bind herself. But it seems he did not draw the correct conclusion; for, in Milner v. Lord Harewood,46 Lord Eldon has subsequently held, that a female infant was not bound by agreement to settle her real estate upon marriage, if she did not, when of age, choose to ratify it; and that nothing but her own act, after the period of majority, could fetter or effect it. The case of Slocombe v. Glubb,47 admits, that a male infant may bar himself by agreement before marriage, either of his estate by the curtesy, or of his right to his wife’s personal property; and both the male and female infant can settle their personal estate upon marriage. The cases of Strickland v. Croker,48 and Warburton v. Lytton,49 are considered by Mr. Atherley as favorable to the power of a male infant to settle his real estate upon marriage, and that seems to be decidedly his opinion. But since the decision of Lord Eldon, in Milner v. Lord Harewood, this conclusion becomes questionable; for if a female infant cannot settle her real estate without leaving with her the option, when twenty-one, to revoke it, why should not the male infant have the same option.50


     1.    Bingham on Infancy, 33.
     2.    Whitney v. Dutch, 14 Mass. Rep. 457.
     3.    3 Burr. 1794.
     4.    Treatise on Conveyancing, vol. ii. 249.
     5.    Law of Infancy, ch. 2.
     6.    See his work, p. 34, and also his preface.
     7.    Swasey v. Administrator of Vanderheyden, 10 Johns. Rep. 33.
     8.    Williamson v. Watts, 1 Campb. Y. P. 552.
     9.    Curtin v. Patton, 11 Serg. & Rawle, 305.
   10.    Co. Litt. 172. a. recognized as being still the law by Bayley, J. in 3 Maul & Selw. 482.
   11.    1 Fonb. Tr. of Eq. 74.
   12.    Conroe v. Birdsall, 1 Johns. Cas. 123.
   13.    Jackson v. Carpenter, 11 Johns. Rep. 539. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N.H. Rep. 73. Wright v. Steele, 2 N. H. Rep. 56.
   14.    2 H. Blacks 57.
   15.    1 Mason’s Rep. 82.
   16.    Smith v. Bowin, 1 Mod. 25. Holt v. Ward, Str. 937. Warwick v. Bruce; 2 Maul. & Selw. 205. Brown v. Caldwell, 10 Serg. & Rawle, 114.
   17.    8 Co. 42. b. Keane v. Boycott, 2 H. Blacks. 511. Van Bramer v. Cooper, 2 Johns. Rep. 279. Jackson v. Todd, 6 ibid. 257. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N . H. Rep. 73.
   18.    Co. Litt. 380. b.
   19.    8 Taunton, 35.
   20.    Evelyn v. Chichester, 3 Burr. 1717. 1 Rol. Abr. tit. Enfants. k. Co. Litt. 51. b. Hubbard v. Cummings, 1 Greenleaf, 11. In Holmes v. Blogg, 8 Taunton, 508, it is remarkable that the distinguished counsel in that case, one of whom is now Lord Chancellor, and the other Ch. J. of the C. B., treat this as an open and debatable point. Sergeant Copely insisted, that the infant’s contract was binding on him when he became adult, because there had been no disaffirmance of it; and Sergeant Best contended, that disaffirmance was not necessary, and that infants were not bound by any contract, unless the same was affirmed by them after coming of full age.
   21.    11 Johns. Rep. 539. 14 ibid. 124.
   22.    11 Serg. & Rawle, 305.
   23.    Ive v. Chester, Cro. J. 560. Clarke v. Leslie, 5 Esp. N.P. 28. Coates v. Wilson, ibid. 152. Berolles v. Ramsay, 1 Holt’s N. P. 77.
   24.    Ford v. Fothergill, Peake’s N.P. 229.
   25.    Co. Litt. 172. a
   26.    Bainbridge v. Pickering, 2 Blacks. Rep. 1325. Wailing v. Toll, Johns. Rep. 141.
   27.    Turner v. Trisby, Sir. 168.
   28.    Makarell v. Bachelor, Cro. Eljz. 583.
   29.    Kirton v. Elliott, 2 Bulst. 69. Lord Mansfield, in 2 Eden, 72. Holmes v. Blogg, 8 Taunton, 508.
   30.    Conroe v. Birdsall, 1 Johns. Cas. 127.
   31.    Badger v. Phinney, 15 Mass. Rep 859.
   32.    Stoolfoos v. Jenkins, 12 Serg. & Rawle, 399.
   33.    Jennings v. Rundall, 8 Term Rep. 335. Johnson v. Pie, 1 Lev. 163.
   34.    Homer v. Thwing, 3 Pickering, 492.
   35.    Mills v. Graham, 4 Bos. & Pull. 140.
   36.    Bristow v. Eastman, 1 Esp. Rep. 172.
   37.    3 Barn. & Cress. 484.
   38.    Harg. n. 83. to lib. 2 Co. Litt. Mr. Hargrave has collected all the contradictory opinions on this point. The civil law gave this power to the infant at the age of seventeen years, and this period has been adopted by statute in Connecticut.
   39.    Sess. 4. ch. 30.
   40.    Co. Litt. 172. a.
   41.    3 Burr. 1801.
   42.    Hunt v. Peake, 5 Cowen, 475.
   43.    1 Eden, 39.
   44.    1 Eden, 60-75.
   45.    Treatise on Marriage Settlements, p. 28-41 .
   46.    18 Vesey, 250.
   47.    2 Bro. 545.
   48.    Cas. in Ch. 211.
   49.    Cited in 4 Bro. 440.
   50.    Treatise on Marriage Settlements, p. 42-45.