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Guardian

infant, guardianship, law, person, guardians, socage and estate

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GUARDIAN, one who has the care of a person and his property, who, by reason of his imbecility or want of understand ing, is in law considered incapable of acting for his own interest. Guardians in the English law are appointed only to infants, though under the Roman law they were also assigned to idiots, lunatics, women, and sometimes prodigals. The law of England indeed provides guar dians for idiots and lunatics, but the rules relating to them will be more conve niently considered under the head of LUNATIC, and in the Roman law the terms Tutor and Curator correspond in some degree to the English Guardian. [CUaArOa.) The usual division of guardians, ac cording to the English law, and there fore the most convenient order in which to explain their office, is:-1. Guardians 6y the common law. 2. Guardians by custom. 3. Guardians by statute.

I. Guardians by the common law were of four kinds ; guardians in chivalry, in socage, by nature, and for nurture.

Guardianship in chivalry is now abo lished by the statute 12 Car. II. c. 24, which abolished the onerous portions of the feudal system. This guardianship arose wholly out of the principles of tenure, and it could only take place where the estate vested in the infant by descent. All tenants by knights' service, being males under 21, or females under 14, at the ancestor's death, were liable to it; and it continued over males till 21, and over females till 16 or marriage. It extended over the estate as well as the person of the infant, and entitled the lord to make sale of the marriage of the infant under the restriction of not making it a mar riage of disparagement, and to levy for feitures if the infant refused the marriage, or married, after tender of an alliance by the lord, against his consent. The lord was bound to maintain the infant; but subject to this obligation he was en titled to the profits of the estate for his own benefit. This guardianship being considered more an interest in the guar dian than a trust for the ward, was sale able ; and if not disposed of, passed at the lord's death to his personal representa tives.

2. Guardian in Socage,This also like the former, is a consequence of te nure, and takes place only where lands of socage-tenure descend upon an infant under the age of 14. Upon attaining

that age, the guardianship in socage ends, and the infant may appoint his own guar dian. The title to his guardianship is in such of the infant's next of blood as can not have the estate by descent in respect of which the guardianship arises, lest, it is said, the lamb should be delivered to the wolf to be devoured. The law of Scotland and the old laws of France pre scribe a middle course : the estate is in trusted to the next in succession, because he is most interested in preserving it from waste, but he is excluded from the cus tody of the person of the ward. This is the principle upon which the Court of Chancery proceeds in its management of lunatics and their estates. The guardian in socage is entitled not only to the cus tody of the person and socage estates of the infant, but also to his hereditaments not lying in tenure, and even his copy hold estates, where no custom to the con trary exists in the manor of which they are held, and also his personal property. The guardianship in socage is regarded as a trust wholly for the infant's benefit, and is not saleable, or transmissible, but in the event of the death of the guardian the wardship devolves on the person next in degree of kindred to the infant, wh.) cannot be his heir, and the guardian is accountable to the infant for the profits of his estate.

Guardianship in socage is however superseded both as to the person and estate of the infant, if the father appoints a guardian according to the statute, as will shortly be mentioned.

3. Guardian by Naiure.—This species of guardianship has no connection with the rules of tenure. It extends only to the custody of the infant's person, and lasts till he attains 21. Any ancestor of the infant may be such a guardian, the first right being in the father, the next in the mother, and if they be dead the an cestor to whom the infant is heir has a right to the custody of his person. Until 14, it seems the guardian in socage is en titled to the custody of the person, and after that age the guardian by nature.

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