4. Guardians for Nurture—are the father and mother of the infant ; in de fault of father or mother, the Ordinary, it is said, may appoint some person to take care of the infant's personal estate, and to provide for his maintenance and education, though this has been doubted. I This species of guardianship extendsonly to the age of 14, in males and females. Both these last descriptions of guardian ship are also superseded by the appoint ment of a guardian by statute.
Where an infant is without a guardian, the Court of Chancery has power to ap point one ; and this jurisdiction seems to have vested in the king, in his Court of Chancery, upon the abolition of the Court of Wards. Where a proper case exists for the jurisdiction of this court, it will interfere not only with the property of the infant, but also with the custody of his person, and will, in case of any mis behaviour, remove a guardian, however he may have been appointed or consti tuted, and will appoint a proper guardian to the infant in his room. There was an instance of this jurisdiction in the case of the Duke of Beaufort v. Wellesley — where, though the father was alive, Lord Eldon deprived him of the custody of his children, as not being a fit person to have the charge of them. And though the in fant may have elected and appointed a guardian, this will not exclude the juris diction of the Court of Chancery, but upon the case being brought before the court it will order an inquiry as to the fitness of the guardian appointed. All courts also have power to appoint a guar dian ad litem, that is, to defend a prose cution or suit instituted by or against an infant. (Co. Litt., 88, b, Hargr. note.) II. Guardians by Custom.—By the cus tom of the city of London the guardianship of orphans under age and unmarried be longs to the city ; and in many manors particular customs exist relating to the guardianship of infants ; but in the ab sence of any such, the like rules prevail as before mentioned of guardians in socage.
Guardians by Statute.—At com mon law no person could appoint a guar dian, because the law appointed one in every case. The statute 4 & 5 Phil.
and Mary, c. 8, seems to have given some powers to the fathers of infants to appoint guardians; but guardians by statute are now appointed by virtue of 12 Ch. II
C. 24. Under this statute fathers, whether under age or of full age, may, by deed or will attested by two witnesses, appoint any person or persons (except Popish recusants) guardians of their unmarried children until they attain twenty-one, or for any less period. But by 1 Viet. c. 26, 7, 8, no will made by a person under twenty-one years of age is valid.
A guardian appointed under this statute supersedes all other guardians, except those by the custom of London, or any city or corporate town in favour of which an exception is made, and is entitled to the custody of the infant's person, and his estate, real and personal. If two or more persons are appointed guardians under the provisions of this statute, the guardianship remains to the survivor. The words of the statute empower only a father to appoint a guardian, and conse quently, though the omission was proba bly unintentional, it has been decided that neither a mother, nor grandfather, nor any other relation, can make such an appointment. Neither can a father ap point a guardian to his natural child : but in all these cases the Court of Chan cery will appoint the persons named to be guardians if they appear to be fit per sons to exercise the trust reposed in them.
Guardians are rarely now appointed by infants themselves ; the Court of Chan cery provides safer and more effectual means for the management of their pro perty ; and since in many cases the court will interfere by petition without the in stitution of a suit, a (leap and speedy mode of procuring its interference is afforded. The guardian is considered as a trustee for his ward, and is accountable for the due management of the infant's property, and is answerable not only for fraud, but for negligence or omission.
Guardian of the Spiritualities is the person to whom the spiritual jurisdiction of any diocese is committed during the vacancy of the see.
Guardian of the Temporalities is he to whom the temporal jurisdiction and the profits of the see are committed during the like period.
The words guardian and warden are of the same signification : indeed they were formerly used indifferently. Thus the warden of the Cinque Ports was styled guardian, or in the old French, gardeyn, and churchwardens, gardeyns del eglise.