The person entitled to it by common law was the next of kin,, who could not by any possibility inherit the estate. 1 Blackstone, Comm. 461. Al though formerly recognized in New York, it was never common in the United States, 5 Johns. N. Y. 66; 7 id. 157; because, by the statute of descents generally in force in this country, those who are next of kin may eventually inherit. Wherever it has been recognized, it has been in a form differing materially from its character at common law. 15 Wend. N. Y. 631. Such guardian was also guard ian of the person of his ward as well as his estate. Coke, Litt. 87, 89. Although it did not arise unless the infant was• seised of lands held in socage, yet when it did arise'it extended to hereditaments which do not lie in tenure and to the ward's per sonal estate. See Ilargrave's note 67 to Coke, Litt. This guardian could lease his ward's estate and maintain ejectment against a disseisor in his own name. 2 Bacon, Abr. 683.
There was anciently a guardianship by chivalry at the common law, where lands came to an infant by descent which were holden by knight-service. Coke, Litt. 88, II, note. That tenure being abo lished by statute Car. II., the guardianship has ceased to exist in England, and has never had any existence in the United States.
5. Guardians by statute are of two kinds : first, those appointed by deed or will ; second, those appointed by court in pursuance of some statute.
Testamentary guardians are appointed by the deed or last will of the father ; and they supersede the claims of all other guardians, and have control of the person, and the real and personal estate of the child till he arrives at full age.
This power of .appointment was given to tho Sa ther by the stat. 12 Car. II., which has been pretty extensively adopted in this country. Under it, the father might thus dispose of his children, born and 7 Yes. Ch. 315, but not of his grandchildren. 5 Johns. N. Y. 278. Nor does it matter whether the father is a minor or not. 2 Kent, Comm. 225. It continues during the minority of a male ward, both as to his estate and person, notwithstanding his mar riage. Reeve. Dom. Rel. 328; 2 Kent, Comm. 224; 4 Johns. Ch. N. Y. 380. There seems to he some doubt 113 to whether marriage would determine it over a female ward. 2 Kent, Comm. 224. It is more reasonable that it should, inasmuch as the husband acquires in law m right to the control of his wife's pers vn. But it would seem that a person marrying a testamentary guardian is not entitled to the money of the ward. 12 Ill. 431.
Guardians appointed by court. The greater number of guardians among us, by far, are those appointed by court, in conformity with statutes which regulate their powers and du ties. In the absence of special provisions,
'their rights and duties are governed by the general law on the subject of guardian and ward: 6. Appointment of guardians. Where there is a mother, it is not the duty of the court to appoint ; but where both parents are dead, it then becomes necessary.
After the age of fourteen, the ward is en titled to choose a guardian, at common law, and generally by statute. Reeve, Dom. Rel. 320; 15 Ala. N. s. 687•; 30 Miss. 458. His choice is subject, however, to the rejection of the court for good reason, when he is entitled to choose again. 14 Ga. 594. If the court appoint one before the age of choice, the infant may appear and choose one at that age, without any notice to the guardian appointed. 30 Miss. 458; 15 Ala. N. s. 687. But if none be chosen, then the old one acts. It seems that in Indiana the old one can be removed only for cause shown ; in which case, of course, he is entitled to notice. 8 lnd. 307. A probate, surrogate, or county court has no power to appoint, unless the minor resides in the same county. 2 Bradt Surr. N. Y. 214 ; 7 Ga. 362 ; 9 Tex. 109 ; 16 A.la. N. s. 759; 27 Mo. 280. But it seems that it may appoint any one guardian who resides within the state. 11 Ired. No. C. 36; 3 Bradf. Surr. N. Y. 133.
7. Coverture is no incapacity for the office of guardian. 29 Miss. 195. Otherwise, by statute, in some states. Mo. Rev. Stat. 1855, 824. But it is necessary that the wife should obtain the consent of her husband ; as till this is obtained the guardianship is voidable.
2 Dougl. 433. A single woman by her mar riage loses her guardianship, it would seem ; hut she may be reappointed. 2 Kent, Comm. 225, n. b ; 2 Dougl. 433. Where there is a valid guardianship unrevoked, the appoint ment of another is void. 23 Miss. 550.
A guardian to a lunatic could not be ail. pointed till after a writ de lunatico inquirendo. 21 Ala. N. s. 504. An order removing a guard ian is equivalent to an order to pay over the money in his hands to his successor. 9 Mo. 225, 227. In some states the court is author ized to revoke for non-residence of the guard ian. 9 Mo. 227.
S. Powers and liabilities of guardians. The relation of a guardian to his ward is that of a trustee in equity, and bailiff at law. 2 Md. 111. It is a trust which he cannot assign. 1 Parsons, Contr. 116. He will not be al lowed to reap any benefit from his ward's es tate, 2 Comyns, 230, but must account for all profits, which the ward may elect to take or charge interest on the capital used by him.