GUARDIAN AND WARD. One who legal ly has the care and management of the per son, or the estate, or both, of a child during his minority. Reeve, Dom. Rel. 311.
Guardian has been held to be synonymous with "next friend" ; U. S. Mut. Acc. Ass'n v. Weller, 30 Fla. 210, 11 South. 786.
A person having the control of the proper ty of a minor without that of his person is known in the civil law, as well as in some of the states, by the name of curator. 1 Leg. 61. du Droit Civ. Rom. 241. The guardian of the person is called "tutor." Tiff. Pers. & Dom. Rel. 295.
Guardian by chancery. This guardianship, although unknown at the common law, is well established in •practice now. It grew up in the time of William III., and had its foundation in the royal prerogative of the king as parens patrice. 2 Fonbl. Eq. 246. This power the sovereign is presumed to have delegated to the chancellor ; 10 Ves. 63 ; 2 P. Wms. 118 ; Reeve, Dom. Rel. 317. By virtue of it, the chancellor appoints a guard ian where there is none, and exercises a su perintending control over all guardians, however appointed, removing them for mis conduct and appointing others in their stead ; Co. Litt. 89; 1 P. Wms. 703 ; 2 Kent 227. But only, it is said, where the minor has proper ty ; Tiffany, Dom. Rel. 300 ; 2 Russ. 1, 20.
The English Judicature Act of 1873 as signs the wardship of infants and the care of infants' estates to the Chancery Division of the High Court of Justice. Whart. Lex.
An infant with property becomes a ward of court (1) if an action is commenced in his name ; (2) if an order is made on petition or summons for the appointment of a guardian ; (3) if an order is made in like manner for maintenance; (4) if a fund belonging to an infant is paid into court under the acts for the relief of trustees ; Brett, L. Cas. Mod. Eq. 95. See 1 Sharsw. Bla. Com. 462 note 8.
This power resides in courts of equity ; In re Andrews, 1 Johns. Ch. (N. Y.) 99 ; Ex par- I to Crumb, 2 Johns. Ch. (N. Y.) 439; Board of Children's Guardians v. Shutter, 139 Ind. 268, 34 N. E2665, 31 L. R. A. 740 ; but more com monly by statute in probate or surrogate courts; 2 Kent 226 ; SessiOns v. Kell, 30 Miss. 458 ; Ex parte Dawson, 3 Bradf. Surr. (N. Y.) 133.
Guardian by nature is the father, and, on his death, the mother ; 2 Kent 220 ; Fields v. Law, 2 Root (Conn.) 320 ; Combs v. Jackson, 2 Wend. (N. Y.) 153, 19 Am. Dec. 568; Preto
v. Brown, 4 Mass. 675.
This guardianship, by the common law, extends only to the person, and the subject of it is the heir apparent, and not the other children,—not even the daughter when there are no sons; for they are but presumptive heirs only, since their right may be defeated by the birth of a son after their father's de cease. But as all the children male and fe male equally inherit with us, this guardian ship extends to all the children, as an inher ent right in their parents during their minor ity; 2 Kent 220. In default of both parents, the natural guardian is the grandfather or grandmother, or next of kin ; Lamar v. Mi cou, 114 U. S. 218, 5 Sup. Ct. 857, 29 L. Ed. 94; In re Benton, 92 Ia. 202, 60 N. W. 614, 54 Am. St. Rep. 546.
The mother of a bastard child is its nat ural guardian; Dalton v. State, 6 Blackf. (Ind.) 357; Wright v. Wright, 2 Mass. 109 ; but not by the common ; Reeve, Dom. Rel. 314, note. The power of a natural guardian over the person of his ward is perhaps bet ter explained by reference to the relation of parent and child. See DOMICIL. It is well settled that the court of chancery may, for just cause, interpose and control the author ity and discretion of the parent in the edu cation and care of his child; People v. Mer cein, 8 Paige, Ch. (N. Y.) 47; 10 Ves. 52.
A guardian by nature is not entitled to the control of his ward's personal property ; Al ston v. Alston, 34 Ala. 15 ; Nelson v. Goree's Adm'r, 34 Ala. 565 ; 1 P. Wins. 285; Kline v. Beebe, 6 Conn. 494; Hyde v. Stone, 7 Wend. (N. Y.) 354, 22 Am. Dec. 582; Miles v. Boyden, 3 Pick. (Mass.) 213; Perry v. Car michael, 95 Ill. 519 ; unless by statute. See McCarty v. Rountree, 19 Mo. 345 ; Taylor v. Bemiss, 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64. The father must support his ward ; 'Har ring v. Coles, 2 Bradf. Surr. (N. Y.) 349. But where his means are limited, the court will grant an allowance out of his child's estate; id., 1 Bro. C. C. 387. But the mother, if guardian, is not obliged to support her child if it has sufficient estate of its own; nor is she entitled, like the father, when guardian, to its, services, unless she is compelled to maintain it. But where the mother, who is guardian of her son, engages board for him, she incurs liability personally and not as guardian; McNabb v. Clipp, 5 Ind. App. 204, 31 N. E. 858.