A father as guardian by nature has no right to the real or personal estate of his child ; that right, whenever he has it, must be as a guardian in socage, or by some statu tory provision; Fonda v. Van Horne, 15 Wend. (N. Y.) 631, 30 Am. Dec. 77.
Guardian bynurture. This belonged to the father, then to the mother.
The subject of it extended to the younger children, not the heirs apparent. In this country it does not exist, or, rather, it is merged in the higher and more durable guardianship by nature, because all the chil dren are heirs, and, therefore, the subject of that guardianship ; 2 Kent 221; Reeve, Dom. Rel. 315 ; Perkins v. Dyer, 6 Ga. 401. It ex tended to the person only ; Kline v. Beebe, 6 Conn. 494; 40 E. L. & Eq. 109; and terminat ed at the age of fourteen ; 1 Bla. Com. 461.
Guardian in socage. This guardianship arose when socage lands descended to an in fant under fourteen years of age ; at which period it ceased if another guardian was ap pointed, otherwise it continued; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 66. The person entitled to it by common law was the next of kin, who could not by any possibility in herit the estate; .1. Bla. Com. 461. If the lands descended from a paternal relative, the mother or next of kin on her part was the guardian; if from a maternal relative the father, or next of kin on was ; Combs v. Jackson, 2 Wend. (N. Y.) 153, 19 Am. Dec. 568. Although recognized in New York, it was never common in the United States; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 66; because, by the statutes 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 ; Fonda v. Van Home, 15 Wend. (N. Y.) 631, 30 Am. Dec. 77. Such guardian was also guardian of the person of his ward as well as his real estate ; Co. Litt. 87, 89. Although it did not arise unless the infant was seized 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 personal estate. See Hargraves note 67 to Co. Litt. This guardian could lease his ward's estate and maintain ejectment against a disseisor in his own name; 2 Bacon, Abr. 683. A guardian in socage cannot be remov ed from office, but the ward may supersede him at the age of fourteen, by a guardian of his own choice; Co. Litt. 89. In New York guardians in socage have neither common law nor statutory right to control the per sonal estate of the wards ; Foley v. Ins. Co.,
138 N. Y. 333, 34 N. E. 211, 20 L. R. A. 620, 34 Am. St. Rep. 456.
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 ; Co. Litt. 88, 11, note. That tenure being abolished by statute Car. II., the guardianship has ceased to exist in England ; it has never had any existence in the United States.
Guardians by statute are of two kinds: first, those appointed by deed or will; sec ond, those appointed by 'court in pursuance of some statute.
Testamentary guardians are appointed by the deed or last will of the father ; 1Huson v. Green, 88 Ga. 722, 16 S. E. 255 ; 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 ar rives at full age.
This power of appointment was given to the father by the stat. 12 Car. II. c. 24, which has been pretty extensively adopted in this country, though in some states the appoint ment is limited to will. Under it, the father might thus dispose of his children, born and unborn ; 7 Ves. 315 ; but not of his grand children ; Jackson v. Woods, 5 Johns. (N. Y.) 278. Nor does it matter whether the father is a minor or not ; 2 Kent 225. It continues during the minority of a male ward, both as to his estate and person, notwithstanding his marriage ; Reeve, Dom. Rel. 328 ; 2 Kent 224 ; In re Whitaker, 4 Johns. Ch. (N. Y.) 380. There seems to be some doubt as to whether marriage would determine it over a female ward ; 2 Kent 224. It is more reason able that it should, inasmuch as the husband acquires in law a right to the control of his wife's person. But it would seem that a person marrying a testamentary guardian is not entitled to the money of the ward ; Holmes v. Field, 12 Ill. 431. In England and most of the United States a mother cannot appoint a testamentary guardian, nor can a putative father, nor a person in Woo paren tis; 1 Bla. Com. 462, n. ; but by statute in Illinois she may make an appointment, if the father has not done so, provided she be not remarried after his death ; 2 Kent 225. In New York, the consent of the mother is required to a testamentary appointment by the father ; Schoul. Dom. Rel. 400. A man cannot by law appoint his son testamentary guardian for the children of the latter ; Grimsley v. Grimsley, 79 Ga. 397, 5 S. L. 760.