Hargrave's

It seems that, if the father of the infant is living, the Master has no right to approve of any other person as Guardian.

The court has frequently called the father and mother guardians by nature. Thus in Ex-parte Hopkins, Lord Chancellor said, "The father is entitled to the custody of his own children during their infancy, not only as guardian by nurture but by nature."

The court does not use this phrase in the technical sense of note to Coke, the common law, by which a guardian by nature could only be of the heir apparent, but according to a natural propriety.

Litt. 105. n.

12.

500.

In Powell v. Cleaver, the right of the father to the guar2 Br. C. C. dianship was not questioned by counsel, where another had been appointed by the testator; but it was urged, that the father had renounced by his long acquiescence, and that the court would not allow him to insist upon it, to the forfeiture of a legacy to his children.

15 Vesey, 445.

1 P. Wms. 705.

See also DeMandeville v.

"In ex-parte Mountfort, the petition of the infant and proposed guardian stated he was heir at law to his grandmother; that his father was in possession of the estate, was insolvent, and misapplied the rents and profits, and prayed the appointment of the person proposed, to be his guardian. Lord Elden said, I have no doubt, that in certain cases, the court will, upon petition, without a bill, appoint, not a guardian, which cannot be during the father's life, but a person to act as guardian. An order was made."

And in the Duke of Beaufort v. Berty, Lord Chancellor said, "The court would and had interposed, even in the case of a father, as where the child had an estate, and the father, who was insolvent, and of an ill character, would take ville, 10 Ve the profits, there the court has appointed a Receiver, which was done in the case of Kiffin v. Kiffin."

De Mande

sey, 63.

Now as the rule directs the approval of a person, and examination into his competency, as Guardian, and the father has an exclusive right to that character, the Master cannot report another as proper for that situation.

I conceive, however, that the Master may refuse to approve of the father, if he is unfit; and upon an application to the court for an order to do so, the court would not grant it, without directing the Master to state his reasons.

Lord

The same rule, I presume, prevails, as to a mother. Vesey, Sen. Hardwicke in Roach v. Garvan, says, "I appointed the mother guardian, who is properly so by nature and nurture, where there is no testamentary guardian."

159.

The maxim of the common law, that the guardianship shall See Dormer's not be given to the next of kin, upon whom the lands may de- Wms. 264. scend, is overruled in equity.

case, 2 P. 7 Vesey, 571.

BOND OF GUARDIAN.

IF the report is confirmed, the order directs, that the party be appointed the guardian of the infant, upon his executing a bond, together with the sureties, named in the Report in the sum fixed thereby, to be approved of by a Master, and filed with the Register or assistant Register.

See Post Tit.

Bond of Com:

mittee of

The bond is prepared by the solicitor, and the Master indorses his approval upon it. It need not be executed before Lunatic. him.

For the form of the bond and approval, See Appendix, No. 41.

CAP. III.

SECTION 2.

MAINTENANCE OF INFANTS.

IT is the course of the English court to appropriate a certain sum out of the fortune of the infant for his support, and to direct a reference to fix the amount. This is not usual here; the disbursements are judged on the settlement of the guardians' accounts.

The English course is in some particulars preferable, least troublesome to the guardian, and least expensive in the result, as the guardian in passing his accounts would be allowed the whole sum fixed for maintenance, without proving his disbursements particularly. But it has this disadvantage, that the 3 Atk. 618. guardian having a fixed sum, may be tempted to profit by it, by diminishing the proper allowances to the infant. It is however competent for the infant's relations to question or re

Ex-parte Whitfiled, 2 Atk. 315.

3 Br. C. C. 88 and 500.

4 John. C. R. 102.

1 Turner, 389 and 200.

duce the allowance upon the neglect of the guardian to apply it for the infant's use.

It has been doubted whether maintenance could be given on the appointment of a gardian ex-parte, without a suit in

court.

Lord Hardwicke said,-" When this petition was formerly heard, I had a doubt whether the court could, upon ex-parte applications, allow a maintenance for an infant, where no cause is depending, for it is at the peril of a guardian in socage, what he applies for maintenance, and he will be allowed according to the discretion he has used, and therefore I directed it to stand over for precedents."

He then cites several cases, particularly, Tenham v. Barret, 2 Br. P. C. 539. and concludes thus,-" There may be great convenience in applications of this kind, because it may be a sort of check upon infants with regard to their behaviour, and it may be an inducement with persons of worth to accept of the guardianship, when they have the sanction of this court, for any thing they do on account of maintenance, which otherwise would be at their own peril; and likewise of use in saving the expense of a suit to the infant's estate."

And in ex-parte Kent, and ex-parte Salter, maintenance was directed upon a petition, after argument; the register Mr. Dickens, doubting the propriety of it, without a suit, to bring the fund into court.

In ex-parte Bostwick, Chancellor Kent approved of the present English practice.

If the petition prays maintenance as well as a guardian, which is usually the case in England, the order includes a direction to the Master, "to consider what is proper to be allowed for the maintenance and education of the infant." If the guardian proposed, has expended any thing before, the words, "for the time past, and to come," should be added.

In such a case, the state of facts, laid before the Master, should contain, in addition to what is requisite upon the appointment of a guardian merely, a statement of the items of previous disbursements, (which may be by way of schedule) and a proposal of their umount to be allowed for previous disbursements, as well as an annual sum for future maintenance. The statement of expenditures must be proved by vouchers as usual. The application for maintenance may also be distinct from that for a guardian; or, after an allowance an Increase may be applied for. In such case, the practice as beBurnet, 1 Br. fore detailed, where the maintenance is combined with the orC. C. 179. der for appointing the guardian, will afford a guide. The

Ex-parte

Kent, 3 Br.
C. C. 88.
Burnet v.

state of facts should contain every thing, except what is peculiar to the proposal for the guardianship. It should be sworn to and the voucher produced of past expenses if any."

137

SUIT PENDING.

IN the course of a suit, for the administration of assets, where infants are entitled as legatees, or to a distributive share, the court will in a proper case, order a sum to be allowed for maintenance.

198 and see 2d. Turner,

the notice,

If a provision to this effect is not contained in the decree, 1 Turner an order may be obtained, upon motion with notice, that the Master may be at liberty to make a separate report of the personal estate, and of the debts, legacies, &c. and also what is proper to be allowed for the maintenance and education of the infants.

In Rogers v. Wilkes, 6 Johns. Rep. 586. such an order for an allowance for maintenance was made after filing the bill.

198.

A direction to this effect is sometimes contained in the de- 2 Turner, cree, as in Stroud v. Stroud, where it was to allow for the 417. time past from the death of the father, and for the time to come, and to make a separate report of guardian and maintenance." The bill was there by an infant legatee for security of her legacy.

Though the court usually directs a report of debts, and the personal estate in order to decide whether maintenance should be given, yet if satisfied aliunde of the sufficiency of the funds, it will order it, without. "Motion on behalf of the daughter of the testator and residuary legatee, for an allowance pending the accounts."

13 Vesey, 93.

Lord Chancellor,-" The general rule is admitted that the court ought not to take any sum from a trustee, for the residuary legatec, until the fund appears clearly free from incumbrances. But I willingly accede to the practice which began in Wear v. Wilkinson, and is very just on account of the delay in taking the accounts, that where the court can see clearly there will be a clear fund, the residuary legatees shall have an allowance for maintenance in the mean time.” "Petition to confirm a report of maintenance. No report Jervoise t. had been made as to debts, but it was stated by affidavit, that Lilk, Coopthe funds were sufficient to pay them. Opposed on the er's Rep. 52.

1 Turner,

ground, that the application was premature, the report of debts not being made.

Sir S. Romilly replied, that the objection had been got over by Lord Elden in Warter v. -, upon the authority of a case of Wear v. Wilkinson, and upon the principle of the length of time the taking of the accounts might consume. It was enough if the court was satisfied aliunde, that the property was sufficient. The report was confirmed." The practice in this case is similar to that upon a petition. A state of facts 199 and 200. and proposal must be brought in, and every thing which is not supported by the proofs of the cause already before the Master, should be verified by affidavit, or other testimony. The warrants taken out are underwritten as directed under the former head, and must be served upon the opposite solicitor in the cause. The Master adjourns until the matter is decided upon.

When bis report is prepared, a warrant should be taken out, underwritten,-"The Master has prepared a draft of his separate report ;" and the usual warrant to settle it. The forms of the state of facts and report given in the Appendix upon the proceeding by petition for a guardian, will be sufficient guides for the framing them in a suit.

From the principle of the cases before cited of Warters v. and Jervoise v. Lilk, it is obvious, that the Master must proceed far enough in taking the account, to see that the fund is clear, before he can allow the claim of maintenance to be brought before him. It appears to me that it would be sufficient and proper for him to report, that from his examination of the accounts, it appears that the allowance for maintenance will not render the fund inadequate.

1 Turner,
199 and 200.

APPLICATION WHEN FATHER IS LIVING.

IF the father of an infant is living, and is desirous of an appropriation out of his fortune for maintenance, it is made part of the decree or order, that the Master shall inquire and state,

Whether the father of the infants is in circumstances, and of ability to maintain and educate his infant children suitably to their fortunes, and if not, then to consider of a proper allowance, &c. for the time past and to come.”