No special form is necessary to create such a married woman's trust, but the intention to exclude the husband from control or benefit must be clear and beyond doubt. "For her sole and separate use" is sufficient in any case to bar the husband's right.

If property is conveyed to a single woman "for her sole and separate use," she will have the same control of it as any other owner until she marries, when the limitation will take place, and she cannot sell it while she is married nor can it be taken for her debts.

Apart from this, a married woman may deal with her separate property as if she were single. If personal property is given to the separate use of a married woman, she may sell or otherwise dispose of it. This is probably now the rule in all the states. If the instrument of settlement prescribes any limitations on her power of dealing with the property, she can deal in no other way.

§ 444. The Modern View

Most of what has been written in this chapter is now practically obsolete law. The statutes of nearly, if not all, of the states now provide that any property, real or personal, owned by a woman at marriage or which shall come to her after marriage by gift, bequest, or devise, or which she may acquire by her own services or abilities, shall be her own separate property, which she can own, control, and deal with, as her husband deals with his own property or earnings.

The passage of these acts does not interfere with any other settlement made before the passage of the acts. It would also be possible to arrange a settlement on the old plan if it were desired by a married woman. In some states there are statutory provisions that allow the appointment of trustees to hold a married woman's separate property if she so desires. Practically, though, the statutes have done away with

the old method of making settlements on married women, and laws relating to it are for the most part already obsolete.

If at the present time it is expedient to create a trust estate for a married woman or to provide a regular income for a single woman who may marry, such a trust is created as it would be constructed for any individual, and the duties of the trustee under such a trust would be neither more nor less than for any other cestui other cestui que trust.

REVIEW QUESTIONS

1. What rights did a married woman have at common law? 2. At common law, could a husband take possession of her benefits from a trust estate?

3. How did the courts of equity try to remedy the situation? At this period, if a trustee voluntarily paid the trust income to the husband, could it be helped? What is a settlement? What was the next step in making the situation better?

4. Did a marriage settlement require a named trustee? What was its essential feature?

5. In this country, what is the usual law at this time? How are trusts

usually created for married women?

CHAPTER LII

GUARDIANS FOR INFANTS

§ 445. Orphans' Courts

When property belonging to an infant needs the care and custody of someone of more mature years, the court, which in this country is that one which has special charge of both the person and the property of minors and is called variously the "court of probate," the "surrogate's court" and the "orphans' court," will appoint a guardian of the infant's property, who is a trustee in the strictest sense of the term. The place of residence of the minor determines what court has jurisdiction to appoint a guardian. The peculiar function of such courts is the care of orphans and minors whose natural guardians cannot or do not provide for them. It is unlawful for any person not authorized by such a court to interfere with the person or the property of such a minor. Where a guardian is appointed by will, the appointment must be approved by the court before the guardian can act. Where property is placed in trust for the benefit of a minor, any abuse of authority or negligence in execution by the trustee can be corrected by the court, or the trustee may be removed and another appointed to fill the vacancy.

The court can enforce its authority and directions by contempt proceedings against the offending party.

§ 446. Maintenance and Education

In the case of orphans it is the duty of the guardian to see that they are cared for and educated, and the court will always direct the proper expenditure for this purpose. In fact, where there is need for the support of children whose father is dead,

the guardian might safely apply the income this way and trust to the court's approval later. If the father is alive, it is his duty to care for his children, and while the income of property belonging to the children could be used in case of his inability to support them, that inability would have to be proved, otherwise the father would be the beneficiary and not the children. If the property belonging to the children is considerable and the father could not of his own means give them the education and training they should have properly to fill the position they would probably occupy, the court would direct an allowance to help the father.

A mother will nearly always be allowed maintenance for her children out of the income of any property they may have. The amount would be fixed by the court.

There are cases where property is left for the maintenance and education of the children with the intention of helping the father give the children a better education and training than he can afford. In such cases the instrument should expressly state that such is the intention.

The trustee is accountable for the proper application of money allowed for maintenance and education. If the father misapplies money paid to him, the guardian must exercise his discretion and make some other arrangement. It is his duty as guardian to see that the income is properly applied and is not wasted or misapplied.

§ 447. Using the Principal

Where it is possible, only the income of a minor's property should be used for his maintenance and education. Where this is not possible, the court will allow a trustee to trench upon the principal. In no case should a trustee do this without permission of the court. The court alone has power and will exercise it when it is strictly necessary.

A court would more willingly direct the expenditure of

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principal for education and training for some business or profession, than merely for maintenance. To expend principal in preparation for life is considered by the courts as being really a form of investment and as merely changing the capital into another and probably more desirable shape.

If several children were interested in the fund or if the principal were to go to someone else after the minor had had the use of the income, it might render it impossible for the court to make such an order. In no case should a trustee act without authority from the court in charge.

§ 448. Investments of Principal

All the general rules as to the investment of trust funds to insure their safety, hold good in regard to a guardian's investments. The object is always safety first, and speculative and private business enterprises are barred. In those states where the laws prescribe certain investments for savings banks, the courts often direct guardians to invest in similar securities. If the trust were created by deed or will, any specific directions as to investments would control.

A guardian would not be justified in making investments that would change personalty into real estate, or vice versa. No sale of real estate would be legal without court authority. No title could be given by an unauthorized sale. In most of the states the laws prescribe the procedure to secure an order for sale of a minor's real estate, and in such cases the statutes must be followed. Cases arise at times where it is necessary that property of minors should be sold, and then recourse must be had to the court having jurisdiction.

§ 449. Payments by Guardian

The guardian is under bond for the faithful discharge of his duty. A guardian duly appointed is authorized to collect moneys due and to take possession of all property belonging