entitled to but one legacy of £500, and that the same was to her separate use.1 Where, however, the legacies given by the same instrument are of unequal amount, they will be considered cumulative." The general principles stated above have been approved in New York by Chancellor Kent; and in other States of the Union in several decisions.* 540. As to the satisfaction of legacies by portions, or portions by legacies, the general doctrine is that there is a presumption against double portions, whenever the relation between the parties is that of parent and child, or wherever the donor stands in loco parentis towards the donee; but that no such presumption exists when the parties are mere strangers. The leading authority upon this subject is Ex parte Pye, decided by Lord Eldon in 1811, where the general presumption against double portions was recognized, and the exception in the case of strangers applied. The general rule there laid down, as well as the exception upon which the case was decided, has been since recognized both in England and in this country. It has been thought proper to notice the general doctrines of performance and satisfaction in connection with the subject of administration suits, and suits by legatees, because such questions most frequently arise in bills of this kind. The statement of these doctrines has necessarily been an exceedingly brief one; for a more elaborate examination of the authorities would be out of place in a general treatise upon the Principles of Equity, and would more properly be found in a treatise upon Wills. 1 Greenwood v. Greenwood, 1 Bro. C. C. 31, n.; Snell's Principles of Equity, 198. 2 Curry v. Pile, 2 Bro. C. C. 225; Snell's Prin. of Eq. 198. 3 Then Chief Justice; see Dewitt v. Yates, 10 Johns. 156. Jones v. Creveling's Exrs., 4 Har rison, 127; Creveling's Exrs. v. Jones, 1 Zab. 573; Minor v. Ferris, 22 Conn. 371. 5 Ex parte Pye, 18 Ves. 140; 2 Lead. Cas. Eq. 365 (4th Eng. ed.). 6 See notes to Ex parte Pye, 2 Lead. Cas. Eq. 593 (3d Am. ed.). 31 CHAPTER VII. INFANTS, IDIOTS, AND LUNATICS. 541. Protection afforded to the persons | 548. Education of the ward. and estates of infants at common 549. Management of his estate. 550. Marriage of the ward. 542. Necessity for, and origin of the 551. Nature and origin of the jurisdiction of the chancellor over lunatics and idiots. jurisdiction of the chancellor. 543. Infant is made a ward of court. 544. To be made a ward of court the infant must have property. 545 Proceedings may be by petition as well as by bill. 552. Statutes of Edward II. 553. Subject generally regulated by 546. Appointment and removal of guar- 555. Appointment and powers of comdians; custody of infants. 547. Guardianship a father's duty, not a privilege. mittee. 541. It is essential to every well ordered social system that there should exist some judicial authority by which protection may be afforded to those who cannot protect themselves; in other words, that there should be some tribunal whose duty it is to supervise the care of the persons and estates of infants, idiots, and lunatics. In the case of infancy, this result was partially attained at common law by the guardianships of different kinds which existed under that system of jurisprudence, and to which the care of the infant's person and the management of his estate were intrusted; while in case of a breach of the guardian's duty, either by wasting the estate of the ward, or by cruelty to his person, redress was afforded by proceedings in the criminal courts, or by an action of account at law, according to the nature of the case. The writ of habeas corpus, moreover, was available for the purpose of rescuing the ward from illegal custody, and restoring him to his proper guardian. Additional protection to the persons and estates of infants was also afforded in England by the provisions of the statute of Charles II., by which the father of an unmarried infant was enabled to appoint a guardian by deed or will, whose appointment will be good against all persons claiming as guardians in socage or otherwise.1 Similar statutes exist in nearly all, or perhaps all, of the United States; and, moreover, in most of the States of the Union the custody of the person of the minor and the management of his estate, and all matters appertaining to the appointment, removal, or discharge of guardians, and the settlement of their accounts, is entrusted by statute to Orphans' Courts, Surrogate's Courts, Courts of Probate, or other similar tribunals which have been constituted for the protection and administration of the estates of decedents. 542. Notwithstanding these common law and statutory provisions, there still existed in England a necessity for the interference of some other tribunal; for many cases necessarily arose in which a sufficient control over the guardian or a proper care of the ward's estate, could not be secured in the common law courts; nor could those courts possibly exercise a continuous supervision over the maintenance and education of the minor, and over the conduct of the guardian. Hence, for these purposes, there has been considered to exist in England, a prerogative in the Crown, as parens patriæ, to be exercised by the court of chancery, for the protection of any infant residing temporarily or permanently within its jurisdiction. And in the United States, also, although owing to the existence of special tribunals the occasions for the exercise of this head of chancery jurisdiction, are not nearly so frequent as in England, cases still arise in which equitable interposition is necessary; and not only has it been held that the power to protect the persons and estates of minors is embraced in every general legislative or constitutional grant of chancery powers, but it has also been decided that wherever a court of 12 Car. II., c. 24, 8 8. 2 Aymar v. Roff, 3 Johns. Ch. 49; Cowls v. Cowls, 3 Gilman, 435; Am. note to Eyre v. Countess of Shaftesbury, 3 Lead. Cas. Eq. 270 (3d Am. ed.). 3 McCord v. Ochiltree, 8 Blackf. 15; Maguire v. Maguire, 7 Dana, 181. "The court of chancery," said Mr. Justice Nel son, in Williamson v. Berry, 8 How. 555, "possesses an inherent jurisdiction which extends to the care of the persons of infants so far as is necessary for their protection and education, and also to the care of their property, real and personal, for its due management and preservation, and proper application for their maintenance." chancery of general jurisdiction exists, testamentary and statutory guardians are as much under its superintendence and control as guardians in socage at common law.1 While, therefore, it would be out of place to enter into an elaborate discussion upon the relation of guardian and ward, and upon the rights and duties to which that relation gives rise, it will, nevertheless, be proper to state briefly the nature of the jurisdiction of chancery upon this subject, and the manner in which the court acts in thus attempting to remedy the deficiencies of the common law. 543. The general theory upon which chancery assumes jurisdiction over the persons and estates of minors is, that, by proper proceedings, the infant has been constituted a ward of court.2 Almost every court has the authority to protect the interests of an infant party by appointing a guardian ad litem, whose duties will relate only to the particular subject in controversy; but the action of the court of chancery in constituting a minor a ward of court, has a wider scope, and extends to the general care and protection of his person and estate. 544. Two points require perhaps to be noticed in the first instance. These are (first) that the court must, it is said, when it constitutes a minor a ward of court, have some property of the infant; and (secondly) that the application to the court may be by petition as well as by bill. The first of these rules was thus stated by Lord Eldon: "It is not from any want of jurisdiction that it (the court) does not act (where it has no property of an infant) but from a want of the means to exercise its jurisdiction; because the court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so; that is to say by its having the means of applying property for the use and maintenance of the infant." In practice, however, the operation of this rule would seem to be easily evaded. Thus it often occurs that a bill is filed for the sole purpose of making an infant a ward of chancery; and in such a case the bill Matter of Andrews, 1 Johns. Ch. 99; Shaftesbury, 2 Lead. Cas Eq. 645 (4th Ex parte Crumb, 2 Id. 439. Eng. ed.). 2 See Williamson v. Berry, 8 How. 531. See notes to Eyre v. Countess of 4 Wellesley v. The Duke of Beaufort, 2 Russ. 21; S. C., 2 Bligh (N. S.), 128. always states that the infant has property whether the fact be so or not, and that the bill is brought against the person in whose supposed power or custody the property is.' And an infant may be constituted a ward of court although all the property and the actual domicil of the infant is in a foreign jurisdiction, and the infant is only temporarily within the jurisdiction of the court.2 In Cowls v. Cowls the jurisdiction of the court was made available in spite of the want of property, through the medium of an order requiring the father to pay a small sum annually for the maintenance of the infants; while the language of some of the decisions would seem to place the authority of the court, in part at least, upon the simple theory of protecting the infant from cruel treatment or from an abuse of parental authority. The necessity, therefore, for the existence of property as a prerequisite to the exercise of the jurisdiction of the court, would seem to be more of a legal fiction than a reality.5 545. In the second place, as to the manner in which a minor may be constituted a ward of court, it is not necessary that there should be any suit actually instituted or bill filed; the object may be attained by petition; and even an order in Chambers for the maintenance of an infant, out of the income of a legacy, upon a summons taken out in her name by her guardian, has been held, without suit, to constitute the infant a ward of chancery." 546. The jurisdiction of the court of chancery may be exercised either for the purpose of appointing a guardian where the infant has none, or for the purpose of settling conflicting claims to the guardianship, or for the purpose of removing the custody of the infant's person and the care of his property from the legal 1 Johnstone v. Beattie, 10 Cl. & Fin. the custody of infants under seven years 42; Story's Eq. Jurisp., 1351. 2 ld. 3 3 Gilman, 435. Maguire v. Maguire, 7 Dana, 181; Am. note to Eyre v. Countess of Shaftesbury, 3 Lead. Cas. Eq. 272 (3d Am. ed.). 5 The authority of the court of chancery in England to make orders touching of age is much enlarged by Stat. 2 & 3 Vic., c. 54, 1. See Warde v. Warde, 2 Phillips, 786; note to Eyre v. Countess of Shaftesbury, 2 Lead. Cas. Eq. 690 (4th Eng. ed.). 6 In re Graham, L. R. 10 Eq. 530. See, also, 2 Lead. Cas. Eq. 681, 682 (4th Eng. ed.). |