guardian, whether the guardian be by nature (as the father, for example) or by virtue of some statute. The jurisdiction of the court of chancery to appoint a guardian, and, if necessary for that purpose, to interfere between a father and his children, is undoubted; and has been settled by the highest authority in England, and by many cases in this country. Thus, where the habits and mode of life of the father, or his treatment of his child, are such as to affect injuriously the child's health or morals, or to endanger his property, the custody of the child will be committed to a person to act as guardian; but mere insolvency of a father will not be a ground for taking his children from him; and the court has refused to deprive a father, though living in adultery, of the custody of his child, where he did not bring the child in contact with the woman with whom he was so living.1 As in the case of a father, so a fortiori in the case of a testamentary guardian, will the court interfere in cases of improper conduct or character. But it seems, that, both in the case of a father and of a testamentary guardian, the court will not appoint another guardian, but will simply appoint a person to act as guardian. 547. The guardianship of his children is not a privilege of the father, but it is a duty cast upon him by considerations of public welfare. He cannot, therefore, by any contract relieve himself from the responsibility of discharging this duty; and hence it must now be considered as settled (at all events in 1 Wellesley v. The Duke of Beaufort, 2 Russ. 1; 2 Bligh (N. S.), 124; Wood v. Wood, 5 Paige, 596; In the Matter of Wollstonecraft, 4 Johns. Ch. 80; Miner v. Miner, 11 Ill. 43; Maguire v. Maguire, 7 Dana, 181; Story's Eq. Jurisp., 1341. 2 Creuze v. Hunter, 2 Cox, 242; Shelley v. Westbrooke, Jac. 266, n.; Anon., 2 Sim. N. S. 54; De Manneville v. De Manneville, 10 Ves. 62; Warde v. Warde, 2 Phillips, 786; Thomas v. Roberts, 3 De G. & Sm. 758; Whitfield v. Hales, 12 Ves. 492; In the Matter of Waldron, 13 Johns. 418; The People v. Mercein, 8 Paige, 47; 25 Wend. 64. See 2 Lead. 3 Kilpatrick v. Kilpatrick, Macphers. 143; In re Fynn, 2 De G. & Sm. 457; 2 Lead Cas. Eq. 686 (4th Eng. ed.). 4 Ball v. Ball, 2 Sim. 35. See, also, Commonwealth v. Addicks, 5 Binn. 520; and 2 Serg. & Rawle, 174; State v. Baird, 6 C. E. Green, 384. 5 Duke of Beaufort v. Berty, 1 P. Wms. 704; Smith v. Bate, 2 Dick. 631; 2 Lead. Cas. Eq. 692. 6 Ex parte Mountfort, 15 Ves. 446; 2 Lead. Cas. Eq. 685, 692, 693. England) that contracts by a father to give up to his wife the custody and education of their children, are contrary to public policy, and will not be enforced in equity against the husband; and this, although the husband may have been guilty of adultery and cruelty to his wife. There may, however, be such cases of gross misconduct on the part of the father, as will unfit him for the custody of his children. 548. Supposing, now, that the court has assumed the care of the person and property of the infant, the next question for consideration is in what particulars will the jurisdiction of the court be exercised. These are usually said to be three, viz., first, the education of the infant; second, the management of the estate; and third, the marriage of the ward. The guardian will be allowed to regulate the mode and select the place for his ward's education, and the obedience of the ward will be enforced by the court; and where guardians differ as to the mode of education the court will decide. In regard to matters of religious belief the court will usually respect the creed and opinions of the father, and even in England, the court will not control a guardian in bringing up a child in a faith different from that of the established church, if it be the religion of the father.3 The subject is, however, in the discretion of the court, and the general rule may be modified by peculiar circumstances." In general the court will not allow its wards to be taken out of its jurisdiction; but this rule is subject to exceptions when the health of the ward or other peculiar circumstances render it necessary.5 549. As to the management of the estate of the ward, it is of 12 Lead. Cas. Eq. 671 (4th Eng. ed). 2 In Tremain's Case, 1 Strange, 168, the minor went to Oxford contrary to the orders of his guardian, who would have him go to Cambridge, and the court sent a messenger to carry him from Oxford to Cambridge; and upon the minor's returning to Oxford, "there went another messenger, tam to carry him to Cambridge, quam to keep there." See, also, 2 Lead. Cas. Eq. 694, notes (4th Eng. ed.). 3 Talbot v. The Earl of Shrewsbury, 4 My. & Cr. 672; Hawksworth v. Hawksworth, L. R. 6 Ch. App. 539; Austin v. Austin, 34 Beav. 257. 4 See Stourton v. Stourton, 8 De G. M. & G. 760. This case has not been viewed with approbation. Hawksworth v. Hawksworth, L. R. 6 Ch. App. 543, 544. 5 2 Lead. Cas. Eq. 698 (4th Eng. ed.). course directed for the end designed by the testator or settlor (if any) from whom the property may have been derived; and the duties of the guardian as to the care and investment of the estate are regulated very much by the general rules applicable to other trustees. Questions upon this subject generally have respect to the proper maintenance of the ward, and the sums which are to be appropriated for that purpose. Regard must be had to the condition and prospects of the ward, and to his rank in life; and while usually the income only (or a portion thereof) will be applied to his education and maintenance, the rule is not an invariable one, and in some instances the capital has been allowed to be broken in upon.1 The power of the court of chancery over the property of its ward extends only to the personal property, and the income of the real estate; the court having no inherent power to direct a sale of the real estate for the purposes of maintenance or education. That is a power which rests exclusively with the legislature. In most of the United States, however, the courts which have control of the estates of minors are vested with authority to order a sale of real estate when it is necessary and proper, and for the benefit of the infant. The court may order personal property of the infant, where it is for his benefit, to be invested in land; but the order authorizing such investment will be coupled with a declaration that the land shall be considered, during the minority, as constructively personal.3 550. The last point upon which the court exercises its jurisdiction over wards of court is for the purpose of controlling their marriage. In the case of wards of the court, whether male or female, even when they have parents living, or guardians, it is necessary to apply to the court by petition for leave for them to marry, which will only be granted upon its appearing that the marriage is suitable, and the settlement proposed See notes to Eyre v. Countess of Shaftesbury, 2 Lead. Cas. Eq. 713, 720, 721. 2 Williamson v. Berry, 8 Howard, 495, 531; 3 Lead. Cas. Eq. 269 (3d Am. ed.). See, also, Rogers v. Dill, 6 Hill, 415; Rivers v. Durr, 46 Alab. 418; Kearney v. Vaughan, 50 Mis. 284; Faulkner v. 3 Ashburton v. Ashburton, 6 Ves. 6; " is proper, and the court will prevent, as far as it can, a clandestine marriage, by ordering that the ward shall not be married without the leave of the court, and that the person desirous of marrying the ward shall not have access by letter or otherwise. A person marrying a ward of court, or contriving or assisting such a marriage, without the leave of the court, will be guilty of a contempt of court, and will be punished accordingly; and it seems that ignorance of the fact that the infant is a ward of court, although it may be urged in mitigation, will not acquit the party of the contempt.1 551. Having considered the jurisdiction of the chancellor over the persons and estates of infants, the next subject which most naturally demands attention is that of the analogous equitable relief which is afforded in the case of persons non compotes mentis. It has been stated in a former part of this treatise, that the jurisdiction of the English court of chancery, in the case of lunatics and idiots, was peculiar in this respectviz., that it was not exercised in a regular suit, but by the chancellor personally, on petition, and that the appeal from his order is to the king in council and not to the House of Lords. This resulted from the fact that the authority of the chancellor did not exist by virtue of his office, and as a part of his general extraordinary jurisdiction, but was derived, by special authority, from the sovereign in whom, as parens patriæ, the care of idiots and lunatics was vested. This authority of the king not only existed at common law, but was also increased or affected by several statutes of an early date, which vested in him the profits of the land of an idiot, during the idiot's life, as a bene. ficial interest, and imposed upon him the duty of keeping the lands and tenements of lunatics without waste.3 In the case of a lunatic, therefore, the king was a mere trustee. 552. Before the statute de prerogativa regis, the custody of the persons and lands of such idiots as were possessed of lands, was in the lord of the fee, and in case the idiot had no land, he fell under the care of the king, as the general custos of all those who had no other guardian. By the statute just mentioned, the custody of the persons and lands of idiots was taken from 1 See 2 Lead. Cas. Eq. 703. 2 Introduction, ante, p. 43. 3 Stats. 17 Ed. II., c. 9; Id. c. 10. the lord, and entrusted to the king, to whom (as already stated), a beneficial interest in the idiot's land was given. On the other hand, the statute 17 Ed. II., c. 10, as to lunatics, was a restraining statute, as it prescribed the duties of the king, and constituted him a trustee. Before and since these statutes, the king has exercised his control over the persons and estates of idiots and lunatics by delegating his authority, by sign-manual, to some great officer, usually (though not necessarily) the holder of the great seal.1 The effect of the delegation of authority, under the sign manual, was merely to give the chancellor power to grant the custody of the lunatic; but after the court of chancery became well established, successive holders of the great seal imported into the exercise of their special jurisdiction under the sign manual, all the powers which they wielded as chiefs of the court of chancery. Hence, after the custody is granted, the great seal acts in matters relative to the lunatic, not under the sign manual, but by virtue of its general power as keeper of the king's conscience.2 553. In a few of the United States the care of the persons and estates of idiots and lunatics is entrusted to courts of chancery; but even where this is the case the jurisdiction is ordinarily exercised under statutory provisions, by which the court is pointed out and the method of procedure prescribed. In most of the States of the Union, however, the care of persons non compotes mentis is confided to special tribunals, and is not made a part of equitable jurisdiction. In many cases, however, the mode of procedure has been borrowed from that which grew up under the English chancellors; and it may, therefore, be useful to give a very brief outline of that procedure. 554. The jurisdiction of the chancellor was exercised, in the first place, for the purpose of ascertaining the fact of lunacy; and, secondly, for the care of the lunatic and the management of his estate. The first purpose is attained by issuing a commission under the great seal in the nature of a writ de lunatico See Wigg v. Tyler, 2 Dickens, 553. 2 Ex parte Grimstone, Ambler, 707. Lord Campbell thought that the jurisdiction might be exercised by the chancellor by virtue of his general powers, and before any grant under the sign manual, and so exercised it in Ireland. See 1 Campbell's Lives of the Chancellors, 14. 3 Such is the case in Tennessee and Pennsylvania, ante, pp. 19 and 21, notes. |