James Schouler.

A treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant online

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Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 60 of 90)
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6 Espey V. Lake, 15 E. L. & Eq. 579. 579.



an infant is held responsible for acts committed before quali-
fying as such by giving bonds.^ And although his authority
ceases when the ward attains majority, he continues person-
ally responsible so long as his possession and control of the
property continues.^

§ 327. Conflict of Laws as to Guardianship. — The guardian's
authority is limited to the jurisdiction which appoints him, and
does not extend to foreign countries, unless permitted by foreign
laws. Every nation is sovereign within its own borders, but
powerless beyond them. The rights of foreign guardians have
been to some extent admitted, however, on the principle of
comity.^ These rights may be considered, Jirst, as to the person
of the ward ; second, as to his estate.

§ 328. Conflict as to Ward's Person. — Fijsf, as to the ward's
person. Many writers on public law claim that the guardian's
authority extends everywhere. Others again deny that it ex-
tends beyond the jurisdiction which appoints.* In England,
the paternal authority is recognized, even in aliens ; but if an
infant has a guardian appointed by any other authority out of
the jurisdiction, the appointment fails as soon as the infant
comes to England, and the court of chancery will thereupon
appoint a guardian on petition.^ Yet in a case not long ago
liberal favor was shown toward the foreign guardian of wards
domiciled abroad. He had sent them to England to be educated,
and wished to remove them to their own country in order to
complete their education. The court refused to interfere with
their removal, and allowed the exclusive custody to the foreign
guardian ; at the same time, however, refusing to discharge an
order appointing English guardians.^

In this country, the rights and powers of guardians over the
ward's person are considered strictly local, even as between

1 Magruder v. 'Oamall, 6 Hill, 260. 3 See Story, Confl. Laws, §§ 492-

2 Mellish V. Mellisli, 1 Sim. & Stu. 529.

138; Armstrong y. Walk lip, 12 Gratt. * lb. §§ 495-497, and authorities

608. Whether a woman's letters abate cited.

or not on her marriage, she is liable if ^ Macphers. Inf. 577 ; Ex parte Wat-
she allows her husband to use the kins, 2 Ves. 470.

ward's property. Hood v. Perry, 73 « Nugent c. Vetzera, L. R. 2 Eq. 704.

Ga. 319; §318. See 27 E. L. & Eq. 451.


different States,^ though the paternal right would probably be
recognized as in England.'-^ But in Massachusetts, some years
ago, the custody of a child was awarded to a foreign guardian,
in preference to one appointed within the jurisdiction ; the
court observing that while the former had no absolute right to
the child, his office would be deemed an important element in
determining to whom custody should be given.^

§ 329. Conflict as to Ward's Property. — SecoJid, as to the
ward's property. A distinction has been made between mov-
ables and immovables. As to immovable property, such as real
estate, it is almost universally admitted that the law rei sitae
shall govern.* But writers do not agree as to movable property,
such as goods and personal chattels, whether the law of the
domicile shall prevail over that of the situation. Judge Story
considered the weight of foreign authority in this respect, in
favor of admitting the guardian's right to prevail everywhere
to the same extent as they are acknowledged by the law of the
domicile/^ And this seems to be the Scotch doctrine.^ But
according to the doctrine of the common law, now fully estab-
lished both in England and America, the rights of a guardian
over all property whatsoever are strictly territorial, and are
recognized as having no influence upon such property in other
countries where different systems of jurisprudence are estab-
lished. No foreign guardian can, by virtue of his office, exercise
his functions in another country or State, without taking out
other letters of guardianship or otherwise conforming to the
local law ; while, on the other hand, local courts consider their

1 Story, Confl. Laws, § 499 ; Morrell ^ gge Townsend v. Kendall, 4 Minn.

r. Dickey, 1 Johns. Ch. 15.3; Kraft v. 412.

Wickey, 4 Gill & Johns. .332 ; Burnet ^ Woodworth v. Spring, 4 Allen,

r. Burnet, 12 B. Monr. 323; Boyd v. 321.

(!lass,34Ga. 253; Whart. Confl. Laws, * Story, Confl. Laws, §§ 500-502.

§5 ■JGl-264 ; Rice's Case, 42 Mich. 528. And see post, c. 7. As between West

We have seen that the courts of a Virginia and Virginia, see Rinker v.

State or country will take jurisdiction Streit, .33 Gratt. 663.
for the time being where the ward bona ^ Story, Confl. Laws, §503; Schouler,

.A'fZe resides in the jurisdiction, tliough Pers. Prop. 347-385; Wharton, Confl.

not perhaps domiciled there. Supra, Laws, §§ 265, 266.
§ 303. Such appointment may not « Story, Confl. Laws, § 503 ; Fraser,

clothe the guardian witli extra-terri- Parent & Child, 604.
torial authority, yet it is not void.


§ 329


[part IV.

own authority competent within the jurisdiction, if the ward's
property be located there. Such is the rule in both countries.^
And hence a foreign general guardian is often required to take
out ancillary letters in the courts of a State in which he desires

But the rigor of this rule is sometimes abated. In England,
personal property will, under certain circumstances, be paid to
an owner who, if domiciled and resident in that country, would
not be allowed to receive it.^ So administration durante 7ninore
cetate has been granted to a foreign guardian.* In this country
there are local statutes which permit non-resident guardians
to sue on compliance with certain formalities, or even without
them.^ But otherwise they cannot bring actions of any sort.^
And this seems to be the English rule likewise^ Nor will the
courts of one State enforce the obligation of a probate guar-
dian's official bond with sureties given in another State.^ The
question whether the foreign jurisdiction has conferred similar

1 Story, Confl. Laws, § 504 ; supra,
§ 303 ; Rice's Case, 42 Mich. 528 ; Wel-
ler V. Suggett, 3 Redf. 249 ; Hoyt v.
Sprague, 103 U. S. Supr. 613; Leonard
V. Putnam, 51 N. H. 247. As to a con-
tract by a person under guardianship,
made in another State and valid there,
see Gates v. Bingham, 49 Conn. 275.
Where an infant, domiciled and having
a guardian in one State, is taken to an-
other State without the guardian's as-
sent, the courts of the former State
incline to uphold the guardian of their
jurisdiction against a guardian ap-
pointed in tlie other State as to rents
of lands. Munday v. Baldwin, 79 Ky.
121. Before permitting an infant's
property to be transferred beyond tiie
State limits, the court must be satis-
fied tliat the guardian has been regu-
larly appointed according to the laws
of the State where tlie ward resides,
that the guardian is fit for the appoint-
ment, and that sufficient security has
been given. Cochran v. Fillans, 20
S. C. 237. A guardian properly con-
stituted in the State of the ward's resi-
dence is favored. Watt v. Allgood, 62
Miss. 38.


2 Gunther Re, 3 Dera. 386.
^ Macphers. Inf. 577 ; Goods of
Countess Da Cunha, 1 Hag. 237.
* Goods of Sartoris, 1 Curteis, 910.

5 Ex parte Heard, 2 Hill. Ch. 54;
Hines v. State, 10 S. & M. 529 ; Sims v.
Renwick, 25 Geo. 58 ; Grist v. Fore-
hand, 36 Miss. 69 ; Martin v. McDonald,
14 B. Monr. 544; Carlisle v. Tuttle, 30
Ala. 613 ; Warren v. Hofer, 13 Ind. 167 ;
Re Fitch, 3 Redf. 457 ; Shook v. State,
53 Ind. 403.

6 Morrell v. Dickey, 1 Johns. Ch.
153; Kraft v. Wickey, 4 Gill & Johns.
322 ; Rogers v. McLean, 31 Barb. 304.
This is the rule, too, in Louisiana. Sue-
cession of Shaw, 18 La. Ann. 265 ;
Succession of Stephens, 19 La. Ann.
499. But as to instituting proceedings
to call the resident guardian to account,
see 109 111. 294.

^ Story considers it doubtful. Beat-
tie y. Johnston, 1 Phillips Ch. 17; 10
CI. & Fin. 42; contra, Morrison's Case,
cited in 4 T. R. 140, and 1 H. Bl. 677,

8 Probate Court v. Hibbard, 44 Vt.


§ 330

privileges upon citizens of the local forum carries some weight.^
But a court having general chancery jurisdiction over matters
of guardianship may, it appears, in the exercise of sound dis-
cretion, and upon principles of comity, equity, and justice, order
assets of the ward in the possession of a guardian resident
within its jurisdiction to be delivered to the guardian abroad.^
While courts of equity will permit property to pass to the for-
eign guardian, in pursuance of law, it seems that they will
generally exercise discretion, and in some cases require good
security,^ in others, direct the payment of a regular allowance,*
and in others, refuse payment altogether;^ the welfare of the
infant being always considered in such cases.

The principles applicable to non-resident guardians in this
country appear in many respects similar to those in case of
foreign executors and administrators, and the rules we have
stated might be subjected to modification by the mutual treaty
stipulations of two independent governments.^

§ 330. Constitutional Questions relating to Guardianship. —
As each legislature in this country derives its authority from

J 13 Phila. 385, 389. The authority
of a guardian of a non-resident minor
is limited usually to the particular local
property which confers a jurisdiction.

10 Fed. K. 894. See Hart v. Czapski,

11 Lea, 151. But in accounting for
his investments a non-resident guar-
dian should not be held to a narrower
range of securities than the law of
the ward's domicile allows. Lamar f .
Micou, 114U. S. 218.

'^ Earl V. Dresser, 30 Ind. 11.

3 Case of Andrews' Heirs, 3 Humph.
592 ; Martin v. McDonald, 14 B. Monr.
544 ; Re Fitch, 3 Redf. 457.

* McNeely v. Jamison, 2 Jones Eq.
186. And see Er parte Dawson, 3
Bradf. 130 ; M'Liskey >•. Reid,4 Bradf.

5 See 2 Story, Eq. Juris. § 1854 6,-
Stephens r. James, 1 M. & K.627. Let-
ters are thus granted in the State
having property, ancillary to the guar-
dianship in child's domicile or resi-
dence. Metcalf V. Lowther, 56 Ala.

312; Marts v. Brown, 56 Ind. 386.
As to right of foreign guardian to
petition for appointment of guardian
ad litem without ancillary letters, see
Freund v. Washburn, 17 Hun, 543;
Shook V. State, 53 Ind. 403. As to
a foreign guardian's right to transfer
stock, see Ross v. Southwestern R., 53
Ga. 514. Local statutes are found to
regulate this whole subject.

fi Commonwealths. Rhoads, 37 Penn.
St. 60. And see Pratt v. Wright, 13
Gratt. 175. The guardian of a minor
who receives property of his ward in a
foreign country or State must account
for it, unless he can show that he had
accounted for it abroad. Secchi's Es-
tate, Myrick's Prob. 225. As to the
proper course for care and transfer of
the ward's money when a ward re-
moves from the jurisdiction, and a new
guardian is appointed in the State of
his new domicile, see Snavely v. Hark-
rader, 29 Gratt. 112.



a written constitution, questions sometimes arise in our courts
as to the validity of certain statutes, which in Great Britain
are of no importance, since there an act of ParHament is the
supreme law. Thus it is not uncommon for our legislatures to
authorize or confirm the sale of lands held by guardians and
other trustees by special statutes ; and such statutes have been
attacked either as an interference with the property rights of
infants and their heirs, or as an usurpation of judicial func-
tions.^ Such acts are, however, constitutional, unless expressly
forbidden, according to the best authorities, where at least the
object is simply to provide for a change of investment for the
beneficiary, and not to divest the latter of property rights.^
But in a New Jersey case, it was intimated by the Chancellor
that, if fraud or sinister motives on the guardian's part were
shown, the special act might be judicially avoided.^ An act of
the legislature may authorize a certain guardian to sell the real
estate of his infant ward, subject to the approval of the sale by
the probate court.* It is held that the legislature may enable
a foreign guardian to sell lands within the State.^ So a general
law may be enacted for enabling guardians and other trustees
to enter into agreements as to the disposition of property held
by them, consistently with constitutional provisions which pro-
tect the rights of individuals ; notwithstanding the rights of
persons remotely interested in the estate, who are either not
in existence or only contingently concerned, may be thereby
compromised without their assent.^ Doubtless the wiser policy
of the legislature is to refer all cases of this kind to the courts
under general laws ; and thus do some State constitutions
expressly require.'^

1 See Davison v. Johonnot, 7 Met. * Brenhani v. Davidson, 51 Cal. 352.
388, for a full discussion of the question. ^ Boon v. Bowers, 30 Miss. 246;

2 Clarke v. Van Surlay, 15 Wend. Nelson v. Lee, 10 B. Monr. 495.

436 ; Cocliran v. Van Surlay, 20 Wend. « Clarke v. Cordis, 4 Allen, 466. .

365 ; Davison v. Johonnot, 7 Met. 388 ; "^ Per curiam, in Brenhani i;. David-

Snowliill V. Snowhill, 2 Green Ch. 20; son, 51 Cal. 352. An act of the legis-

Brenham in Davidson, 51 Cal. 352; lature cannot authorize a stranger,apart

Hoyt V. Sprague, 103 U. S. Supr. 613. from guardianship, to sell an infant's

But see Opinion of Justices, cited in 4 land or other property as an individual,

N. H. 572 ; Jones v. Perry, 10 Yerg. 59. and so confer a good title ; and certainly

8 Snowhill V, Snowhill, 2 Green Ch. no act will be readily interpreted to

20. mean this. The sale is supposed to be




eights and duties of guardians concerning the
ward's person.

§331. Division of this Chapter. — As the guardian of a
minor stands in the place of a parent, suh moclo, his rights and
duties, so far as concerns the person of his ward, are to be
considered correspondingly with those of a parent. His rights
relate chiefly to the ward's personal custody. His duties
are those of protection, education, and maintenance. These
rights and duties will be considered at length in the present

§ 332. Guardian's Right of Custody. — Guardianship, gen-
erally, carries with it the custody of the ward's person. This
is especially true where the ward's parents are both dead or
incompetent to act, for natural guardians have the prior claim
to custody while alive. Some one must exercise the right of
custody of the infant when the natural protector is wanting ;
and who is more suitable than the officer invested by law with
the responsibility of paying for the child's education and main-
tenance ? Hence the guardian's title is, in this respect, higher
than that of relatives and friends ; and he may insist upon
taking the child from the control of a stepmother or grand-
mother, or from any person to whom the father has informally
committed the care.^ For such considerations, however ma-
terial in determining the selection of a guardian, become super-
authorized as of one in the guardian tutlon of that State no probate guar-
or trust capacity, and to require or to dian could be appointed over a child
respect his due appointment. Paty y. whose father was living
Smith, 50 Cal. 153; Lincoln v. Ale.x- i Coltman i'. Hall, 31 Me. 196; Bou-

ander, 52 Cal. 382. See, further, Ex nell v. Berryhill, 2 Cart. 613; Johns v.
parte Atkinson, 40 Miss. 17, to the Emmert, 62 Ind. 533.
effect that under the former consti-



seded by the actual appointment. And it has been said that
the decision of the court as to the guardian's appointment is a
final decision as to the care and custody of the ward.^

But the custody of infants, as we liave seen, is a subject
within the free discretion of courts of equity ; and wliere the
interests of the ward require it, the care of his person will be
committed to others.^ Cliancery jurisdiction applies in this
respect to testamentary and chancery guardianship. The good
of the child is superior to all other considerations. Of this the
court will judge in each case by the circumstances, and make
orders accordingly, both as to actual custody and as to the per-
sons who may have access to the child. In determining where
the infant shall reside, the infant's inclination shall have con-
siderable weight, if he be of sufficient age ; but not, it would
appear, during the period of nurture.^

The right of chancery courts to regulate the personal custody
of infants subject to probate guardianship has also been asserted
in this country. This principle determined the decision of the
court in the New York case of People v. Wilcox.* Here it ap-
peared that the parents had separated, the father being a man
of intemperate habits. The child, by the father's permission,
was subsequently brought up at the house of his paternal
grandparents. Upon the father's death, the grandparents se-
cured letters of guardianship, without notice to the mother,
who was resident elsewhere. She afterwards came forward
and claimed control of her child, then only nine years old. It
appeared that the child was happy and well provided for at the
home of his grandparents. But it also appeared that the mother
was a person of good character, and that no sufficient reason
existed for depriving her of her natural offspring. The child
was therefore taken from the legal guardian and his custody
awarded to the mother; the interest of the child being duly
taken into consideration.

1 Senseman's Appeal, 21 Penn. St. Clark, 40 E. L. & Eq. 109 ; People v.
331. Wilcox, 22 Barb. 178 ; Bounell v. Bcrry-

2 Roach V. Garvin, 1 Ves. 160; hill, 2 Cart.61.3; Rex ?;. Greenl)ill.4 Ad.
Macphers. Inf. 119; Story, Eq. Juris. «& El. 642; Garner v. Gordon, 41 Ind.
§ 1341 ; Ward v. Roper, 7 Humph. 111. 92. See supra, §§ 245-250, as to custody.

8 Anon, 2 Ves. Sen. 374 ; Regina v. * 22 Barb. 178.



But whatever might have been the language of the court
in this case, it is apparent that the circumstances were of a
peculiar character. This decision turned not merely upon
chancery powers. It recognized the deeper principle of natural
law, that the relation of parent and child shall not be roughly
severed. And thus we find probate guardianship in this coun-
try frequently limited by positive enactment, so as to reserve
to the parents the natural control of their own children and the
right to educate, wlien alive and competent to transact business.^
As to probate guardians, it is to be added that the more natural
course, so far at least as strangers and distant relatives are con-
cerned, is, in controversies like the foregoing, to apply for the
removal of the guardian already appointed, and for the appoint-
ment of another competent to take actual control of the ward's

§ 333. Guardian's Right of Custody ; Subject continued. —
The English cases are numerous where the mother's claim has
been postponed to that of the testamentary or chancery guar-
dian.'^ And where the mother clandestinely removes her child,
the court has ordered him to be delivered up to the guardian.*
So where she procures his marriage in violation of the statute.^
And in a conflict between the mother and the infant's paternal
relatives, pending the appointment of a chancery guardian, the
court has given the interim custody to strangers.^ But the
court interferes with reluctance as against the mother, where
no misconduct on her part appears, especially if the infant is

1 See Smith's Prob. Pract. 82, 87; One of a child's grandfathers was
Ramsay v. Ramsay, 20 Wis. 507. appointed its guardian ; afterwards an-

2 Under a State Code wliich pro- other one adopted it, the parent before
vides that a guardian shall not be en- dying giving it orally to the latter;
titled to the custody of the ward as but the guardian's right to the child's
against tlie parent if the latter be " a custody was treated as superior. Burger
suitable person," the court on appoint- v. Frakes, 67 Iowa, 460.

ing a guardian should leave open the ^ See Macphers. Inf. 110-121.

question whether the parent is suit- * Wright v. Naylor, 5 Madd. 77.

able. McDowell v. Bonner, 02 Miss. ^ Eyre v. Countess of Shaftesbury,

278. A guardian is not, as of riglit, 2 P. Wms. 10-3 ; Gilb. Eq. 172.
entitled to the custody of his ward ^ In re North, llJur. 7. See Ander-

under fourteen years of age, but the ton v. Yates, 15 E. L. & Eq. 151.
interest of the ward will be considered.
Heather Re, 50 Mich. 261.



of tender years or delicate constitution, and requires maternal
care and nourishment. And Lord Eldon observed, in a case
where the mother's rights came in conflict with those of the
testamentary guardian, that though the effect of the appoint-
ment of a guardian is to commit the custody of the guardian-
ship, the court looks with great anxiety to the execution of the
duty belonging to- the guardian, and the attention expected to
be paid to the reasonable wishes of the natural parent.^ As our
former discussion of the subject of parental custody may have
led the reader to infer, the American rule is not uniform in this
respect ; and as to testamentary and probate guardians, the wid-
owed mother is in some States preferred to the guardian, while
in others the guardian is preferred to the mother ; the legislature
frequently supplying the definite rule of guidance.^

Testamentary guardians cannot be controlled in their rights
by expressions, in other parts of the will appointing them, which
amount to a mere recommendation. A case of this sort came
before Lord Chancellor Cottenham in 1847. The testator had
appointed testamentary guardians over his children in due form,
but had further expressed the wish that in case of his wife's
death during their minority they should be placed under the
care of certain female relatives. The wife having died, the
female relatives desired to assume full control. The Lord Chan-
cellor refused to accede to this extent ; but, upon his suggestion,
an arrangement was effected, satisfactory to all parties, so as to
give the immediate custody to the relatives, while preserving
to the testamentary guardian that general control and superin-
tendence which it was his duty to exercise under the will.^

Chancery will grant access in certain cases while awarding
the custody of the infant to other persons. Not only have
orders of access been made in the mother's favor, but, after her
death, access has been allowed to her representatives.* And
where Lord Hardwicke appointed a grandmother guardian in
preference to the father's executor, he ordered that the latter

1 Earl of Ilchester's Case, 7 Ves. And see Peacock v. Peacock, 61 Me.
380. 211.

2 Lord V. Hough, 37 Cal. 657 ; Ram- » Knott v. Cottee, 2 Ph. 192.

eay v. Ramsay, 20 Wis. 507; contra, * Ord v. Blackett, 9 Mod. 116;

Macready v. Wilcox, 33 Conn. 321. Macphers. Inf. 120.


should have free access to the infants.^ So in a Georgia case
the court, while confirming the guardian's right of custody, al-
lowed access to a near relative on her request.^ Where, too, a
decree of divorce gives the right of access to a certain parent,
not even a testamentary guardian can refuse obedience.^

Proceedings on a writ of habeas corpus may determine the
question of legal custody. But a child in the personal keeping
of his guardian is in legal custody ; nor can unlawful imprison-
ment or restraint be imputed from the guardian's refusal to sur-
render such child to the parent.^ On the other hand, the court
cannot entertain habeas corpus to restore to the guardian a child
forcibly removed by the parent, unless the child is actually re-
strained of liberty.^ Besides the writ of habeas corpus, there is
a remedy by petition to the court of chancery.^

§ 334. Guardian's Right to change Ward's Domicile or Resi-
dence. — The question whether the guardian may change the
ward's domicile from one country or State to another has given
rise to much discussion. In England, it was decided in the
early part of this century that the surviving parent, being also

Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 60 of 90)