William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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Colonial and Foreign Latoe, vol. i. p. 152.

(a) Code, lib. 6, 57, 5.

\h) Buller, J., 1 Term Rep. 101. Bow v, Nottingham, 1 N, H. Jtep. 200.

(c) Haines r. Jeffel, 1 Lord Raym* 68.

\d) King V. Inhabitants of Hodnett, 1 Term Rep, 96. Homer «. Liddiard,
1 Hagg. Consist, Rep. 337. But the consent of the natural parents of illegi-
mate minors is not sufficient, and there must be a guardian appointed by
chancery. Ihid, The prohibition of marriage between relatives in the
ascending and descending lines, and between brothers and sisters, applies
equally to illegitimate children and relatives. N. Y, Revised Statntesy vol. ii.
p. 139, sec, .3.

(e) 3 Johns, Rep. 15. 17 Johns. Rep. 41. 12 Mass. Rep. 429. 5 Conn. Rep.

'^ In Pennsylvania his settlement is at the place of his birth, except his
mother is removed from place to place by collusion, or when he is bom pend-
ing an order of removal appealed from, or while the mother is in actual <
tody of the law. Philadelphia v. Bristol, 6 Serg. A Rawle, 565.



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with their fellow sabjeots (a); andia this conntry we have made
very oonsiderable advanoes towards giving them also the capacity
to inherit, by admitting them to possess inheritable blood. We
have, in this reepect, followed the spirit of the laws of some of
the ancient nations, who denied to bastards an equal share of
their father's estate, (for that wotdd be giving too much coun-
tenance to the indulgence of criminal desire,) but admitted them
to a certain portion, and would not suffer them to be cast naked
and destitute upon the world (6).

*The mother, or reputed father, is generally, in this [ * 215 ]
Qonntry, chargeable by law with the maintenance of the
bastard child, and in New York it is in such way as any two jus-
tices of the peace of the country shall think meet; and the goods,
chattels, and real estate of the parents, are seizable for the sup.
port of such children, if the parents haye absconded. The re-
puted father is liable to arrest and imprisonment, until he gives
security to indemnify the town chargeable with the maintenance
of the child (c). These provisions are intended for the public
indemnity, and were borrowed from the several English statutes
on the subject; and similar regulations to coerce the putative
father to maintain the child, and indemnify the town or parish,
have been adopted in the several statea^^

The father of a bastard child is liable, upon his implied con-
tract, for its necessary maintenance, without any compulsory
order being made upon him, provided he has adopted the child
as his own, and acquiesced in any particular disposition of it (d).

(fl) Oeuvres D*Agues9eau, tome vii. p. 384, 385. Butler^s note No. 176 to lib.
3 0>. Lt«. 1 Blacks, Com, 459.

(h) Ppiter'ft Greek Aniiq, vol. ii. p. 340. Oenioo Code, by Halhed, p. 73.

The protection and tenderness which the (roddess Fortnne is supposed to

bestow npon foundlings^ is, says Mr. Gifford, one of the most amusing and

animated pictores that the keen a\]d vigorous fancy of Jouvenal ever drew:

Stat foriuna improba noctu,

Arridens nudis infantibua. Hoa fovei o^nnes,

Invo/vitque «n«. Sal, 6, v. 603—605.

(e) N. Y. Revised Statutes, vol. i. p. 640—656. In Ohio, the courts of com-
mon pleas ascertain and enforce the duty of the putative father to maintain
bis bastard child. StaiiUes of Ohio, lasi.

{d) Hesketh v, Gowing, 5 Esp. N. P, Rep. 131. But except io such a special
ease, the putative father is not liable except upon an express promise, or
npon an order of filiation under the statute. Cameron v. Baker, 3 Carr. 4e

** See 2 Kev. Stat N. Y. 5th ed. 906. In Ohio, it must appear that the
mother is an unmarried woman and resides in the state. Edwards v. Knight,
8 Ohio, 3^5. For the protection and support of bastai'ds, see the statutes of
the different states relating thereto, and see Reeve's Dom. ReLs. 3d ed. 411,
eftej. (noteL)



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The adoption mast be TolnDtary, and with the consent of the
mother, for the putative father has no legal right to the cnatodj
of a bastard child, in opposition to the claim of the mother; and,
except the cases of the interrention of the town officers, under the
statute proTisions, or onder the implied contract founded on the
adoption of the child, the mother has no power to compel the
putative father to support the child. She has a right to the
custody and control of it as against the putative father,
[ * 216 ] and is bound to maintain it as *its natural guardian (a);
though perhaps, the putative father might assert a right
to the custody of the child as against a stranger (b)"

There are cases in which the courts of equity have regarded
bastards as having strong claims to equitable protection, and have
decreed a specific performance of voluntary settlements made by
the father in favor of the mother of her natural child (c). On
the other hand, there are cases in which the courts of equity have
withheld from the illegitimate child every favorable intendment
which the lawful heir would have been entitled to as of course.
Thus, in Fursaker v. Robinaon (d), a natural daughter brought
her bill against the heir at law to supply a defective conveyance
from her father to her, but the chancellor refused to assist her,
on the ground that she was a mere stranger, being nuUius filia,
and not taken notice of by the law as a daughter, and that the
father was not under any legal obligation to provide for her as a
child, though he might be obliged by the law of nature, and so
the conveyance was voluntary, and without any consideration.

Pajfne, 36. Purillio v. Crowther, 7 Dawl, <it Ryl 612. Moocrief i?. Ely, 19
Wenddl, 405.

(a) The King v, Soper, 5 Term Rep, 278. Ex parte Ann Knee, 4 Am. ^
Pull 148. The People v, Landt, 2 Johns. Rep. 375. Carpenter v. Whitman.
15 Johns. Rep. 208. Wright v. Wright, 2 Mass. Rep. 109. Ma.^ Retwd
Statutes^ 1835. Acosta v. Robin, 19 Martinis Louis. Rep. 387. The power ol'
the putative father over the illegitimate child, was denied in the Roman
law, and it is equally so in the Spanish law. Ibid.

{b) Rexv. Gomforth, Str. Rep. 1162. A person standing tii loco parentis has
been allowed to maintain an action on the case per quod servitum amini*^ for
the abduction of his daughter's illegitimate offspring. Moritz v. Gamhart,
7 WaUs, 302.

(c) Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432. Horten r.
Gihson, 4 8. Car.. Equity Rep. 138. Bunn v. Winthrop, 1 Johns. Ch. Rep,

(d) Pree. in Ch. 475. 1 Eq. Oas. Abr. 123, pi. 9. OUb. Eq. Rep. 139. Oilb.
F. R. 256.

" An action of false imprisonment will lie against the father if he obtains
and maintains the cnstody of the child. Kohaline r. Armstrong, 15 Barb.
247; People «. Kliug, 6 Id. 366.


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This hard decision was made bj Lord Cowper in 1717; bat the
langnage of Lord Gh. King, in a subseqnent case, to which I have
jost alladed (a), is certainly much more conformable to
justice and humanity. '* If a man," says he *'* does mis* [ *217 ]
lead an innocent woman, it is both reason and justice
that he shoold make her reparation. The case is stronger in re-
spect to the innocent child, whom the father has occasioned to be
broQght into the world in this shameful manner, and for whom,
in justice, he onght to provide." In Knye v. Moore (6), the vice-
chancellor, in pursuance of the doctrine of Lord King, assisted
to uphold and enforce a deed by the father, making provision for
the mother and his illegitimate children after his death. So, in
Pratt 1, Flamer (c), a devise by the father to an unborn illegiti-
mate child, in which the mother was described, was held valid;
and there are other cases in which bequests by will, in favor of
illegitimate children, have been liberally sustained (d).

(a) MarchiooesB of Annandale v. Harris, 2 P, Wm», Bep. 432.
ih) 1 Simms' A StuaH's Bep, 61.
(e) 5 HoTT dt Johns. Bep. 10.

(d) Beachcroft v. Beachcroft, 1 Madd, Bep, 234, Phil. edit. Gardner v.
Heyer, 2 Paxg<?B Bep, 11.

^® VOL. II. KENT. 289


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The relation of guardian and ward, is nearly allied to thai of
parent and child. It applies to children daring their minority,
and may exist daring the lives of the parents, if the infant be-
comes vested with property; but it usually takes place on the
death of the father, and the guardian is intended to supply his

There are two kinds of guardianship; one by the common law,
and the othet by statute; and there were three kinds of guar-
dians at common law, viz. : guardian \iy nature, guardian by nur-
ture, and gusirdian in socage (a).

(1.) Guardian by nature^ is the father, and on his death, the
mother; and this guardianship extends to the age of twenty -one
years of the child, and it extends only to the custody of his per-
son, and it yielded to guardianship in socage (&). It was doubted
for some time in the books, whether the guardian by nature was
entitled to the possession of the personal estate of the infant, and
oould give a competent discharge to an executor on the payment
of a legacy belonging to the child; and it was finally understood
that he could not (o). It would se^m, therefore, that if a child
becomes vested with personal property only, in the lifetime of
the father, there is no person strictly entitled to take it as guar-
dian, until a guardian has been duly appointed by some public
authority, though if real estate vests in the infant, the gaardian
in socage, or a substitute for such a guardian provided by stat-
ute, will be authorized to take charge of the whole estate, real

{a) Co. Lilt. 88, b. 3 Co. 37, b.

(6) Co. Lilt. 84, a. LiU. sec 123. Co. Litl. 87, b. 88. Hargrave's note, 12.
The King v. Thorp, 5 Mod. Rep 221. Jackaon v. Combs, 7 Oowcn^s Rep. 36.
2 WendeWs Rep. 153, 8. C.

(c) CnnniDghAin v. Harris, cited in 3 Bro. 186. Genet v. Tallmadge, 1
Jokn». Ck. Rep. 3. Miles v. Boydea, 3 Fick. Rep. 213





and peraonaL The fatbeor has the firat title to gnardiaDship b^
nature^ and the mother the second; aod wooaiBding to the striot
lanf^age of our law, says Mr. Hargrave (a), oaly the heir ap-
parent can be the sabject of gnardianship by nature, and there-
fore it is doubted whether «ach a guardianBhip can be of a
daughter, whose heirship is presamptiTe, and not apparent. Bnt
as all the children, male and female, equally inherit with ns, the
guardianship by nature would seem to extend to all the children.
The court of chancery, for just cause, may interpose and <!ontrol
that authority and discretion, which the father has in general in
the education and management of his child (6). In De Mnnrte-
viUe T. De Mannemlle (c), Lord Eldon restrained a father from
doiog any act towards remoTal of his infant child out of the king-
dom, and he said that the jurisdiction of the court of chancery
to control the right of the father prima facte to the person of
histsbild, was unquestionably established. -He admitted, how-
ever, that the jurisdiction was questioned by Mr. Hargrave id);
bat it was, on the other hand, supported with equal ability by M.
Fonblanque. In the case of Wellesley t. Duke of Beaufort (e),
the Lord ChaDeellor, after a v«ry able and thorough investiga-
tion, refused to restore to a father the custody of his infant chil-
dren, on the ground that his diaracter and immoral conduct ren-
dered him unfit to be their guardian; and the decision was, in
1828, affirmed by the house of lords. The jurisdiction of chan-
cery, and the fitness of its exercise in that instance, was finally
established (g),^

(a) Note 66, to lib. 2 Co. lAU,

{b) 2 Fanb. TV. of Equity, 234, note. Orenae 9. Hunter, 2 Cfox^s Bep. 242.

(e) 10 FeM^, 62.

(if) Note 70, to Co. lAtt. 89, a.

(e) 2 RtmdVs Rep 1. Wood v.Woofl, 6 Paige, 605, S. P.

[g) Wellesley v. Wellesley, 1 Dow, N. S. 152. 2 Bligh's PaH. B. N. a
134, S. C. That case was^acoompanied and followed by very profound dis-
casRions. In a pamphlet, attributed to the pen of Mr. Beames, entitled,
** Obserrations upon the i)ower exercised by the eonrt of chancery, of de-
priving a father of the custody of his children, '' the power was deemed very

^ The father as guardian by nature cannot give a valid lease of the infant's
lands. May v. Colder, 2 Mass. 55. The mother of a bastard is its natural
gnardian. Sometaet v. Dighton, 12 Mass. 383; Wright v. Wright, 2 Mass.

Under laws of New York, I860, ch. 90, { 9, the mother is joint guardian
of her children with the father, with equal rights over them. On the death
of both father and mother the next of kin are the guardians of the infant
See May v. Calder, wpra. Eldridge v. I/lppincott, C6x (N. J.), 397.

Fixed habits of intemperance are good grounds for removal of a guardian
by nature. Kettletas v. Gafdner, 1 Faige, 488.



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(2.) Gnarclian by nurture^ occnrsonly when the Id f ant is with-
out any other guardian, and it belongs exclosiyelj to the parents,
first to the father, and then to the mother. It extends onily to
the person, and determines when the infant arrives at the age of
fourteen, in the case both of males and females. As it is cod-
current with guardianship by nature, it is in effect merged in the
higher and more durable title of guardian by nature (a). This
guardianship is said to apply only to the younger children, who
are not heirs apparent; and as all the children inherit equally
under our laws, it would seem that this species of guardianship
has become obsolete.'

( 3. ) Ouardian in socage, has the custody of the infant's lands,
as well as of his person (6). It applies only to lands which the
infant acquires by descent (c); and the common law gave this
guardianship to the next of blood to the child, to whom the in-
heritance could not poisaibly descend; and therefore, if the land
descended to the heir on the part of the father, the mother, or
other next relation on the part of the mother, had the wardship;
and so if the land descended to the heir on the part of the
mother, the father, or his next of blood, had the wardship (d).
These guardians in socage cease when the child arrives at the age
of fourteen years, for he is then entitled to elect his own guar-
dian, and oust the guardian in socage, and they are then acoonot-

questionable in point of authority as well as of policy. On the other hand^
in a treatise published by Mr. Ram, a barrister, and in an article in the
Quarterly Review^ No. 77, the i)olicy and wisdom of the jurisdiction, as as-
serted in the court of chancery and confirmed in the house of lords, were ably
vindicated, arid shown to be connected with great moral considerations aris-
ing out of the nearest ties of social life. Attempts have been made to con-
trol the father's right to the custody of his infant children, by a legacy given
by a stranger to an infant, and the appointment by him of a guardianin con-
sequence thereof. But it is settled, that a legacy or gift to a child, confers
no right to control the father's care of the child, and no person can defeat
the father's right of guardianship by such means. If, however, the father
accedes to the conditions of the gift, and surrenders up his control of the
child's education, the court of chancery will not suffer him to retract it.
Lord Thurlow, in Powel v. Cleaver, 2 Bro. 500. Colston «. Morris, 6 Madd,
89. Lyons r. Blenkin, 1 Jac. 245. See also, the Etna, Ware's Rep. 464, and
Story^aC<fw. on Eq. Jurisprudence, vol. ii. 574 — 581, where the jurisdiction of
the court of chancery on this subject is Ailly examined and sustained.

(a) 3 Co. 38, b. Harg. note 67, to lib. 2 Co, LiU. Own. Dig. tit. Ouardian,

(ftj Com. Dig. tit. Guardian, B.

(c) Quadring r. Downs, 2 Mod. Rep. 176.

(d) LiU. sec. 123, Quadring v. Downs, 2 Mod. Rep. 176.

' In regard to the property of the inlant such guardian has no more right
than a stranger. Ross v. Cobb, 2 Yerg. Tenn. 463.



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able to the heir for the rents and profits of the estate (a). If the
iDfant, at that age, does not elect a gaardian, the guardian in
socage coatinaes (6). The common law, like the law of Solon (c).
was Btrenaoas in rejecting all persons to whom the inheritance
might possibly arrive, and its advocates triumph in this respect
over the civil law (d), which committed the burden of the guardian-
ship to the person who was entitled to the emolument of the succes-
sion. As we have admitted the half blood to inherit equally with the
whole blood, this jealous rule would, still more extensively with us,
prevent relations by blood from being guardians in socage. The law
of Scotland,and the ancient law of France took a middle cour8e,and
luay be supposed, in that respect, to have been founded in more
wisdom than either the civil or the common law. They com-
mitted the pupil's estate to the person entitled to the legal suc-
cession, because he is most interested in preserving it from waste;
but excluded him from the custody of the pupiPs per-
son, because *his interest is placed in opposition to the [ * 223 ]
life of the pupil (e). And yet, perhaps, the English, the
Scots, and the French laws, equally proceeded on too great a dis-
trast of the ordinary integrity of mankind They might, with equal
propriety, have deprived children of the custody and maintenance
of their aged and impotent parents. It is equally a mistake in
politics and in law, to consider mankind degraded to the lowest
depths of vice, or to suppose them acting under the uniform gov-
ernment of virtue. Man has a mixed character, and practical
wisdom does not admit of such extreme conclusions. The old
rale agaifist committing the custody of the person and estate of
a lunatic, to the heir at law, has been overruled as unreason-
able (g). If a presumption must be indulged, as was observed
in one of the cases, it would be in favor of kinder treatment, and
more patient fortitude, from a daughter, as committee of the per-
son and estate of an aged and afflicted mother, than from the col-
lateral kindred. The fears and precautions of the lawgiver on

(a) Liti. Ibid,

(h) The King v. Pierson, Andrew^ s Rep. 313. The guardian in socage has
lawful possession of the lands, and he may maintain actions of trespass or
ejectment in respect to the lands of the ward. Byrne v. Van Hoesen, 5
JbAiM. R. 66. Jackson v. De Watts, 7 ibid, 157.

(c) Palter* 9 Greek Antiq. vol. i. p. 174.

(d) Co. LiU, 88, b. 1 Blacka, Com, 462.

(e) Erskine's Jnst. p. 79. Hallam on the Middle Ages, vol. i. p. 106.

Ig) Dormer'fi case, 2 P. Wms. 262. In the matter of Livingston, 1 Johiu,
Ch. Rep. 436. Lord Hardwicke, in 2 Aik, Rep, 14.



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his snbjeot, imply, according to Montesquiea, a melancbdy
cioosness of the oorraption of pablio morals (a).

This guardianship is a personal txast, and is not transmia
^y succession, nor devisable or assignable. It extends, not
o the person, and all the socage estate, but to hereditam
vhich do not lie in tenure, and to the personal estate. Tl
he opinion of Mr. Hargrave, and he supports it by strong
ions (6); notwithstanding, it is admitted, that the title to gi
an in socage, cannot arise unless the infant be seised of 1
leld in socage. This guardianship in socage may be consic

as gone into disuse, and it can hardly be said to exi
* 224 ] this country, for the guardian *must be some reli

by blood who cannot possibly inherit, and such a
;an rarely exist' By the New York Revised Statutes (c), ^
m estate in lands becomes vested in an infant, the guardiac
>f such infant, with the rights, powers, and duties of a guai
n socage, belong to the father of the infant; and if there I
'ather, to the mother; and if there be neither, then to the ne
md eldest relative of full age, not being under any legal incapa
md as between relatives of the same degree of consangui
nales are preferred. But the rights and authority of every
guardian are superseded in all cases where a guardian i£
>ointed by the deed or last will of the father of the infant, <
lefault thereof, by the surrogate of the county where the n
esides (d). Surrogates have the same power to allow anc
>oint guardians as is possessed by the chancellor; and a£
>owers and jurisdiction of the court of chancery are declarer
o be co-extensive with the same powers and jurisdiction in ]
and, with the exceptions, additions, and limitations created
mposed by the constitution and laws, it is to be inferred tha
hancellor of New York retains the jurisdiction over infants, \t
«longs to the chancellor in England, and which belonged t<
hancellor of New York prior to the 1st of January, 1830, i
he Revised Statutes took efiPect

(a) Esprit dea Loix, liv. 19, ch. 24.

(b) Note 67. to lib. 2 Co. Lit

(c) Vol. i. p. 718, sec. 5.

(d) N. Y. Revised Statutes, vol. i. p. 719, sec. 7. Vol. ii. p. 151, sec 4

(e) Ibid. vol. ii. p. 173, sec. 36.

' See Combs, v. Jackson, 2 Wend. 153. The rights of a guardian in s
.re sometimes imposed npon a kind of goaidian appointed by sti
i'onda V. Van Home, 15 Wend. 631.


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Lee. XXX.] OF THE I11GHT3 OF BEB0ONS. * 235

(4) Testamentary ffuaniianfif to whom I haveedrdady alladed,
are founded on the deed* or lapt.wiU of the {ather, and they super-
sede the claims of any other gaardian, and extend to the peirson,
and real and personal estitte of the ebild, and continne until the
child arrivee at fall aga This power in the father to eonstjtate
a goardiau by deed or will, was given by the statujte of 12
Charles XL, and it has been pretty extenaively ^adopted [ * 225 ]
in this country, with the exception of Netir £ogland. A
will, merely appointing a tesiiamentacy guardian, need not be
proved; and though thj9 statute speaks of af)pointment by deed^.
as veil as by wiU, yet saoh a disposition by deed may be revoked
by will; and it is evident from the language of the English
statute, and from the reason of thjs thiog, that the deed there men-
tioned is only a testamentary instrument in the form of a deed,
and to operate only in the event of the father's death (a).
Though the statute laws in this country, which have adopted or
followed the provisions in the English statute, may have abridged
its explanatory and verbose phraseology, it is not to be presumed
that they intended to vary the construction of ii^ These parental
guardians myay be appointed by the father, whether he be of {nil
age or a minor, and to any child being a minor and unmarried (6).

(o) Jjord Shaflesbnry v. Hannam, Finches Rep. 323, Lord Eldon, in Ex
jwrte, the Earl of Ilcbester, 7 Veney, 307. The statute of C»iio, in 1831, veiy
properly drops the vord deed, and gives the father the power of appointing
hg iri?/, a testamentary guardian to his infant and nn married child.

(6) N. Y. Revised Statuses, vol. ii. p. 150, sec 1, 2, 3. Statute of New Jersey,
of 1795. Elmer's Digest, &m. Act of Virjpnia, 1792. V. K. C. vol. i. 240.
Statute of Pennsylvania. Purdon's Dig, 971. Chase's Statutes of Ohio, vol.
iii p. 1788. Statute of Alabama, of 1822, all allow a father, being a minor,
to appoint a testamentary guardian, who should have the powers of a guard-
ian in common socage. This testamentary power was copied from the stat-
ute, 12 Car. II. c 24. The Massachusetts Revised Statutes, of 1835, part. 2. tit.
4, ch. 69. Ibid. tit. 7, ch. 79, require security from every testamentary guard-
ian or trustee, appointed by will for minors or others, unless the will directs
otherwise, and the trustee's powers and duties are prescribed with consider-
able minuteneas. It was declared by statute in Massachusetts, in 1837, that ^
the marriage of a female guardian operated as an extinguishment of her
authority as guardian, and that the husband did not succeed as guardian in
her right. The statute of Illinois, of 1835, gives the power by deed or last
will to the mother as well aa to the father, if she be sole, and the father has
made no such disposition.

* See 3 Rev. Stat N. Y., 5th ed. p. 243, under which the father may ap-
point a guardian by deed or will. Com. Stat. Vt. 1850, he can appoint by
will if the child is then living or be bom afterwards. 2 8, p. 407. See, also,

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 36 of 108)