Guardian

One who legally has the care and management of the person, or the estate, or both, of a child during its minority.

Reeve, Dom. Rel. 311.

A person having the control of the property of a minor without that of his person is known in the civil law, as well as in some of the states of the United States, by the name of "curator."

1 Lee. Elm. 241; Rev. St. Mo. 1855, p. 823.

Guardians are also sometimes appointed of idiots, spendthrifts, etc. The general classes of guardians are: (1) Guardian by chancery. This guardianship, although unknown at the common law, is well established in practice now. It grew up in the time of William III., and had its foundation in the royal prerogative of the king as parens patriae.

2 Fonbl. Eq. (5th Ed.) 246.

This power the sovereign is presumed to By virtue of it, the chancellor appoints a guardian where there is none, and exercises a superintending control over all guardians, however appointed, removing them for misconduct, and appointing others in their stead.

Co. Litt. 89; 2 Bulst. 679; 1 P. Wms. 703; 8 Mod. 214; 1 Ves. Jr. 160; 2 Kent, Comm. 227.

This power, in the United States, resides in courts of equity (1 Johns. Ch. [N. Y.] 99; 2 Johns. Ch. [N. Y.] 439), and in probate or surrogate courts (2 Kent, Comm. 226; 30 Miss. 458; 3 Bradf. Sur. [N. Y.] 133). (2) Guardian by nature. The father, and, on his death, the mother.

2 Kent, Comm. 220; 2 Root (Conn.) 320; 7 Cow. (N. Y.) 36; 2 Wend. (N. Y.) 158; 4 Mass. 675. (3) Guardian by nurture.

This guardianship belonged to the father, then to the mother. The subject of it extended to the younger children, not the heirs apparent. In this country it does not exist, or, rather, it is nierged in the higher and more durable guardianship by nature, because all the children are heirs, and, therefore, the subject of that guardianship.

2 Kent, Comm. 221; Reeve, Dom. Rel. 315; 6 Ga. 401.

It extended to the person only (6 Conn. 494; 40 Eng. Law & Eq. 109), and terminated at the age of fourteen (1 Bl. Comm. 461). (4) Guardian in socage. This guardianship arose when socage lands descended to an infant under fourteen years of age; at which period it ceased if another guardian was appointed, otherwise it continued.

And. 313; 5 Johns. (N. Y.) 66.

The person entitled to it by common law was the next of kin, who could not by any possibility inherit the estate.

1 Bl. Comm. 461.

Although formerly recognized in New York, it was never common in the United States (5 Johns. [N. Y.] 66; 7 Johns. [N. Y.] 157), because, by the statute of descents generally in force in this country, those who are next of kin may eventually inherit. Wherever it has been recognized, it has been in a form differing materially from its character at common law.

15 Wend. (N. Y.) 631. (5) Guardians by statute.

These are of two kinds: First, testamentary; second, those appointed by court in pursuance of some statute. (6) Testamentary guardians. These are appointed by the deed or last will of the father, and they supersede the claims of all other guardians, and have control of the person and the real and personal estate of the child till he arrives at full age. (7) Guardians appointed by court. The greater number of guardians among us, by far, are those appointed by court, in conformity with statutes which regulate their powers and duties. In the absence of special provisions, their rights and duties are