where he is appointed, though for some purposes he is recognized abroad. If the infant has property in another State, an appointment must be made there to receive and manage it, though the same person may be appointed in both States. The presence of assets in a State is a sufficient basis for the appointment of a guardian there. Accordingly, a court in one State would not direct an executor to pay over a legacy to a person appointed guardian in another State of the Union.1 (a) Guardianship over the person is governed by different considerations. Thus, the ward of a French guardian might be temporarily in one of our States. There would seem to be no good reason why the French guardianship should not be so far recognized as to permit the ward to be controlled as to his personal conduct, or to be withdrawn from the State to France by the guardian.2 The English court has refused to allow a New York guardian to withdraw from England the child of an English father and an American mother, but this action was taken on the special ground that an English court would not send an English citizen abroad. However, a foreign guardian would not, it is presumed, be allowed to exercise any more power over the ward than is permissible by our laws; as, for example, personal chastisement, even though he did not exceed what was allowable by his own law. 4 The result worked out in Nugent v. Vetzera, cited in the note, was, that while the court would leave the foreign guardian in full possession of the person of his ward, it would appoint English guardians over the property within the jurisdiction.5 SECTION IV. The Duties of Guardians. The duties of a guardian may be summed up in the statement that as to the ward's property he must be regarded as a trustee, while as to his person, though not technically a trustee, his relations are of a confidential and fiduciary nature. It will be useful, in this connection, to advert to the doctrine of an infant becoming a "ward of the Court of Chancery. While under the rule of parens patriæ all infants in the State or 1 Morrell v. Dickey, 1 Johns. Ch. 153; McLoskey v. Reid, 4 Bradf. 334. 2 Nugent v. Vetzera, L. R. 2 Eq. 704 ; Di Savini v. Lousada, 18 W. R. 425. 8 Dawson v. Jay, 3 De G. M. & G. 764, explained in Nugent v. Vetzera, supra, 713. 4 Johnstone v. Beattie, 10 Cl. & F. 42, 114. 5 It is very difficult to reconcile this case with Johnstone v. Beattie, supra. (a) West v. Smither, 3 Dem. 386. As to ancillary letters of guardianship, see ante, p. 276. country are under the care of the court, that care remains dormant unless it is in some appropriate manner called into exercise. The way in which the aid of the court is regularly invoked is by commencing a suit called "filing a bill." This point is fully considered by a number of the judges in the case cited in the note. The mere act of "filing the bill" makes him a ward of the court. Then it becomes the direct duty of the court to provide for his care and protection. As it cannot do this personally, it appoints a guardian who is an officer of the court, for the purpose of doing that for the court which the court cannot do personally. He is subject to the order of the court much as a parent or testamentary guardian would be. In making the appointment, there is a preliminary inquiry into the facts by a master in chancery, who considers who are proper persons to be guardians, and as to what will be a proper maintenance for the infant, and what scheme of education should be adopted. The infant, as soon as the bill is filed, becomes a "ward of the court," whether guardians are appointed or not. (a) 3 One of the consequences of this doctrine is that the ward cannot be withdrawn from its jurisdiction without its leave, (b) nor can any person knowingly marry a female ward without leave, without being guilty of a contempt of court.5 (c) The American cases and statutes use the same expression "ward of the court," but the severe rules of the English practice do not often seem to be followed as to the ward asking leave to go out of the jurisdiction. There are but few cases in this country in which it has been decided that the marriage of the ward, without leave, was a contempt of court. A case of this general character was decided in the New York court by Chancellor Kent. (d) The specific duties of the guardian are in the main these:(1) To make proper investments of the ward's funds. (2) To account to a court of equity. (3) To take no position adverse to his ward's interests. (4) To properly train him so as to make him a useful citizen. (1) It is a general rule that the property of the ward should be kept in a productive condition. If money is paid in to the guardian, it should be seasonably invested or he will be personally charged with the interest. In this respect he is subject to the rules usually applied to trustees. (2) The guardian may account to the court annually. The object of this form of accounting appears to be to inform the court of the condition of the ward's affairs. So he may be called on by the ward to account. This may be done when the ward attains majority. When a guardian is removed, it is a matter of course to call upon him to account and to pay over amounts on hand to his successor. A court of equity has general jurisdiction over this subject, but statutes of course may authorize an accounting before a probate or other court, particularly when the guardian is appointed there. This does not include, in New York, the representatives of a deceased guardian, who account in equity. In making up an account, a guardian charges himself with what he has received, and credits himself with what he has properly paid out. In this he may include reasonable amounts paid for legal services. He is also entitled to commissions, which in some States are fixed by law, and in others are allowed by the court.5 There are statute provisions in New York concerning the accounting of guardians appointed by the surrogate. These are construed by the Court of Appeals in a recent case. The accounting by the guardian is not conclusively binding until one year after the ward attains majority. The meaning of the word "accounting" is technical. It is a legal proceeding before a court. The exhibition of his accounts out of court by a guardian to a ward is not an accounting. If a guardian on an accounting is indebted to the ward, he is not to be regarded as a mere debtor, but rather as a defaulting trustee, and liable to proceedings allowable as against such a person, -e. g., imprisonment. 10 (3) The duty of the guardian not to act adversely to his 1 See Matter of Hawley, 104 N. Y. by law. Collier v. Munn, 41 N. Y. 143; 250; 1 Bl. Com. 463. 2 Seaman v. Duryea, 11 N. Y. 324. 8 Skidmore v. Davies, 10 Paige, 316. 4 Farnsworth v. Oliphant, 19 Barb. 30. 5 In New York the commissions are fixed by statute. No other charges for services can be made except those allowed Morgan v. Hannas, 49 N. Y. 667. • Code of Civ. Pro. §§ 2842-2850. ward's interests is but a branch of a wider topic, embracing all persons having trust obligations to discharge. There are, however, some special rules applicable to guardians. In dealings between trustees in general and their beneficiaries the court exacts the utmost fairness and good faith. This rule is applied in the case of guardians until time enough has elapsed for the ward to become emancipated from the guardian's influence, notwithstanding the ward has reached his majority, and, theoretically speaking, the relation between the parties is at an end. Where undue advantage is taken by a guardian of his relation to the ward to obtain his property, either by deed or will, it may be regarded as a case of "undue influence," leading a court of equity to set the transaction aside in the same manner as transactions in general of the same kind between trustees and their beneficiaries.1 (4) It is the duty of a guardian to give a proper training to his ward. This means, in some instances, training in habits of industry. He ought not to leave his ward in idleness when he is capable of earning his own living. He should, in general, where he has charge of the ward's person, be regarded as standing in the place of a father, and should give him such an intellectual training as his means and position in life would generally require, and at the same time attend to his moral and religious education, though this last remark should be qualified by the statement that regard should be had to the expressed wishes of a deceased parent in conducting his religious training. It may be added that guardianship may be committed to two or more persons, who are then termed joint guardians. They are governed by the general principles and rules applicable in the case where only one person is guardian. 1 See 1 Story on Eq. Jur. 324-327 (13th 2 Clark v. Clark, 8 Paige, 152. ed.); 3 Pomeroy on Eq. Jur. § 1088. CHAPTER VIII. INFANCY. THE object of this chapter is to bring together certain topics in the law of infancy which do not involve the relation of parent and child, or that of guardian and ward. They are questions applicable to all infants as to their capacity to contract, to commit wrongs or crimes, or to submit to pecuniary burdens, to invoke the protection of the law, etc. These will be treated simply from the point of view that the person under consideration is an infant, and without any inquiry as to the existence of the parental relation or of guardianship. SECTION I. Infancy Considered as a Status. The capacity of infants to do civil acts is for the most part fixed by positive law. The rule requiring a prescribed age to be reached is an arbitrary one, but at the same time based on mental ability and experience, as shown in average cases. No judicial inquiry will be had upon the point whether the particular person in question was in fact of sufficient capacity to act at an earlier age. This arbitrary rule is a matter of status. The age fixed by different systems of law is not the same, nor is it always the same in a particular jurisdiction for all kinds of acts. The rule in the common law of England fixes the age of capacity to make most contracts at twenty-one. There is a marked exception in the case of marriage, where the age of a male is fixed at fourteen and a female at twelve. Capacity to commit a wrong or a crime is not governed by the rule applicable to contracts. The requisite age in these cases will be referred to hereafter. A person legally reaches in law the age of twenty-one the day before the twenty-first anniversary of his birth. This rule is based on the proposition that the law does not regard a fraction of a day. This is not an unvarying rule, since fractions of a day are for some purposes carefully distinguished, but it applies to |