CHAPTER IV. TERMINATION OF GUARDIAN'S OFFICE. GUARDIANSHIP LASTS ONLY TILL MAJORITY PAGE 621 622 623 623 623 624 624 625 625 626 626 627 627 627 627 MARRIAGE OF FEMALE GUARDIAN majority. PERPETUAL tutelage is a thing unknown to the English law, as Guardianship being contrary to the spirit of independence implanted in the lasts only till Saxon race. When a man not afflicted with imbecility of reason reaches an age when he is deemed by the law to be capable of managing his own affairs, he is loosed from the care and control of guardians. But where a person is not compos mentis, a curator 1 At one period of Roman law women were under a state of perpetual pupilage; if they were married they became in manum viri; if they were unmarried and their father was alive, they were in his potestas; if their father was dead and they were unmarried, they were under the tutelage of their nearest agnates. "Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt, mulierum autem tutores auctoritatem dumtaxat interponunt." Ulpianus, 11, 25. But as Gaius (lib. i. 6. 190) says: "Feminas vero perfectæ ætatis in tutela esse fere nulla pretiosa ratio suasisse videtur, nam quæ vulgo creditur, quia levitate animi plerumque decipiuntur, et æquum erat eas tutorum auctoritate regi, magis speciosa videtur quam vera.' Before the time of Justinian this perpetual tutelage of women was obsolete, and curators for special purposes were appointed to give authority to her acts. How terminated. Natural limitation. or committee, as before seen, is generally appointed to look after his person or manage his affairs so long as his madness or weakness of reason lasts. Again, a person's property may be in the hands of trustees during his whole life, but such are appointed only for the purpose of preserving or disposing of property in a particular manner (as, for instance, husband and wife, with trustees appointed to carry out the trusts of their marriage settlement, or an ordinary tenant for life, with trustees to preserve the interests of the remainder-men, or other interested parties). But, except in such instances, guardianship, according to English law, lasts only till the ward attains majority, or for the period for which it is fixed, either by the law, or the person appointing, unless it is sooner determined. Guardianship may be terminated in various ways, which may be classified as follows:-(1) By what may be termed natural limitations, such as (a) completion of the period for which it was instituted; (b) death of the ward; (c) death of the guardian. (2) By the act of the parties, such as (a) marriage of the ward; (b) marriage of a female guardian; (c) resignation of guardian. (3) By the improper conduct of the guardian, removal and supersession of the guardian. (1) Natural Limitation. a. Completion of the Period for which it was Instituted.-The different kinds of guardianship end at various periods according to their nature. Guardianship in socage came to an end when Guardianship the infant heir reached the age of fourteen. Testamentary terminated by completion of guardianship under 12 Car. II. c. 24, s. 8, usually terminates. when the ward reaches the age of twenty-one, but may end at an earlier period, if provided for by the will appointing the guardian; thus, where a testator appointed his wife guardian of his children until her marriage, and the wife married again, her guardianship ceased.' period for which it was instituted. Chancery guardianship is put an end to by the ward arriving at the age of twenty-one. A person arriving at majority or years of legal discretion is deemed competent to manage his property, and take due care of himself; consequently, those who are set over him before arriving at that period to watch and pro tect him both in person and property are no longer needed, and are relieved from their office on proof of their having fairly and properly discharged their trust. 1 Selby v. Selby, 2 Eq. Ca. Abr. 488. A testamentary guardian is deemed prima facie to hold his office till the ward comes of age; and an earlier determination must be expressly provided for. ward. b. Death of Ward.—When the ward dies, the guardianship is, Death of of course brought to an end; and it only remains for the guardian to account for his trust with the heirs or the legal and personal representatives of the dead ward, if any. guardian. c. Death of Guardian.-Death of the guardian necessarily Death of brings the guardianship of the particular guardian to an end, but not the wardship of the ward. Where there are co-guardians, the death of one of them has not the same effect in the case of testamentary and Chancery guardians. Where one of two guardians appointed by testament dies, the survivor is entitled to continue in his office.1 Where one of two guardians appointed by the Court of Chancery dies, the right of the survivor determines, and it becomes necessary to apply again to the Court to make a new appointment; in the absence of any objection it is usual to re-appoint the survivor.3 Where the guardian in socage dies, the person next entitled to take upon himself the office would succeed. (2) By Act of Parties. testamentary of male ward a. Marriage of the Ward.-The question whether the marriage By act of parties. of the ward puts an end to the wardship depends upon whether Marriage of the ward is male or female, also whether the guardianship was ward. testamentary or Chancery. Marriage effects a considerable Whether change in the position and status of the contracting parties, guardianship and affects the position of the wife more than that of the husband, terminated by marriage. for she is deemed to come under the care and custody of her husband, though now his marital rights over her property have been abrogated. If a male ward marries, neither as regards his person nor his estate would the powers of his testamentary or Chancery guardian be determined; at least it is clear that as regards his estate the functions of his guardian would not cease.* Whether the guardianship of his person ceases is a more difficult question to answer. Marriage usually acts as an emancipation of the child, freeing him from parental control, and enabling him to act independently. If the child can then emancipate himself from his father's control by marriage, it would seem to follow that he could do so when he was only under a guardian, who has no greater rights than a parent. A father, however, voluntarily allows his son to be emancipated, but when a guardian is appointed by a father, his trust does not ordinarily expire till the ward has attained his majority; and for the guardian to allow 1 Eyre v. Countess of Shaftesbury, 2 P. Wms. 103. 3 Hall v. Jones, 2 Sim. 41. Guardianship of Court not marriage. Whether testamentary guardianship terminated by him to emancipate himself by marriage might amount to a breach of trust on his part. It may, therefore, be urged that the guardianship of a male ward does not terminate on his marriage. So. 2 The marriage of a female ward in Chancery does not determine of female ward the guardianship either of her person or property; for it is clear determined by that the Court of Chancery would not allow itself to be ousted of its authority by an act of the parties which might amount to a contempt of its orders and jurisdiction. A female ward in Chancery, married or unmarried, is under the control of the Court both as to person and property till her period of wardship is put an end to by attaining majority. Whether the marriage of a female ward determines her testamentary guardianship seems to of female ward be a question yet awaiting judicial determination. In Mendes v. marriage. Mendes, Lord Hardwicke is made to use language supporting the contention that marriage of a female ward determines her wardship, but in the later case of Roach v. Garvan,3 Lord Hardwicke held that wardship was not determined by the marriage of a female ward, and that there was no precedent for the contention that it was determined; but his lordship added that the Court of Chancery had not been in the habit of appointing guardians to a married female infant, and that he would not do The better opinion is that the testamentary guardianship of female wards as regards their property is not determined by their marriage. This view may be perhaps strengthened by the operation of the recent legislation affecting married women, by which the rights and control of a husband over his wife's property is to all intents and purposes abrogated; accordingly, the claims of the husband over his wife's property (not settled to her separate use) which were in conflict with those of her guardian can no longer afford a reason for holding that the claims of the husband on marriage bring about a practical determination of the testamentary guardianship. The only ground for holding her freed from the control of her guardian would be that as she is deemed fitted for performing the duties as head of a household and of a mother of a family, she ought to be deemed capable of managing her own property. Where a female ward marries a minor, it is only right and proper that her state of wardship should not be determined by her marriage; otherwise, if the minor husband was himself under guardians, nice and difficult questions might arise as to the right of the husband's guardians to take over and Effect of M. 1882. 1 I Ves. Sen. 89. 2 Eyre v. The Countess of Shaftesbury was given as the authority for this dictum, but there is nothing in the reports in 2 P. Wms. 103, or Gilb. Eq. Rep. 172, to support this proposition, and in the other report of Mendes v. Mendes, 3 Atk. 619, this dictum is not reported. 3 I Ves, Sen. 157. administer the property of the infant wife; whereas her husband, if of age, would not be entitled to do so. Notwithstanding that the balance of convenience in certain cases would permit her marriage with an adult to end her wardship, yet in the main the uniform rule that her marriage with an adult or minor should have no effect on her status of ward, so far as her property was concerned, would be of greater advantage. female b. Marriage of Female Guardian.-Under the common law, when Marriage of a female guardian in socage married, her guardianship was prac- guardian. tically determined, because her husband took upon himself jure In socage. mariti the office of guardian. of guardian. But now, under the Married Women's Property Act, 1882,' marriage would give no such right to the husband to assume the office. In the case of a female Testamentary guardian. testamentary guardian, her marriage does not put an end to her office; "if a feme guardian marry, the guardianship is not transferred to the husband, nor shall it be forfeited by the attainder or misdemeanor of the husband." If the marriage of the testamentary guardian was likely to prejudice the interests of the ward, the Court now would supersede or remove the guardian.3 It ought to appear to the satisfaction of the Court that it would be to the ward's benefit to continue to reside with the married guardian.' When a female guardian appointed by the Court of Chancery marries, her guardianship is suspended, and a reference as of course is made to inquire whether or not under the altered circumstances she should or should not be continued in her office; and where no harm is likely to ensue it is usual to confirm her appointment." c. Resignation of Guardian.-Guardianship in socage is a trust Resignation of guardian. reposed in the next of kin by the law, and could not be refused," In socage. nor resigned when acted upon. The socage guardian could not resign his office nor assign it; the guardian in socage has no interest of profit, it is an interest of honour committed to the next of kin, and is therefore inherent in the blood, and can't be assignable. Where testamentary guardians have accepted the Testamentary office, it has been laid down that they will not be discharged of guardians. their trust upon their own application, and that the Court will compel them to act, because, being trustees, they cannot resign their office at will, and they will not be allowed to vacate it except for strong and urgent reasons." But as it cannot be for 1 45 & 46 Vict. c. 75, s. 24. 3 49 & 50 Vict. c. 27, 88. 2, 6, 13. 2 Com. Dig. Gard. 384. 4 Jones v. Powell, 9 Beav. 345. 5 Re Gornall, I Beav. 347; Jones v. Powell (ubi sup.). 6 See Bedell v. Constable, Vaugh. 177. 7 Statute of Marlbridge, 52 Hen. III. c. 17. 8 Per Lord Commissioner Gilbert in Eyre v. Countess of Shaftesbury, Gilb. Eq. Rep. 172, 177. 9 Spencer v. Earl of Chesterfield, Amb. 146. |