Testamentary appointment. bring such action or actions in relation thereto, as by law a guardian in common soccage might do*. Yet, says the same learned gentleman, there is an expression of Lord Chief Justice Vaughan which conveys, or seems to convey, a different opinion; for, speaking of the guardian under the statute 12 Car. 2, he says, "this new guardian hath the custody not only of the lands descended or left by the father, but of lands and goods any way acquired or purchased by the infant, which the guardian in soccage had not." But this guardianship, as all others which might otherwise take place at the death of the father, is superseded by the exercise by him of his power given him by the statute 12 Car. 2, c. 24, which professedly proceeds upon the model of the guardianship by soccage. Under this statute it is clear upon the words that none but the father can appoint, and it is held equally clear from the sense, that the guardian appointed by him cannot appoint another guardian, for it is a personal trust, and not assignable'. The power as to its objects is held to be confined to legitimate children, (in which are included those in ventre sa mere,) and by the words of the statute these must be under 21, and unmarried at the decease of the father. It extends not to illegitimate clildren, though such if females have a Fonbl. Treat. Eq. 3d Ed. p. 242. b Vaugh. 186. been held to be within the statute of Philip and Mary (2). cessary to the appointment un If the will is merely made for naming a guardian Probate not neunder this statute, and for no other purpose, such validity of the will need not be proved in the spiritual court; for der the statute. as in such case the appointment takes effect solely by force of the statute, the temporal courts are the proper judges thereof. But if the will contains also dispositions of the personalty, it seems that the whole will must be proved, which probate will be effectual so far as the personalty is concerned, but of no avail in respect to the appointment of guardian. And it seems to be immaterial by what words the appointment is signified, so as the meaning sufficiently appears. made by deed. If the father exercises his power of appointment Appointment under the statute by deed, as he may, yet it has been held that such disposition by deed may be revoked by will'. But no appointment can be And such ap revoked by a subsequent testamentary appoint- vocable by will. ment, unless it be executed according to the 1 Vent. 207. Lady Chester's Case. c Swinb. p. 3, c. 12. f Finche's rep. 323. Lord Shaftsbury v. Hannám. pointment is re (2) See Strange, 1162. Rex v. Corneforth. But the court will, unless there is some objection, adopt the nomination of the father. 2 Bro. C.C. 583. Ward v. St. Paul, and note. So it seems also if the appointment is not made agreeably to the statute. Dick. 527. May. May. But such will must be execut statute, or directly import to be a revocation, which ed as the statute has been determined in analogy to the cases on this directs. Infancy of the parties. Kemedies. part of the statute of frauds. If the appointment has been made, the guardianship shall not be determined by the marriage of the infant before 21, for the statute declares that such guardianship shall continue during the time that he shall remain under 21. The father, though under age himself, may appoint by virtue of this statute, and though he could not devise the land in trust for the infant directly, yet the land will follow as an incident by law attending upon the custody of the heir". The guardian when regularly appointed under this statute takes place of all other guardians, and may have a writ of ravishment of ward if the infant be taken from him, as the guardian by knight's service, or by soccage, might have had the same at common law, and shall recover damages as for the ward's benefit". This guardian being constituted upon the model of the soccage guardian, and coming in the place of the father, has an interest joined with his trust, though not an interest for himself. But though it was Vid: post. revocations of wills. Chap. 2, part 1. See the case of Mr. J. Eyre v. the Countess of Shaftesbury, k Vaughan, 181. 2 P. Wins. 122. agreed in the case of Parry v. Hodgson', that a testamentary guardian by the statute, until the infant was 21 years, had the same interest as a guardian in soccage till the infant was 14; yet it was holden that a testamentary guardian could not make a lease of the infant's land, but that such lease was absolutely void. test 2 It seems he may pay out of the rents and profits Powers of a the interest of any real incumbrance, and even the guard.... principal of a mortgage, but it has been held that he is not compellable to apply the profits of the infant's estate to pay off the bond debts of the ancestor". Nor can he, without the direction of the court, convert the real into personal or the personal into real estate. He is subject to an action of account as soon as his guardianship is at an end, but not before, for the rule of the common law is that an action of account does not lie while the guardianship continues. However, in equity, the infant may, by prochein ami, sue his guardian for an account during the minority. That court, it is said, often gives extrajudicial directions for an infant, and hears a person as amicus curiæ. And it was observ ed, by Lord Hardwicke, that in Lord Macclesfield's time, in the case of Lord Dudley, a stranger came and complained of the abuse of the infant's estate by the guardian; and upon this application, and his undertaking to pay the costs, the court directed the master to examine the receiver's accounts, and see whether the infant was wronged or not". By the statute 4 Anne, c. 16, actions of account may be brought against the executors or administrators of guardians. But a guardian is entitled to all his reasonable costs and expences; and, therefore, he ought not to be charged as receiver, because then it seems he would lose these costs and expences, but as guardian, by name, for these it is said are in general allowed only to guardians or bailiffs, as such, and not to mere receivers. PART XX. Statute of fraudulent Devises. A DEBTOR by specialties might, by devising his lands, have deprived his specialty creditors of all remedy against this part of his property, until the statute 3 and 4 William and Mary c. 14. was passed. But by this statute, reciting that it was not reasonable 66 2 Vez. 484. Earl of Pomfret v. Lord Windsor. 2 P. Wms. 119. 3 Atk. 625. ¶ 1 Freem. 178. 1 Leo. 219. and see the statute 4 Anne, c. 16. sec. 27. 6 |