Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which determined the rights and duties of that relation are adopted, with various qualifications, in the guardianships by testamentary appointment of the father, or by the appointment of courts of probate or chancery, which prevail with us. We have also by statute provisions, guardians of the insane, and of spendthrifts. All of these rest upon the general principle, that it is the duty of society to provide adequate care and protection for the person and property of those who are wholly unable to take care of themselves.
So far as relates to contracts to which guardians are parties, we can do little more than refer to the statutes of the several States, in which the obligations and duties of guardians, their powers, and the manner in which their powers may be exercised, are set forth, usually with much minuteness and precision.
One principle, however, should be stated; which is, that guardians of all descriptions are treated by courts as trustees; and, in almost all cases, they are required to give security for the faithful discharge of their duty, unless the guardian be appointed by will, and the testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But even in this case, such testamentary provision is wholly personal; and if the individual dies, refuses the appointment, or resigns it, or is removed from it, and a substitute is appointed by court, this substitute must give bonds.
It may be added, that it is better for a guardian who proposes to make any sale or contract not certainly within his general power, to go to the proper court, by petition, for authority or direction. And generally, it is only when the ward has no other means for his support and education, that the court will authorize the sale of his lands. The statutes regulating this matter some-times provide expressly for this. (z)