Guardian , one who guards, or has the care and charge of another. Guardians in law are of many kinds. There are guardians of minor children, and of those incapacitated otherwise than by age from taking care of themselves. Guardians of infants (minors) were, at common law: 1. Guardians by nature. In exact and technical construction, by this term is meant only that guardianship which belonged to the ancestor, in respect to the heir apparent. It extended only to the care of the person, and did not include the care of the property. 2. Guardians by nurture. This guardianship also extended only to the person and not to the estate; and it terminated when the ward was 14 years of age, whereas guardianship by nature continued until the ward was 21. It was given to the father, and if no father, to the mother. 3. Guardians in socage, limited to cases where the minor had lands by descent; and this guardianship extended over these lands and the person also, until the ward was 14 years of age. It fell by common law to the next of blood to whom the inheritance could not descend, and therefore this kind of guardianship could hardly have existed in the United States. 4. Guardians by statute; and 5, guardians by will, or testamentary guardians.
These last two are almost the only ones known practically in this country (by statutes following that of 12 Charles II.), whereby a father has power to appoint by will a guardian for his minor children; and if such appointment be not made, or fails, the court of probate, or some other court exercising similar powers, makes the appointment. The statutes of different states make somewhat different provisions as to the persons to be appointed (usually the next of kin of proper age), the degree and way in which the minor is to be consulted, the bonds to be given, and the power and the duty of the guardian. - All guardianship is a personal trust, and is therefore not transferable by assignment, devise, or inheritance. Whether it expires by the marriage of a female ward who is still a minor is not certain, but, we think, probable. It seems that as to a male ward marrying, the distinction has been taken that it terminates the guardianship as to his person, but not as to his estate. The law can hardly be said to be settled in the United States generally as to the effect of the marriage of the ward. The marriage of a female guardian terminates her authority in some states by statute, and in others, generally at least, by practice.
A married woman cannot be appointed guardian without the consent of her husband; but with that consent she may be. - The guardian has very full power over the personal estate of the ward, but very little over the real estate, any further than re-lates to the rents, issues, and profits, and to necessary law proceedings. He cannot dispose of the real estate generally, without an order from a court having jurisdiction, and can lease it only for the minority of the ward. Generally, in the United States, it is more proper and more safe for the guardian to get the authority of a proper court, before even converting the personal property of an infant into real estate, and certainly before attempting any transfer or any burden of the real estate. In some of the states there are general statutory provisions as to investments which guardians and others in trust may or may not make. The guardian is not permitted to make any profit out of the ward's property, or to use it in his own business or speculations; nor can he act for his own especial advantage in any transaction relating to the property of the ward. If he make a beneficial bargain about the property or interests of the ward, the whole of the benefit must be transferred by him to the ward's estate.
If he cause or suffer any waste or damage to the ward's property, he must refund in full damages, and in some states in treble damages. And in settlement of his accounts a court will sometimes charge him with compound interest, where it seems that he has himself been deriving from the use of the ward's property a profit equal to that. So if he use his ward's property in his own business, the court will decree to the ward all the capital, with all the profit it has made if this be more than interest; or if it be less or none, it will decree the capital with interest (which may be made compound if the court see fit), because it was the duty of the guardian to invest the property so that it would earn this safely. \i' he promise, on sufficient consideration, to pay the debt of his ward, he is personally bound, although the ward's estate fails to pay the debt, and he described himself as guardian, unless it was a specific part of the contract that he should be held only so far as the funds sufficed, or should not be held personally; and if he discharge the debt of his ward lawfully, he may charge it against the ward in his accounts, or, if he be deprived of his guardianship, or the ward become of age, he may have his action against the ward for the amount.
If the ward enter into a contract or make a promise, the guardian cannot be sued thereon, but the action must be brought against the ward; and the guardian may make any lawful defence for the ward. - Besides the general guardian (whether he be appointed by will or by the court), it is common for courts to appoint a guardian ad litem, to represent and act for the Ward in the settlement of the guardian's accounts, or in or for any other legal proceedings, where it seems proper that such appointment should be made. Guardians are also appointed generally in the United States for the insane and for spendthrifts. The manner of the appointment is regulated everywhere by statute; and the general principles already stated in reference to guardians of infants are equally applicable to other guardians, with such changes only as the difference in the nature of the case may make necessary.