12 N.H. 437 | Superior Court of New Hampshire | 1841
The plaintiffs were made, by the will of John Balch, testamentary guardians of Plummer Balch. The will provides that the plaintiff's shall maintain the minor until he shalL become of age, in the same manner as fathers or guardians, he rendering due subjection by labor and obedience to the plaintiffs ; and if he should refuse so to do, a deduction is to be made from his legacy.
By the stat. 12 Car. 2d, ch. 24, it is enacted that a father may dispose of the custody and tuition of his children by will, so long as they remain under the age of twenty-one years, and that the guardian so appointed may maintain an action against any person who shall unlawfully detain such children, &c.
. Chancellor Kent states that this act has been adopted in this country. 2 Kent's Com. 224. And although we have
guardians, and that the statute puts him in loco patris. To the same effect is the case of Rex vs. Isley, 5 Ad. & E. 441. It was held by Lord Macclesfield, in the Duke of Beaufort vs. Berty, 1 P. Wms. 704, that the statute only authorized the father to choose a different person from him who would have been guardian in socage, and to continue the guardianship to the age of twenty-one years, instead of fourteen, and that a testamentary guardian had no more power than, a guardian in socage, and was only a trustee. Although it would seem that the older authorities held that a guardian in socage might transfer the ward to a stranger — Crompton’’s Jurisdiction of Courts 118 — yet Mr. Hargrave suggests whether the guardianship was ever transferable by bargain and sale, as it is admitted to be a personal trust wholly for the benefit of the infant, and so not assignable. Note 13, to Co. Litt. 88, b. And it is said, in Gilbert’s Eq. Rep. 175, not to be assignable.
It would seem, therefore, that the defendant could not succeed to, nor the plaintiffs part with, any of the powers with which the testator had clothed them as testamentary guardians. Nor is there any expression in the will which
Nor could the defendant have acquired any authority over the minor by this indenture, considered as an indenture of apprenticeship. If the guardianship be a personal trust, the superintendence over the minor cannot be transferred to a stranger by an instrument under the name of an indenture of apprenticeship. But considered even as such an instrument, this indenture is defective. By our statute of the 28th of December, 1805, N. H. Laws 175, (Ed. of 1830,) relating to masters and apprentices, a father may apprentice his children, over the age of fourteen years, by indenture, having the minor’s consent expressed in the indenture. As such consent is not expressed in this case, the instrument would not be binding as an indenture of apprenticeship, even if it had been made by the father. Day vs. Everett, 7 Mass. R. 145 ; Matter of McDowle, 8 Johns. 328; The King vs. Cromford, 8 East 25. And in no view of the case can the plaintiffs have any more extensive rights than those possessed by the father.
But admitting that the instrument might have been invalid at the time of its execution, both because the rights and duties of the plaintiffs were not assignable, and because the infant was not a party to it, still, under the circumstances of this case, the action may be sustained. The plaintiffs were residuary legatees under the will, and were entitled to the “ labor and obedience” of the minor. If he had refused to render such labor and obedience, a reasonable deduction might, by the will, have been made from his legacy. This deduction, if it had been made, would have been for the benefit of the residuary legatees. The minor did not refuse to do as the plaintiffs desired, but lived with and rendered
But whatever exception might have existed in behalf of any person, this defendant has no answer to this suit. The contract was not prohibited by law, and was not fraudulent in fact. The defendant has acted as if he supposed the infant was entitled under the will both to the whole legacy, and to a compensation for his services. There is no objection, if he desire it, that he should take upon himself the risk that such was the legal effect of the will, except that he thus has delayed the plaintiffs in the exercise of their rights. But his legal views cannot, of course, affect his liability to
Judgment for the plaintiffs.