11 Ala. 37 | Ala. | 1847
The point of decision in Hall v. Lay, 2 Ala. Rep. 529, was the validity of an appointment by the orphans1 court of a guardian to a minor whose father was living. We held the appointment invalid, on the ground that the father was guardian by nature of his child, and because that court, neither by the common or statute law, was invested with power to appoint guardians for minors so conditioned. In illustrating the position then assumed, we said, “ we cannot doubt there was a period once known to the common law, when the father had the right to the custody and control of his child’s estate, in the same manner as he now has of his person.” After citing some authorities to sustain this assertion, as well as others which seem to maintain an opposite doctrine, we advert to recent decisions of the English courts of law, which recognize the authority of the parent, as guardian, to control the real estate of the child, by either leasing it or occupying it, at pleasure. None of these matters were then however determined, and we expressly state it to be our intention not then to examine how far the doctrine, that the father has no control over his child’s estate, is correct— or when it arose and was engrafted on our law, if indeed it was so. We also added, “ it will probably be found to be sustained mainly on the fact, that a court of equity will sometimes interpose its aid to prevent the personal estate of the infant from being squandered, and require the father to give security to have it forthcoming when the child becomes of age, but that even in such cases, he is never deprived of the custody of the estate, if willing to give the requisite security.”
In the subsequent case of Wood v. Wood, 3 Ala. Rep. 756, we fell into the mistake of stating the previous decision as settling the right of the father to the control and possession of his child’s personal estate during minority, and warranting the delivery by an executor, of a personal legacy be
It is not the least curious matter connected with legal science, that the most eminent judges and lawyers of England should have found the relations of parent and child involved in such obscurity that it was a matter of profound difficulty as late as the close of the last century, to ascertain the foundation of chancery jurisdiction over the persons and estates of minors, where fathers were living. It was then, however, firmly established, though even there is exercised only in peculiar cases. [Butler v. Freeman, Amb. 301; Cruize v. Hunter, 2 Cox, 242; Ex parte Warren, 4 Bro. Ch. 101; DeManneville v. DeManneville, 10 Vesey, 52; Hargrove’s note 70 on Coke Litt. 89, a; 2 Fonb. 224.] With the exercise of this jurisdiction we have no concern at present, beyond the precise question before us.
We endeavored, in Hall v. Lay, 2 Ala. Rep. 529, to show there was once a period of the common law when the father was invested with the control of the entire estate of his child during minority, whether that estate was real or personal. In the earlier ages of the English government, when personal property was unimportant as compared with landed' estates, and the statutes of distributions and wills had not been passed, the personal property which a child could acquire called for no change in the general law, but so soon as the ordinary was compelled to distribute to the next of kin,, and the wills of decedents were enforced by law, we might naturally expect that some mode would be devised to prevent the portion willed or distributable to an infant, from being squandered by his father or guardian. It is far from being clear that the ecclesiastical courts at that day did not
It is very evident the power to require such security from the father or any other common law guardian was proper to exist somewhere, and if not exercised by the ecclesiastical courts, the court of chancery was slow in taking the jurisdiction. The first case in the books is Holloway v. Collins, 1 Chan. Ca. 245, in 1674. The assertion of such a power for his court seems to have surprised the then Lord Keeper, for he at first denied the relief, when a legacy of £ 125 had been paid by the executor to the father, but afterwards granted it on learning the executor had protected himself by a bond of indemnity. The next case — Dagley v. Tolferry, 1 P. Wms. 285 — was in 1715; there the payment was held bad, al
It is possible, the father in his quality of guardian for his minor children, may be entitled to the possession of the real estates of his children when the title is cast on them by operation of law or by devise, where the possession is not controlled by its terms, subject to the common law liability to account for the profits, &c. [See Coke on Lit. 88, 89,a; 1 Black. Com. 461; King v. Oakley, 10 East, 490; King v. Welby, 2 M. & S. 504.] And there are cases as well as analogies, which seem to indicate the parent may in that capacity protect the personal estate of his child, when it- has come to its actual possession during minority. [Smith v. Williamson, 1 H. & J. 147; Porter v. Young, 7 J. J. M. 501.] However this may be, and we purposely decline to express any opinion, it is evident from the cases previously examined, that a trustee is not warranted in paying over a money legacy to the father. We have found no cases in which the rule has been extended to personal chattels, but from the facility with which these can be removed and converted, it is reasonable they should be protected in the same manner as bequests of money.
What has already been said is sufficient to indicate our opinion, that the delivery of the slaves in this case by the executor to the father of the petitioners, does not operate to discharge him from their claim for the legacy. The decree of the orphans’ court, is therefore reversed, and the cause remanded.