2 N.C. 350 | Sup. Ct. N.C. | 1796
Guardianship in socage was a consequence of socage «enure, and dependerá opon the existence of that tenure ; where there is no such tenure, there is no such guardianship, strictly speaking; though it may be *ery proper to pay some attention to the rule, in the appointment of guardians, as it is calculated to prevent the orphan from falling into hands, where, he could not with safety be trusted. In like manner, as «here the ancestor died seised of an inheritance that lay not in tenure, it is held as a rule, that the, next of kin to whom the inheritance cannot descend, should have the custody of him, Co. Lilt. 87 b. As all our lands are now allodial, the rules cited at the bar on either side, are not strictly obligatory on the court. The ac« of 1762, concerning «he management of orphans and their estates, was passed at a time when the lands of this country were held by socage tenure, and from thence that act may be supposed to have been framed, with a view to the rules relative to guardianship in socage. That supposition will vanish, if if be considered in how many materia! points the guardianship established by that act differs from «he guardianship in socage — the guardianship in socage needed not the appointment of any court; the person entitled to be guardian was as precisely marked out by law, and as well entitled by it, as the heir at law himself — where there were two or more iu equal degree of kindred, to whom the inheritance could not descend, the law gave a rule of de-cisi'>n not by saying they should apply ti? a court for the appointment of the. one or the other, but by saying that he who could first get possession of the heir should have the guardianship of him. When the ancestor died seised of lands, part of which descended on the orphan’s death to relations on the father’s side, and part to relations on the m-dber’s side, in that Case although the heir must fall into the- possession of some person, liable to the tempt»-'
Note — Tht County Court, in appointing a guarnían, need not regare t c ,icc of the infant, although he may be above 14 yeais of age Hynne v. Always, Conf. Rep 554. S. C. Hay. 336 S. C. 1 Murph 38. Bray’s orphans Brumsey, 1 Murph 227 Grant v. Whitaker, ibid. 231. See also Long v Rhymes, 2 Murph. 122.