GUARDIAN

A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of an- other person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of ad- ministering his own affairs. A guardian is a person appointed to take care of the person or property of another. Civil Code Cal. § 236. One who legally has the care and manage- ment of the person, or the estate, or both, of a child during its minority. Reeve, Dom. Rel. 311. This term might be appropriately used to designate the person charged with the care and control of idiots, lunatics, habitual drunkards, spendthrifts, and the like; but such person is, under many of the statutory systems authorizing the appointment, styled "committee," and in common usage the name "guardian" is applied only to one hav- ing the care and management of a minor. The name "curator" is given in some of the states to a person having the control of a minor's estate, without that of his person; and this is also the usage of the civil law. A testamentary guardian is one appointed by the deed or last will of the child's father; while a guardian by election is one chosen by the infant himself, in a case where he would otherwise be without one. H

23. Felon's estate. By the act to abolish forfeiture for treason and felony, (33 and 34 Vict. c. 23, 20 21 et seq.,) where a person has been convicted of treason or felony, and no administrator of his property has been appointed, an interim curator of the property may be appointed by the justices of the peace of the district where the convict last resided. The interim curator has powers similar to those of an administrator (q. v.), but can only exercise some of them with the sanction of the justices or a court. CURATOR AD HOC.-A curator for a special purpose; a special guardian. CURATOR AD LITEM.-A guardian ad litem (q. v.) (583) mined ipso facto by the guarantor's death. 1. Guardians of person or propBut if the arrangement is of such a nature erty.-Guardians of the person or propthat the person to whom the guaranty is erty of infants are of five kinds, namely: given cannot put a stop to future transacBy the common law; by statute; by custions, then the guaranty is not determintom; guardians by nature in the modern able by the guarantor, or on his death. sense; and by judicial appointment. Lloyds v. Harper, 16 Ch. D. 290. 2. Guardians by the common law were 6. A representation in the nature of a formerly of five kinds, viz.: Guardian in guaranty, is where A. makes a wilfully false representation to B. as to the credit or solvency of C., whereby B. is induced to trust C. (Sm. Merc. Law 477.) It gives B. a right of action for damages against A., if B. trusts C. and thereby loses money. GUARANTY, (defined). 10 Pet. (U. S.) 482, 493; 3 Kent Com. 121; Fell Mer. Guar. 1; Story Prom. N. 457; 1 Chit. Gen. Pr. 126. (what constitutes). 7 Cranch (U. S.) 89; 1 Hill (N. Y.) 256; 8 Johns. (N. Y.) 29, 39; 15 Wend. (N. Y.) 330. & Sel. 557. 449, 452. (what is not). 13 Mass. 158; 1 Mau. (consideration for). 8 Dowl. & Ry. 62. (equivalent to "promise"). 107 Mass. (N. C.) 372. (for the payment of land). 1 Dev. (in a letter of credit). 2 Campb. 436. (of a bond). 3 Pa. 18. (of a promissory note). 7 Mass. 233; Ohio Cond. Rep. 436; 1 Pa. St. 501; 2 Wheel. Am. C. L. 205. GUARANTY, CONTINUING, (what is) 7 Pet. (U. S.) 114; 2 Hall (N. Y.) 197. GUARANTY, I, (in an agreement). 1 Campb. 242. 7 Id. 457. (in a contract). 27 Conn. 31. (in a letter). 4 Har. & J. (Md.) 322; (in an order). 2 Gill & J. (Md.) 302. (in a will). 2 Russ. 452. (indorsed on a promissory note). 7 Conn. 523; 2 Greenl. (Me.) 261; 7 Mass. 479; 12 Id. 14; 8 Pick. (Mass.) 423; 1 Hill (S. C.) 56; 4 Yerg. (Tenn.) 194. GUARANTY, I HEREBY, (an account). 2 Brod. & Β. 211. GUARANTY, I WILL, (in a contract). 24 Pick. (Mass.) 250. (in a letter of credit). 9 Wis. 316. GUARANTY THE COLLECTION, (equivalent to guaranty that note is collectible by due course of law). 1 Wend. (N. Y.) 457. GUARDAGE.-A state of wardship. GUARDIAN.--A guardian is a person having the right and duty of protecting the person, property, or rights of some one who is supposed to be incapable of managing his own affairs; such as an infant or a lunatic. They are of two kinds: Guardians of the person or property, and Guardians ad litem. See GUARDIANS OF THE POOR. chivalry; guardian by nature (in the technical sense); guardian in socage; guardian by nurture; and guardian by election. The first two are completely obsolete; the last three practically so. Guardians in chivalry and in socage are sometimes called "guardians by tenure." 3. Guardian in chivalry. - Before tenure by knight's service was abolished, one of its incidents was guardianship or wardship in chivalry, "for when such tenant dyeth, and his heire male be within the age of twenty-one yeares, the lord shall have the land holden of him untill the age of the heire of twenty-one yeares.... And also, if such heire be not married at the time of the death of his ancestor, then the lord shall have the wardship and marriage of him" (Litt. § 103), i. e. the wardship of the heir's per son as well as of the land. 24. While the lord had the wardship he was said to be "guardian in right." If he assigned the wardship of the land or person of the heir, or both, to another person, the grantee was called "guardian in fact," or "guardian in deed." Id. § 116. 25. Guardian by nature. But if land held by knight's service descended to an eldest son under age during the lifetime of his father, "in this case the lord shall have the wardship of the land but not of the bodie of the heire because none shall be in ward of his bodie to any lord, living [i. e. during the life of his father." (Id. 114.) This guardianship of the father was called "guardianship by nature," in the proper sense of the phrase, and it applied only to the custody of an heir apparent. (Co. Litt. 84b, 88b, and Hargrave's note (12); 3 Co. 37 b.) In the United States, the father, or in case of his death, the mother of an infant is still called its "guardian by nature." See infra, 11. 26. Guardian in socage. According to the old law, if land or any other tenement held in socage descended to an heir under the age of fourteen, the next of blood to whom the inheritance could not descend had the wardship of the land and of the heir until he attained fourteen, (or, in the case of gavelkind land, fifteen,) when he could enter and oust the guardian and occupy the land himself. (Litt. 2 123; Co. Litt. 87b; 2 Steph. Com. 310.) If the next of blood was himself an infant in wardship, his guardian became guardian of the new heir, and was then called guardian per cause de gard. (Co. Litt. 88 b, n. (3.)) During the wardship the guardian could grant leases for a term ceasing on the ward attaining fourteen. (1 Bl. Com. 461, n. (5.)) This was called (584) though in theory it may still exist, it is in pracSnell Eq. 322; Wats. Comp. Eq. 294. The tice obsolete. (See 4 Byth. Conv. 226.) Where Stat. 4 and 5 Ph. & M. c. 8, was passed to a child has a testamentary guardian (infra, & 9,) the guardian in socage has no authority. prevent the taking away or marrying of 7. Guardian by nurture.-Guardianany damsel under the age of sixteen years from the custody of her father or mother, ( of any person to whom the father by deed or will had assigned her custody. From these provisions, it was held that the act had impliedly created a power for the father to assign a guardian to his ship by nurture, in England, only occurs where the infant is without any other guardian, and none can have it except the father or mother. It extends no further than the custody and government of the infant's person, and determines at fourteen in the case both of males and females. (Hargrave's note (13) to Co. Litt. 88 b. See another sense of the term given in Shepp. Abr. v. Gard.) This sort of guardianship is unknown daughters, and that during his life, he, or in the United States, being merged into guardianship by nature. 8. Guardian by election.-Guardianship by election is where an infant himself chooses a guardian, which he can only do when he would otherwise be wholly without one. This may happen (in England) either before fourteen, when the infant has no guardian by tenure and the father is dead without having appointed a guardian, and there is no mother, or (both in England and America, subject in the the latter country to the approval of a court of equity,) after fourteen when the infant has been in wardship by socage, which terminates on his attaining fourteen. (Co. Litt. 87b; Hargrave's note (16) to 88b; 1 Bl. Com. 862, n. (12), where it is said that the office of a guardian by election seems not to extend beyond giving the consent to marriage required by the Marriage Act.) As to guardians by election in English probate practice, see infra, 13. after his death and in the absence of an appointment by him, the mother, was their guardian by nature. Ratcliff's Case, 3 Co. 37; Co. Litt. 88b, and Hargrave's note (14). The 4 and 5 Ph. & M. was repealed by 9 Geo. IV. c. 31. 10. Guardian by custom.-Guardianship by custom is said to occur in the city of London and various other cities and boroughs in England, where the mayor and aldermen have the guardianship of orphans; (this seems to have originally been in respect of burgage tenements held by the orphans; see Elt. Copyh. 158;) in the county of Kent, when a tenant in gavelkind dies leaving his heir or heirs under fifteen; and in certain manors, where the lord has the power of naming or is himself the guardian of an infant copyholder. (See 1 Bl. Com. 462 and notes; Co. Litt. 88 b, and Hargrave's note (16), and the authorities cited in both works; Elt. Copyh. 157; Elt. Tenures of Kent 79.) But these kinds of guardianship are rare. 211. Guardianship by nature, in its modern sense, is a term of somewhat uncertain scope, but the meaning intended to be conveyed by it seems to be that where a child has some property or rights in respect of which it requires to be represented, then its father, if it has one, is its guardian by nature, and if it has no father or other guardian, then its mother is its guardian by nature. So a mother is called the natural guardian of her illegitimate children, apparently because the full legal relation of parent and child is not recognized in the case of illegitimate children. 39. Guardians by statute, or testamentary guardians. -The Stat. 12 Car. 2, c. 24, enacts that any father may, by deed or will, from time to time dispose of the custody and tuition of his children during their minority, or any less time, to any person or persons other than popish recusants, and that such disposition shall be good against all persons claiming the custody of any such child as guardian in (1 Bl. Com. 461 and note; Wats. Comp. socage, or otherwise, and that the guardian so appointed shall take into his custody 30 L. J. M. C. 47, where it was decided that Eq.; Co. Litt. 88b, n. (12); Reg. v. Howes, and management the property of the inthe guardianship (for some purposes) lasts fant for his benefit. A guardian appointed until the age of sixteen years; Mallinson in England under this statute, or in the v. M., L. R. 1 P. & D. 221; In re Marquis United States under similar State statutes of Salisbury, 2 Ch. D. 29, where it was held founded thereon, is called a guardian by that the word "guardian" in § 1 of the act statute, or testamentary guardian. See 236 and 37 Vict. c. 50, includes guardian by White & T. Lead. Cas. 613; notes to Eyre nature in the sense of the father, so as to v. Countess of Sl aftsbury, 2 P. Wms. 103; enable him to bind his infant son by join (585) ing in a conveyance on his behalf.) Some writers, however, use the term "guardianship by nature" to express the ordinary relation of parent and child, but this is unnecessary and confusing.

guage is ambiguous, the surrounding circumstances may be looked at. When the meaning is ascertained, the guarantor is entitled to the application of the strict rule governing the contracts of sureties, and cannot be held beyond the plain terms of the contract. See further CONSTRUCTION, Liberal. As a principle, a guaranty is not negotiable; it may, perhaps, be made so by negotiable language.2 The negotiation of a bill or note is not a guaranty.3 The rule requiring notice of the acceptance of a guaranty applies only where the instrument is merely an offer or proposal, acceptance of which is necessary to mutual assent. Made at the request of the guarantee, its delivery constitutes the contract. The same result follows where the agreement to accept is contemporaneous with the guaranty, and is its consideration. An unconditional guaranty of advances is a waiver of demand of payment, and notice of the debtor's default to the amount of the advances, etc. Delay in giving notice, when required, is a defense to an action to the extent of the loss or damage proved. Notwithstanding that the contract is the obligation of a surety, it is to be construed as a mercantile instrument in furtherance of its spirit, and, literally, to promote the convenience of commercial intercourse.4 See FRAUDS, Statute of, III (2); LETTER, 3, Of credit; PROMISE, Collateral; SURETY; WARRANTY. 1. A keeper, protector, conservator; a warden. Guardian of the peace. A person charged with the duty of securing or protecting the public peace; a conservator of the peace. See PEACE, 1. Guardian of the poor. A person specially elected or appointed to administer the poor-laws. See POOR. 2. One that legally has the care and management of the person or the estate, or both, during his minority, of a child whose father has died.6 Correlative, ward. The authorized agent, appointed by law, to take care of the ward's estate and manage his affairs." Domestic guardian. A guardian appointed at the place of the infant's domicil. Foreign guardian. A guardian appointed under the law of another State than that of the infant's domicil. 1 Evansville Nat. Bank v. Kaufmann, 93 N. Y. 276-81 (1883), cases, Ruger, C. J.; How v. Kemball, 2 McLean, 103 (1840), cases; 2 How. 449; 62 Barb. 355. Their rights and powers are local. By comity only is anything conceded in another State to the claims of the guardian of the domicil. It is usual, however, to appoint in a foreign State the guardian of the domiciliary court.1 Guardian ad litem. A person appointed by a court to look after the interests of an infant when his property is involved in litigation.2 He manages the defense of an infant defendant, where there is no parent, or other guardian. The power of appointing such a guardian is incident to every court. 3 He is a species of attorney, whose duty is to prosecute for the infant's rights, and to bring those rights directly under the notice of the court. He can do nothing to the injury of the infant. His duty ends when the suit ends, when it is prosecuted to final judgment. Since he may be required to pay the costs of the action, a person cannot be compelled to serve against his consent. Anciently the custom was to appoint an officer of the court. He may have reimbursement for costs and expenses out of the infant's estate.4 See FRIEND, Next. General guardian. A guardian who has general charge of the person and property of a fatherless minor. Special guardian. A guardian charged with the management of some particular interest; as, a guardian ad litem, or a guardian of the estate or of the person only.5 Guardian of the estate. A guardian who has been lawfully invested with the power of taking care and managing the estate of an infant. Guardian of the person. A guardian lawfully invested with the care of an infant, whose father is dead.6 At common law, a general guardian performs the office of tutor of the person and curator of the estate as distinguished in the Roman law." Statute or statutory guardian. A guardian appointed by last will; also, a guardian appointed by a court in pursuance of a statute. 1 Hoyt v. Sprague. 103 U. S. 631-32 (1880), Bradley, J. 2 See N. Y. Life Ins. Co. v. Bangs, 103 U. S. 438 (1880); Colt v. Colt, 111 id. 578 (1884). 33 Bl. Com. 427. 4 Leopold v. Meyer, 10 Abb. Pr. o. s. 40 (N. Y. Com. 2 Story, Prom. Notes, § 481; 36 Kan. 211. 3 Central Trust Co. v. Cook County. Nat. Bank, 101 Pleas, 1860), cases; Tucker v. Dabbs, 12 Heisk. 20 (1873); U. S. 70 (1879), cases. Davis v. Wells, 104 U. S. 159, 163-66 (1881), cases, Matthews, J. 5 F. garder: A. S. weard-; Ger. warten, to watch, have ward. See G. • Bass v. Cook, 4 Port., Ala., 392: Reeves, Dom. Rel. *311. 7 Waldrip v. Tulley, 48 Ark. 300 (1886), Smith, J. Simmons v. Baynard, 30 F. R. 533 (1887): 2 Story, Eq. § 1352; Turrentine v. Daly, 82 Ala. 208 (1886), - final account; Cates v. Pickett, 97 N. C. 26 (1887), -selling land (local); Hinton v. Bland, 81 Va. 592-93 (1886), - of lunatic; Story, Eq. Pl. § 70. See Colt v. Colt, 111 U. S. 578 (1884). • Nicholson v. Spencer, 11 Ga. 609 (1852). 1 Bl. Com. 460.

One who guards, preserves, or secures; one to whom any person or thing is committed for protection, security, or preservation from injury; a warden. One who has, or is entitled to, the custody of the person or property of an infant, a minor without living parents, or a person incapable of managing his own affairs. Of the several species of guardians, the first are guardians by nature. -- viz., the father and (in some cases) the mother of the child. Blockstone. Guardian ad litem ( (Law), a guardian appointed by a court of justice to conduct a particular suit. -- Guardians of the poor, the members of a board appointed or elected to care for the relief of the poor within a township, or district.

Performing, or appropriate to, the office of a protector; as, a guardian care. Feast of Guardian Angels (R. C. Ch.) a church festival instituted by Pope Paul V., and celebrated on October 2d. -- Guardian angel. (a) The particular spiritual being believed in some branches of the Christian church to have guardianship and protection of each human being from birth. (b) Hence, a protector or defender in general. O. W. Holmes. -- Guardian spirit, in the belief of many pagan nations, a spirit, often of a deceased relative or friend, that presides over the interests of a household, a city, or a region.

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Someone who guards, watches over, or protects. | A person legally responsible for a minor (in loco parentis). | A person legally responsible for an incompetent person. | A superior in a Franciscan monastery. | A major or final enemy; boss. | A servicemember of the United States Space Force.