trust. The fact of the relationship is a material one in determining whether there was fraud in fact in the transaction, but it does not, per se, constitute fraud in law, or bring the case within the rule prohibiting an agent or trustee from dealing with the subject-matter of the agency or trust for his own benefit." The opinion of the Court is not unanimous on the point, two of the five commissioners dissenting, and, by elaborate opinions, they rank the son, under such circumstances, with clerks in the agent's office, and, in the opinion of one commissioner, (Reynolds, 57 N. Y. 455) he holds that the case does not differ materially from that of Gardner v. Ogden, Supra, in which the clerk bought, and that fact alone was held sufficient to invalidate the sale.

§ 322.

§ 323.

The guardian represents the Court, when.

The guardian must take no chances with ward's property.

§ 324. Neglect, by guardian, to invest trust funds.

§ 319. The relation of guardian and ward closely resembles that of parent and child. Inasmuch as children, during their minority, are incapacitated legally to transact business, make contracts, and otherwise guard their interests, it is necessary that some adult should be charged with the care of their persons and estates.

Guardianship usually takes place upon the death of the father, but it may exist during the lifetime of the parents, upon their becoming unable to care for their children, by reason of insanity, or, without any incapacity on the part of the parent, when the child has property which requires care or attention.1

§ 320. General duty of guardian. -The relation of guardian and ward differs from that of parent and child in that it is not one of natural occurrence, and, being the creature of law, is governed more strictly by legal rules. The trust assumed by the guardian is a voluntary one on his part, is one of the most important and delicate known to the law, is large and comprehensive in its efficiency, and the Courts are extremely watchful to prevent any abuse of circumstances by advantage being

12 Kent's Com. 218. "The relation of guardian and ward is nearly allied to that of parent and child. It applies to children during their minority, and may exist during the lives of the parents if the infant becomes vested with property; but it usually takes place on the death of the father, and the guardian is intended to supply his place."

taken by the guardian, to his own profit, at the expense of the ward, or of his estate.1

§ 321. The jurisdiction of the Courts of Chancery over the persons and property of infants is established by precedent so ancient as to be obscure as to its origin, but the doctrine now commonly maintained is that the general care and superintend ence of the persons and property of infants vested in the crown, as parens patriæ; and, as the exercise of this prerogative partook more of the nature of a judicial administration of rights and duties in foro conscientiae than of a strict executive authority, it would naturally follow, ea ratione, that it should be exercised in the Court of Chancery as a branch of the general jurisdiction originally confided to it.

The jurisdiction of the Court of Chancery extends to the care of the person of the infant, so far as is necessary for his protection and education, and to the care of the property of the infant, for its due management and preservation, and the proper application of it to his maintenance and education.2

In the statute laws of some of the United States, provision is made for the exercise of this jurisdiction over the estates and persons of minors by Courts specially designated for that and other similar purposes. This is done, generally, for convenience, and the more perfect application of the rules and principles of

1 Parsons on Contracts, Sec. 137. "The guardian is held, in this country, to have only a naked authority, not coupled with an interest. His possession of the property of his ward is not such as gives him a personal interest, being only for the purposes of the agency; but, for the benefit of his ward, he has a very general power over it. He manages and disposes of the personal property at his own discretion, although, as we have already intimated, it is safer for him to obtain the authority of the Court for any important measure. He may lease the real estate, (the lease not to continue beyond the ward's majority) if appointed by will or by the Court, but the guardian by nature cannot. He cannot, however, sell it without the leave of the proper Court."

23 Black. Com. 427; Williamson v. Berry, 8 Howard, (U. S.) 425; McCord . O'Chiltree, 8 Blackf. 15; Maguire v. Maguire, 7 Dana, 181; Lyne v. Countess of Shaftsbury, 2 P. Wms. 118, 119; Cary v. Bertie, 2 Vern. 333, 342; Story's Eq. Jur. Vol 2, Sec. 1327 et seq.; Ibid, Sec. 1338. "The Court of Chancery will appoint a suitable guardian to an infant, where there is none other, or none other who will or can act, at least where the infant has property; for if the infant has no property, the Court will, perhaps, not interfere. It is not, however, from any want of jurisdiction that it will not interfere in such a case, but from the want of means to exercise its jurisdiction with effect; because the Court cannot take upon itself the maintenance of all the children in the kingdom."

equity jurisprudence and practice, by a subdivision of the duties of the Courts, and specifically assigning to the special Court the labor which can better be done by it than by a Court of general chancery jurisdiction; but this assignment of duties does not, as a rule, oust the jurisdiction of the general Chancery Courts, but their aid may be invoked whenever there are peculiar circumstances of embarrassment which are liable to render inefficient the Court of limited jurisdiction.1

§ 322. The guardian represents the Court, when.Courts of Chancery, or special Courts for such purpose created, have the general control and care of the persons and property of children whose misfortune it has been to lose their natural protectors, the parents. It is the province of such Courts to inform themselves of the details and circumstances of the lives and estates of such children who are, in legal parlance, the "wards" of the Court. In the management, and especially in the sale, of property belonging to such wards, it is the duty of the Court having the matter in charge to surround the infant with all known safeguards and means of prevention to imposition upon them, or jeopardy to their interests.

From the nature of this duty it is impossible that it can, as a general rule, be performed by the Court directly, and to carry into effect the desires of the Court in the premises, guardians are appointed, who are the creatures of the Court, to carry into effect its plans and intentions.

As to the property of the infant, the Court ascertains its character and value by sworn statements, examination of witnesses, and such proceedings of a similar nature as may be requisite to ascertain the facts; and by inventorics and appraisements by competent and disinterested parties, records are made, and kept by the Court, of whatever property goes into the guardian's hands. It is the duty of the Court, as the primary guardian of the infant, to maintain a constant and watchful supervision over the property, to order leases and sales of it

1 Brown v. Snell, 57 N. Y. 286. "A special guardian of an infant, appointed in proceedings for the sale of the real estate of the latter, owes a duty of absolute loyalty to the interests of the infant, so far as relates to the proceeds of the real estate that comes to his hands; he cannot, of right, when cited to account, hold the position of an opposing party."

when requisite, apply proceeds to the benefit of the ward, and see that all funds are promptly invested in such manner as to be secure and beneficial to the child.

The guardian is directly responsible, and always answerable to the Court, for his administration of the business intrusted to him, and—in addition to his personal responsibility-is, for the safety of the ward, required to give bond, with such sureties as the Court may direct, conditioned for the faithful performance of the trust reposed, for the paying over, investing, and accounting for all moneys, and for the observance of the orders and directions of the Court in relation to the trust.1

§ 323. The guardian not justified in taking risks.-To secure the proper execution of the trust which the guardian assumes over the person and estate of his ward, the law has been exceedingly watchful; the guardian is held to the most strictly honest discharge of his duty; he can take no risks with the property of his ward, and he cannot act in the matter of the affairs intrusted to him with any reference to his own profit or advancement, or even for his own protection from loss, without due consideration of the interests of the ward being first had in the premises. He must not only neither make nor suffer any waste of the inheritance, but must render rigid account of his expenditures, and of the disposition of the personal estate of the ward. Of the money belonging to the estate, he must make such use as a prudent man would ordinarily do of his own funds; must not loan them, or make investments recklessly; and if he act with the funds in any way without the leave of the Court, or upon insufficient security, he is liable for losses which occur by reason of his doing so.

These general rules apply, not only while the appointment of guardian lasts, but even after it has ceased, by the majority of the ward or otherwise, for a reasonable length of time. The law is jealous of the rights of the ward, and as the guardian may have acquired such special information as to the business that he has an unfair advantage, or his influence over the ward may not have ended, and the guardian is precluded from dealing with the ward, or his estate, until the relation has ceased

1 Field v. Mayor, Etc. 6 N. Y. 179; Kelly v. Thayer, 34 How. 164.