concurring and three dissenting, he says: "It cannot be said that the contract related to any estate she then held, nor in view of the findings was it for the benefit of such estate.' This case was argued and decided in 1874. The later case of Tiemeger v. Turnquist, 85 N. Y. 516, where the wife bought groceries for the family including her husband upon her sole credit, charging with the payment thereof her interest in a policy of insurance upon the life of her husband, payable upon his death to her if she survived him, but if not, then to their children, decides that she was liable, although the attempted charge upon her said contingent estate should be considered void as incapable of being legally charged. Finch, J., who delivered the opinion, says: "The amendment of 1862 allows a married woman to hold as her separate property that which she acquires by purchase," meaning of both real and personal property, and without considering her liability in other cases. And yet in the aforesaid case of the Manhattan Co., might it not well be deemed that the wife purchased said lamp cases, through the agency of her husband?

Conlin v. Cantrell, 64 N. Y. 217, holds that the intent to charge the separate estate may be inferred entirely from the surrounding circumstances.

But by force of the act of 1884 the law and learning upon this subject will soon be swept completely away, to join the great mass gone before, never to be resurrected. J. B. DALEY.

TRUST AND TRUSTEE-RULE AS TO INVESTMENT.

SUPREME COURT OF THE UNITED STATES. DECEMBER 1, 1884.

LAMAR V. MICOU.*

The war of the rebellion, and the residence of both guardian and ward in the enemy's territory throughout the war, did not terminate the obligation of a guardian appointed before the war in a State never within that territory, nor discharge him from liability to account to the ward in the courts of that State after the war.

A guardian, appointed in New York, before the war of the rebellion, of an infant then temporarily residing there. but domiciled in Georgia, sold bank stock of his ward in New York during the war, and there invested the proceeds in bonds issued before the war by the cities of Mobile, Memphis, and New Orleans, and in bonds issued by a railroad corporation chartered by the State of Tennessee, and whose road was in Tennessee and Georgia, and the railroad bonds indorsed by the State of Tennessee at the time of their issue; and deposited the bonds in a bank in Canada. Held, that if in so doing he used due care and prudence, having regard to the best pecuniary interests of his ward, he was not accountable to the ward for loss by depreciation of the bonds, although one object of the sale and investment was to save the ward's money from confiscation by the United States.

An investment by a guardian, of money of his ward, during the war of the rebellion, and while both guardian and ward were residing within the enemy's territory, in bonds of the so-called Confederate States, was unlawful, and the guardian is responsible to the ward for the sum so invested.

GRAY, J. This is an appeal by the executor of a guardian from a decree against him upon a bill in equity filed by the administratrix of his ward. The original bill, filed on July 1, 1875, by Ann C. Sims, a citizen of Alabama, as administratrix of Martha M. Sims, in the Supreme Court of the State of New York, alleged that on December 11, 1855, the defendant's testator, Gazaway B. Lamar, was duly appointed by the surrogate of the county of Richmond, in that State, guardian of the person and estate of Martha M. Sims, an infant of six years of age, then a resident of that county, and gave bond as such, and took into his possession and control all her property, being more than $5,000; that on October 5, 1874, he died in New York, and on November 10, 1874, his will was there admitted to probate, and the defendant, a citizen of New York, was appointed his executor; and that he and his executor had neglected to render any account of his guardianship to the surrogate of Richmond county, or to any court having cognizance thereof, or to the ward or her administratrix; and prayed for an account, and for judgment for the amount found to be due.

The defendant removed the case into the Circuit Court of the United States for the Southern District of New York, and there filed an answer, averring that in 1855, when Lamar was appointed guardian of Martha M. Sims, he was a citizen of Georgia, and she was a citizen of Alabama, having a temporary residence in the city of New York; that in the spring of 1861 the States of Georgia aud Alabama declared themselves to have seceded from the United States, and to constitute members of the so-called Confederate States of America, whereupon a State of war arose between the United States and the Confederate States, which continued to be flagraut for more than four years after; that Lamar and Martha M. Sims were in the spring of 1861 citizens and residents of the States of Georgia and Alabama respectively, and citizens of the Confederate States, and were engaged in aiding and abetting the State of Georgia and the so-called Confederate States in their rebellion against the United States, and she continued to aid and abet until the time of her death, and he continued to aid and abet till January, 1865; that the United States, by various public acts, declared all his and her property, of any kind, to be lia ble to seizure and confiscation by the United States, and they both were, by the various acts of Congress of the United States, outlawed and debarred of any access to any court of the United States, whereby it was impossible for Lamar to appear in the Surrogate's Court of Richmond county to settle and close his accounts there, and to be discharged from his liability as guardian, in consequence whereof the relation of guardian and ward, so far as it depended upon the orders of that court, ceased and determined; that for the purpose of saving the ward's property from seizure and confiscation by the United States, Lamar, at the request of the ward and of her natural guardians, all citizens of the State of Alabama, withdrew the funds belonging to her from the city of New York, and invested them for her benefit and account in such securities as by the laws of the States of Alabama and Georgia and of the Confederate States he might lawfully do; that in 1864, upon the death of Martha M. Sims, all her property vested in her sister, Ann C. Sims, as her next of kin, and any, acccounting of Lamar for that property was to be made to her; that on March 15, 1867, at the written request of Ann C. Sims and of her natural guardians, Benjamin H. Micou was appointed her legal guardian by the Probate Court of Montgomery county, in the State of Alabama, which was at that time her residence, and Lamar thereupon accounted for and paid over all property with which he was chargeable as guardian of Martha M. Sims, to Micou, as her guardian, and received from him a full

14, 1867, Lamar sent to Micou complete and correct statements of his guardianship account with each of his wards, as well as all the securities remaining in his hands as guardian of either, and a check payable to Micou as guardian of Ann C. Sims for a balance in money due her; and Micou, as such guardian, signed and sent to Lamar a schedule of and receipt for the property, describing it specifically, by which it appeared that the bonds of the cities of New Orleans and Memphis, and of the East Tennessee & Georgia Railroad Company were issued, and the Memphis bonds as well as the railroad bonds were indorsed by the State of Tennessee, some years before the breaking out of the rebellion. Micou thenceforth continued to act in all respects as the only guardian of Ann C. Sims until she became of age on June 1, 1872.

No objection or complaint was ever made by either of the wards or their relatives against Lamar's transactions or investments as guardian until July 28, 1874, when Micou wrote to Lamar informing him that Aun C. Sims desired a settlement of his accounts, and that he had been advised that no credits could be allowed for the investments in Confederate States bonds, and that Lamar was responsible for the security of the investments in other bonds and bank stock. Lamar was then sick in New York, and died there on October 5, 1874, without having answered the letter. Before the case was heard in the Circuit Court, Ann C. Sims died, on May 7, 1878, and on June 20, 1878, Mrs. Micou was appointed, in New York, administratrix de bonis non of Martha M. Sims, and as such filed a bill of revivor in this suit. On October 3, 1878, the defendant filed a cross-bill, repeating the allegations of his answer to the original bill, and further averring that Ann C. Sims left a will which had been admitted to probate in Montgomery county, in the State of Alabama, and afterward in the county and State of New York, by which she gave all her property to Mrs. Micou, who was her next of kin, and that Mrs. Micou was entitled to receive for her own benefit whatever might be recovered in the principal suit, and was estopped to deny the lawfulness or propriety of Lamar's acts, because whatever was done by him as guardian of Martha M. Sims in her life-time, or as guardian of the interests of Ann C. Sims as her next of kin, was authorized and approved by Mrs. Micou and her mother and husband as the natural guardians of both children. Mrs. Micou, as plaintiff in the bill of revivor, answered the cross-bill, alleging that Ann succeeded to Martha's property as her administratrix, and not as her next of kin, admitting Ann's will and the probate thereof, denying that Mrs. Micou was a natural guardian of the children, and denying that she approved or ratified Lamar's acts as guardian. A general replication was filed to that answer.

Upon a hearing on the pleadings and the agreed statement of facts, the Circuit court dismissed the cross-bill, held all Lamar's investments to have been breaches of trust, and entered a decree referring the case to a master to state an account. The case was afterward heard on exceptions to the master's report, and a final decree entered for the plaintiff for $18,705.19, including the value before 1861 of those bank stocks in Georgia of which Lamar had never had possession. The opinion delivered upon the first hearing is reported in 17 Blatchf. 378, and in 1 Fed. Rep. 14, and the opinion upon the second hearing in 7 id. 180. The defendant appealed to this court.

The authority of the Surrogate's Court of the county of Richmond and State of New York to appoint Lamar guardian of the persons and property of infants at the time within that county, and the authority of the Supreme Court of the State of New York, in which this suit was originally brought, being a court of general equity jurisdiction, to take cognizance thereof,

are not disputed; and upon the facts agreed, it is quite clear that none of the defenses set up in the answer afford any ground for dismissing the bill. The war of the rebellion, and the residence of both, ward and guardian, within the territory controlled by the insurgents, did not discharge the guardian from his responsibility to account, after the war, for property of the wards which had at any time come into his hands, or which he might, by the exercise of due care, have obtained possession of. A State of war does not put an end to pre-existing obligations, or transfer the property of wards to their guardians, or release the latter from the duty to keep it safely, but suspends until the return of peace the right of any one residing in the enemy's country to sue in our courts. Ward v. Smith, 7 Wall. 447; Montgomery v. United States, 15 id. 395, 400; Insurance Co. v. Davis, 95 U. S. 425, 430; Kershaw v. Kelsey, 100 Mass. 561, 563, 564, 570; 3 Phillim. Int. Law (2d ed.), § 589. The appointment of Micou in 1867 by a court of Alabama to be guardian of the surviving ward, then residing in that State, did not terminate Lamar's liability for property of his wards which he previously had or ought to have taken possession of. The receipt given by Micou was only for the securities and money actually handed over to him by Lamar; and if Micou had any authority to discharge Lamar from liability for past mismanagement of either ward's property, he never assumed to do so. The suggestion in the answer, that the surviving ward upon coming of age, ratified and approved the acts of Lamar as guardiau, finds no support in the facts of the case. The further grounds of defense, set up in the cross-bill, that Micou participated in Lamar's investments, and that Mrs Micou approved them, are equally unavailing. The acts of Micou, before his own appointment as guardian, could not bind the ward. And admissions in private letters from Mrs. Micou to Lamar could not affect the rights of the ward, or Mrs. Micou's authority, upon being afterward appointed administratrix of the ward, to maintain this bill as such against Lamar's representative, even if the amount recovered will inure to her own benefit as the ward's next of kin. 1 Greenl. Ev., § 179. The extent of Lamar's liability presents more difficult questions of law, now for the first time brought before this court. The general rule is everywhere recognized, that a guardian or trustee, when investing property in his hands, is bound to act honestly and faithfully, and to exercise a sound discretion, such as men of ordinary prudence and intelligence use in their own affairs. In some jurisdictions no attempt has been made to establish a more definite rule; in others the discretion has been confined by the Legislature or the courts, within strict limits.

The court of chancery, before the Declaration of In. dependence, appears to have allowed some latitude to trustees in making investments. The best evidence of this is to be found in the judgments of Lord Hardwicke. He held indeed, in accordance with the clear weight of authority before and since, that money lent on a mere personal obligation, like a promissory note, without security, was at the risk of the trustee. Ryder v. Bickerton, 3 Swaust. 80, note: S. C., 1 Eden, 149, note; Barney v. Saunders, 16 How. 585, 545; Perry Trusts, § 453. But in so holding, he said: For it should have been on some such security as binds land, or something to be answerable for it." 3 Swanst. 81, note. Although in one case he held that a trustee, directed by the terms of his trust to invest the trust money in government funds or other good securities, was responsible for a loss caused by his investing it in South Sea stock, and observed that neither South Sea stock nor bank stock was considered a good security, because it depended upon the management of the gov. ernor and directors, and the capital might be wholly

lost (Trafford v. Boehm, 3 Atk. 440, 444); yet in another case he declined to charge a trustee for a loss on South Sex stock, which had fallen in value since the trustee received it, and said that "to compel trustees to make up a deficiency, not owing to their willful default, is the harshest demand that can be made in a court of equity." Jackson v. Jackson, 1 Atk. 513, 514; S. C., West Ch. 31, 34. In a later case he said: Suppose a trustee, having in his hands a considerable sum of money, places it out in the funds, which afterward sink in their value, or on a security at the time apparently good, which afterward turns out not to be so, for the benefit of the cestui que trust; was there ever an instance of the trustees being made to answer the actual sum so placed out? I answer, 'No.' If there is no mala fides, nothing willful in the conduct of the trustee, the court will always favor him; for as a trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, it is an act of great kindness in any one to accept it. To add hazard or risk to that trouble, and subject a trustee to losses which he could not foresee, and consequently not prevent, would be a manifest hardship, and would be deterring every one from accepting so necessary an office." That this opinion was not based upon the fact that in England trustees usually receive no compensation is clearly shown by the chancellor's adding that the same doctrine held good in the case of a receiver, an officer of the court, and paid for his trouble; and the point decided was that a receiver, who paid the amount of rents of estate in his charge to a Bristol tradesman of good credit, taking his bills therefor on London, was not responsible for the loss of the money by his becoming bankrupt. Knight v. Plymouth, 1 Dick. 120, 126, 127; S. C., 3 Atk. 480. And the decision was afterward cited by Lord Hardwicke himself as showing that when trustees act by other hands, according to the usage of business, they are not answerable for losses. Ex parte Belchier, 1 Amb. 218, 219: S. C., 1 Ken. 38, 47.

In later times, as the amount and variety of English government securities increased, the Court of Chancery limited trust investments to the public funds, disapproved investments either in bank stock or in mortgages of real estate, and prescribed so strict a rule that Parliament interposed; and by the statutes of 22 & 23 Vict., ch. 35, and 23 & 24 id. 38, and by general orders in chancery, pursuant to those statutes, trustees have been authorized to invest in stock of the bank of England or of Ireland, or upon mortgage of freehold or copyhold estates, as well as in the public funds. Lewin Trusts (7th ed.), 282, 283, 287. In a very recent case the Court of Appeal and the House of Lords, following the decisions of Lord Hardwicke in Knight v. Plymouth and Ex parte Belchier, above cited, held that a trustee investing trust funds, who employed a broker to procure securities authorized by the trust, and paid the purchase-money to the broker, if such was the usual and regular course of business of persons acting with reasonable care and prudence on their own account, was not liable for the loss of the money by fraud of the broker. Sir George Jessel, M. R., Lord Justice Bowen, and Lord Blackburn affirmed the general rule that a trustee is only bound to conduct the business of his trust in the same manner that an ordinarily prudent man of business would conduct his own; Lord Blackburn adding the qualification that · a trustee must not choose investments other than those which the terms of his trust permit." Speight v. Gaunt, 22 Ch. Div. 727, 739, 762; 9 App. Cas. 1, 19.

In this country there has been a diversity in the laws and usages of the several States upon the subject of trust investments.

In New York, under Chancellor Kent, the rule seems to have been quite undefined. See Smith v. Smith, 4 Johns. Ch. 281, 285; Thompson v. Brown, id. 619, 628, 629, where the chancellor quoted the passage above cited from Lord Hardwicke's opinion in Knight v. Plymouth. And in Brown v. Campbell, Hopk. Ch. 233, where an executor in good faith made an investment, considered at the time to be advantageous, of the amount of two promissory notes, due to his testator from one manufacturing corporation, in the stock of another manufacturing corporation, which afterward became insolvent, Chancellor Saudford held that there was no reason to charge him with the loss. But by the later decisions in that State investments in bank or railroad stock have been held to be at the risk of the trustee, and it has been intimated that the only investments that a trustee can safely make without an express order of court are in government or real estate securities. King v. Talbot, 40 N. Y. 76, affirming S. C., 50 Barb. 453; Ackerman v. Emott, 4 id. 626; Mills v. Hoffman, 26 Hun, 594; 2 Kent Comm. 416, note b. So the decisions in New Jersey and Pennsylvania tend to disallow investments in the stock of banks or other business corporations, or otherwise than in the public funds or in mortgages of real estate. Gray v. Fox, Saxt. 259, 268; Halsted v. Meeker, 3 C. E. Green, 136; Lathrop v. Smalley. 8 id. 192; Worrell's Appeal, 9 Penn. St. 508, and 23 id. 44; Hemphill's Appeal, 18 id. 303; Ihmsen's Appeal, 43 id. 431. And the New York and Pennsylvania courts have shown a strong disinclination to permit investments in real estate or securities out of their jurisdiction. Ormiston v. Olcott, 84 N. Y. 339; Rush's Estate, 12 Penn. St. 375, 378.

In New England, and in the southern States, the rule has been less strict. In Massachusetts, by a usage of more than half a century, approved by a uniform course of judicial decision, it has come to be regarded as too firmly settled to be changed, except by the Legislature, that all that can be required of a trustee to invest is that he shall conduct himself faithfully and exercise a sound discretion, such as men of prudence and intelligence exercise in the permanent disposition of their own funds, having regard not only to the probable income, but also to the probable safety of the capital; and that a guardian or trustee is not precluded from investing in the stock of banking, insurance, manufacturing, or railroad corporations within or without the State. Harvard College v. Amory, 9 Pick. 446, 461; Lovell v. Minot, 20 id. 116, 119; Kinmonth v. Brigham, 5 Allen, 270, 277; Clark v. Garfield, 8 id. 427; Brown v. French, 125 Mass. 410; Bowker v. Pierce, 130 id. 262.

In New Hampshire and in Vermont, investments honestly and prudently made, in securities of any kind that produce income, appear to be allowed. Knowlton v. Bradley, 17 N. H. 458; Kimball v. Reding, 31 N. H. 352, 374; French v. Currier, 47 N. H. 88, 99; Barney v. Parsons, 54 Vt. 623.

In Maryland, good bank stock, as well as government securities and mortgages on real estate, has always been considered a proper investment. Hammond v. Hammond, 2 Bland, 306, 413; Gray v. Lynch, 8 Gill, 403; Murray v. Feinour, 2 Md. Ch. 418. So in Mississippi, investment in bank stock is allowed. Smyth v. Burns, 25 Miss. 422.

In South Carolina, before the war, no more definite rule appears to have been laid down than that guardians and trustees must manage the funds in their hands as prudent men manage their own affairs. Boggs v. Adger, 4 Rich. Eq. 408, 411; Spear v. Spear, 9 id. 184, 201; Snelling v. McCreary, 14 id. 291, 300.

In Georgia the English rule was never adopted; a statute of 1845, which authorized executors, administrators, guardians, and trustees, holding any trust

funds, to invest them in securities of the State, was not considered compulsory; and before January 1, 1863 (when that statute was amended by adding a provision that any other investment of trust funds must be made under a judicial order, or else be at the risk of the trustees), those who lent the fund at interest, on what was at the time considered by prudent men to be good security, were not held liable for a loss without their fault. Cobb Dig. 333; Code 1861, § 2308; Brown v. Wright, 39 Ga. 96; Moses v. Moses, 50 id. 9, 33.

In Alabama the Supreme Court in Bryant v. Craig, 12 Ala. 354, 359, having intimated that a guardian could not safely invest upon either real or personal seourity without an order of court, the Legislature from 1852 authorized guardians and trustees to invest on bond and mortgage, or on good personal security, with no other limit than fidelity and prudence might require. Code 1852, § 2024; Code 1867, § 2426; Foscue v. Lyon, 55 Ala. 440, 452.

The rules of investment varying so much in the different States, it becomes necessary to consider by what law the management and investment of the ward's property should be governed. As a general rule (with some exceptions not material to the consideration of this case) the law of the domicile governs the status of a person, and the disposition and management of his movable property. The domicile of an infant is universally held to be the fittest place for the appointment of a guardian of his person and estate; although for the protection of either, a guardian may be appointed in any State where the person or any property of an infant may be found. On the continent of Europe the guardian appointed in the State of the domicile of the ward is generally recognized as entitled to the control and dominion of the ward and his movable property everywhere, and guardians specially appointed in other States are responsible to the principal guardian. By the law of England and of this country, a guardian appointed by the courts of one State has no authority over the ward's person or property in another State, except so far as allowed by the comity of that State, as expressed through its Legislature or its courts; but the tendency of modern statutes and decisions is to defer to the law of the domicile,and to support the authority of the guardian appointed there. Hoyt v. Sprague, 103 U. S. 613, 631, and authorities cited; Morrell v. Dickey, 1 Johns. Ch. 153; Woodworth v. Spring, 4 Allen, 321; Milliken v. Pratt, 125 Mass. 374, 377, 378; Leonard v. Putnam, 51 N. H. 247; Com. v. Rhoads, 37 Penn. St. 60; Sims v. Renwick, 25 Ga. 58; Dicey Dom. 172-176; Westl. Int. Law (2d ed.) 48-50; Whart. Conf. Laws (2d ed.), §§ 259-268. An infant cannot change his own domicile. As infants have the domicile of their father he may change their domicile by changing his own; and after his death the mother, while she remains a widow, may likewise, by changing her domicile, change the domicile of the infants; the domicile of the children, in either case, following the independent domicile of their parent. Kennedy 7. Ryall, 67 N. Y. 379; Potinger v. Wightman, 3 Mer. 67; Dedham v. Natick, 16 Mass. 135; Dicey Dom. 97-99. But when the widow, by marrying again, acquires the domicile of a second husband, she does not, by taking her children by the first husband to live with her there, make the domicile which she derives from the second husband their domicile; and they retain the domicile which they had, before her second marriage, acquired from her or from their father. Cumner v. Milton, 3 Salk. 259; S. C., Holt, 578; Freetown v. Taunton, 16 Mass. 52; School Directors v. James, 2 Watts & S. 568; Johnson v. Copeland, 35 Ala. 521: Brown v. Lynch, 2 Bradf. 214; Mears v. Sinclair, 1 West Va. 185; Pot. In

troduction Generale aux Coutumes, No. 19; 1 Burge Col. Law, 39; 4 Phillim. Int. Law (2d ed.), § 97.

The preference due to the law of the ward's domicile, and the importance of a uniform administration of his whole estate, require that as a general rule, the management and investment of his property should be governed by the law of the State of his domicile, especially when he actually resides there, rather than by the law of any State in which a guardian may have been appointed or may have received some property of the ward. If the duties of the guardian were to be exclusively regulated by the law of the State of his appointment, it would follow that in any case in which the temporary residence of the ward was changed from State to State, from considerations of health, education, pleasure or convenience, and guardians were appointed in each State, the guardians appointed in the different States, even if the same persons, might be held to diverse rules of accounting for different parts of the ward's property. The form of accounting, so far as concerns the remedy only, must indeed be according to the law of the court in which relief is sought; but the general rule by which the guardian is to be held responsible for the investment of the ward's property is the law of the place of the domicile of the ward. Bar Int. Law, § 106 (Gillespie's translation), p. 438; Whart. Confil. Laws, § 259. It may be suggested that this would enable the guardian, by changing the domicile of his ward, to choose for himself the law by which he should account. Not so. The father, and after his death the widowed mother, being the natural guardian, and the person from whom the ward derives his domicile, may change that domicile. But the ward does not derive a domicile from any other than ́a natural guardian. A testamentary guardiau nominated by the father may have the same control of the ward's domicile that the father had. Wood v. Wood, 5 Paige, 596, 605. And any guardian appointed in the State of the domicile of the ward has been generally held to have the power of changing the ward's domicile from one county to another within the same State and under the same law. Cutts v. Haskins, 9 Mass. 543; Holyoke v. Haskins, 5 Pick. 20; Kirkland v. Whately, 4 Allen, 462; Anderson v. Anderson, 42 Vt. 350; Ex parte Bartlett, 4 Bradf. 221; The Queen v. Whitby, L. R., 5 Q. B., 325, 331. But is very doubtful, to say the least, whether even a guardian appointed in the State of the domicile of the ward (not being the natural guardian or a testamentary guardian), can remove the ward's domicile beyond the limits of the State in which the guardian is appointed, and to which his legal authority is confined. Douglas v. Douglas, L. R., 12 Eq. 617, 625; Daniel v. Hill, 52 Ala. 430; Story Conf. Laws, § 506, note; Dicey, Dom. 100, 132. And it is quite clear that a guardian appointed in a State in which the ward is temporarily residing cannot change the ward's permanent domicile from one State to another. The case of such a guardian differs from that of an executor of or a trustee under a will. In the one case the title in the property is in the executor or the trustee; in the other the title in the property is in the ward, and the guardian has only the custody and management of it, with power to change its investment. The executor or trustee is appointed at the domicil of the testator; the guardian is most fitly appointed at the domicile of the ward, and may be appointed in any State in which the person or any property of the ward is found. The general rule which governs the administration of the property in the one case may be the law of the domi cile of the testator; in the other case it is the law of the domicile of the ward.

As the law of the domicile of the ward has no extraterritorial effect, except by the comity of the State where the property is situated, or where the guardian