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Law

Guardians of legitimate children

Many stories involve a man being made guardian to a child or children. Sometimes he inherits the post and sometimes he has been appointed by a brother, a mother or an uncle. These are often interesting stories despite the fact that only fathers could name guardians in their wills and that no one could inherit the job.

There were three sorts of guardians: the guardian of nurture, of soccage or common law, and by statute or testamentary guardians. All could have charge of the ward’s person and the common law guardian and the testamentary guardian could also have charge of the ward’s property and money. After trusts became customary, the money and property were usually cared for by trustee while the nurturing and common law guardian cared for the person of the ward.

 

The parents were the natural guardians, with the father being preferred. The unremarried mother was the next choice. If she married, her husband could be guardian. However, in any case where the father was dead, the ward could chose his own guardian when he was fourteen.

Except for marriage and nurture, only children who had property and money were thought to need guardians.

The Common law said that the closest relative who could not inherit from him should be chosen. If the money and land came from the father , than a relative of the mother would be chosen as guardian If the mother had a son by a first marriage and then had another by a second husband who left that child property and money, the older half brother could be named as guardian if he were at least 21. That half -brother could not inherit anything the younger child had from his father.

The Monarch was considered to be the protector of infants, the insane, and the imbecile. He is considered as having delegated this care to the Lord Chancellor of the Court of Chancery. All matters of guardians and wards are under the control of the Court of Chancery . It is to that court that one had to apply if no guardian had been named by the father.

When no testamentary guardian had been named and the child was over fourteen years of age, he could apply to the court for a guardian of his own choice, or for the court to appoint someone to watch over his affairs.
Though the child could name the guardian he preferred when he was fourteen, most did not know that and accepted the person appointed by the court or whoever claimed the post. Only fathers had the right to name guardians in their wills. This guardian would be the one to care for the child until the child turned twenty one even if the child married.

Though great latitude was given to fathers in naming the guardian for the children, the Court of Chancery could override the father’s nomination if it was thought necessary. In some cases even the fathers were removed as guardians to their children . This was generally when the father committed a horrible crime, was trying to bring the children up as atheists, or was egregiously immoral.

Complications often arose over the fact that only the testamentary guardians and the guardians appointed by the Court of Chancery or the unremarried mother were recognized as having the power to give permission for a child to marry by licence. Brothers did not have the right nor that power unless he had been appointed by the Lord Chancellor.

The father of illegitimate children did not have the power to name a guardian for the child nor to give permission for the child to marry.

A widowed mother who had remarried did not have the privilege of giving permission for her minor child to marry.

All minors who did not have guardians appointed by the father had to marry by banns or else have a guardian appointed by the court of chancery if they wanted to marry by licence. Any marriage by a minor by licence without the permission of a guardian appointed by a legitimate father or the Court of Chancery was invalid- no good– no marriage at all.

Any guardian who had control of an infant’s estate was to give an accounting of it when the child came of age.

The court did not look kindly on marriages between the guardian and the ward or the guardian’s child and the ward unless it was assured that no coercion had been used.

Ward Of The Court

Sometimes a child was made ward of the court. The guardian of record was the Lord Chancellor but the day to day work was done by a representative of the court.

There were some solicitors who practiced in the court of Chancery who routinely were appointed to act as guardians of orphans. I think that is how Hanson was appointed to oversee Byron’s affairs when he became a peer at age ten.

Sometimes these representatives were not as careful as they could have been and someone marries the ward out of hand.
The court usually became aware of the marriage when the husband( usually it is the husband who is the older) requested the bride’s dowry and other money.

The man who ran off with a ward of court was often punished by being incarcerated for a period of time and forced to sign over all rights to the bride’s fortune , though he usually was allowed to have the use of the income during his life time. If the marriage was illegal, the couple were married again to make it legal.

If an older woman ran off with a wealthy male infant, the Chancellor usually made certain the marriage was invalid and ruled that they could not see each other for the rest of his minority.

As can be seen, the court’s attitude towards the marriages of its female and male wards differed. Unless the bride claimed coercion or force and duress, once she had lived with a man as his wife, the courts made it so . This was particularly so if they had children.

On the other hand, male infants were unlikely to have their lives ruined by an invalidated marriage but were if married to a fortune hunter.

   
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