Combs v. Jackson

The Chancellor. At the common law, if lands held in socage came to an infant by descent, his nearest relative# who could not by any possibility inherit the lands, was his guardian in socage until the age of fourteen, and until the infant selected a guardian for himself. Such guardian might lawfully receive the rents and profits of the land during the 'continuance of the guardianship. If the lands descended from the father or other paternal relatives, the mother or next of bin on the part of the mother was the guardian; and if the lands descended on the part of the mother, the father or next of kin on the paternal side was entitled to the guardianship. (Litt. sec. 123.) In Quadring v. Dowers, (2 Mod. Rep. 176,) it was held that there could be no guardianship in socage, where the infant acquired the lands by purchase, and not by descent; In older to give the father the right to receive the rents and profits of the infant’s lands in this case, the court must presume that those lands were not acquired by purchase, and that1 they descended to the infant on the part of the maternal relatives, and also that they are holden by socage tenure. By the act concerning tenures, (1 R. L. 70,) all lands granted by the'people of this state since the 4th of July, 1776, are declared to be allodial, and not feudal. This suit was brought to recover the rents and profits of part of lot No. 7, in the township of Ovid, in the county of Seneca. Instead of presuming the tenure of these lands to be that of free and common socage, I think we must judicially notice the fact which appears from the public statute book, that this lot, as well as all the other lands in that county, belonged to the people of this state at the time of the declaration of independence, and were afterwards set apart by law, and granted to the troops in the line of this state, for military services during the revolution. There can be no guardianship in socage in relation to these lands. At the common law, where there was no guardian in so-cage, the father was guardian by nature to his heir apparent [157] until the age of twenty-one. This was a guardianship of his person only, and gave the father no right or control over his property, real or personal. (May v. Calder, 2 Mass. Rep. 55. Genet v. Talmadge, 1 Johns. Ch. Rep. 3. Co. Litt. 84, a. Dagley v. Tolfery, 1 Eq. Ca. Abr. 300. Strickland v. Hudson, 3 Rep. in Ch. 165.) This guardianship by nature was not incident to military tenures, and had no connection whatever with the lands of the infant. The guardian in chivalry was entitled to the possession and profits of the infant’s lands, and the custody of his person, in respect of the tenure. But the father’s right by nature to the guardianship of the person of his son and heir apparent, was paramount to the right of the guardian in chivalry ; so that if the father was living, and lands held by the tenure of knight service descended to the infant son on the part of the mother, the lord was entitled to the wardship of the lands, but the father was entitled to the guardianship of his person. (Co. Litt. 84, a.) In this state, under our statute of descents, all the children are heirs apparent of the father, and he is entitled to the guardianship of their persons until the age of twenty-one years, or marriage, as guardian by nature, except in those cases where lands granted before the revolution descend to the children on the part of the maternal relations. By the statute of descents, lands thus acquired cannot go to the father; and in relation to socage lands of that description, he may be the guardian in socage, and may take the rents and profits thereof for the use of his children until they attain the age of fourteen, and until another guardian be appointed. (Byrne v. Van Hoesen, 5 Johns. Rep. 66.) In the case before us, the father, as guardian by nature, had no control over the real or personal estate of his infant son, and the judgment of the supreme court should therefore be affirmed. This being the unanimous opinion of the court, the judgment of the supreme court was thereupon affirmed, with costs.