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PT. IV. T. 1,

held that this barred her claim to a moiety of his personal s estate under the Statute of Distributions; the words

common law" meaning the general law, and not the common law as opposed to the statute law (a). 3289. By the dissolution of marriage the husband loses all those rights which he would otherwise acquire jure mariti after that time. And hence, if the divorced wife dies before she has reduced a chose in action into possession, the divorced husband will have no right, either as her administrator or otherwise (b). But he does not lose the rights which a marriage settlement has given him (c). 3290.

Loss of

rights on dissolution

of marriage.

Divorce

Court to

settled

By the stat. 22 & 23 Vict. c. 61, s. 5, "the Court, after Power of a final decree of nullity of marriage or dissolution of mar- apply riage, may inquire into the existence of ante-nuptial or property. post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or a portion of the property settled either for the benefit of the children of the marriage or of their respective parents, as to the Court shall seem fit." 3291.

[A wife might formerly commit many acts of a criminal nature with respect to her husband's property, without rendering herself liable to criminal proceedings by him. But the criminal liability of the wife to her husband is now extended by stat. 45 & 46 Vict. c. 75 (Appendix), which enacts by s. 16, "A wife doing any act with respect to any property of her husband, which, if done by the husband with respect to property of the wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband."] 3291a.

(a) Gurly v. Gurly, 8 Cl. & Fin. 743. Much of this Chapter is taken from the writer's "Manual of Equity Jurisprudence."

(b) Wilkinson v. Gibson, L. R. 4

Eq. 162.

(c) Fitzgerald v. Chapman, L. R. 1 Ch. D. 563; Burton v. Sturgeon, L. R. 2 Ch. D. (Ap.) 318.

Acts of wife r proceedings.

liable to criminal

1320

PART IV.

T. 1, CH. 4.

Appointment of guardian.

CHAPTER IV.

OF INFANTS.

By the stat. 12 Car. 2, c. 24, s. 8, a father of an unmarried legitimate child may by deed or will appoint any person, in possession or remainder, except a Popish recusant, to be a guardian, until such child shall attain the age of twentyone years, or for any less time. And by the same section a father might by will, as he may still by deed, make such an appointment, though not himself of full age; but by the stat. 1 Vict. c. 26, s. 7, no will made by any person under the age of twenty-one years shall be valid. By s. 9 of the stat. 12 Car. 2, c. 24, the authority of the guardian so appointed is to extend to the custody of the profits of the real estate, and the custody, tuition, and management of the personal estate of the ward. 3292.

A mother cannot appoint a guardian. Nor can a father make a valid appointment of a guardian to his natural child. If, however, he does nominate a person to be guardian, the Court will appoint such person to that office (a). 3293.

PT. IV. T. 1,
CH. 4, s. 1.

SECTION I.

Of the Acts which an Infant may or may not do. If a conveyance, etc., is made to an infant, the deed becomes void, in case he, when adult, disagrees to it, or in to an infant. case his heir disagrees after his death, where he died during

Conveyance

(a) 11 Jarm. & Byth. by Sweet, 431, 432; 1 Jarm. Wills, 2nd ed. 25, 34; Macpherson on Infants, 83,

460; Sleeman v. Wilson, L. R. 13 Eq. 36.

CH. 4, s. 1.

his minority, or died after he came of age without having PT. IV. T. 1, agreed to it (a). 3294.

Infants may, even at law, bind themselves, under certain Contracts. circumstances, by contracts for necessaries suitable to their

degree and quality, and may bind

themselves by acts which
But, in general, where a

the law requires them to do (b).
contract may be either for the benefit or to the prejudice of
an infant, he may avoid it, as well at law as in equity.
Where it can never be for his benefit, it is void (c). 3295.

By the stat. 37 & 38 Vict. c. 62, s. 1, it is enacted, that "all contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent, or to be lent, or for goods supplied, or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void. Provided always, that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." 3295a.

An infant may purchase real property, because it may Purchases. be for his benefit; yet upon his attaining his full age, he may either agree or disagree to it without showing any cause; and so may his heir if he dies under age or without having agreed to it (d). And if an infant enters into a contract for the purchase of an estate, he cannot enforce it in equity, because the remedy is not mutual (e). 3296.

An infant cannot, at common law, alien his estate, Alienation. unless by force of a custom, not even if a special power is

(a) 1 Pres. Shep. T. 70; Watk. Conv. 3rd ed. by Prest. 243.

(b) Story's Eq. Jur. § 240; Co. Litt. 172 a; Burton, § 199. And see Smith's Common Law Manual, 9th ed.

(c) Story's Eq. Jur. § 241; Bur.

ton, § 199.

(d) 4 Cruise T. 32, c. 26, § 6; 2 Pres. Shep. T. 235, 285; Sugd. Concise View, 541; 2 Bl. Com. 292; Co. Litt. 2 b.

(e) Sugd. Concise View, 149.

CH. 4, s. 1.

PT. IV. T. 1, given him (a). But the owner of gavelkind land may alien by feoffment at the age of fifteen years (b). 3297. By the stat. 17 Geo. 3, c. 26, s. 6, and 53 Geo. 3, c. 141, s. 8, it is enacted, that all contracts for the purchase of any annuity with an infant shall be utterly void. 3298.

Contracts for annui

ties.

Execution

of powers, etc.

Presenting to a benefice.

Fine or recovery.

Feoffment.

effect by

delivery.

An infant, like a femme covert, may at common law do any act where he is a mere instrument, and his interest is not concerned (c). Thus an infant is capable of executing a bare authority (d). And an infant can exercise a power even though it be coupled with an interest, when an intention appears that it should be exerciseable during minority (e). But an infant cannot sell an estate devised or conveyed to him in trust to sell; for a testator or grantor cannot confer upon an infant a capacity of discretion in the way of contract which the law does not give him (ƒ). 3299.

An infant of the most tender age may present to a benefice (g). 3300.

If a fine or recovery by an infant was once admitted (except in the case of a recovery suffered by attorney), it could not be reversed without a personal examination of the party by the Court during the continuance of his minority (h). 3301.

If an infant makes a feoffment and gives livery of seisin Deed taking in person, it is not void, but only voidable (¿). And even a deed which takes effect by delivery, without an additional ceremony, if executed by an infant, is voidable only, and not void, at least if it is for his benefit (j). 3302.

(a) 1 Sugd. Pow. 211; Co. Litt. 171 b, n. (5).

(b) 2 Bl. Com. 84; Co. Litt. 171 b, n. (5).

(c) 1 Sugd. Pow. 211.

(d) 4 Cruise T. 32, c. 13, § 28; 2 Sugd. Pow. 7th ed. 537-541; 1 Jarm. Wills, 2nd ed. 30; Watk. Conv. 3rd ed. by Prest. 246.

(e) In re Cardross's Settlement,

L. R. 7 Ch. D. 728.

(f) King v. Bellord, 1 Hem. & Mil. 343.

(g) 3 Cruise T. 21, c. 2, § 24; Burton, § 200; Co. Litt. 89 a, n. (1), and 172 a.

(h) Burton, § 198.

(i) 4 Cruise T. 32, c. 4, § 23; Burton, § 199.

(j) Allen v. Allen, 2 D. & W.307.

By the stat. 1 Will. 4, c. 65, ss. 3-8, infants may be PT. IV. T. 1, admitted to copyhold estates, by their guardians or attorneys (a). 3303.

CH. 4, s. 1. Admittance to copyholds.

ing leases and taking

By ss. 12 and 15 of the same Act, infants or their Surrenderguardians may, by order of the Court, surrender leases, new ones. and take new leases, to the same uses and liable to the same trusts, charges, incumbrances, dispositions, and conditions as the leases surrendered. 3304.

surrenders

of leases

By ss. 16, 18, 20, and 21, infants, or if they are out of Accepting the jurisdiction, some other person, by order of the Court, and grantmay accept surrenders of leases and execute new leases. ones. 3305.

ing new

leases of estates

infants.

By s. 17, by direction of the Court, an infant, or his Granting guardian in his name, may grant leases of any land of belonging to him, when it is for his benefit; but no lease is to be made of the capital mansion-house and the park and grounds held therewith, for any period exceeding the infant's minority. And the Court has no jurisdiction under this statute to lease an infant's estates, unless the infant is indefeasibly seised either in fee or in tail in possession (b). 3306.

We have seen, however, that by the stat. 19 & 20 Vict. c. 120, additional leasing powers were given in the case of infants (c). [But this Act was repealed by stat. 40 & 41 Vict. c. 18 (Appendix), by which more extensive powers are substituted.] 3307.

Vict. c. 41.

&

45

The Con

veyancing and Law of

own Property

Act, 1881.

[With reference to sales and leases of land on behalf stat. 44 & 45 of infant owners, it is enacted by s. 41 of stat. 44 Vict. c. 41 (Appendix), that "Where a person in his right seised of or entitled to land for an estate in fee simple, or for any leasehold interest at a rent, is an infant, the land shall be deemed to be a settled estate within the Settled Estates Act, 1877." And by s. 42 of the same

(a) See supra, par. 2723.
(b) Ex parte Legh, 15 Sim. 445.

(c) See supra, par. 1905-8.

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