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Subject Area: Law
Topic: The American Revolution and Constitution

§ 167.: Control of property by guardian.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 167.

Control of property by guardian.—

The control of the ward’s property is so common an authority of the guardian, that it is altogether unnecessary to refer to cases in support of the constitutionality of a law which invests the guardian with this control over the property of the infant ward. The helplessness of the minor, and his inability to manage his property in a careful manner, resulting from his immaturity, constitute sufficient reasons for taking from him the control of his property. The powers of the guardian are dependent upon the provisions of the law, and are constantly subject to legislative regulation and change. The common law gave to the guardian of a minor the power to manage his real estate, lease it and collect the rents, make repairs, etc., but he had not the power to make a sale of it in fee, without an order from a court of equity. And this is the general rule, in this country, at the present day.1 But the guardian has, in the absence of statutes to the contrary, the ordinary power of selling and disposing of the personal property of the minor, whenever he should deem it advisable to do so.2 And it seems that, after a guardian has been appointed and has taken charge of the ward’s estate, he acquires such a vested interest in the property during the guardianship, that a law would be unconstitutional, because it deprived him of a vested right, which provided for the sale of the minor’s property by another, even though the other person be the mother of the ward.3

Not only is it a legitimate exercise of police power to place the control of a minor’s property in the hands of a guardian; but it is equally competent to place under guardianship the person and property of all other persons, who from any cause may become unable to take care of themselves. There can be no doubt of the power to treat the insane in this manner. And it has been held to be competent, in the exercise of the police power, to place habitual drunkards under guardianship. The assumption by the guardian of the control of the property of the drunkard would not be an unlawful deprivation of property. The derangement of mind, resulting from habitual intemperance, would place him in the same category with the ordinary insane.4

The claim has also been made that the property of spendthrifts may be taken from them and placed under the control of a guardian or curator.1 But it would appear to be a very difficult matter to determine just what degree of extravagance will make the possessor of property a spendthrift. And before that difficulty could be overcome, it would be necesary to determine what makes one a spendthrift. Webster defines a spendthrift to be “one who spends money profusely or improvidently.” If that be taken as a correct definition, it would be difficult to discover in it the element which would justify this exercise of police power. If it be established that his improvident expenditures are the acts of a deranged mind, then he could lawfully be placed under guardianship, on the ground that he is suffering from a form of dementia. But if a perfectly sane man chooses to spend a fortune in high living; prefers the pleasures of a riotous life, with poverty in advanced years, to an equable and moderate expenditure of his income, with the enjoyment of ease and comfort through life, and a proper provision for his heirs; who can lawfully hinder him from making the choice? A man can do what he please with his own property, provided he does not interfere with or transgress some vested right of another. He may, like Raphael Aben Ezra, give away his entire fortune, and become a beggar and a wanderer upon the face of the earth; and no one in a free State dare deny him that privilege. And what he could give away, without receiving any equivlent therefor, he may dispose of in riotous living.

[1]See Schouler Dom. Rel. 480-487.

[2]See Schouler Dom. Rel. 461-479.

[3]Lincoln v. Alexander, 52 Cal. 482 (28 Am. Rep. 639).

[4]Wadsworth v. Sharpsteen, 8 N. Y. 388; Imhoff v. Whitmer, 21 Pa. St. 243; Devin v. Scott, 34 Ind. 67.

[1]See Schouler Dom. Rel. 404.