The first ground assigned for a new trial is, that the jury were misdirected in this: — That they were charged *Page 243 that the intestate, an infant at the time of her death, might, during her life, have avoided her act in parting with the note in question, and that her representative, the present plaintiff, was entitled to avoid it after her death.
All contracts of an infant are, as a general rule, and, as it is said, almost as a universal rule, voidable; and may be avoided by him. See 1 Am. Lead. Cases, 248, and cases cited by the defendant; 3 Bac. Ab. 141; Hedgley and wife v. Holt, 4 C. P. 104. The negotiation of a promissory note was avoided inNightingale v. Withington, 15 Mass. 272; and all the cases cited by the defendant recognize the right of the infant to avoid, at his election. It is equally well settled, that if the infant die within age, not having avoided the contract, it may be avoided by his representative. Oliver et al. v. Houdlet,13 Mass. 237; Slocum v. Hooker, 13 Barb. 536; Roberts v.Wiggin, 1 N.H. 73; Smith v. Mayo, 9 Mass. 62. This right is not affected by the act of the General Assembly authorizing the sale of the real estate, and the taking of the security for the purchase money. That act does not profess to remove any disability under which the intestate then was, either of infancy or coverture, further than was necessary for the sale and conveyance of the real estate, and securing the proceeds of the sale for her and her heirs. Regarding the act of the defendant, in the view suggested by counsel, as a payment by him of a debt in anticipation, and before it fell due by the terms of the contract, it cannot defeat the right to avoid the act of the infant in transferring the note.
The defendant knew all the disabilities of the original payee of this note. He is the maker. He knew that he was paying (if we regard the payment made to her, and the payments to Bucklin as made to her) to an infant, and that he paid at his peril. If it were a legacy to be paid, and the defendant had paid it to an infant, the payment would have been void. Philips v. Paget, 2 Atk. 80, where the executor was compelled to pay a second time; and Sparhawk v. Buel, 9 Vt. 41, where payment of a legacy to a minor was held void. The rule is not confined to legacies. In Hedgley and wife v. Holt, 4 C. P. 104, the suit was for the wages of a servant, the plaintiff's wife, an infant. The defence was, that she had been paid, — part in money paid *Page 244 for dresses, and the residue, moneys generally; and Bayley, J., said, — "Payments made for necessaries, and which could not be avoided, are valid payments; but infants cannot bind themselves for things not necessary;" and the plaintiffs were allowed to recover, deducting only moneys applied to purchase dresses, holding, in effect, that the other payments were void. There is no case cited by the defendant which affirms that payment of money to an infant is valid, even when payable by the terms of the contract. The payment here claimed was not in performance of the original contract, but involved the discharge of it by a new agreement.
This note was made payable to the intestate, after she should have arrived at full age, — the interest to be paid to her annually, for her separate use. It was secured by mortgage. As a ground for a new trial, the defendant complains and says, that the instruction to the jury, that she, being a married woman, could not transfer this note unless in the mode prescribed in Ch. 136, section 4, of the Revised Statutes, viz., by deed of her husband, and herself, acknowledged by her apart from her husband, was erroneous. Independent of the above act, entitled "An act concerning the property of married women," the endorsement of afeme covert would pass no interest in the note, and would not enable the endorser to maintain an action in his own name thereon. The property vesting in the husband, he becomes solely entitled to negotiate it as holder, and to endorse it in his own name. Story on Bills, § 196, Chit. on Bills, 25; Barlow v.Bishop, 1 East, 432. The act referred to does not enlarge the power of a married woman in this respect. It does not, by its terms, clothe her with the powers of a feme sole, or authorize her to sell or transfer, or to sue for or recover any of her property, without joining her husband. As to actions, it is expressly provided, that the husband shall join; and had a suit on this note been necessary in the intestate's lifetime, it must have been in the name of husband and wife. For her security, the act has put a restraint upon the husband's power over certain kinds of property of the wife, and among them, debts secured by mortgage. These are so far secured to her sole and separate use that they cannot be taken for the husband's debts; nor can they be sold, leased, or conveyed by the husband, "unless by deed in which the wife shall join as grantor," and *Page 245 acknowledged by her, as in case of the real estate of a married woman. This is now the only mode in which the husband can dispose of a debt of the wife secured by mortgage. This restraint upon the husband does not empower the wife to act alone, and to transfer it in her own name; and as he can only do it in the mode prescribed, she can only do it by joining him in that mode.
The third section of the act respecting guardians, contained in the Digest of 1844, p. 272, provides, that "whenever any idiot, or lunatic, or person non compos mentis, or any person who, for want of discretion in managing his estate, shall be likely to bring himself and family to want, and thereby to render himself and family chargeable, shall reside or have a legal settlement in any town, the court of probate of such town shall have the right to appoint a guardian of the person and estate of such person." The Municipal Court of the City of Providence, exercising probate jurisdiction, upon the application in writing of Hiram A. Olney, her husband, alleging that the said Emily, his wife, was, for want of discretion in managing her estate, likely to bring herself and family to want, and thereby to render herself and family chargeable, upon hearing, after legal notice to her, adjudged the complaint to be true, and thereupon appointed one Stephen Martin guardian of her person and estate, who accepted the appointment, and qualified himself to act by giving the required bond. The application did not allege that her husband was unable to support her, or that he was spending his estate, or likely to come to want, and become chargeable. Section tenth of the same act provides, that "all contracts, bargains, and conveyances, made by any person under guardianship, shall be utterly void."
One of the questions raised by the motion for a new trial is, whether a married woman can be legally placed under guardianship for the cause stated in the decree of the Municipal Court, viz., that for want of discretion in managing her estate she is likely to become chargeable, — the charge of the court being, that, under this act, it might be legally done. The defendant claims that it cannot be. The terms of the statute are broad enough to include every person, who, having the legal power of managing his or her own estate, is, for want of discretion in that management, *Page 246 likely to come to want, and be chargeable as a pauper. It is said, however, that the case of a married woman is impliedly excepted out of the act; and the argument is, that it is inconsistent with the theory of the law, — that being, that the wife is sub potestate viri; and that it is not competent for the husband to delegate the custody of her person, or the disposition of her property. It is said, also, that in chancery a guardian will not be appointed over an infant under coverture; that the right of the guardian appointed before marriage is affected by the right which accrues to the husband upon the marriage, and that, for this reason, the testamentary guardianship determines upon the marriage of the ward. In the cases cited, Mendes v. Mendes, 1 Ves. Sen. 91, as to testamentary guardians, and in Roach v. Garvan, 1 Ves. Sen. 160, that guardianship of an infant must cease at the marriage, as well as in the passage in Reeves, on the Domestic Relations, p. 328, the reasons given why such guardianship should not continue are, that, upon the marriage, the husband succeeds to the rightful control of all the property of the ward, — to the right of disposition of the personal estate, and to the possession and pregnancy of the profits of the real estate, so that there is nothing for a guardian to control. This reasoning clearly does not reach the case of one who has the power of disposing of her income, to the utter exclusion of all control of the husband. Where the control is exclusively in the husband, it could never be true that the wife, for want of discretion in management, could be wasting her estate. It might be, if the sole power of disposition were in her. There is no case which holds, that where it is found to be true, that she is so wasting her estate, a court of equity will not interfere.
This power, however inconsistent at first view it may appear, is not a new power, though it is here vested in a new jurisdiction. It is one which the Court of Chancery in England has exercised when the interest of the married woman required it. It is said that that court, as the delegate of the crown asparens patrice, had originally the right, not only to the custody of infants, but also of idiots and lunatics; and that the jurisdiction had a rightful foundation in the prerogative of the crown, — in its general power and duty to protect those who have no other lawful protection; *Page 247 and it is said, also, that in every civilized state such a superintendence and protective power does somewhere exist. 2 Story's Eq. Jurisp. § 1333. This power extends, by construction, to all persons of unsound mind from whatever cause, and includes all who are found, by inquisition, incapable of conducting their own affairs. 3 Bl. Com. 304; 1 Inst. 246. It is equally the duty of the court to appoint committees for those who have become incapable of managing their affairs, as for those who never had the capacity to do it; and, in Ex parte Cranmer, 12 Ves. 445, it is significantly asked by the Chancellor, why should not a man be entitled to protection in his second state of infancy, as well as in the first? The whole prerogative is, that it falls to the king to take care of those who cannot take care of themselves; and referring to the phrase used by Lord Cooke, he says," upon this the jurisdiction (which God forbid should not exist) is clear over those who, from sickness, accident, or old age, have lost their understanding." In such case, a writ in the nature of a writ de lunatico inquirendo will issue, to enquire if the person is fit for the government of himself and his own affairs; and if the return be that he is not, and is of unsound mind, a committee will be appointed. Though from the very nature of the subject, cases would seldom arise requiring the exercise of this power in regard to married women, yet the power to proceed by commission against a feme covert would seem to be as unquestionable as against a feme sole, or other person. It is recognized as an existing power. In Exparte Tomlinson, 1 Ves. Beames, 57, the Chancellor speaks of an application for a commission against a lady unquestionably lunatic, which was opposed by the husband. It was refused, not for want of jurisdiction, (that seemed to be admitted,) but because, as he said, he considered that there was nothing which called upon him to interpose. It did not appear to him necessary for her good to interpose. In Brodie v. Barry, 2 Ves. Beames, 36, this power is again spoken of as an unquestioned power. That was an application by the husband for an allowance to him, out of the separate estate of the wife who was non compos, and resident in Scotland; and in this case, the Chancellor says, that were she resident in England instead of Scotland, a commission might have issued; and the consideration would then be, whether, *Page 248 regarding the means of the husband and the extent of the separate estate, an allowance would be proper. In re Hewson, 13 E.L. Eq. 197, Mrs. Hewson, who was found lunatic in 1845, had a separate estate. The committee claimed against the husband's executor, moneys received by him out of her separate estate.
It is this power over idiots, lunatics, persons non composmentis, or who, for want of discretion, were incapable of managing their estate, which the legislature proposed to vest in the town councils, (now constituting the courts of probate in the several towns.) There was, at the time the act was passed, no court of chancery to exercise this power, — a power, it is said, of such absolute necessity, that it would seem strange if in any civilized community, it did not somewhere exist.
In 1742, the General Assembly, for the first time, legislated upon the subject of the appointment of guardians over the persons or estates of persons other than infants; and provided for all the cases to which the jurisdiction of the chancery in England had been extended, or which seemed to require a remedy. The title of the act indicates its general purpose, — "An act empowering the several town councils of this colony to have the care and oversight of all persons who are delirious, distracted, or noncompos mentis, and their estates." It enacts, that "it shall be in the power of each town council in this government, to take into their care all persons and their estates, in each respective town, who are delirious, distracted, or non compos mentis, or such who, for want of discretion in managing their estates, are likely to bring themselves and families to want and misery, and thereby render themselves and their families chargeable to the respective towns in which such persons live; and the said town councils are hereby fully empowered to appoint one or more proper person or persons as guardians to such person or persons who now are, or hereafter shall happen to be, delirious, distracted, ornon compos mentis, or otherwise discomposed as aforesaid, to have the ordering of such person or persons and families, and to improve the rents and profits of their estates, to and for the support of such disordered persons as aforesaid and their families; and also to act and transact their secular affairs; and to sue and be sued in the behalf and name of all such person or persons, in as full and *Page 249 ample order as they themselves could, if compos mentis." It will be seen that this act did, in the most ample manner, vest in the town councils, and now does in the several courts of probate, this jurisdiction over all persons who are of unsound mind, and incompetent to manage their estates, exercised by the court of chancery in England, either by its own inherent power, or by delegation of the prerogatives of the crown as parens patrice, to protect those who have no other protector. It is given them for the same purpose, — that the estates of such as have not the capacity to manage them should be managed, improved, taken care of, and applied for their benefit, — the comfortable support of themselves, and of their families if they have any. The act suggests another motive, viz.; to save the towns from the burden of supporting such persons after their estate shall be wasted away. To carry out the purposes for which this power is vested in chancery, and the purposes expressed in, and implied from, this act, it is as necessary that a married woman should be the subject of this jurisdiction, as any other person who is incompetent to manage his or her estate. If this protective power be not exercised, of what avail would it be that property is secured to her sole and separate use, while she has not sufficient discretion to apply it to that use?
It is no objection, as suggested, to the exercise of this power by the court of probate, that this court may appoint a trustee of her property. Such an appointment would not prevent her wasting it so long as she had the power to direct the action of the trustee, and to bind her estate in his hands, independently of his will. The trust is created to exclude all power or control of the husband over her estate, but not to restrain her power of disposition. The trust, in such case, answers the purpose for which it was designed, but not the purposes of this act.
Neither is it an objection, as is suggested, to the validity of the decree appointing the guardian in this case, that the complaint and application made to the court did not allege that the husband was unable to support his wife. It must be proved, undoubtedly, in every case, to the satisfaction of the court, that she is likely to become chargeable, and that, for want of discretion to manage her estate; and it may be matter for the consideration *Page 250 of the court, that the husband's means are ample and beyond contingency, — showing that there is no reasonable danger that she will not always be provided for; but it is no picture of the imagination to suppose a husband without such means, nay, himself dependent upon her income for his own support. We must assume that the Municipal Court had proof sufficient to satisfy them, that, for want of discretion in managing her estate, Mrs. Olney's estate was being wasted away, and if totally wasted, there would be nothing to prevent her becoming chargeable. They have so adjudged, and if they had jurisdiction, that judgment is conclusive.
Neither do we think that it is any sufficient objection to the decree, that the guardianship of the property is coupled with the guardianship of the person. It is not necessary, in the exercise of any of the guardian's powers, to invade any of the rights of the husband, either in the disposition and control of the property of the wife, or the custody of her person. Whatever control of her person may be necessary for her protection and for the assertion of her just rights must necessarily be given to the guardian, but this may be, and would be, in subordination to every just right of the husband. The custody of her person would not be taken from him unless for her protection. In the case before us, all idea of an invasion of the husband's right is excluded by the fact, that this proceeding was had upon his application.
Upon the whole, we see no sufficient objection to the validity of the decree of the Municipal Court, appointing a guardian over the person and estate of Mrs. Olney; and must hold, that from the time of the appointment, and while she continued under guardianship, she was incapable of performing any legal act in regard to this promissory note, and that the attempted transfer of the note to the defendant by her was absolutely void, and passed no interest to him. This being so, without considering another point made by the defendant, we must overrule the motion for a new trial, and render judgment upon the verdict, for the plaintiff. *Page 251