We will first consider whether Wm. C. Byrne, on the supposition that he is the lawful father of the plaintiff, could make such transfer of the guardianship of the person and property of the plaintiff as that contemplated in the deed from the said Byrne to James Love, one of the defendants.
The transfer was evidently under a misapprehension that the title of the property was in Byrne, the grantor, and not in the plaintiff; but this is not very material, as in equity it would be regarded as effectual to convey whatever interest or control the grantor had over the property; and in considering the power of Wm. C. Byrne to make this transfer, we will regard the transaction in the aspect most favorable to its validity, viz: on the supposition that the property which the plaintiff now claims was originally derived to him by gift from his father, the said Wm. C. Byrne, and that the consideration of purchase of the said property was advanced from the funds of the father, and not from those of the plaintiff.
Such being the fact, the father, as natural guardian, was by the Statute exempted from giving bond and security, and from returning an inventory of the property. But with this provision in his favor, was he authorized to assign the custody of the person, and absolute control over the property of the plain*88tiff until the latter arrived at twenty-one years of age, with an express exemption of the assignee from accountability for the proceeds of the property to any person or authority whatever ?
In our investigation into the extent of the authority of the parent as natural guardian of his minor child, under the Statute of 1848, we cannot derive much aid from the doctrines of the Common Law on the subject of guardians by nature, from the fact that at Common Law such guardianship extended only to the person, whereas under the Statute it extends also to the estate of the ward, and therefore in its extent it more nearly resembles guardianship in socage and that by will under the Statute of the 12 Charles II., than the guardianship by nature as known to the Common Law.
But none of these guardianships, whether by nature, in socage, or by will, were assignable. Chambers, in his treatise on Infants, (p. 56,) states that this guardianship, viz: the one by nature, is not assignable; and that no guardianship, except that formerly in chivalry, is assignable ; and for this he cites Villa Real v. Mellish, (2 Swanton, 536,) which fully sustains the doctrine. (Reynolds v. Lady Tyneham, 9 Mod. 40; 4 Bro. P. C. 302; Vaughan 177.) Guardianship in socage, unlike that of nature, at Common Law extended not only to the person, but also to the estate of the ward, and although it may be said not to exist in this State, there being no lands held in socage, and it being almost impossible that there could be next of kin who could not properly inherit, yet as it bears a striking resemblance to the guardianship by nature, in the extent of its authority, we may examine into the question of its assign-ability ; and we find that such guardianship was deemed a personal trust, not transmissible by succession and not devisable or assignable. (2 Kent, 223; Chambers, 59.) The reason given by Chambers, why such guardianship was not assignable is, that the interest of such guardianship was wholly for the infant’s benefit and not for the guardian’s profit, and that the ancient authorities which seem to have held the contrary doctrine, were answered by the decisions of later times, referring *89to Co. Litt. 88, Bn.; Plowden, 273; Tomlin, Dict. Guardian.)
Guardianship by will extends to both person and property, but being also a personal trust is not assignable by deed, will or otherwise. (Chambers, p. 65; Eyre v. The Countess of Shaftesbury, 2 P. Wms. 103; Gibb, Equity R. 172; White & Tudor’s Leading Cases, Vol. 2, pt. 2, p. 114.)
The guardianship by chivalry was assignable, either by deed or parol, and vested, on the death of the guardian, in his executors, because such guardianship was more for the benefit of the guardian than for the profit of the ward, the infant not being-entitled to an account for the profits of his land, which were taken by the guardian for his own emolument, subject to a bare-maintenance for the infant. (3 Bac. 402, 403.)
If the deed in this case was a mere appointment, under the-usual responsibility, of the defendant Love as a substitute for the father in his office of guardianship, it would seem that in reason there could be no insurmountable objection to such act, whatever there may be in law. The father, perhaps at Common Law, and certainly under the Statute of the 12 Charles-II., and under our Statutes of 1840 and of 1848, can by will appoint a guardian for his minor child. (Hart. Dig. Art. 1572.) And here I may remark that under the Act of 1840, the surviving mother was also authorized to appoint such guardian. The omission of the mother in the Act of 1848 was perhaps unintentional. If not, it was a step backward, towards the rigor of the Common Law, under which mothers, as a general rule,, could have but little property, and her exclusion from the appointment of a guardian would be comparatively but a slight-increase of the hardships incident to that code, on the rights-of married women.
But passing by this anomaly in our system on marital rights,, and recurring to the power of the father in the nomination of guardians, it would seem that though there might be some reason in the position that as he has the power of appointment by will, so he should have it by deed which would operate in Ms life time, yet it appears that no such power is vested in him by law.
*90Under the Act of 1848, no express authority is given the father to constitute-a guardian by deed, and though such power was vested by the Statute of Charles II., yet the deed was testamentary in its nature, and the deed under the Act of eighteen hundred and forty would probably be so considered. But if the Statute of Charles was in force in this State, and if the Act of 1840 was not repealed, and if the deed mentioned in those Statutes was not testamentary, but operative before the -death of the grantor, yet the instrument in this case contains, provisions and conditions which are incompatible with law; and if the father had the enlarged powers which we have supposed, yet the condition of exemption from account would not be within the scope of such powers ; and if the grant existed at all, it would be not on the terms agreed upon by the parties, but on other conditions, which would be attached to* it by law.
As said before, there was a misapprehension at the drawing ■of this deed, in this, that the property was supposed to belong to Byrne, the father, whereas in fact it had previously vested in the plaintiff. Had the property been in the father, although he might not have had the power to assign away during nonage the entire custody of the person of his child, yet he might have vested the property in the defendant as trustee, with an •express exemption from account; and this would have been valid, although so tender is the regard of the Court for the rights of infants, that in a case where property was to be applied at discretion to the education of a son, without liability to account, yet it was held so far subject to the control of the Court, as to authorize it to prescribe the amount which it •deemed fit for the son’s education. (Chambers, 692; Jac. 354.)
But this being the property of the son, the father had no power to transfer it to a trustee, so as to bar the infant from an account. It is true, that on the supposition of the original derivation of the property by gift from the father, he was not compelled in his capacity as natural guardian, to give bond; but this does not exempt him from liability to account. He might not and would not be held to a strict return of his acts *91in relation to such estate. The Court would be satisfied with any reasonably fair administration of the property thus derived ; but still an exemption from bond, security or inventory is not identical with or equivalent to an exemption from accounting. The exemption of a trustee or guardian from the obligation to account for the rents and profits, is generally held to be equivalent in law to a gift of them to the trustee for his own emolument. (Chambers, 692.) Where such a consequence as this is intended, either by Statute or by deed, it should be expressed in unequivocal terms. It cannot be implied by a mere exemption from bond and security.
If the father himself be liable to account, most clearly his assignee cannot be exempted from such liability. The guardian appointed by his last will can claim no such exemption, either on general principles or by the Statute, for this expressly requires him to give bond and security. And if the father cannot relieve a guardian whom he has authority by will to appoint, from such liability, most clearly he can confer no such exemption on his appointee by deed, an appointment which seems to have no foundation or authority in law. Chambers in his treatise on infants says, that guardians, executors, trustees, and their representatives if dead, and all persons who stand in a confidential relation towards infants, are liable to account to them by means of the Courts, for their management of the property.
Liability to account is so necessary a consequence of guardianship, that a guardian cannot do any act for which he can render no account. The same author continues: “ It does “ not seem possible that, in any way, any guardian, trustee, ex- “ ecutoiyor other person acting in such capacity, on behalf of “ infants, can be exempted from the jurisdiction of the Court, “ in this respect, except by express words which are construed ^ to mean a gift to the trustee.” (Chambers, p. 604, 605.)
There is no doubt a guardian, and especially a father acting as guardian by nature, has very ample authority in the control, management, rearing and education of his children; that he *92may lease their lands until his death or until they arrive at the age of majority ; that he may place them for years under the superintendence and control of others, and where such act is not so injurious to the infant as to require the interposition of the Court, it cannot be disputed, either by the infant or by others. All this he may do in perfect consistency with his right of guardianship, and his ultimate liability for the proceeds of the minor’s property. But this is very different from an absolute transfer of his right of guardianship, and all control over the person and estate of the minor. This, as we have seen, is contrary to law, and in the language of the Court in Villa Real v. Mellish, (2 Swanston,) such deed passes no right, but it still remains in the grantor. The deed in this case places the minor in the possession, charge, guardianship and control of the defendant Love, who is to have the entire and exclusive possession, charge, guardianship and control of the said Edward, without any right or authority in any other person or authority to interfere with, approve, prevent or modify the will, action and management of the said Love, according to his own judgment and discretion, and the said possession and control of the said Edward are to continue until the minor arrives at the age of twenty-one years. This is a transfer of the custody of the person without any reservation, and the transfer of the profits and proceeds of the property is equally absolute, the defendant being authorized to receive them without accounting or being responsible for the same at any time hereafter to the said William C. Byrne or the said Edward or to any other person or authority therefor, the intention of the parties being that the use of the said property and its proceeds were to compensate the defendant Love for his maintenance and education of the plaintiff, and the proceeds of the premises were to be taken by the said Love absolutely, without being subject to any future liability or account for the same or any part thereof. This is a complete assignment and renunciation of guardianship of both the person and property, and it is therefore obnoxious to and void under the law.
*93There are cases in which the father or other guardian, as well by his acts as by his words, may renounce his guardianship ; but these are where the infant or the parent receives some benefit by such renunciation in favor of another. Thus, where testators or other doners have bequeathed or given property to infants on condition, expressed or implied, that they should be under the management and control of persons different from their legitimate and natural guardians. If, in such case, the father or other guardian has expressly or impliedly acted on such will or gift, the Court will appoint those guardians whom the donor has pointed out, and the father or other guardian cannot at a future time disturb an arrangement beneficial to the infant. (Ambler, 303; Jacob, 255; 1 Bacon, 540; Chambers, 44, 45, 180-1-2-3.)
This case is however very different from those in which such renunciation has been made effectual against the legitimate guardian. What might be the effect of this deed on Wm. C. Byrne, the father, if he were claiming to have it set aside, it is not necessary to discuss. In the case of Villa Real v. Mellish, (2 Swanston, 533,) both the mother and the infants petitioned that she should be restored to the guardianship. The Chancellor refused to set the deed or assignment aside on the petition of the mother, but did so on that of the infants. But in this case the infant is the complainant, and it is his rights, as against the deed, which are before us for decision.
Upon the whole we are of opinion that the deed from Wm. C. Byrne, the father, to James Love, the defendant, is void, and that the said defendant can claim no right under the same.
But although the act of these parties was not in conformity with law, they cannot be charged with any intentional wrong on the rights of the plaintiff. Whatever may be the faults or misfortunes of Wm. C. Byrne, he cannot be charged with the want of parental affection. This is abundantly manifested, and it was under its influence, doubtless, that he proposed this arrangement, as the one which would best protect and promote the interests of his child, whom circumstances almost forced *94him. to abandon, and as one which would most effectually secure his being brought up under salutary influences, and with a due education in literature, morals and religion; and there is as little doubt that Col. Love was actuated by generous feelings and honorable impulses, in accepting, after urgent solicitations, this guardianship of the plaintiff. The fact of his receiving the property without liability to account cannot subject him to any imputation. The duties of the trust, in the rearing, maintenance and education of the minor, were both onerous and responsible, and the proceeds of the property did not exceed the amount necessary for these purposes, at least the excess was very inconsiderable, and the defendant as a man of careless business habits, and one who from the evidence would not be likely to make the most out of the property, might be unwilling and very properly refuse to take upon himself the administration of the property in question on the principles of a strict account for receipts and expenditures, suspended perhaps over his head for fifteen or sixteen years, with liability to loss of vouchers and to rejection of charges and expenditures as unnecessary or injudicious. He might be very unwilling to expose himself to the inconveniences, danger and risk from such a trust. But induced by the appeals of a father placed under the peculiar circumstances of Mr. Byrne, he might yield his consent to receive the son into his family, act in the place of his father, and for all the expenses incident to the protection, rearing, clothing and education of his son, agree to take the proceeds of this property by way of compensation, the chances being that the profits under his management would not exceed a fair allowance for his services and expenditures, while there was quite a probability that they might be much less than a fair allowance.
The arrangement between the parties is not valid in law, but is quite consistent with the finest feelings and the most honorable motives in both parties.
I have considered the main question in this cause in the aspect most favorable to the defendant and to his rights under *95the father, Win. C. Byrne. The opinion has proceeded on the assumption that Byrne was the lawful father, that the property was derived from him and not purchased by funds of the plaintiff, and it has been seen that even under these circumstances the deed cannot be sustained. It will therefore not be necessary to examine particularly whether Byrne was the lawful father or not; that is whether the fact of his marriage with Jane Heartherington previous to that with Ann C. Byrne, the mother of plaintiff, was sufficiently proven, nor whether the property was in fact derived from him, and if so whether it was from his own or the funds of the community. I am inclined to the opinion, however, that the evidence introduced, without the aid of that which was excluded, though raising a strong suspicion, was scarcely sufficient proof of the prior marriage. But whether previously married or not, the fact of his being father of the plaintiff is unquestionable. If the plaintiff were wholly illegitimate, that is begotten out of matrimony, that would not of necessity give the guardianship to the mother. After such a child attains the age of seven years, the father has an equal claim with the mother to the guardianship ; and where the fact is that the property of the child is derived from the father, that would turn the scale in his favor, unless counterbalanced by objections of sufficient weight to the contrary. Where under the Spanish Law, in a putative matrimony, the wife at the time of her marriage was ignorant of a prior marriage on the part of her husband, she would have claim superior to the husband. In fact, under that law, his natural and paternal rights under such circumstances are almost wholly disregarded. I allude to this provision, as some reference had been made to it in the argument of counsel.
If by the decree in this case, the District Court would be required to proceed to the appointment of a guaudian for the plaintiff, we would discuss some of these questions at some length, and give some instructions regulating the action of the Court in the appointment of such guardian, and particularly the circumstances under which a Court of Equity would inter*96fere and supersede even a legitimate father or mother, in their office of guardian, when this might be necessary for the protection of the infant or for his proper education in sound morals and religion, so as to make him a useful member, and prevent him from becoming a nuisance to the community.
But these considerations will be left in the first place to the discretion of the County Court, when the subject of an appointment of guardian for the plaintiff is brought before that tribunal.
It is ordered, adjudged and decreed that the judgment of the .District Court be reversed, and it is further ordered, adjudged •and decreed that the deed between William Cummins Byrne. of the one part, and James Love of the other part, bearing date the thirtieth day of January, one thousand eight hundred and fifty, as found in the record in this case be, and the same is hereby declared to be wholly null and void, and that the same be and is hereby set aside and declared to be of no effect, and that the appellant do recover of and from the said appellees the lot or parcel of land in his petition described, together with the improvements thereon, and his damages and mesne profits to be assessed by a jury to be called for that purpose, in the .said District Court; under such assessmant, a just and liberal allowance is to be made to said Love for any expenses incurred in the care and trouble bestowed by Mm in the education and ■support of said appellant; and that a judgment in accordance herewith be entered in said District Court after such assessment, and execution and a writ of possession issue from such Court accordingly. And it is further ordered, adjudged and ■decreed that the said cause proceed in the said District Court in the name of the said appellant, by his said next friend until the appointment of a proper guardian for said appellant by the Probate Court having jurisdiction thereof, and that such guardian when appointed may appear and continue to prosecute :said cause in the name of said appellant; that a proper person be appointed as receiver by the said District Court, who shall receive and take into Ms possession the premises in question, *97and shall also receive all the damages and mense profits recovered, and all rents accrued or accruing from the said lot of land and improvements during the pendency of the said case, to be kept, managed and paid out under the order of said District Court, for the support and education of said appellant, such receiver first entering into proper bonds for the performance of the duties of his office ; and that on the termination of said cause and the appointment of a guardian for said appellant by the Probate Court, such guardian shall receive from said receiver the balance in his hands, and shall also receive all monies accrued or accruing from the rent of said lot of land and improvements, until he may be discharged by said Probate Court, to be kept, managed and paid out under the orders of such Probate Court for the support and education of said appellant as may be necessary ; the said guardian entering into proper bonds, and accounting to said Probate Court when required. And it is further ordered, adjudged and decreed that the said appellant by his next friend aforesaid, recover from the said appelles his costs in this cause incurred.
It is ordered, adjudged and decreed that the judgment of the District Court be reversed and the cause remanded for further proceedings in accordance with the opinion of the Court.
Reversed and remanded.