(dissenting.) The sole question in this case is whether or not a father who made a gift of real estate to his minor children can be called to account for the rents and profits of the same accruing during their minority. It is needless, therefore, to discuss the several propositions made by the appellants, which, primarily at least, only point to the nature and character of the title by which the minor children hold the corpus of the estate — the subject of the gift. Thus, it cannot be denied that the conveyance of the vendor made to the sons at the instance of the father vests the title in the sons in frcesenti. The cases of Robinson v. Robinson, 45 Ark. 481, Bogy v. Roberts, 48 Ark. 17, Eastham v. Powell, 51 Ark. 530, and White v. White, 52 Ark. 188, in so far as the issues made therein, announce correct principles of law; that is to say, that a gift from a father to his children is presumptively an advancement, rather than a trust or other conditional provision, and also that ordinarily a parol trust, in opposition to the terms of the deed cannot be established by extraneous proof, although this principle- is not without modification according to the facts in some cases. Sections 3480 and 3481, Sand. & H. Dig.; Gainus v. Cannon, 42 Ark. 503; Bland v. Talley, 50 ib. 71.
Nor is it necessary in this proceeding- to cite authorities to establish a leg-al truism, such as that in a contest between the creditors of the father and his minor children to subject property g-iven by him to them, of which he retains possession, to the payment of his debts, his possession is that of the children, and is therefore no badge of fraud, as is sometimes the case where one g-ives or sells property to a third party and retains possession. This was the only point in the cases of Kenningham v. McLaughlin, 3 T. B. Mon. 30; Forsyth v. Kreakbaum, 7 id. 97; Young v. Gammel, 4 Greene (Ia.), 211; Dodd v. McCraw, 8 Ark. 107; and Danley v. Rector, 10 Ark. 224,—cited by counsel in support of the doctrine. In the cases of Evans v. Pearce, 15 Grattan, 513; Nelson v. Goree's Administrator, 34 Ala. 581; Persoll v. Scott, 64 Ga. 768; Jackson v. Combs, 7 Cowen, 36; Linton v. Walker, 8 Fla. 144; Hyde v. Stone, 7 Wend. 354, the conveyances to the children were from third persons, and constitute in no sense gifts from the father or mother, acting- at the time as natural g-uardian, and therefore, from the standpoint which I claim to discuss the case, these authorities have no application.
Our statute defining- who shall be natural guardians of minors, and the extent of their authority as to the persons and estates of their wards, is section 3568, Sand. & H. Dig., which reads as follows, to-wit : “In all cases not otherwise provided for by law, the father while living, and, after his death, or when there shall be no lawful father, then the mother, if living, shall be the natural guardian of their children, and have the custody and care of their persons, education and estates ; and when such estate is not derived from the person acting as guardian, such parent shall give security and account as other guardians.” And section 3580 reads : “Where • a minor shall be entitled to, or possessed of, any estates not derived from the parent who shall be the natural guardian. at the time, and it shall be suggested to the court that such parent is incompétent to take care of such estate, or is mismanaging or wasting the same, the court may issue a notice to such person to appear before it at a stated time, and show cause why a curator shall not be appointed or chosen; and if, on due notice, no sufficient cause be shown, the court shall appoint a curator for the management of such estate for the minor, if under fourteen years of age, or, if over that age, admit the minor to choose one in the same manner and subr ject to the same restrictions as provided for the choice or appointment of guardians for minors over that age.” These sections were portions of the act approved April 22, 1873, and materially modified the pre-existing statute enacted and approved February 14, 1838, and which was simply a reaffirmance of the common law rule on the subject, so far as our customs and state of society .would permit, and read as follows, to wit: ‘‘The father shall be the natural guardian of his child, shall have the care of his person and education, but in no case shall he have the care and management of his estate, unless he be appointed by the court for that purpose, when he shall give bond and security in the same manner as other guardians.” Section 4, chapter 72, Revised Statutes.
It will be seen that the act of April 22, 1873 — the law now in force — makes the father primarily the natural guardian of his children, and confers upon him, as such, the custody and care of their persons, their education and their estates,' with this condition as to their estates: that if the same are derived from others than the person who is the natural guardian at the time, then such natural guardian, in order to be authorized to take the custody and management of the estate, must first give security (bond), and afterwards account as other guardians; and the natural inference is that, on failure to give such security in such case, the natural guardian would be deprived of his otherwise lawful right and privilege to control the estate of his child. The converse of the proposition that he shall give security and account when the estate is not derived from himself is also true; that is to say, where the estate of his child is derived from himself, he is not required either to give security or to render an account. This, of course, does not apply to the corpus of real estate belonging to the child, for that is not a thing in itself to be secured by bonds and other money obligations.
Section 3580, Sand. & H. Dig. (being a portion of the act of 1873), negatively, at least, denies to the child, or any one acting for him, the right to move the proper court to appoint a curator of his estate in the hands of his natural guardian, and which was derived from him, even where he is guilty of mismanagement or waste. In respect to the property derived from him, the father, for instance, acting as natural guardian, has the unquestioned right to act as natural guardian, as long as he is sui juris as to the matters'generally, and is not removable from office except for natural inability to act. He is not chargeable with mere mismanagement, or even waste, in respect to such property of his child as he has given him; nor is he required to give bond and security to indemnify his ward in such case for any loss that may occur by reason of his control and management of the property. The statute goes still further (as if in anticipation of the contention that, after all, being relieved of the necessity of giving bond and security does not relieve him of personal liability), and provides that he shall not be required to account for his management of the chattels of his ward derived from himself.
The very change in the law as it stood in 1838, by the act of April 22, 1873, bat emphasizes the doctrine I have endeavored to present, — that there is no law by which a natural guardian can be held liable as the father is sought to be held in the case at bar. There is no question as to the constitutionality of the statute, as it now stands, nor does it contravene any principle of natural or inalienable right, and it has but one meaning, so far as I can see.-
Where the father in his lifetime was not liable, his estate after him, of course, is equally free from liability. I think the case should be affirmed.