HUIE vs NIXON, et al., 6 Port. 77

ORMOND, J. This was a petition, filed by the defendants in error, in the County court of Montgomery, praying the removal of the plaintiff in error, as guardian of Martha T. Augustin, an infant. The plaintiff in error moved the court to dismiss the petition, and quash the citation ; which being refused, the defendant in error filed the following exceptions : 1. That the said Polly T. Nixon is the mother and natural guardian of the said Martha T. Augustin, and that the said John D. Nixon is the husband of the said Polly T. Nixon: that the right of guardianship belongs to the said Polly T.

Nixon, and not to said Huie; and that for these reasons, said letters should be revoked. 2. That said Huie is not a -fit and proper person to be the guardian of said Martha F. Augustin, because he has an intei’est that conflicts with the interests of said Martha, and because he neither extends protection, maintenance or support to said Martha, nor has ever done so since his appointment. To the first specification the plaintiff in error demurred , but the court.overruled the demurrer.

The plaintiff then moved the court to strike out the second specification, which motion the court sustained ; and to which defendants in error plead exceptions.— The court then proceeded to revoke and annul the letters of guardianship, which had formerly issued to the plaintiff, and appointed the defendants in error .guardians of the infant. This is assigned for error in this court.

The act of eighteen hundred and six, which autho-rises the appointment of guardians by the County court, contains a clause to the following effect: “And the said court may, for any good and sufficient cause, displace a guardian — giving such guardian fourteen days’ previous notice, by citation, to appear and shew cause why he should not be displaced.” Under this act, a practice has grown up, after citation to the guardian, tof file specifications, setting forth particularly the causes alleged for displacing the guardian. This practice has been sanctioned by this court, and meets'our approbation.

If the facts alleged, are admitted, their sufficiency can be determined by the judge of the County court: if denied, their truth can be ascertained, on an issue made up under the direction of the court- The former course has been pursued in this case, and the matters of law arising thereon, determined by the judge. The first specification alleges no’misconduct on the part of the guardian; but is framed on the supposition, that the mother is entitled, by law, to the custody not only of the person of her child, but also of her estate.

Our statute being silent on this subject, we must inquire how this matter stood at common law. At common law, there were four kinds of guardians, to wit: In chivalry, by nature, in socage, and by nurture. Some of these draw after them, incidents of the most onerous nature, which finally were all taken away by the 12 of Charles 2 — by which all guar-dianships were turned into free and common socage. In the United States, no other guardianship ever existed, than that of free and common socage.

By the law of England, the father is entitled to the guardianship by nature, which did not entitle him to the custody of the estate of the ward: the true reason of which, was, that by the law of England he never could inherit any thing from him ; but in .this State the father may inherit from the son, — tile reason of the rule ceasing, therefore the rule must cease with it. The result of this is, that the father or mother may be appointed guardian under our law, which is a guardianship in free and common socage, and gives as well the custody of the estate, as of the person of the ward.

But the first specification asserts a paramount right to the wardship for the mother — a right so absolute as to constitute the good and sufficient cause, spoken of in the statute, for the removal of the former guardian. This can not be supported, for it would, no doubt, be competent for the county court to set aside the claim of the father to the wardship of his child’s estate, in favor of a stranger, where it ajopeared that the father was unfit for that responsible station. It follows, from this, that the court erred in overruling the demurrer to the first specification.

We are asked by the defendant in error to look to other parts of the record, for the purpose of sustaining the judgment of the court below. The defendant in error is not complaining in this court, and therefore can not be heard to assign or suggest error.- But as this cause must be sent back for further proceedings, we will express our opinion on those parts of the record which may hereafter become important. The court did not err in striking out the second exception. It does not state facts upon which an issue could be taken, but conclusions from facts which are not stated.

Instead of alleging that the guardian had an interest which , conflicted with the interest of the ward, the facts themselves should have been stated, from which such supposed conflict arose. If, for example, the guardian set up an adverse claim to the ward’s lands, the facts should have been stated, with reasonable certainty, and would, doubtless, if true, be a good reason for displacing the guardian. We do not require the same certainty in this matter, as would be necessary to constitute a good special plea — but only so much precision as will enable the party to know what he is called on to contest.

It is stated by the judge, that the letters of guardianship which issued to Huie, were improvidently ■granted, and that the court had no juisdiction when the letters were granted. This is not properly a part of the record, but we feel no hesitation in saying that it would constitute a good ground for revoking the authority if it had been properly presented. It might have constituted one of the exceptions, and would thus have been directly put in issue. As to the extent of the interest of the guardian in the wardship, or for what causes he may be removed, it would not be proper at this time, to express an opinion.

We have no hesitation however, in saying, that he can not be capriciously removed. Such power is not vested in the judge of the county court, — and it would be most injurious to the ward, that it should be. It would, to a great degree, deprive the guardian of the power of exercising and enforcing those salutary restraints, which, though not agreeable to the mind' of youth, are necessary to his future well being and prosperity. The judgment of the court below must be reversed and the cause remanded for further proceedings, not inconsistent with the principles here laid down. 1 Stewart, 166.