
    Dupuy v. Hardaway.
    November, 1833.
    Guardians— Appointment — Displacement — Appeal.*— Under the statutes, 1 Rev. Code. ch. 04, § 2, ch. 66, § 60, 51, no appeal lies from an order of the county court appointing' or displacing- a guardian, to the superiour court of chancery, or from the court of chancery to the court of appeals.
    Testamentary Guardian — Appointment — What Amounts to — Quaere.—A testator having devised and bequeathed real and personal property to his daughter, directs, that she shall have a good education, and live in a respectable family, and authorizes his executor to use part of the principal of the estate given her, if the income be not sufficient to carry that his purpose into effect; the daughter being at the time under fourteen years of age: Quaere, whether this amounts to the appointment of the executor testamentary guardian of the infant daughter?
    James Hardaway late of Nottoway died in September 1826, having by his last will and testament, devised and bequeathed real and personal estate to his infant daughter and only child, Mariel Hardaway, and then made the following- provision in respect to her and the property he had given her — ‘ ‘As it is my wish that my daughter Mariel shall have a good education and live in a decent respectable family, my executors are hereby authorized to make use of a part of the principal of the estate given to her, if the income is not sufficient to carry into effect my wish respecting her.” The will was proved in the county court of Nottoway, in October 1826, and William Dupuy, one of the executors named therein, qualified as such ; and at the same time, he qualified, as testamentary guardian of the infant daughter of the testator, by giving bond with surety for the faithful discharge of this trust.
    *The infant appeared in person before the county court, at January term 1829, and made choice of Archer Robertson for her guardian. It was proved to the court, that she was above fourteen and under sixteen. There was no proof or even allegation, that Dupuy had been guilty of any neglect or misconduct in his trust as guardian, or was any way unworthy of it. Dupuy appeared, and opposed the appointment of another guardian; insisting, that he was the testamentar}' guardian, and that it was not competent to the court to displace him without any cause proved or alleged. But the court held, that Dupuy was not a testamentar}' guardian, and that the infant had a right to choose a guardian ; and, therefore, appointed Robertson her guardian, in compliance with her choice. From this order Dupuy appealed to the superiour court of chancery of Richmond, which affirmed it; and then he appealed to this court.
    The cause was argued here, by Leigh for the appellant, and Spooner for the appellee.
    I. The question on the merits, was, whether the testator’s will constituted Dupuy testamentary guardian of his infant daughter?
    Leigh said, that the statute concerning guardians &c. 1 Rev. Code, ch. 108, $ 1, p. 405, taken from the english statute of the 12 Car. 2, ch. 24, authorized a father to appoint a testamentary guardian for his infant child, during any part of the infancy of such child; but it prescribed no precise form in which such an appointment should be made. It was always a question of intention. Here, the testator gave to his executors, the management of the estate he had given to his daughter, with power even to use the principal for her benefit, and the care of her education, maintenance and residence; he gave them, in effect, the custody and care of her person and of her estate; in other words, all the powers belonging to the office of guardian. He cited the following cases, decided on the english statute in pari materia; Bedell v. Constable, Vaugh. 177; Reynolds *v. Lady Ten-ham, 9 Mod. 40 ; 2 Eq. Ca. Abr. 486, ca. 16, and S. C. reported by the name of Lady Teynham v. Lennard, 4 Bro. P. C. Toml. edi. 302. Besides, in this case, the county court had decided that Dupuy was a testamentary guardian, by exacting bond and security from him as such, according to the 2nd section of the statute concerning guardians &c. If Dupuy was testamentary guardian, he was entitled to the wardship by his testator’s will, and could not be removed without cause; Foster v. Denny, 2 Ch. Ca. 237; 1 Eq. Ca. Abr. 260, ca. 3.
    Spooner answered, 1. that the will of this testator made no appointment of a guardian for his daughter; for it did not devise the custody of her, within the statute; which, he said, was essential to constitute a testamentary guardian. 2. That if there was here, any good appointment of a testamentary guardian, yet the infant being under fourteen years of age at the time, and no time being appointed by the will for the continuance of the guardianship, the testamentary guardianship continued only till the infant was fourteen, when by law’ she had a right to choose a guardian. And for both these propositions, he relied on the resolutions in the case of Bedell v. Constable, Vaugh. 184, 5.
    II. But the cause went off on another point; namely, whether an appeal lay from the order of the county court appointing Robertson the guardian, and thereby taking away the wardship from Dupuy? or from the order of the court of chancery, to this court?
    Leigh said, that if any appeal lay from such an order of a county court, it lay clearly to the superiour court of chancery, not of law; the jurisdiction in respect of guardians, belonging to the chancery side of the county court by the express provision of the statute, 1 Rev. Code, ch. 108, $ 4, p. 406. The appeal lay to the superiour court of chancery, and thence to this court; for the statute gave such appeals, wherever the subject in controversy was lands, slaves, or other specific property, no matter what might be the value. Id. ch. 64, § 2, p. 190, ch. 66, $ 50, 51, p. 206. Now, *he said, the right of a testamentary guardian, was that of a guardian in common socage; and such wardship was a specific right of property, for which the statute gave the guardian an action of ravishment of ward, or trespass, to recover his ward, if wrongfully taken and detained from him, and damages; Id. ch. 108, | 1, pp. 405, 6. Wardship of every kind was always regarded as not a bare authority, but an interest, a right of property; though a guardian in socage had nothing to his own use, but only to the use of the ward. 3 Bac. Abr. Guardian, E. E. p. 413. If a father appoint the mother of his children their guardian, such wardship, though worth little or nothing in a pecuniary point of view, was yet of inestimable value to the mother; and it were strange, if the law had given the county court power to take it away from her, without cause or pretence of carise, and without appeal.
    Spooner maintained, that wardship was not specific property, within the meaning of the statutes concerning the appellate jurisdiction of the superiour courts of chancery or of this court. It had been decided, that no appeal lies from an order of the county court, rescinding indentures of apprenticeship, and taking the apprentices from their master; which was a stronger case than the present. Cooper v. Saunders, 1 Hen. & Munf. 412. He also cited Ritchie v. Mauro, 2 Peters 243.
    
      
      See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   CARR, J.

The question is, whether an appeal lay from the order complained of? If not, it is unnecessary to look further.

As appeals are unknown to the common law, some statute must be shewn giving the appeal in this case, or we must decide that it .does not lie. Accordingly, the counsel for the appellant relied on those sections of the chancery law, which igive an appeal from the county court to the su-periour court, where the debt &c. shall be of the value of 33 dollars, and from the court of chancery to this court, where the debt &c. are of the value of 100 dollars; or, in either case, K"‘ ‘where lands, slaves, or other specific property shall be the subject of the decree:” and he contended, that the wardship which was the subject of this decree, was comprehended by the terms specific property. I cannot think that such is the meaning of the statute. The claim of wardship is certainly not, in the usual acceptation of the words, a claim of specific property. In the case cited from Peters, chief justice Marshall says, “The office of guardian is of no value, except so far as it affords a compensation for labour and services, thereafter to be earned.” It will be observed, that this phrase specific property is only used, in relation to appeals to or from the court of chancery. The statute says that this court shall have jurisdiction in appeals from the courts of law, if the matter in controversy be equal in value, exclusive of costs, to 100 dollars &c. or be a freehold or franchise, or where such freehold or franchise, or the title or bounds of lands are drawn in question; or in chancery cases, where lands, slaves or other specific property, shall be the subject of the decree or order. It is one of the distinctive powers of a court of equity, to decree the thing in specie, in many cases where the courts of law give damages only. Thus, if a party claims a family painting, or any other article, to which he may attach a peculiar value, the pretium affectionis, for which no damages will compensate 1 him, equity will give him the thing itself. It seems to me, that it is in reference to this feature of equitable jurisdiction, that the law uses the phrase specific property. The collocation too, of the sentence, — lands, slaves or other specific property, — would seem to exclude the idea, that it was meant to comprehend, a claim of guardianship. This court has decided, that from the decision of the county court, in a 'question of apprenticeship, there is no appeal; and if that is not embraced by the terms “specific property,” much less (I think)' is a claim of wardship. If the counsel who took this position, had sat down to draw a clause giving appeals, and had meant to include this matter of guardianship, he would have couched his meaning in no such vague and ^dubious phrase as is here used. This conclusion, which I should draw from his known precision and accuracy, is strengthened, when we turn to the 30th section of the circuit superiour court law of 1831, Supp. to Rev. Code, ch. 109, p. 145, where, speaking of appeals, we find these words: “Appeals shall be demandable as of right, — from sentences or orders of the said inferiour courts,, in controversies concerning the probat of wills and letters of administration, and concerning the appoint-. ing, displacing and controlling, the guardians of infants, and committees of persons of insane mind.” This court, then, has no jurisdiction of the case; and the appeal must be dismissed.

The other judges concurring, appeal dismissed.  