
    
      Kevan v. Waller.
    November, 1840,
    Richmond.
    (Absent Stanard, J.)
    Wills — Appointment of Testamentary Guardians— Case at Bar. — Testator bequeaths $15000 to his Infant son, to be vested in bank stock or such other stock as his executors shall think more profitable, and from the proceeds or dividends to educate him in the best manner nnder the direction of his executors, and the surplus if any to be vested in like manner; and appoints two executors : IIEdd, this was not an appointment of the executors testamentary guardians of the infant son.
    .Same Appointment of Two Testamentary Guard*, ians — Either May Qualify, — If two persons be appointed testamentary guardians, the office is joint and several, and either may qualify without the other, and without summoning the other to accept or renounce the guardianship.
    John Myrick late of the town of Peters-burg, in and by his last will and testament, bequeathed and provided as follows — “I give and bequeath to my son John L. My-rick the sum of 15000 dollars to be vested in bank stock or such other stock as my executors may think best and more profitable, and from the proceeds or dividends to educate him in the best manner under the direction of my said executors herein after named, and the surplus, if any, to be vested in like manner or stock.” “I give and bequeath to my friend and sister in law Mary Turner, in consideration of the trouble she has had, and will hereafter have, in raising and attending to my said son from his infancy, the sum of 3000 dollars.” And after sundry other legacies and provisions, the testator appointed William Clarke (his father in law, and the grandfather of his infant son) and dr. William J. Waller his executors, and desired that they should not be required to give security. The will was dated the 28th December 1831. The executors Clarke and Waller proved the will in the hustings court of Petersburg at January term 1832, and both qualified as executors.
    The testator’s son and legatee John B. Myrick was, at the time of the testator’s death, an infant of very tender years. The hustings court of Petersburg, at its August term 1837, appointed Andrew Kevan guardian of the infant. But at the next September term, on the motion of the exec-, utor Waller, who represented that he was appointed testamentary güárdian of the infant by his father’s will, that he desired and intended to qualify as such, and that Kevan had been appointed guardian, without previous summons or notice to him as the statute, required, the hustings court made a rule on Kevan, to shew cause why his appointment should not be revoked. Both parties appeared at November term: Waller insisted that Kevan’s appointment was irregular and illegal, and that it should be revoked, and moved the court to permit him to qualify as testamentary guardian; and Kevan insisted that his own appointment was regular and legal, and opposed Waller’s motion for permission to qualify as testamentary guardian of the infant. The hustings court revoked Kevan’s appointment, but at the same time overruled Waller’s motion to be permitted to qualify as testamentary guardian. Kevan excepted to that part of the sentence which revoked his appointment to the office of guardian, and Waller to that part of it which denied him permission to qualify as testamentary guardian. ■ And both parties appealed to the circuit superior court of Petersburg. Waller carried up his appeal. But Kevan did not prosecute the appeal he had taken. However, upon the hearing of Waller’s appeal in the circuit superior court, Kevan appeared and contested Waller’s claim to the wardship as testamentary guardian.
    The circuit superior court held, that, as Kevan had failed to prosecute his appeal from the sentence of the hustings court which revoked his appointment to the office of guardian, the propriety of that revocation was not examinable there: that the sentence of revocation was to be considered as in full force.
    The circuit superior court also held, that the. executors of the testator John Myrick were by his will appointed testamentary-guardians of his infant son; but yet held it proper to hear parol or any other legal evidence to shew, that Waller ought not to be permitted to qualify as guardian. On this point, then, a good deal of evidence was introduced on both sides, which was made part of the record by bill of exceptions filed by Kevan;'but it is unnecessary to state it here, since the cause was decided by this court upon the construction and effect of the will. The circuit superior court thought, that no good reason was shewn by the evidence, why .Waller should not have the wardship; and therefore reversed the sentence of the hustings court which denied it to him, and remanded the cause to that court, with directions to permit him to qualify as testamentary guardian, according to the provisions of the statute concerning guardians &c. Krom which sentence Kevan by petition to a judge of this court, prayed an appeal; which was allowed.
    The cause was argued here, by Macfarland, Rhodes and Heigh, for the appellant, and by Johnson and Taylor, for the appellee.
    The counsel for the appellant maintained, that the will of the testator John Myrick did not appoint his executors guardians of his infant son. The provi-ions of the first section of our statute concerning guardians &c. were taken (not literally indeed, but substantially), from the english statute 12 Car. 2 ch. 24, and, therefore, the adjudications of the english courts on their statute would afford us a guide for the exposition of our own. The best and fullest judicial exposition of the english statute would be found in the opinion of the chief justice in Bedell v. Constable, Vaugh 177, the material points of which were well abstracted in 3 Bac. Abr. Guardian, A. 3, p. 405. The english and the Virginia statutes both authorized a father, by deed or will, to grant or devise “ the custody and tuition” of his infant child. They said, the word tuition in those statutes, did not mean education in the ordinary sense of of that word : it was used there in its proper sense, and meant guardianship. At all events, the phrase “ custody and tuition” was the exact definition of guardianship ; and so it had always been understood. Neither statute ^prescribed any particular form of such appointment; and it was equally true in the construction of both, that it was immaterial by what words the guardian was appointed, provided the father’s intent was sufficiently apparent. But then, the father’s intent must distinctly appear, to give the custody and tuition of his child’s person, not merely the care of his estate ; to appoint a guardian for the child, not a trustee to manage the estate given to the child, and to apply the profits to his use. whether for his education or otherwise. This appeared clearly from the propositions, deduced from the opinion in Bedell v Constable- -that neither before nor since the sta t-ute of 12 Car. 2, ch. 24, might an infant directly devise his lands, yet an infant might within that statute dispose of the custody of his child, and that disposition would draw after it the land as incident to the custody, Vaugh. 178, and that the testamentary guardian would, as incidental to his office, have the custody, not only of the lands descended from or left by the father to the child, but of all lands and goods in any way acquired or purchased by the infant, Id. 18S-6, hut that if a father of full age should devise his land to J. S. during the minority, of his son and heir, in trust for the son, and for his maintenance and education during his minority, “ this would be no devising of the custody within the statute, for he might have done this before the statute,” Id. 184. The devise of the custody of the child’s person, then, the appointment of a testamentary guardian, carried with it authority over all the ward’s estate : the devise of a trust or authority over the estate given by the father to the child, with whatever latitude of discretion or for whatever purpose, even for the express purpose of his maintenance and education, did not carry with it the custody of the child’s person, the tuition, the guardianship. Then, adverting to the will in the present case, whereby the father gave 15Q00 dollars to his infant son, to be invested *by his executors in bank or other stock, as they should think most advantageous to the legatee, and from the profits “to educate him in the best manner under the direction of his executors, and the surplus to be vested in like manner or stock they insisted, that the trust here confided to the executors, was to invest, manage and improve that particular fund, and at the most, to direct the manner of his education, and out of the profits of that fund to defray the expense of the best education ; that there was not the least manifestation of any intent to give the executors the care and management of any other estate of his son but that which the testator bequeathed to him, or any authority to apply the profits of any estate which his son might otherwise acquire, to the purpose of his education, or to his use in any other way. And if the testator’s intent was only to confide to his executors the care and management of the estate he had given to his child, and the direction of his education to be defrayed out of the profits of that estate, he intended to confide a trust to them far short of the office of testamentary guardians. Here was “no devising of the custody within the statute, for he might have done this before the statute.”
    The testator expected and intended, that mrs. Turner should have the care of his child’s person, (luring the early part of his infancy at least: he gave her a handsome legacy, in consideration of the trouble she had had, and would afterwards have, in rearing and attending lo him. Now, if the will had appointed the executors guardians of the child, and mrs. Turner had insisted on keeping him under her own care during his early infancy (as probably she did), the statute would have given the testamentary guardians an action of ravishment of ward or trespass against her, to recover their ward and damages for her detention of him. But to hold that they would have been entitled to such an action against *mrs. Turner, were to set at nought the plain wishes of the father in regard to the care of his child’s person, the preservation of his health and life. And if they could not have recovered the custody of the child from her, they were not testamentary guardians. Indeed, mrs. Turner might have claimed the custody, the testamentary guardianship, of this infant, with much more plausibility, than the executors.
    Granting that the testator meant to give his executors the utmost latitude of discretion that can possibly be inferred from his will, in respect to the manner and expense of his infant son’s education, yet the grant of such control and discretion over his education would not have constituted them his guardians : for the guardianship of an infant may be expressly devised to one, and the direction, or a share in the direction, of his education, confided to another. Duke of Beaufort v. Berty, 1 P. Wms. 702-6 ; Gaines v. Sparm’s ex’ors, 2 Brock. C. C. R. 81.
    They said, it would he found, on examination of the cases which had arisen upon testamentary appointments of guardians, that either the custody of the infant was expressly devised; or there was an express appointment of a guardian or tutor, eo nomine ; or all (nof a part) of the powers essential to the office of guardian were granted. They referred for instances, to Bedell v. Constable, Duke of Beaufort v. Berty, and Gaines v. Spann’s ex’ors, (before cited); Eyre v. Countess of Shaftsbury, 2 P. Wms. 103; Storke v. Storke, 3 Id. 51 ; Ex parte Richards, 3 Atk. 518 ; Dillon v. Lady Mountcashell, A Bro. P. C. 306, (new edi.) ; Ward v. St. Paul, 2 Bro. C. C. 583 ; Peckham v. Peckham, Id. 584, in note; Ex parte Earl of Ilchester, 7 Ves. 348.
    In Mendes v. Mendes, 3 Atk. 619, 624, the testator having directed that ,£600. a year should he given to his wife for the maintenance and education of his children whilst they should continue to live with her and at her charge ; lord Hardwicke said, “I should apprehend this might ^amount to a devise of the guardianship, but do not give an absolute opinion.” If, even in that strong case for implying a grant of guardianship, lord Hardwicke saw some room for doubt, it could not possibly be maintained, that the provisions of mr. Myrick’s will appointed his executors guardians of his infant son by fair implication.
    The only case they were aware of, that furnished any colour of authority to support the claim of the appellee to the guardianship, was that of Reynolds v. Lady Tenham, 9 Mod. 40 ; 2 Eq. Ca. Abr. 486, pi. 16, best reported by the name of Lady Teynham v. Leonard, 4 Bro. P. C. 302. Accordingly to the two former reports, the infant’s father said, on his deathbed, that he expected his father would take care to educate his child in the protestant religion, and not leave the education of it to his wife (she being a papist); and these words were held a good appointment of the grandfather guardian. According to Brown’s report, the state of the case was thus — “ Richard Barrett (whose wife was a roman catholic) being sensible of the prejudice it might be, not only to his child and family, but also to the protestant religion, especially in Ireland, did, in his last sickness and not long before his death, direct that his father should have the care and tuition of such child when born, alleging that his wife had always promised it should be bred up a protestant ; and this direction was reduced to writing, by way of memorandum or instructions for a will, but before the same could be prepared in form, Barrett died.” The contest for the guardianship of the infant was between the roman catholic mother, and the protestant grandfather, who being himself infirm, named two person to whom he desired the guardianship might be committed. The court of chancery appointed the grandfather’s nominees -guardians of the infant. On appeal to the house of lords, the appointment of the grandfather’s nominees to be the guardians, was reversed; but *it was decided, that the guardianship was not assignable, and that the grandfather in person should have the guardianship. Now, they said, it was plain, that there was, in that case, no testamentary appointment of a guardian, within the statute 12 Car. 2, ch. 24, for by that statute, such appointment could only be made by deed or will in writing in the presence of two or more credible witnesses; but the father’s directions on his deathbed were, at the most, only a nun-cupative will. Nor was it pretended, in the argument, that the grandfather had been appointed testamentary guardian of the infant, but only that the lord chancellor, to whom by the law of the land it belonged to appoint guardians for infants, did right in giving-the guardianship to the protestant nominees of the protestant grandfather, to whom the father wished to confide the care and tuition of his child, in preference to the roman catholic mother. The religion of the parties to the contest for the guardianship, was the real ground of decision.
    They concluded, that the appellee Waller had no claim to the guardianship of this infant by testamentary appointment of his father. And on this point they rested the case. But they suggested, that even if the circuit superior court was right in holding that the will made an appointment of testamentary guardians for the infant son, the appellee was not the sole guardian ; both the executors had equal right to participate in the guardianship; and the circuit court erred in directing that Waller alone should be permitted to qualify, without summoning the other executor Clarke to say whether or no he also would qualify as guardian, according to the second section of the statute concerning guardians &c.
    The counsel for the appellee argued, that as the testator gave to his executors the whole care and management of the estate he had given to his infant son, during his minority, and gave them the direction, in other words, the control, of his education, he confided to them all the ^essential attributes that belong to the office of guardian. Of these, the direction of the education of the infant was far the most important. Education, they said, comprised the training of the body, of the understanding, of the heart ; the breeding of the youth, nurture, instruction in letters, manners, morals and religion. The executors could not direct the education of the infant in the best manner according to their own judgment, without having the disposal of his person, to place him where such best education could be bestowed on him. The right conferred on the executors to direct the infant’s education, therefore, carried with it, by plain and inevitable implication, a perfect right to the custody and disposal of his person. If the right and duty to hold and manage the infant’s estate, and to direct the manner of his education, and dispose of his person so as best to accomplish the purpose of educating him, and the consequent right and duty to maintain him, did not constitute all the attributes of the office of guardian, what attribute of that office was withheld ?
    They insisted, that the grant of the education of the infant in this will, was exactly tantamount to the grant of the tuition in the statutory sense of the word; and entered into a criticism of those words to shew that they were equally comprehensive.
    They said, the case of the Duke of Beaufort v. Berty established no such proposition as that an absolute control and direction of the education, could be separated from the guardianship, of an infant, and the guardianship confided to one, and the education to another. In that case, the testator expressly appointed two of his friends guardians of his infant sons, and only recommended to the guardians to take the advice of the duke of Ormond in the education of his eldest son ; there was no question who were entitled to the guardianship ; the only question was whether the guardians should consult another who was not appointed one of the guardians, *in the education of the infant. It was determined, that the guardians, in the execution of their office, ought to follow the testator’s recommendation, and consult the duke of Ormond, or the persons whom the court substituted for him ; not that the persons with whom the guardians were to advise, might direct and control them in the education of their ward. In the present case, the absolute uncontrolled right and duty to direct the education of the infant, as well as the care and management of the estate given to him, was confided by the testator to his executors.
    The argument for the appellant rested mainly on propositions extracted from the opinion of the chief justice in Bedell v. Constable ; but it nowise appeared what was the point in controversy in that case, or.who were the parties to it, or how it was decided, or whether it was ever decided; it only appeared, that the court was equally divided upon the case before it, whatever it was. The case could not be considered authority to any purpose. In Mendes v. Mendes, the testator did not confide to. his wife the care and management of the whole property which he had given to his children, which was very large, but only directed that ,£600. a year should be given to his wife, out of his own estate, for the maintenance and education of his children, while they should continue to live with her and at her charge ; and lord Hardwicke thought, that might amount to a devise of the guardianship, but he gave no absolute opinion ; not because he doubted, but because the case did not require him to decide the point. The present case, they said, afforded far stronger grounds to imply a grant of the guardianship of the infant: the care and management of the infant’s whole estate ; the right and duty to direct his education (which included, as they had shewn, his maintenance, his nurture, and the disposal of his person) with no limitation but that the expense should be defrayed out of the profits of the estate (the very ^limitation imposed by our statute on all guardians, 1 Rev. Code ch. 108, § 9, 26) ; every authority, every duty, which concerned the welfare of the testator’s infant son, was confided by this will to the executors. If lord Hardwicke doubted in Mendes v. Mendes, whether the testator’s will devised the guardianship of his children to his wife, he could hardly have doubted, whether mr. Myrick’s will devised the guardianship of his child to his executors. Taking Brown’s, report of Eady Teynham v. Eennard, as the best and fullest report of that case, it is apparent, that Barrett’s deathbed direction being, that his father should have the care and tuition of his child, in order that he should be bred up a protestant, that is educated in the protestant religion ; these were held apt words to appoint the grandfather guardian of the child ; else, why was it held by the house of lords, that the grandfather could only take and exercise the office of guardian in person, that the office confided to him was not assignable to others, and that the court of chancery had no authority to appoint other fit persons to be guardians ?
    The legacy bequeathed to mrs. Turner in consideration of the trouble she had had, and would afterwards have, in rearing and attending to the testator’s son from his infancy, did not warrant the inferences which the appellant’s counsel deduced from it. She had had the same care of the child during the father’s life, which she was expected to have after his death ; and as the care she had had of him during the father’s life, was nowise incompatible with the father’s right of custody and guardianship of his child, so neither was the care she was expected afterwards to have in rearing and attending to him, incompatible with the office of the testamentary guardians who were placed in loco parentis.
    As to the objection to the sentence of the circuit superior court, because it directed that Waller should be permitted to qualify as testamentary guardian, without *summoning Clarke to accept or renounce the office, they said, the authority of testamentary guardians was joint and several, like that of executors, and, therefore, either of several testamentary guardians might qualify alone. Eyre v. Countess of Shafts-bury, 2 P. Wms. 103, 107-8. Besides, the permission of Waller to qualify as guardian, would nowise hinder Clarke also from qualifying as such, if and whenever he thought proper to do so.
    Eastly, they submitted, that Kevan had no right to appeal from the sentence of the circuit superior court, declaring Waller’s right to qualify as testamentary guardian. The hustings court had revoked its appointment of Kevan to the office of guardian ; and though he had appealed from the order of revocation, he never prosecuted that appeal, and therefore the propriety of that revocation was not examinable in the circuit superior court, and of course could not be examined here ; he was no longer guardian, and had no interest in the controversy as such. In the separate question, whether Waller was appointed lestamentary guardian or not, after his own office of guardian was revoked, he had no interest whatever. A person could not make himself party to any controversy, without shewing some interest in the subject or the question.
    
      
      He had been counsel in the cause.
    
    
      
       Appointment of Testamentary Guardian. — In Boyd v. Townes, 79 Va. 102, it is said: “As was said in this court in a noted case, had the testator designed to confer the guardianship, he would have conferred it totidem verbis, since it would have been the most natural and obvious way of expressing himself, Kevan v. Waller, 11 Leigh 430.” See monographic note on “Guardian and Ward” appended to Barnum v Frost, 17 Gratt. 398.
    
    
      
      1 Rev. Code, ch. 108, p. 405, — § 1, provides “that any father, even if he he not of the age of twenty-one years, may by deed or last will and testament, either of them being executed in the presence of two credible witnesses, grant and devise the custody and tuition of his child (which had never been married) although it be not born, during any part of the infancy of such child, to whomsoever he will; and such grant or devise, heretofore or hereafter to be made, shall give the grantee or devisee the same power over the person of the child, as a guardian in common socage hath, and authorize him, by actions of ravishment of ward or trespass, to recover the child, with damages for the wrongful taking or detaining of him or her for his or her use, and for the same use to undertake the care and management, and receive the profits, of the ward’s estate, real and personal, and prosecute and maintain any such actions and suits concerning the same as a guardian in common socage may do. — § 2. Any guardian, so appointed by the last will and testament of any person, which shall be legally proved and recorded in any court, shall appear openly in such court, before the exercise of any authority over the minor or his estate, and declare his acceptance of the guardianship, which shall be recorded, and shall give bond and security in the manner herein after directed, unless the testator has otherwise directed by his will. — § 3. If any such guardian shall fail or neglect to appear in the cotirt where such last will and testament shall be recorded, within the space of six months thereafter., he may be summoned and compelled to declare his acceptance or renunciation of such trust; and if eyery such guardian, appointed by any such last will and testament, shall renounce the same, which renunciation shall be recorded, the said court-may and shall proceed to appoint and qualify some other person or persons to the guardianship.’’ — Note in Original Edition.
    
   TUCKER, P.

The difficulty which was supposed to exist as to the jurisdiction in this case, disappears when we look to the position of the parties. Kevan, the appointed guardian of young Myrick, was summoned, at Waller’s instance, to shew cause why he should not be removed, he Waller claiming that he had been appointed testamentary guardian, and not having been summoned or notified according to law, to declare his acceptance or renunciation of the office. Kevan was removed by the hustings court of Peters-burg by which he had been appointed. Waller then moved to be permitted to qualify : Kevan opposed this motion ; and it was entered *of record that he did so. The hustings court rejected Waller’s mo-

tion ; and Waller appealed. Now although, if the two cases are considered as distinct, Kevan’s right of appeal might have created some doubt, if he had failed in the hustings court; yet as he succeeded, and Waller appealed, Kevan was properly before the circuit superior court as a party ; and as that court reversed the sentence of the hustings court, and gave judgment against him for costs, there can be no doubt, I think, of his right of appeal from that judgment. The question is then fairly brought up as to the merits of the sentence.

I put out of the case all question as to the power of one of two testamentary guardians to qualify without the other. I take it to be clearly and properly settled, under the statute concerning testamentary guardians, that the authority conferred is joint and several; that it is not a naked authority, but coupled with an interest; that if one dies, it will go to the survivor ; that where one refuses, the other may qualify without him : that each is a complete guardian, if the other does not qualify. It would be most mischievous if, where there are several appointed, and some refuse to act, the rest should not be able to do any thing ; and yet this must be the consequence, if the appointment of several should he held to be one joint naked authority ; a construction which would make the act of little force, and the more guardians a father should appoint for the security of his child, the less secure he would be, since the refusal of one would defeat the authority of all. 2 P. Wms. 102, 107-8.

The real question in the case is, whether the will of Myrick constituted Waller and Clarke the guardians of his child 7 And here I shall concede, that it has been decided (whether wisely or not, may perhaps be questionable) that the use of the term guardian, or other express words of appointment, is not necessary, nor is it material by what words the guardian is appointed, provided the ^father’s intent be sufficiently apparent. Yet, with this concession, I am still of opinion, that, as the father’s authority is an innovation upon the common law, and in derogation of the rights of the mother or other kindred who would be entitled to be guardians by nature, the declaration of his intention should be distinct and unequivocal, and in terms inconsistent with the existence of the power and authority of the natural guardian. And if the language of his will is clearly reconcileable with the rights of such natural guardian, it should not be strained, by piling inference upon inference, so as to take them away. Thus, in the present case, the mother if alive, or the grandfather if she be dead, are the g-uard-ians by nature of this child. Prom the tie of blood, the law looks upon them as his natural protectors. But as the father may be presumed to know to whom it would be safest to entrust him, the law defers to his judgment : yet it surely will not be eager to presume that the father intended to tear his child from the tender cares of a mother, or other kindred, and to place his person, his fortunes and his education, in the hands of a stranger. Before we arrive at such a conclusion, the language must be clear and cogent; and moreover, the direction given t.- the stranger must be incompatible with the guardianship in the next of kin, or it cannot fairly be presumed to be designed to take it away. For if the intent can be fully satisfied short of annihilating the natural guardian’s power, we are not authorized to go one step farther.

Such appears to me to be the-present case. Here is a grandfather of the child yet living. Why should we presume, that the father intended to take from the grandfather, his natural friend and protector, this only child, and place his person and all his property, in the hands of Waller and the grandfather jointly ? Because he has ordered, that he shall be “ educated in the best manner, under the direction of his executors?” Is *this order incompatible with the rights of the natural guardian ? What more was meant, than that Waller and Clarke should prescribe the course, and point out the mode, of his education to the person having the guardianship ? Such directions that person would indeed be bound to follow ; because, even before the statute, the father had the power of directing the course of his child’s education, and a court of equity would enforce a compliance with his will. Since the statute, it ,is yet more clear; the greater power of appointing a guardian comprehending that of directing the education, or giving power to direct it. Accordingly, in the case of Beaufort v. Berty, where the testator -appointed two guardians, and recommended that they should take the advice of the duke of Ormond as to the education of the wards, lord Macclesfield recognized the validity of this recommendation, but the duke of Or-mond being attainted, the authority was held to devolve upon the great seal, and the chancellor thereupon directed that the guardians should take the advice and follow the counsel of the duke and duchess of Crafton, who were relations of the wards. Here, then, the guardianship was in two persons and the “ direction of the education” in two others. And is any thing more common, than for a father who is solicitous about his child’s education, to declare his wishes that some friend, in whom he has confidence, should have the direction of his education, without designing to burden him with the guardianship, the custody of his person, and the management of his fortunes 7 Such a construction would defeat its very object; for a friend might be very willing to discharge the duty of an adviser or director of the child’s education, who would be unwilling or unable to take upon himself the guardianship. That great and excellent man, our former fellow labourer, and one of the lights and ornaments of this court (the late judge Carr), recommended that his son should be educated *under the direction of myself in conjunction with his wife. It may be safely affirmed, that he never designed to take the guardianship of his boy from that excellent lady, or to vest in me any power over his person or his estate. Certain it is, I never dreamed of such a construction of his will, whilst I should have faithfully complied, as far as I was able, with his wishes. I should never have supposed it necessary to enter into bond with security before I could have recommended a course of study or instruction, nor should I have thought myself entitled to qualify as guardian, and take the child and his estate from his mother’s hands, in case she did not qualify also. I have mentioned this case, merely as furnishing an actual instance of a provision similar to that at bar, in which the construction contended for by the appellee, would obviously have violated the wishes of the testator.

From what has been said, I think it clear, that an authority to direct the education of a child, may be exercised by one, while the guardianship (that is, the custody of his person and property) may be in another! The two things, then, are not incompatible ; and if not incompatible, the gift of the former is no derogation of the latter. To me, indeed, it appears, that the very provision, that a child shall be educated under the direction of an individual, implies the custody by one person and the direction of the education by another. Had the testator in this case, designed to confer the guardianship, he would have conferred it totidem verbis, since it would have been the most natural and obvious mode of expressing himself; or had he designed, that his child’s education should be directly conducted by the executors, he would have said, that he should be educated by them ; but in declaring- that he should be educated under their direction, there is the strongest implication of agency in some other who was to be subject to their direction. That other was the guardian. The clause in ^question is indeed imperfect : he gives his son 15000 dollars, “ and from the proceeds to educate him.” Here is something wanting, something to be supplied; but what, is not so clear. Yet it is clear, that the words “ my executors” are not the omitted -words ; for if they are inserted, it will make 'the sentence absurd. It will make the testator provide that his executors shall educate him, under the direction oí liis executors. Either the testator intended some other person, or he intended to speak impersonally ; and, in either case, he seems to have looked to his child’s education being conducted by others, though under the direction of the executors.

The statute concerning guardians &c. and the interpretation of the word tuition there used, were the subject of much discussion at bar. That word I certainly do not understand in the narrow sense of instruction or education ; it is used in the broader sense of protection, superintendence, guardianship ; it comes from the'latin tueor, to defend ; and hence its radical signification is defence. This is also implied by the word guardianship ; which, however, is yet broader, for it implies custody ; its root is the anglosaxon wardian ; which signifies to look, to look after, and thence by transition, to guard, to keep ; and so implies custody. The word guardian is derived immediately from the french gardien, which , itself comes from wardian ; the w being converted, as is usual, into g. Richardson’s Diet. 1 Tooke’s diversions of Purley, 332-4; 2 Inst. 30S. Thus, guardianship includes the idea of custody ; and custody and tuition, as used in the statute, constitute guardianship.

Admitting, therefore, that no particular words are necessary in a will for the appointment of a testamentary guardian, it may safely be affirmed, that the language must be such as to imply a right to the custody, -control, and protection of the ward. This I do not think can be fairly implied from the provision, that the child shall be educated under the direction of the executors. The word ^education, here, is obviously used in the narrow sense of instruction, and does not imply tuition, and much less custody. But it is contended, that we must infer a right of control over the education, from the right of direction ; a right to the possession of the person from such right of .control ; and the powers of a guardian over the estate from the right to the possession of the person ; and thus, from the simple power to direct the course of education or instruction, the appellee claims to be invested with the custody of person and estate, and a guardian’s power over both. I cannot consent thus to build inference upon inference, of which I am persuaded the testator never dreamed. I must have somewhat more than a single case, and that too of doubtful authority and analogy, before I will pile consequence upon consequence, for the purpose of vesting in a party the largest powers over the person and estate of an orphan from so remote an implication.

If indeed we look to authority, I think the case of the appellee will not be much better than without it. The case of lady Teynham v. Lennard stands alone, and may well be suspected to have been partly decided under the influence of religious jealously and intolerance. It occurred in the very heat of sectarian controversy, early in the reign of George I. and turned on the dangers of entrusting the education of a child to a papist mother. It was, moreover, stronger than this case ; for there were in that case words of exclusion of the natural guardian : the testator said, he “expected his father to take care of the education of his child in the protestant religion, and not leave the education of it to his wife.” Against this case may fairly be opposed the case stated in Bedell v. Constable, where even a devise of land to J. S. during the minority of the testator’s child, for his maintenance and education, was held not to constitute him guardian.

*This view of the case renders it unnecessary to enquire, whether the evidence adduced to shew Waller’s unfitness for the office, would have justified the refusal to permit him to qualify, even if he had been really appointed a testamentary guardian.

Upon the whole, I am of opinion, that the sentence of the circuit superior court be reversed with costs, and the sentence of the hustings court refusing Waller permission to qualify as guardian, affirmed.

The other judges concurred. Sentence reversed.  