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An Act for the better management and security of Or- (From edit.
phans, and their estates.
1. B ,
E it enacted, by the Lieutenant-Governor, Coun. Fathers may
cil, and Burgesses, of this present General As- by deed, or sembly, and it is hereby enacted, by the authority of will, dispose
of the custo. the same, That where any person hath, or sball have,
dy and tui. any child or children, under the age of twenty one tion of their years, and not married, at the time of his death, it unmarried shall and may be lawful to and for the father of such infant chilchild or children, whether born at the time of the de. dren. cease of the father, or then an infant or infants in the womb, or whether such father be within the age of one and twenty years, or of full age, by his deed executed in his life time, or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, to dispose of the custody and tuition of such child or children, for and during such time as he, she, or they shall remain under the age of one and twenty years, or for any lesser time, to any person or persons, in possession or remainder, other than popish recusants; and every such disposition heretofore made, or hereafter to be made, shall be good and effectual against all and every person and persons claiming the custody and tuition of such child or children, as guar. dian in soccage, or otherwise; and the person or persons to whom such custody and tuition hath been or shall be so disposed, or devised, shall and may maintain an action of ravishment of ward, or trespass, against any person or persons who shall wrongfully take away or detain such child or children, for the recovery of such child or children and shall and may recover damages for the same, in the said action, for the use and benefit of such child or children.
II. And that every person and persons to whom such Such guardicustody and tuition hath been, or shall be so disposed, an shall have or devised, as aforesaid, shall and may take into his or custody of their custody, to the use of such child or children, the the infants profits of all lands, tenements, and hereditaments, and also the slaves, goods, chattels, and personal estate of such child or children, till their respective age of one
and twenty years, or any lesser time according to such disposition aforesaid, and may bring such action or actions, in relation thereunto, as by law a guardian in
common soccage might do. But may not discharge an
Ill. Provided always, That nothing herein before
contained, shall extend to discharge any apprentice apprentice; nor abridge from his apprenticeship: Nor to take away the powpower of
er of the general court, or county court, upon com. court.
plaint to them made, of such guardian abusing the trust veposed in him, by misusing the child or children under his tuition, or neglecting the care of their education suitable to their estate, or wasting, converting to his own use, or otherways mismanaging such estate, to make and establishi, from time to time, such rules, orders and decrees for securing the estate, and for the better education and usage of such orphaus, as they in
their discretion shall judge meet and necessary. Jurisdiction IV. And be it further enacted, by the authority a. of the Gene- foresaid, That the general court, and the several county ral Court,
courts of this dominion, within their respective juris. Courts con. dictions, have, and shall have full power and authority, cerning or- from time to time, to take cognizance of all matters phans, and concerning orphans and their estates, and to appoint guardians.
guardians in such cases, where to then it shall appear necessary, and shall take good security of all guardians
by them appointed, for the estates of the orphans to Court shall them respectively committed; and if any county court take security shall commit an orphans estate, to the charge or guarof guardians dianship of any person or persons, without taking good by them apo and sufficient security for the same, in such case, the pointed.
justices appointing such guardian or committing such
estate, and every of them, shall be liable for all loss County court failing so to and damage sustained by the orphan, for want of such do, the justi- security; to be recovered with costs, by action at the ces liable for common law, in any court of record, at the suit of the damages.
V. Provided always, That where the securities were Where not liable.
good at the time of their being so accepted and taken, but afterwards become insolvent, in such case the jus
tices shall not be liable. Dutyof guar.
VI. And be it further enacted, by the authority afore
said, That wherever a guardian shall be appointed to pointed by
any orphan, by the general court, or by any county the court.
court, such guardian shall, at the next court after his appointment, exhibit his account upon oath of all the
estate of such orphan, which he shall have received into his hands; and every guardian beretofore, or hereafter to be by such court appointed, shall, once every year, exhibit his account and state of the profits and other incomes of the estate of such orphan, upon his oath: And such accounts so to be exhibited, shall
counts to be be entred by the clerk in a book to be provided and
entred by kept for that purpose only: And when the said courts the clerk. shall respectively know, or be informed, that any guar- Power of dian or guardians, by them respectively appointed, do courts relatwaste or convert the money or estate of any orphan dians breach to his or their own use, or do in any manner misman- of trust. age the same, or do not take due care of the educating Or becoming
insolvent. and maintaining any orphan, according to his degree and circumstances; or where such guardian or his securities are likely to become insolvent, such court shall have power, from time to time, to make and establish such orders and rules, for the better ordering, managing, and securing such estate, and for the better educating and maintaining such orphans, or to appoint another guardian, as they in their discretion shall think most fit and expedient.
VII. And that every person heretofore appointed, or
Guardians hereafter to be appointed guardian to any orphan, by shall render any county court, shall, at the court held for that coun-annual acty in the month of August, in every year, or if no court be then held, at the next succeeding court held for that county, exhibit such account as aforesaid:
To be examAnd the justices of every county court shall yearly, at
ination bythe the same court, examine into all accounts of guardi- justices. ans so to be exhibited to them, and shall direct pro
Process acess to issue returnable to their next court, against all gainst guar.
dian failing guardians who shall then fail to appear and render such account, whether such guardian be resident in the same or in any other county; and shall then also enquire into the abuses and mismanagements of guardians, and whether they or their securities are likely to become insolvent, and thereupon to proceed according · to the power in this act before given them; and the Penalty on justices of every county court who shall fail or neglect.justices fail. to do their duty herein, sball forfeit and pay the sum
ing of five thousand pounds of tobacco, one half to our sovereign lord the king, his heirs and successors, to and for the use of the county, and the other half to
the informer; to be recovered by action of debt or
information, in any court of record in this colony. Court may,
VIII. Provided always, That nothing herein before at any time, contained shall be construed to abridge or restrain the the conduct power of the several county courts to enquire, as often of guardians, as they shall think proper, into the abuses and mis
managements of guardians, but that it shall be lawful for them to exercise such power, at any time or times, when to them it shall appear necessary; any thing in this act to the contrary, or seeming to the contrary notwithstanding.
IX. And be it further enacted, by the authority eWhatguardi. ans may
* foresaid, That it shall be lawful for every guardian, charge in to charge in his account, all reasonable disbursements, their ac
and expences; and if upon rendring such account, it counts.
shall appear to the court, that such guardian hath really and bona fide disbursed more in any one year than the profits of the orphans estate, do amount unto, for the education and maintenance of the orphan, such guardian shall be allowed and paid for the same, out of the profits of such orphans estate, in any other year during his or her guardianship.
X. Provided always, That such disbursements be, Disburse
in the opinion of the court, suitable to the degree and ments must be suitable circumstances of the estate of such orphan: And that to the or where such estate shall be of so small value, that no phan’s de
person will educate and maintain him or her for the gree and es. tate.
profits thereof, such orphan shall, by direction of the Provision for Court, be bound apprentice, every male to some tradespoor orphans man, merchant, mariner, or other person approved by
the court, until he shall attain the age of one and twenty years, and every female to some suitable trade or employment, 'til her age of eighteen years; and the master or mistress of every such servant, shall find and provide for him or her, diet, cloaths, lodgings and accominodations fit and necessary, and shall teach, or cause him or her to be taught to read and write, and at the expiration of his or her apprenticeship, shall pay every such servant, the like allowance as is by law appointed for servants by indienture or custom, and on refusal, shall be compelable thereto in like manner: And if upon complaint made to the county court, it shall appear, that any such apprentice is ill used, or not talight the trade or profession to which he or she was bound, it shall be lawful for such court to remove and bind him or her to such other person or persons as they shall think fit.
XI. And be it further enacted, by the authority a- How securiforesaid, That where any person who now is, or here. ties for an inafter shall be security for the estate of any orphan, dias may be shall afterwards conceive himself in danger by reason relieved. thereof, and petition the court where such security was entred into for relief, it shall be lawfi:l for such court, upon such petition to them exhibited, forth with to order summons to issue against the party or parties, with and for whom the petitioner stands bound, returnable to the next court; and thereupon to compel such party or parties to give sufficient, other, or counter security, to be approved by the said court, or to deliver up the estate to the petitioner, or such other person as the court shall direct, or they may, and are hereby impowered to make such other order or decree therein, for relief of the petitioner and better securing such orphans estate, as to them shall appear just and equitable.
XII. Provided always, That such court shall take goud Provise. and sufficient security of the person or persons to whom such estate shall be so committed, in the like manner, and under the like penalty, as is by this act required to be taken of guardians appointed by the court; and every such person shall also exhibit his account, and be subject to the rules and orders of the court, in the same manner, to all intents and purposes, as is herein before required of guardians, or they are made subject unto,
XIII. And be it further enacted, by the authority a- Where a foresuid, That when any guardian, or person charge- guardian dies able with the estate of any orphan, or with the estate the orphans of a person deceased, to him committed by any court estate shall of record in this colony, shall die so chargeable, the before any executors and administrators of such person so dying other debt. shall be compellable to pay and satisfy, out of the estate of their testator or intestate, so much as shall appear due to the estate of such orphan, or person deceased, before any other or proper debt whatsoever of such testator, or intestate; any law, custom, ol' usage, to the contrary thereof, in any wisc, notwitlistanding
XIV. And be it further enacted, by the authority Q. Repealing foresaid, That all and every other act and acts, clause clause.