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A father appointed by the court

The question comes up repeatedly.

Why would a father have to be named guardian of his own child?

It came up again just this morning in a question from a reader.

She was looking at an Indiana family in the 1860s, where the mother died when her son was just a baby, and the father was then named guardian of the boy handling in particular a piece of the mother’s land for his son that he later sold with court approval.

Why, she asked, would the father have had to be named guardian of his own son?

And, she went on, why did the child own the land, and not the father? After all, didn’t all land go to the husband upon marriage?

Great questions, and ones where the answers confuse a lot of people.

Let’s start by understanding a couple of key things here.

First off, no, even under the common law, which greatly favored husbands, a husband didn’t get ownership of his wife’s lands when they married. That’s a misconception a lot of people have. He got control of the land during the marriage, and may have had a life estate in the lands after her death (a right called curtesy — the husband’s “freehold estate for the term of his natural life” in his wife’s real estate)1 — but ownership was a whole different kettle of fish.

Secondly, Indiana had long recognized what was called the separate estate — the notion that property a married woman received, either before the marriage or by gift or inheritance during the marriage, was hers and hers alone.2 As explained by the Indiana Supreme Court in Scott v. Scott, 13 Ind. 196, 200 (1859), “a married woman might hold property to her separate use, independently, and beyond the control of her husband, without the power of alienation.”3 And, the Scott Court added, Indiana statutes incorporated “this equitable doctrine in respect to all her property both real and personal, held by her at the time of her marriage, or acquired during coverture,4 in the manner specified in the statute, leaving it hers in all respects as fully as if she had remained unmarried, requiring only the assent of the husband to an alienation.” That meant she couldn’t sell it or give it away without the husband joining in on the deal.

Moreover, by 1852, Indiana had begun to enact what were called Married Women’s Property Acts — statutes that began the process of giving married women control of their own property as well.5 That gave married women more control over their own property.

For this particular case, we also need to know that the laws of the time made it clear that the notion of separate estate was part of the state’s inheritance laws, too.6

So… no, the husband didn’t get ownership of the wife’s lands when they married. When she died, the lands passed to her heirs — and spouses weren’t heirs. Lands went first to the children and, if there were no children, then to other blood kin in a complicated formula.7 But not to the spouses, not then.

That explains why the son was the owner of his mother’s land, and not the husband. He was his mother’s heir.

But why did his own father have to be named his guardian? Wouldn’t the son have simply lived with and been under the guardianship of his own father?

Well, yes… but not exactly.

You see, at common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother. The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.8 The guardian in socage was the one who had custody of a minor’s lands and person.9

In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”10 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.11

Now in a case like this one where Mama died, Papa still got physical custody of the child, no matter what: the guardianship statute of the day said “the father … shall have the custody of the person, and the control of the education of such minor.”12

But guardianship of the property — that went to the court-appointed guardian, and the preference was overwhelmingly for the nearest male relative who couldn’t inherit from the child to serve as guardian. The idea was that you wanted someone who was disinterested, who couldn’t ever get his hands on the property for his own benefit.

The example used in Blackstone’s Commentaries on the Laws of England points this out: “where the estate descended from his father, … his uncle by the mother’s side cannot possibly inherit this estate, and therefore shall be the guardian.”13 The converse was also true: if the estate is descending from the mother, then the father isn’t going to inherit and can be the guardian of his child’s property.

And that’s exactly what happened in this case: since the son was inheriting from his mother, his heirs would be his maternal grandparents and their kin and not his father.14

And there’s the answer: Papa didn’t get Mama’s land at all. Not when he married Mama. Not when Mama died. When Mama died, the son needed a guardian to handle the property, and Papa was appointed. But he had to answer to the court, and ultimately to the son, for everything he did, for the benefit solely of the son.


  1. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 311, “curtesy.”
  2. See generally Timothy Crumrin, Conner Prairie Historian, “Women and the Law in Early 19th-Century Indiana,” Conner Prairie Interactive History Park ( : accessed 8 Nov 2017).
  3. “The transfer of the property and possession of lands, tenements, or other things, from one person to another.” Black, A Dictionary of Law, 59, alienation.”
  4. “The condition or state of a married woman.” Ibid., 298, “coverture.”
  5. See Wendy Gamber, “Indianapolis’s Female Economy: The Work History of the Notorious Mrs. Clem,” Hoosier Women At Work:
    Studies In Indiana Women’s History
    , Indiana Historical Bureau, ( : accessed 8 Nov 2017).
  6. See also Revised Statutes of Indiana 1843, Chapter 28, section 115 in Samuel Bigger & Geo. H. Dunn, compilers, Revised States of the State of Indiana Passed at the Twenty-Seventh Session of the General Assembly (Indianapolis: Dowling & Cole, State Printers, 1843), 436; digital images, Google Books ( : accessed 8 Nov 2017).
  7. See Revised Statutes of Indiana 1862, Chapter 98, in James Gavin and Oscar B. Hord, compilers, The Statutes of the State of Indiana, 2 vols. (Indianapolis: J. J. Bingham, 1862), I: 408-410; digital images, HathiTrust Digital Library ( : accessed 8 Nov 2017).
  8. Black, A Dictionary of Law, 552-553, “guardian by nature.” Ibid., 553, “guardian for nurture.”
  9. Ibid., 553, “guardian in socage.”
  10. Ibid., “guardian by statute.”
  11. Ibid., 552, “guardian by appointment of the court.”
  12. Gavin and Hord, compilers, The Statutes of the State of Indiana, at II: 566.
  13. William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons (Oxford, England: Clarendon Press, 1770), 461; digital images, Google Books ( : accessed 8 Nov 2017).
  14. Gavin and Hord, compilers, The Statutes of the State of Indiana, at I: 409.
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