Senseman's Appeal

The opinion of the Court was delivered by Lewis, J.

— It is the duty of a father to maintain, protect, and educate his offspring. His power over them is derived from that duty. The latter could not be performed without the existence of the former. The authority of a guardian bears a near resemblance to that of a father, and is plainly derived out of it; the guardian being only a temporary parent. He usually performs the office of both tutor and curator of the Roman law; the former of which had charge of the maintenance and education of the minor, and the latter the care of his fortune. From the existence of the parent’s authority, and the just obligations the child is under to him for his care and protection, he is apt to forget that his only compensation is its affection, obedience, and services. He has no right to the estate which it may have received from the bounty of others. To place its property or money in his hands has been found unfavorable to the interests and happiness of both. It throws obstacles in the way of enforcing the rights of the minor, not likely to be encountered in a contest with a stranger. For these reasons it is deemed improper to appoint the father the guardian of his child’s estate. Rut his duty and power to protect its interests remain; and where he is in full life, and within the jurisdiction of the Court, he ought to have notice of the proceedings, and is entitled to be heard. The case before us is an illustration of the necessity of this. For want of such notice, the Court was misled, and an appointment procured of one whose interests are *334 likely to conflict with those of the minor, and who is clearly ineligible on that account.

The appointment of a guardian is a final decision upon the right to the care and control of the person of the minor, or to the possession and management of its estate, or to both, as the case may be. It is not an interlocutory order, 'but a “ definitive decree,” from which an appeal lies to this Court. It is conceded that the Orphans’ Court may exercise its discretion in the selection of suitable persons, so long as it takes care not to violate the positive rules of law. Where these are violated, the error may be corrected here.

The Act of Assembly declares that “ no executor or administrator shall be appointed guardian of a minor having an interest in the estate under the care of such executor or administrator.” The will of Michael Hoover shows that Christian Titzel was appointed his executor, and. that the minors are devisees of a portion of the real estate. It establishes the fact that the estate of Michael Hoover was “placed under the care” of Titzel as much as estates are usually placed under the care of executors, and quite as much as they are ever placed under the care of administrators; and it also establishes the additional fact that the minors are “ interested in that estate.” It is not required that the particular tract of land devised to the minors should be placed under the care of the executor in order to disqualify him. This is seldom done, and never in the case of administrators. If any portion of the land be devised to a minor, he thereby becomes interested in the estate of the decedent, and it is necessary for the protection of that interest that he should have a guardian to keep an eye upon the executors, to see that they are faithful in the collection of the assets, in the application of the personal estate to the payment of debts, and in their general management of the estate under their care. If this be not properly attended to, the real estate of the minor might be unjustly swept away from him by a sale for the payment of debts which ought to have been satisfied out of the personal estate, or which never had any just foundation, or have in fact been paid. We do not regard the statement on the paper-book of the appellee, relative to the settlement of the executor’s accounts, and the voluntary distribution of the assets, as forming a part of the record. These facts do not appear to have been presented to the Court below. If they had been, the case would stand no better.

A settlement of the accounts of the executor, when the minor had no guardian to see that they were properly settled, and the distribution of the assets without a refunding bond, is neither a discharge of the executor, nor a justification of his appointment as guardian. On the contrary, the reason is the more urgent for the appointment of one whose interest will not be identical with *335 that of the executor, and who may examine the proceedings and ascertain whether the minor’s estate is properly secured from the debts of the testator. •

John Hoover, the uncle of the minors, had no authority to present the petition as their next friend, without alleging any necessity for his interference instead of the father. If the father, on being applied to, had refused to take the necessary measures to protect their interests, the uncle might have made the application.

It is ordered and decreed that the decree of the Orphans’ Court of Cumberland county, appointing Christian Titzel guardian of the estates of John Senseman and Jeremiah A. Senseman, be reversed, and that the petition of John Hoover be dismissed, at his costs.