Early Guardianship Laws

From North Carolina Research - Genealogy and Local History - Second Edition by Helen F. M. Leary, C. G., F. A. S. G. Editor at NC Archives. Here is what she says about guardianship bonds and guardianship law, which may be helpful to those of you who are finding it difficult to understand some issues about orphans and guardians:

From her article "Guardians and Conservators" pg 189-190

Property might be inherited by persons unable to handle it because of age or infirmity. In these cases, probate authorities appointed guardians, conservators, receivers, trustees, or collectors to manage the property for the benefit of its owner. Receivers, often the clerks of superior court, might be authorized to hold and manage the property of minors and others, but normally guardians were appointed. Persons under the care of guardians were called wards.

Researchers will be concerned most often with guardians of orphans. An orphan was normally a minor whose father was dead; the mother might be alive, and even have physical custody of the children. The existence of a guardian, however, does not mean necessarily that either of the parents was dead but rather that the minor owned property personally (e.g., by inheritance from a grandparent); in these cases, the father, if living, was usually appointed guardian of his own children. The court appointed guardians from among the minor's relatives, neighbors, or other persons considered trustworthy, but a testator might nominate his or her children's "testamentary guardian." In colonial times Quakers could not have non-Quaker wards. Like administrators, guardians might be appointed only for temporary and specific purposes. For example, guardians ad litem or pendente lite might represent a minor's interests in legal proceedings when the minor was a defendant, while a "next friend" or prochein ami might act if the minor was the plaintiff. Orphans lacking estates needed no guardian, of course, and were commonly bound out as apprentices.

Children fourteen or older could choose their own guardians but they were nevertheless legal minors or "infants" until the age of twenty-one. On coming of age they were entitled to receive their estates; if a guardian failed to release the estate voluntarily, the former ward might petition the court to force distribution. Upon receiving the estate, the orphan signed a discharge of the guardian or receipt for the estate's delivery; such releases, if they survive, can serve as proof of the ward's birth year.

Conservators, often also called "guardian" in the records, were appointed to manage the estates of incompetents such as lunatics, idiots, and inebriates, and for the senile elderly. The appointment of a "guardian in lunacy" was often based on the legal, but not necessarily the psychiatric judgment of incompetence made by jury inquisition.

After their appointment by probate authorities, guardians were required to take oaths and post bonds before receiving letters of guardianship or letters of tuition authorizing them to act. Guardians' bonds have the general features described in Chapter 20 and commonly give the wards' names, their fathers' names, guardians' names, sureties' names, dates, and witnesses' names. However, some bonds do not name the ward at all, referring only to the "orphan of" a named father; a single bond might be posted for a whole family of his orphans. The monetary obligation stated in such bonds varied according to the estimated value of the estate; as with administration bonds, the amount was normally double the expected value of the orphan's property.

Guardians were required to submit annual accounts and to renew their bonds periodically. The appointment, report, or bond renewal was usually noted in the court minutes. Consequently, if the bond of interest to the researcher does not supply the orphan's father's name, the court-minute entry may—but it might be an entry made many years after the father's death (tax lists, if they survive for the place and time period, may be helpful, also, listing the father's name one year and the orphan's name the next). Accounts and guardians' appointments, were occasionally recorded or summarized in a Guardians Docket or Orphans Docket, which also may note an orphan's coming of age, marrying, or dying.

Since 1868, applications by prospective guardians have been required and recorded. They name wards and decedents, estimate the property's value, and give the date and the name of the applicant. They are accompanied by guardians' oaths and bonds, oaths of sureties, orders of appointment, and letters of guardianship. For a variety of reasons, including changes in the law regarding a widow's legal ability to manage her children's affairs, the practice of appointing guardians has declined; Special Proceedings, Estates Files, and Indexes to Estates do refer to a few.

Guardians' records in the State Archives are customarily filed within the estates-records folders of the children's fathers. If the father was not identified on the bond, or could not be identified in the packet of papers received by the Archives, the bonds were placed in the County Records series in a separate group arranged by the wards' names. This group also includes the papers generated by conservators, receivers, and other types of guardians of persons who were not minors.