Though it now means a child without parents, the term orphan had quite a different meaning in colonial times. Any minor child whose father had died was legally an orphan, regardless of whether the mother was living. Even if the mother remarried and the child lived with its mother and stepfather, the child remained an orphan under the law.
Since orphans were the natural inheritors of a father’s personal estate, and (depending on circumstances) the inheritor of his land, the primary purpose of a guardian was to provide for management of the orphan’s estate, and to use that estate for his maintenance and education. If the father died intestate, his orphans inherited equal shares in two-thirds of his personal estate and the eldest son, or the daughters equally if no sons, inherited his land. If the father died testate, orphans inherited as specified by the will, with any unspecified property distributed according to the succession law. Unless some other provision was explicit in the will, the widow had only a lifetime interest in land, not a title, and a one-third interest in the personal property. The orphans, however young, were immediately titled in both real and their share of personal property.
Guardianship thus had nothing to do with physical custody, that is, who a child actually lived with. Orphans surely lived with their mother if living. In the absence of both a mother and father, orphans frequently lived with relations or friends.
The guardian’s primary role was management and preservation of the inherited property until the child reached majority. The Virginia statute of 1643 put it succinctly: “…guardians and overseers of all orphants shall carefully keep and preserve such estates as shall be comitted to their trust either by order of court or otherwise…” [1] At the child’s majority, the guardian was obligated to deliver the estate and obtain a release from the child (as well as a release from his bond). Household goods and other personal property were to delivered at their value in money as determined by the appraisal. Livestock was to be delivered in kind. Slaves were treated as a special case, being delivered either in kind or in value, at the judgment of the guardian and with the court’s approval. Courts required the guardian to post a bond for their performance of this obligation, in an amount at least equal to the value of the estate (for the justices themselves were personally liable to the orphan if the bond proved insufficient.) Guardians were required to provide annual accountings of the estate, and could be replaced by the court if found derelict.
Guardians were also responsible for arranging for and financing the support and education of the orphan. The same 1643 statute, which remained essentially unchanged for two centuries, required the guardian “to educate and instruct them according to their best endeavors in Christian religion and in rudiments of learning and to provide for them necessaries according to the competence of their estates...” As a practical matter, this meant using the profits of the estate to pay for the child’s maintenance and education. The guardian, being obligated to deliver the entire estate, could use only its increase for this purpose and not its principal. Since the products of livestock (such as milk or wool) and their increase, along with rentals of land or slaves, typically provided the means, the child’s living conditions and education were largely dependent on the size and composition of his estate.
Guardians could apprentice orphans under 14, if their estates were insufficient to support and educate them and if no relative or friend was willing to perform these tasks. A child 14 or older could, of course, apprentice themselves and enjoy some choice in the trade to be learned. If the orphan owned land, the guardian typically rented it out, though a lease could not extend beyond the majority of the orphan. If no lease could be obtained the guardian, with court approval, might sell land if in the best interests of the child. The guardian was obligated not only to preserve the property, but also to employ it to the orphan’s benefit. Guardians also represented the orphan in legal matters, including debts.
Orphans with no estates, or trivial ones, rarely had guardians, for there was no property to preserve or to provide income. Rather, the responsibility for their maintenance and education fell to the public. The mechanism for fulfilling this obligation was a court-ordered apprenticeship until the child reached majority. The master, in effect, filled the remaining portion of the guardian’s role, being responsible for his apprentice’s maintenance, education, and taxes. Children too young to be apprenticed, and who were not maintained by relatives or friends, were typically supported by the parish.
It should be pointed out that orphans retained the same rights and privileges as other minors. In particular, a male could make a will disposing of his personal estate at 14, and a female at 12. Real property could not be devised until majority, thus the land of a deceased orphan fell to his or her successor under the common law unless otherwise provided for in the father’s will.
A father’s will could appoint a guardian for his minor children. If it failed to do so, or if he died intestate, or if the guardian died or resigned, the court appointed the guardian. Courts seldom appointed a stepfather, for obvious reasons, but frequently appointed adult siblings or other relatives (rarely the mother herself). When the child reached the age of 14, they had the right to choose their own guardian.
All colonies had some form of Orphans Court, whose responsibilities were to supervise the guardian’s management of orphan’s estates, audit the annual accountings, oversee the rental or management of orphan-owned real estate, appoint or remove guardians, and oversee apprenticeships.
Notes:
[1] Hening 1:261
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