Papers Of Abraham Lincoln

In force June 1, 1835.

AN ACT, supplemental to “An act relative to Wills and Testaments.[”]
1
Whereas, by the act, entitled “An act relative to Wills and Testaments, Executors, Administrators, and the settlement of Estates,” no power is given a parent to appoint, by Will and Testament, a guardian for his child or children; and whereas, also, the common law recognizes no such power—

Father of sound mind may dispose of the custody of his child during minority or less time.

Mother being sole to have the same right.

Sec.[Section] 1. Be it enacted, therefore, by the people of the State of Illinois, represented in the General Assembly, That every father of sound mind and memory of a child likely to be born, or of any living child, under the age of twenty-one years and unmarried, may, by his deed or last will duly executed, dispose of the custody and tuition of such child during its minority, or for any less time, to any person or persons in possession or remainder; and every mother of sound mind and memory being sole, may, in like manner, dispose of the custody and tuition of a child living, if a father has made no such disposition, or in any other manner restrained the right of the mother.

Such disposition to vest the person to whom made with rights of guardian.

Proviso.

Sec. 2. Every such disposition, from the time it shall take effect, shall invest in the person or persons to whom it shall be made, all the rights and powers, and subject him or them to all the duties and obligations of a guardian of such minor, and shall be valid and effectual against every

<Page 2>
other person claiming the custody or tuition of such minor; Provided, That the rights, powers, duties and obligations of such person or persons may be restrained and regulated by the person making such deed or last will as aforesaid.

Shall have the custody and management of the estate.

Sec. 3. Any person to whom the custody of any minor is so disposed of, may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor; he shall also take the custody and management of the real and personal estate of such minor, unless restrained by the deed or will as aforesaid, during the time for which such disposition shall have been made, and bring such actions in relation thereto, as a guardian appointed under the provisions of the laws of the State.

Guardians may be removed by complaint to the circuit court.

Successor to give bond.

Sec. 4. Guardians appointed under the provisions of this act, shall be subject to removal upon complaint of any person in behalf of the minor, to the circuit court of the county in which such guardian may reside, and proof made of malconduct or misbehavior in the performance of his duties, or of a failure to perform his duties, and upon the removal of a guardian, the said court is hereby vested with the power to appoint another guardian, and to make all such orders as may be necessary to compel the guardian removed to deliver over to the successor the custody of the minor, and to account for the estate, and pay over all moneys belonging to the ward, and to compel such successor to execute a bond with good security, in such penalty and with such conditions as the court may deem necessary for the security of the rights of the minor, and the said court shall also have power, upon application of any person in behalf of the minor, to require all guardians appointed under the provisions of this act, by the father or mother, or by the court, to give bond and security in such penalty and with such conditions as the court may deem necessary for the security and protection of the minors, and of his or her estate.2

This act shall take effect on the first day of June next.

Approved, Jan.[January] 27, 1835.

1Stephen R. Rowan introduced HB 19 in the House of Representatives on December 9, 1834. The House passed it on December 11. On December 16, the Senate referred the bill to the Committee on the Judiciary. On December 29, the Committee on the Judiciary reported back the bill with an amendment, in which the Senate concurred. The Senate passed the bill as amended on December 30. The Senate amended the title by adding after the word “Testaments” the words, “and Providing for the Appointment of Testamentary Guardians.” On January 2, 1835, the House referred the bill and Senate amendment to a select committee. On January 12, the select committee reported back the bill and Senate amendment without amendment and recommended non-concurrence with the Senate amendment. The House concurred with this recommendation. The Senate adhered to their amendment on January 14. On January 15, the House refused to recede from their vote of non-concurrence. The House appointed a committee on conference on the disagreeing vote of the two houses, and the Senate followed suit on January 17. The committee on conference recommended that the Senate recede from its amendment striking out the preamble, and that the House agree to the other amendments of the Senate. The Senate and House concurred with this recommendation on January 22. On January 27, the Council of Revision approved the bill and the act became law. The Senate amendment to the bill title did not find its way into the act.
Illinois House Journal. 1835. 9th G. A., 1st sess., 84, 94, 103, 185, 200, 278, 294, 297, 362, 363, 366-367, 389, 392, 400; Illinois Senate Journal. 1835. 9th G. A., 1st sess., 87, 101, 145-146, 154, 226, 252, 261, 271, 314, 318, 335, 348.

2The original act did not provide for the custody of minors.
“An Act relative to Wills and Testaments, Executors and Administrators, and the Settlement of Estates,” 1 July 1829, The Revised Code of Laws of Illinois (1829), 191-237.