r. The other party to the deed or contract was best served by either renting the land (to reduce his risk) or by contracting with the infant’s guardian, who had the right to dispose of the minor’s property or bind an infant’s estate to a contract. In cases where the infant himself sells land (quite a rare occurrence), we usually find contractual language requiring him to reaffirm the sale upon reaching majority and usually a subsequent deed upon reaching majority. Persons under 21 generally sold land through a guardian, a “next friend”, or a parent.
Likewise, nothing in the common law prevented an infant from buying land or other property. But, again, such an action could be later be repudiated by the minor. Therefore, for the same reasons, we generally find such purchases made on the infant’s behalf by an adult guardian or next friend. Blackstone points out that an infant could renege on any contract upon reaching majority: “an infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason…”
Virginia in 1642 made these questions moot by enacting a statute to eliminate the “bad effects of tradeing and trucking with orphants” by legislating that anyone who attempted to “barter, bargain, buy or sell with orphants under age shall lose all that he so bartereth” plus a penalty of twice the value.3 To assure enforcement, the law provided that the informer would receive half the penalty.
Minors and Lawsuits
In the same manner, children were protected from lawsuits. A child under 21 could not be sued except in the name of his guardian. Conversely, an infant could initiate a suit only in the name of his guardian or next friend. A minor could, however, be charged with any crime at the age of 14.
Females and males were treated identically in all but one minor circumstance. Modern gender differences regarding legal age, such as permitting females to marry without consent at an earlier age than males, did not exist (at least in the south) during the colonial period.
Only one difference is of consequence to genealogists. Females were judged to have reached the age of discretion for purposes of bequeathing a personal estate at 12 years. That is, an unmarried female aged 12 or more could make a will, while a male had to be 14. (At the same age, females had the right to reject a marriage – although so rare as to be inconsequential, common law permitted a girl to be given in marriage as early as the age of 7.)