ward are his personal contracts and a judgment against him therefor should be against him personally and not against the ward's estate.98 1364. Contracts of ward void-While a person is under guardianship for insanity his deeds and other contracts, except for necessaries, are absolutely void and not merely voidable, if made after record notice of the guardianship provided by G. S. 1913, § 7436.99 The deed of an insane person not under guardianship is voidable only, but while he is under actual and subsisting guardianship he is conclusively presumed to be incompetent to make a valid deed concerning his estate, though he is in fact sane at the time he attempts to do so. If, however, at the time he made the deed, he was in fact of sound mind, and the contract fair, and the guardianship had been practically abandoned, the deed is valid, though the guardian had not been formally discharged by the court.1 1365. Compromise of claims of ward-Under the present statute a guardian of an incompetent cannot compromise a claim of his ward without leave from the probate court. An improvident and fraudulent settlement by a guardian of his ward's cause of action, though approved by the court in which the action is pending, may be vacated and set aside upon a showing of the facts, though it is not affirmatively shown that the defendant in the action participated in the fraud.3 1366. Admissions of ward-While a person is under guardianship for incompetency he cannot make any admissions that will bind his estate.* 1367. Appearance of ward by guardian-It is provided by statute that the guardian shall appear for and represent his ward in all legal proceedings, unless another person is appointed for that purpose." 1368. Actions by ward-An action by an insane person may be brought in his name, appearing by a next friend or guardian ad litem appointed by the district court, or by a general guardian appointed by the probate court." Where an action is brought by an insane person, appearing by a guardian ad litem or next friend, the court has discretionary power to allow the action to proceed or not, and it may stay proceedings to await the due appointment of a general guardian, or it may dismiss the action." 1369. Actions against ward-Judgment-Execution-An action will lie in the district court on all claims against an insane or incompetent ward as though no guardianship existed. There is now no provision for presenting such claims to the probate court for allowance. The action should be against the ward and not against the guardian. In such an action the guardian should appear for the ward. If judgment is recovered against an insane or incompetent ward it is the duty of his guardian to pay it without any order of court, if he has funds. If the personalty of the ward is insufficient his realty may be sold under a license of the probate court. Execution may probably issue on a judgment against a ward.10 1370. Aid for children of insane ward-Statute-The duly appointed guardian of the property of any insane person who shall be pronounced incurably insane by the certificate of the superintendent of any state hospital for the insane of this state where such insane person shall be confined, shall have the power and authority to furnish aid for the support and maintenance of any female child of such insane person, who is over the age of eighteen years, or of any sick, maimed, deformed, or crippled male child of such insane person who is over the age of twenty-one years and unable to support himself in whole or in part, which aid shall be furnished in the manner and to the extent hereinafter provided. The amount of such aid shall in no case exceed the annual rents, profits, or income derived from the property of such insane person.1 11 1371. Same-Petition-Notice-Statute-Before any such aid shall be furnished, the guardian of the property of such insane person, or any child of such insane person, shall make and file with the probate court having jurisdiction, a petition in writing, duly verified, setting forth all the facts entitling such child to such aid. Thereupon the judge of probate shall make an order fixing the time and place of the hearing on said petition, a copy of which order, with a copy of the petition, shall be personally served upon such guardian and the superintendent of the insane hospital where such insane person is confined, at least ten days prior to the time fixed for said hearing. Provided, that any case of guardianship now pending before any probate court where a guardian resides in a different county, all acts and transactions therein conducted under the direction of the court are hereby declared legal, valid and effectual for all purposes.12 1372. Same-Hearing on petition-Order-Allowance-Statute-At the time and place fixed for the hearing, witnesses shall be sworn before testifying, and the certificate of such superintendent shall be admissible 8 Clark v. Buck (Minn.) 188 N. W. 326. 9 See § 1307. 10 See §§ 1310, 1322. 11 G. S. 1913, § 7449. 12 G. S. 1913, § 7450, as amended by Laws 1919, c. 312. in evidence on his signature alone; and if, after full investigation and hearing, the judge of probate shall find that such child is entitled to the aid herein provided, and that the allegations of the petition are true, he may make an order directing such guardian to furnish aid to such child for such time, and in such an amount, as the judge of probate shall deem necessary. The aid so furnished shall be allowed in the guardian's annual or final accounts as a part of his lawful disbursements.18 1373. Appointment of guardian for non-resident incompetent-Notice -In proceedings for the appointment of a guardian for a non-resident incompetent who has property in this state, the administrator, as such, of the estate embracing such property, is not a party in interest entitled to notice of such appointment. The fact that the probate court orders such administrator to be served with notice of such hearing is not an adjudication of the question of his interest; and if, at the hearing, he is prevented by the court from taking part therein he has no remedy by appeal.1 1374. Restoration of ward to capacity-Statute-Any person who has been so declared insane or incompetent, or his guardian, relative, or friend, may petition the probate court in which he was declared insane or incompetent to have his right to be restored to capacity judicially determined. Upon filing such petition the court shall fix a day for hearing, and cause personal notice thereof to be given to the guardian, if there be one in the state. Such guardian, relative, or friend, or any other person permitted by the court, may contest the right to the relief demanded. Witnesses may be called and examined at the request of any party interested or by the court on its own motion. If it be found that such person is of sound mind and capable of taking care of himself and his property, the court shall adjudge him restored to capacity; and unless it be a minor, the guardianship shall thereupon cease. The statute applies only to persons under guardianship. It does not apply to one committed to a state hospital for the insane.16 An order of the probate court granting or refusing an application under the statute, after a hearing on the merits, is a final adjudication of the application, and to all intents and purposes a judgment." The probate court must decide the question of the mental capacity of the ward wholly from the evidence and not from its own personal knowledge. It has no right to reject the testimony of witnesses upon its personal knowledge of the condition of the ward.18 Evidence held to justify a restoration of an 13 G. S. 1913, § 7451, as amended by Laws 1915, c. 245. 14 Edgerly v. Alexander, 82 Minn. 96, 84 N. W. 653. 15 G. S. 1913, § 7438. 16 Northfoss v. Welch, 116 Minn. 62, 15 68, 133 N. W. 82; Aldrich v. Superior Court, 120 Cal. 140, 52 Pac. 148. 17 State v. Probate Court, 83 Minn. 58, 85 N. W. 917. 18 State v. Probate Court, 83 Minn. 58, 85 N. W. 917. incompetent to capacity.19 An order of the probate court denying an application for restoration to capacity held not justified by the evidence.20 The probate court may order fees of witnesses and counsel incurred upon a hearing under the statute to be paid out of the estate of the incompetent, whether his application is granted or denied. Prior to Laws 1901, c. 147, the final order was not appealable, but only reviewable by certiorari.22 An order or judgment restoring an incompetent to capacity is conclusive as to his condition or status.28 It terminates ipso facto the authority of the guardian.24 1375. Removal of guardian-An order upon a petition of a person under guardianship for restoration to capacity, held not an order removing a guardian within the statute relating to appeals, though it results in the removal of a guardian.25 In habeas corpus proceedings a court commissioner has no authority to make an order which practically removes a guardian of the person and property of an incompetent.2 19 Hallenberg v. Hallenberg, 144 Minn. 39, 174 N. W. 443. 20 State v. Probate Court, 83 Minn. 58, 85 N. W. 917. 21 Kelly v. Kelly, 72 Minn. 19, 74 N. W. 899. 22 State v. Probate Court, 83 Minn. 58, 85 N. W. 917. 26 23 Aldrich v. Barton, 153 Cal. 488, 95 Pac. 900. 24 In re Scheuer's Estate, 31 Mont. 606, 79 Pac. 244. 25 State v. Probate Court, 83 Minn. 58, 85 N. W. 917. 26 State v. Lawrence, 86 Minn. 310, 90 N. W. 769. |