Fees of officers, when and by whom paid. Public Administrator to administer oaths. Preceding to Public 1741. (§ 305.) The fees of all officers chargeable to estates in the hands of Public Administrators must be paid out of the assets thereof, so soon as the same come into his hands. NOTE.-Stats. 1860, p. 357, Secs. 1, 2. In the Estate of Bezar Simons, July Term, 1871, the Court below allowed the Public Administrator three per cent on the estate which came to his hands, and the Supreme Court held: it would be a too rigid construction to say, when administration is taken from the Public Administrator by the next of kin, he should receive no compensation. The more reasonable rule is laid down in Ord vs. Little, 3 Cal., p. 287, where it is said, in such case, the Probate Court should apportion the compensation, after examining the nature of the services and their value relatively-that which has been done with that yet to be done. 1742. ($305.) Public Administrators may administer oaths in regard to all matters touching the discharge of their duties, or the administration of estates in their hands. NOTE.-Stats. 1860, p. 357, Sec. 3. 1743. When no direction is given in this Chapter applicable for the government or guidance of a Public Administrator in the discharge of his duties, or for the administration of an estate in his hands, the provisions of the preceding Chapters of this Title must govern. Administrator. NOTE.-See Dwinelle vs. Henriquez, 1 Cal., p. 387; Beckett vs. Selover, 7 Cal., p. 323; Public Adminis trator vs. Wells, 1 Paige, p. 347; Hammond vs. McLea, 2 Johns. Ch., p. 493; Rogers vs. Hoberlin, 11 Cal., p. 127. Sections in parentheses-thus, (2 303)-are the sections as given in Hittell, of the Act of 1851. CHAPTER XIV. OF GUARDIAN AND WARD. ARTICLE I. GUARDIANS OF MINORS. II. GUARDIANS OF INSANE AND INCOMPETENT PERSONS. IV. THE SALE OF PROPERTY AND DISPOSITION OF PRO CEEDS. V. NON-RESIDENT GUARDIANS AND WARDS. VI. GENERAL AND MISCELLANEOUS PROVISIONS. ARTICLE I. GUARDIANS OF MINORS. SECTION 1747. Probate Judge to appoint guardians, when, and on what petition. 1748. When minor may nominate guardian; when not. 1749. When appointment may be made by Judge, when minor is over fourteen. 1750. Nomination by minors after arriving at fourteen. 1751. Father or mother entitled to guardianship. 1752. Minor having no father or mother. 1753. Powers and duties of guardian. 1754. Bond of guardian, conditions of. 1755. Probate Judge may insert conditions in order appoint ing guardian. 1756. Letters of guardianship and bond of guardian to be recorded. 1757. Maintenance of minor out of income of his own prop erty. 1758. Guardian to give bond. Powers limited. 1759. Power of Courts to appoint guardians and next friend not impaired. Judge to guardians, on what petition. 1747. (§§ 1, 336.) The Probate Judge of each Probate county, when it appears necessary or convenient, may appoint appoint guardians for the persons and estates, or either when, and of them, of minors who have no guardian legally appointed by will, and who are inhabitants or residents of the county, or who reside without the State and have estate within the county. Such appointment 42-VOL. II. Same. may be made on the petition of a relative or other person, in behalf of such minor. Before making the appointment, the Judge must cause such notice as he deems reasonable to be given to the relatives of the minor residing in the county, and to any person under whose care such minor may be, as he deems reasonable. NOTE.-Stats. 1861, p. 603, Sec. 1; Wilson vs. Roach, 4 Cal., p. 362; Norris vs. Harris, 15 Cal., p. 227. See Civil Code Cal., “Guardian and Ward," Secs. 236-257, inclusive, and notes. Sec. 242, id., declares that "no person, whether a parent or otherwise, has any power, as guardian of property, except by appointment as hereinafter provided." By Sec. 241, id., it is provided, that a guardian of the person may be appointed by a will of the parent. In Norris vs. Harris, 15 Cal., p. 255, it was held, that the statute of this State, in relation to guardians, is only applicable to cases where there is no direction, by will, as to the disposition of the estate left to the wards. If such estate were given, subject to a right of sale or exchange in the guardian, and thereby to acquire property for their benefit of a different character, it is difficult to perceive in what respect the policy or letter of the law would be contravened. "The object of the law, where there has been a testamentary appointment of guardian, is, as we conceive, to preserve the property for the benefit of the wards, so as to effectuate and not defeat the intentions of the testator. This view is strengthened by the consideration that there is no limitation by the law of this State upon the power of disposition by will. The statute is only operative where there is no testamentary power."-Id. Section 243 of the Civil Code, recognizes this Chapter, controlling the appointment of guardians, when a minor heir is not estopped by an order confirming a sale by an administrator.-See Townsend vs. Tallant, 33 Cal., p. 54; De la Montagnie vs. Union Ins. Co., October Term, 1871, cited in note to Sec. 1778, post. Before appointment to ascertain facts concerning property.-Bennett vs. Byrne, 2 Barb. Ch., p. 216. What powers the District Court of this State has in these matters.-Wilson vs. Roach, 4 Cal., p. 362. Jurisdictional act that of appointing guardian.-McLaskey vs. Reid, 4 Brad., p. 334; see, also, Brown vs. Lynch, 2 Brad., p. 214. But see Sec. 248, Civil Code, as to residence; see, also, Sec. 244, id., as to property in this State where the ward is out of the State. Wishes of deceased parents and liv- minor may guardian; 1748. (§§ 2, 337.) If the minor is under the age When of fourteen years, the Probate Judge may nominate nominate and appoint his guardian. If he is above the age of when not. fourteen years, he may nominate his own guardian, who, if approved by the Judge, must be appointed accordingly. NOTE.-Court to be governed by the preference of appoint ment may by Judge be made when minor is over 1749. (§§ 3, 338.) If the guardian nominated by When the minor is not approved by the Judge, or if the minor resides out of the State, or if, after being duly cited by the Judge, he neglects for ten days to nominate a suitable person, the Judge may nominate and appoint the guardian, in the same manner as if the minor were under the age of fourteen years. NOTE.-Consult note to Sec. 1747, ante. fourteen. tion by after arriving at 1750. (§§ 4, 339.) When a guardian has been Nominaappointed by the Court for a minor under the age of minors fourteen years, the minor, at any time after he attains that age, may appoint his own guardian, subject to the approval of the Probate Judge. fourteen. mother guardian 1751. (§§ 5, 340.) The father of the minor, if Father or living, and in case of his decease the mother, while entitled to she remains unmarried, being themselves respectively ship. competent to transact their own business and not otherwise unsuitable, must be entitled to the guardianship of the minor. NOTE.-See Sec. 246, Civil Code, and note. A father, though a convicted felon, if restored to civil rights by a pardon, may be guardian of his infant children.-Matter of Deming, 5 John., p. 233. A grandfather preferred to stepfather, in Masingale vs. Tate, Minor having no father or mother. Powers and duties 4 Hayw., p. 30. Natural guardianship extends only to the person, and not to the estate.-Kendall vs. Miller, 9 Cal., p. 591. 1752. (S$ 6, 341.) If the minor has no father or mother living, competent to have the custody and care of his education, the guardian appointed shall have the same. NOTE.-See Sec. 246, Civil Code; Townsend vs. Gordon, 19 Cal., p. 201; Est. of Howard, 22 Cal., p. 397. "The rule here prescribed is according to the law of nature."-Lord vs. Hough, 37 Cal., pp. 668, 669, where the question considered is: Under what circumstances is the personal custody and tuition of the ward given to the probate guardian? Here, too, is considered the testamentary guardian.-See Swift vs. Swift, 40 Cal., p. 458. The difficulty in this case, to which Justice Crockett called attention, is remedied by Sec. 1771, post. of guardian have the custody and Bond of guardian, conditions of. 1753. (§§ 7, 312.) Every guardian appointed shall care of the education of the minor, and the care and management of his estate, until such minor arrives at the age of majority or marries, or until the guardian is legally discharged. NOTE.-See note to preceding section, and cases there cited; see Civil Code, Secs. 236–257. 1754. (S$ 8, 343.) Before the order appointing any person guardian under this Chapter takes effect, and before letters issue, the Judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the Judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law; and the following conditions shall form a part of such bond, without being expressed therein: 1. To make an inventory of all the estate, real and personal, of his ward that comes to his possession or knowledge, and to return the same within such time as the Judge may order; 2. To dispose of and manage the estate according to |