law and for the best interest of the ward, and faith- Same. fully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward; 3. To render an account, on oath, of the property, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the Court directs; and at the expiration of his trust to settle his accounts with the Probate Judge, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto. Upon filing the bond, duly approved, letters of guardianship must issue to the person appointed. In form, the letters of guardianship must be substantially the same as letters of administration; and the oath of the guardian must be indorsed thereon that he will perform the duties of his office, as such guardian, according to law. NOTE.-Stats. 1861, p. 604, Sec. 2; see Secs. 947-981, Political Code, and notes, as to "bonds." By the latter section these provisions apply to bonds of guardians. Judge conditions in order appointing guardian. 1755. (§§ 1, 342.) When any person is appointed Probate guardian of a minor, the Probate Judge may, with the may insert consent of such person, insert in the order of appointment conditions not otherwise obligatory, providing for the care, treatment, education, and welfare of the minor. The performance of such conditions is a part of the duties of the guardian, for the faithful performance of which he and the sureties on his bond are responsible. NOTE.-Stats. 1866, p. 380, Sec. 1. 1756. (§§ 15, 385.) All letters of guardianship issued, and all guardians' bonds executed under the guardian ship and bond of Letters of provisions of this Chapter, with the affidavits and certificates thereon, must be recorded by the Clerk of the guardian to Probate Court having jurisdiction of the persons and estates of the wards. be recorded Mainte nance of of income of his own property. NOTE.-Stats. 1861, p. 607, Sec. 15; see Secs. 947-981, Political Code. 1757. (§§ 9, 344.) If any minor, having a father minor out living, has property, the income of which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard being had to the situation of the father's family and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own property, in whole or in part, as judged reasonable, and must be directed by the Probate Court; and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. Guardian to give bond. Powers limited. Power of Courts to appoint guardians and next friend not impaired. NOTE.-See Harring vs. Coles, 2 Brad., p. 349. 1758. (§§ 10, 345.) Every testamentary guardian must give bond and qualify, and has the same powers and must perform the same duties, with regard to the person and estate of his ward, as guardians appointed by the Probate Court, except so far as their powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed. NOTE.-Stats. 1861, p. 604, Sec. 3. Father failing to appoint, the Court will exercise a discretion consistent with the best interests of the infant.-Foster vs. Mott, 3 Brad., p. 409. 1759. (SS 11, 346.) Nothing contained in this Chapter affects or impairs the power of any Court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein. NOTE.-See Sec. 1718, ante, and note. Norris vs. Harris, 15 Cal., p. 255; Townsend vs. Gordon, 19 Cal., p. 201; Lord vs. Hough, 37 Cal. pp. 668, 669; Smith vs. ARTICLE II. GUARDIANS OF INSANE AND INCOMPETENT PERSONS. SECTION 1763. Guardians of insane and other incompetent persons. of insane and other incompetent persons. 1763. (§§ 12, 347.) When it is represented to the Guardians Probate Judge, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, the Judge must cause a notice to be given to the supposed insane or incompetent person, of the time and place of hearing the case, not less than five days before the time so appointed, and such person, if able to attend, must be produced before him on the hearing. NOTE.-Appointment cannot be collaterally attacked.-Warner vs. Wilson, 4 Cal., p. 313. Court may make personal examination, and admit evidence aliunde.-White vs. Palmer, 4 Mass., p. 147; see Civil Code, Sec. 258. As to power to make a will if restored, though guardianship still exists.-See Stone vs. Damon, 12 Mass., p. 488. Payment to ward with knowledge of guardianship invalid.-Leonard vs. Leonard, 14 Pick., p. 280. ment by Judge after 1764. (§§ 13, 348.) If, after a full hearing and Appointexamination upon such petition, it appears to the Pro- Probate bate Judge that the person in question is incapable of hearing. taking care of himself and managing his property, he must appoint a guardian of his person and estate, with the powers and duties in this Chapter specified. NOTE.-Examination.-See Sec. 258, Civil Code; see and duties of such 1765. (§§ 14, 349.) Every guardian appointed, as Powers provided in the preceding section, has the care and custody of the person of his ward, and the manage guardians. ment of all his estate, until such guardian is legally discharged; and he must give bond to such ward, in like manner and with like conditions as before prescribed with respect to the guardian of a minor. NOTE.-See preceding Sec. 1754, and Secs. 947–081, Political Code; also, Racouillat vs. Requena, 36 Cal., p. 652. Guardian to pay debts of ward out of ward's estate. ARTICLE III. THE POWERS AND DUTIES OF GUARDIANS. SECTION 1768. Guardian to pay debts of ward out of ward's estate. 1769. Guardian to recover debts due his ward and represent him. 1770. Guardian to manage his estate, maintain ward, and sell real estate. 1771. Maintenance, support, and education of ward, how enforced. 1772. May assent to a partition of real estate. 1773. Guardian to return inventory of estate of ward. Appraisers to be appointed. Like proceedings when other property acquired. 1774. Settlements of guardians. 1775. Allowance of accounts of joint guardians. 1776. Expenses and compensation of guardians. 1768. (§§ 15, 350.) Every guardian appointed under the provisions of this Chapter, whether for a minor or any other person, must pay all just debts due from the ward, out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate, upon obtaining an order for the sale thereof, and disposing of the same in the manner provided in this Title for the sale of real estate of decedents. NOTE. The necessity or expediency of the sale must arise from one or more of these circumstances: 1. The existence of debts due from the ward which cannot be paid out of his personal estate and the income of his real estate. 2. The insufficiency of the income of the estate of the ward to maintain him and his family, or to educate his family, or to educate him when a minor. 3. That it would be for the benefit of the ward that his real estate, or a part thereof, should be sold and the proceeds put out on interest, or invested in some pro- to recover debts due his ward represent him. 1769. (§§ 16, 351.) Every guardian must settle Guardian all accounts of the ward, and demand, sue for, and receive all debts due to him, or may, with the appro- and bation of the Probate Judge, compound for the same and give discharges to the debtors on receiving a fair and just dividend of his estate and effects; and he must appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend. NOTE.-See note to preceding section, Fitch vs. Miller, there cited; Wilson vs. Wilson, 36 Cal., p. 449, relating to the wife. Guardian must keep accounts and is chargeable with interest for a neglect in investing the funds of the estate. This does not mean that he may not keep on hand funds for contingent expenses. Baker vs. Richards, 8 Serg. & Rawle, p. 12; Lay vs. Barnes, 4 id., p. 112. So, if the guardian mixes the funds with his own, he must account for interest.White vs. Parker, 8 Barb., p. -; Rait vs. Rait, 1 Brad., p. 345. Counsel fees.-McGary vs. Lamb, 3 Texas, p. 342. Settlements.-Crowell's Appeal, 2 Watts, p. 205; Thacher vs. Dinsmore, 5 Mass., p. 300; 43-VOL. II. |