and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward.

of proceeds

1780. (§§ 23, 358.) If the estate is sold for the Investment purpose of putting out or investing the proceeds, the of sales. guardian must make the investment according to his best judgment, or in pursuance of any order that may be made by the Probate Court.

sale, how

1781. (§§ 24, 359.) To obtain an order for such Order for sale, the guardian must present to the Probate Court obtained. of the county in which he was appointed guardian, a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale.

NOTE.-See Fitch vs. Miller, 20 Cal., p. 352.

1782. (§§ 25, 360.) If it appears to the Court or Judge, from the petition, that it is necessary or would be beneficial to the ward that the real estate, or some part of it, should be sold, or that the real and personal estate should be sold, the Court or Judge must thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before the Court, at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the sale of such estate. If it appear that it is necessary or would be beneficial to the ward to sell the personal estate or some part of it, the Court must order the sale to be made.

1783. (§§ 26, 361.) A copy of the order must be personally served on the next of kin of the ward, and on all persons interested in the estate, at least fourteen

Notice to

next of kin,

how given.

Copy of

order to be served, published,

or consent

filed.

Hearing of application

Who may be examined on such hearing.

Costs to be awarded to whom.

Order of sale, to specify what.

days before the hearing of the petition, or must be published at least three successive weeks in a newspaper printed in the county, or if there be none printed in the county, then in such newspaper as may be specified by the Court or Judge in the order. If written consent to making the order of sale is subscribed by all persons interested therein, and the next of kin, notice need not be served or published.

NOTE.-Stats. 1861, p. 606, Sec. 9.

1784. (§§ 27, 362.) The Probate Court, at the time and place appointed in the order, or such other time to which the hearing is postponed, upon proof of the service or publication of the order, must hear and examine the proofs and allegations of the petitioner and of the next of kin, and of all other persons interested in the estate who oppose the application.

NOTE.-Stats. 1861, p. 606, Sec. 9.

1785. (§§ 28, 363.) On the hearing the guardian may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the Probate Court or Judge, in the same manner and with like effect as in other cases provided for in this Title.

NOTE.-Stats. 1861, p. 606, Sec. 10.

1786. (S$ 29, 364.) If any person appears and objects to the granting of any order prayed for under the provisions of this Article, and it appears to the Court that either the petition or the objection thereto is sustained, the Court may, in granting or refusing the order, award costs to the party prevailing, and enforce the payment thereof.

1787. ($$ 30, 365.) If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof should be sold,

the Court may grant an order therefor, specifying therein the causes or reasons why the sale is necessary or beneficial, and may, if the same has been prayed for in the petition, order such sale to be made either at public or private sale.

NOTE.-Stats. 1861, p. 606, Sec. 11. Sale considered in Judson vs. Sierra, 22 Texas, p. 365. Guardian an officer.-Ex Parte Bartlett, 4 Brad., p. 221. Default against an infant considered in Ralston vs. Locker, 8 Iowa, p. 17; Ex Parte Dawson, 3 Brad., p. 130. What is proper charge for costs.-See Kendall vs. Miller, 9 Cal., 591.

before

1788. (§§ 31, 366) Every guardian authorized to Bond sell real estate must, before the sale, give bond to the selling. Probate Judge, with sufficient surety, to be approved by him, with condition to sell the same in the manner, and to account for the proceeds of the sale, as provided for in this Chapter and Chapter VII of this Title. NOTE.-Guardian's bond controlled by Secs. 947-981, Political Code Cal.

ceedings

for sales of guardians VII of this

property by

to Chapter

Title.

1789. (§§ 32, 367.) All the proceedings under All propetition of guardians for sales of property of their wards, giving notice and the hearing of such petitions, granting or refusing the order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale and application for confirmation thereof, notice and hearing of such application, making orders rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, accounting and the settlement of accounts, must be had and made as required by the provisions of this Title concerning estates of decedents, unless otherwise specially provided in this Chapter.

NOTE.-Stats. 1850, p. 271, Secs. 31, 32; 1861, p. 605, Sec. 7; 1861, p. 606, Sec. 11; 1850, p. 271, Sec. 35. This section making all the proceedings in the matter of estates of deceased persons applicable to those of wards, the various decisions referred to under the appropriate 44-VOL. II.

Limit of order of sale.

Conditions

of sales of real estate of minor heirs.

sections, ante, are to be consulted with reference to these
proceedings. See sections ante, and notes, on the sub-
jects set out in this section, pertaining to estates of
decedents. In Scott vs. Umbarger, April Term, 1871,
the Court say (Temple for the Court): “No relation of
confidence existed * *
which imposed duties upon
defendant in defending the rights of the plaintiff, or
tended to induce plaintiff to rely upon them. Defend-
ant, by the sale, acquired no equity which was after-
wards ripened into a title, nor does it appear that the
possession of the property aided in any way the acqui-
sition of the title. A party in possession without right,
legal or equitable, is fraudulently deprived of the pos-
session, without, however, depriving him of any right
of possession at law resulting from his actual prior
possession, and then the wrongdoer purchases the title
from the lawful owner. I know of no principle upon
which he can be compelled to convey it. I therefore
think the title acquired did not inure to the benefit of
plaintiff, and that the defendant cannot be compelled
to convey to them." This was a case where a fraud
upon the heirs was alleged in procuring an order for,
and in the sale of, a decedent's real property; the
defendant claiming to be an innocent purchaser, in
good faith, and without notice of the fraud, etc. The
Court found that the notice of fraud charged was not
sufficiently denied, but based the decision on the ground
that the facts admitted and proved did not constitute
defendants trustees of the plaintiffs so as to authorize
the conveyance to be ordered.

1790. (§§ 33, 368.) No order of sale granted in pursuance of this Article continues in force more than one year after granting the same, without a sale being had.

NOTE.-Stats. 1861, p. 606, Sec. 12.

1791. (§§ 50, 385.) All sales of real estate of wards must be for cash, or for part cash and part deferred payments, not to exceed three years, bearing date from date of sale, as, in the discretion of the Probate Judge, is most beneficial to the ward. Guardians making sales to be given must demand and receive from the purchasers bond and mortgage on the real estate sold, with such additional security as the Judge deems necessary and suffi

Bond and mortgage

for deferred payments.

cient to secure the faithful payment of the deferred payments and the interest thereon.

NOTE.-Stats. 1853, p. 129, Sec. 1.

1792. (§§ 36, 371.) The Probate Court, on the application of a guardian or any person interested in the estate of any ward, after such notice to persons interested therein as the Probate Judge shall direct, may authorize and require the guardian to invest the proceeds of sales, and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein; and the Probate Court may make such other orders and give such directions as are needful for the management, investment, and disposition of the estate and effects, as circumstances require.

NOTE.-Stats. 1861, p. 606, Sec. 13.

Probate order the

Court may

investment of money of

the ward.

ARTICLE V.

NON-RESIDENT GUARDIANS AND WARDS.

SECTION 1793. Guardians of non-resident persons.

1794. Powers and duties of guardians appointed under pre-
ceding section.

1795. Such guardians to give bonds.

1796. To what guardianship shall extend.

1797. Removal of non-resident ward's property.

1798. Proceedings on such removal.

1799. Discharge of person in possession.

of non

persons.

1793. (§§ 43, 378.) When a person liable to be Guardians put under guardianship, according to the provisions of resident this Chapter, resides without this State, and has estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the Probate Judge of any county in which there is any estate of such absent person, for the appointment of a guardian; and if, after notice given to all interested, in such manner as the Judge orders,