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of the ward without letters of administration, he should account for and pay over to the proper person the estate of the ward that remains in his hands. Martin v. Caldwell, 49 App. 1, 96 N. E. 660.

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The administrator of the estate of a deceased ward may sue to set aside a final settlement made by the guardian of such ward, to recover from such guardian money that was owing to such ward and not accounted for in such settlement. Euler v. Euler, 55 App. 547, 102 N. E. 856.

An action to set aside the final settlement made by a guardian, and to recover money that was not accounted for in such settlement, may be brought within three years from the date of such settlement. Euler v. Euler, 55 App. 547, 102 N. E. 856.

3078. Sale of real estate.

Where a conveyance is made to persons in consideration of support of the grantor, and one of the grantees dies and the other became insane, a demand by the grantor from the guardian of the insane person, for surrender of possession of the land so conveyed, because of the condition broken, it was held a sufficient re-entry by the grantor to constitute an election by her to terminate the grantee's estate. Huffman v. Rickets, 60 App. 526, 111 N. E. 323.

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3101. Proceedings to establish unsound mind.

In proceedings to have a guardian appointed for a person of unsound mind, the rules of the civil code apply as to issuing and service of process, and where such a person does not have a guardian, the process issued in such proceedings may be served upon the superintendent of an insane hospital where such person may be confined. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.

If the process issued in proceedings to have a person adjudged of unsound mind and a guardian appointed for him was not lawfully served, an appeal could be taken from the judgment, and a suit in equity to have the judgment set' aside will not lie. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.

To justify the appointment of a guardian for a person alleged to be of unsound mind, there must be such mental impairment as to render the person incapable of understanding and acting with discretion in the ordinary affairs of life, and on an application of a person under guardianship to be restored to the control of his property the same rule applies, but the burden is upon him to prove that he possesses the necessary mental capacity to manage his own estate. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.

Under this section probate courts have jurisdiction of the welfare of the person and property of insane persons, the guardian's powers and duties being prescribed by sections 3017, 3068, under supervision of the court. Hayward v. Hayward, 65 App. 440, 115 N. E. 966, 116 N. E. 746.

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This section and section 3106, relating to the appointment of guardians for insane persons who are not inhabitants of the state or county, apply to cases where such persons reside outside of the state or county but have property located therein. Hayward v. Hayward, 65 App. 440, 115 N. E. 966, 116 N. E. 746. 3106. Temporary guardianship.

See note to section 3105.

[Acts 1917, p. 297. In force March 7, 1917.]

3107a. Mortgage of real estate.-1. That any court having jurisdiction of the estate of any person under guardianship, except minors, for any reason whatsoever, shall have the right to authorize the guardian of any such ward to mortgage real estate of ward, wherever situated, to secure any debt, claim or liability whatsoever that would be a proper charge against the ward, or the ward's estate, whether incurred by the ward before guardianship or by the guardian, or to renew any existing mortgage.

3107b. Petition to court, order.-2. Before any mortgage shall be made, or renewed, the guardian shall petition the proper court for an order authorizing such mortgage to be made, or renewed, in which petition shall be set forth the general condition of the ward's estate, and the amount and purpose for which the mortgage is to be executed, showing that, in the opinion of the guardian, such mortgage is for the best interests of the ward's estate; and the advisability and propriety of executing such mortgage shall thereupon be submitted to the court. If such petition is granted, the court shall make such order as to the terms, amount, time, interest and conditions of said mortgage as it may deem for the best interest of said ward.

3107c. Husband or wife to join with guardian.-3. The husband, or wife, of any such ward shall have the right to join with the guardian of such husband, or wife, in the execution of such mortgage on ward's real estate, and such mortgage, when so executed, shall have the same effect as if it were executed by husband and wife, or by wife and husband, as the case may be. Any form of mortgage in which the intention of the husband, or wife, to join in the execution of such mortgage with the guardian of such husband, or wife, as the case may be, signed and acknowledged by such guardian and such husband, or wife, shall be sufficient to bind the entire interest of such ward in such real estate. The mortgage of the guardian of any husband, duly executed under such order of the court, without the wife of such husband joining in the execution thereof, shall have the same effect as a mortgage executed by a husband without his wife joining therein. The mortgage of the guardian of any wife, duly executed under such order of the court, without the husband of such wife joining in the execution thereof, shall be binding upon all of the wife's interest

therein, except if the husband survive his wife such mortgage shall have no effect on that part of said real estate which, under the law of Indiana would go to such husband free from the debts of his wife.

3107d. Bond of guardian-Approval of mortgage by court.-4. Before the court shall make any order authorizing a guardian to execute such mortgage, such guardian shall execute a bond, with sureties to be approved by the court, payable to the State of Indiana, in such penalty as the court may order, conditioned that said guardian shall honestly and faithfully account for all of the proceeds of said mortgage: Provided, That no question as to the validity of the bond or the application of the proceeds shall affect the validity of the mortgage; and the approval by the court of the execution of such mortgage by the guardian, which approval shall be indorsed on the mortgage, shall be conclusive proof of the validity of the mortgage, and of the authority of the guardian to execute the same.

3107e. Construction of act.-5. This act shall not be construed to apply in any way to guardianships of the estate of minors, or in any way change or modify the law now in force relating thereto.

SEC.

ARTICLE 3.—OF INCAPABLE PERSONS AND SPENDTHRIFTS.

3111a. Complaint, notice, duty of clerk,

prosecutor.

[Acts 1919, p. 520. In force May 15, 1919.]

3111a. Complaint, notice, duty of clerk, prosecutor.-1. Whenever any person shall file his complaint in the court having probate jurisdiction in any county, to the effect that any inhabitant of such county is incapable of managing his estate or business affairs because of old age, infirmity, improvidence, or being a spendthrift, such court shall cause not less than ten (10) days' notice of the filing of such complaint to be given such person by a summons issued by the clerk to the sheriff of said county. In all cases where the party is not represented by counsel, and no appearance of council has been intered [entered] in the appearance docket of such court at the expiration of the time fixed in the summons for the return of such service, it shall be the duty of the clerk of said court to deny the facts set forth in such complaint as to such disability, which issue shall be tried as the issues in civil actions are tried, by the court, or by a jury, to be impaneled under the direction of said court, and it shall be the duty of the prosecuting attorney of said county to appear for such person and to resist such complaint, and by all proper means to defend and protect the interests of such person.

This section amends section 3111a Revision of 1914.

The act of 1911, providing for the appointment of guardians of aged persons who are incapable of managing their property or business, is not unconstitutional because it deprives persons of their liberty or property without due process of law. Kutzner v. Meyers, 182 Ind. 669, 108 N. E. 115.

The sufficiency of a petition in proceedings to have a guardian appointed for an old person who is incapable of managing his estate and business, and the practice that is to be observed in such proceedings is considered and determined. Kutzner v. Meyers, 182 Ind. 669, 108 N. E. 115.

The statute which gives a minor over the age of fourteen years the right to select his guardian, does not apply when a guardian is appointed for a person because of old age. Kutzner v. Meyers, 182 Ind. 669, 108 N. E: 115.

WILLS.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein.

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The power to make a will is created by statute, and testators are presumed to be aware of the rules for the construction of wills, and as to how obscure and uncertain phrases will be construed. Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914. In view of this section and section 236 and common-law rules for construction of wills, a testator will be presumed to have known that obscure phrases will be subjected to the test of well recognized rules of construction. Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914.

Sections 3112-3174 being considered with section 3936 et seq., 7462 et seq., and section 4012 et seq., the conclusion is that a record title is the highest evidence of ownership. Phelbin v. Carr, App. 129 N. E. 19.

3115. Revocation and republication.

See notes to sections 522, 3144.

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Under this section and sections 3132, 3169, wills, codicils and revocations require the same formality. Pfaffenberger v. Pfaffenberger, Ind. 127 N. E. 766. 3121. New estate in devised property.

In determining whether after-acquired real estate passes under a specific devise to the wife of the testator or under the residuary clause in her favor, it was held that neither this section nor the rule against a construction creating partial intestacy is controlling. Coon v. Coon, 186 Ind. 478, 118 N. E. 820.

3123. Construction and effect.

In the construction of a will all of its provisions must be considered, and the intent of the testator, if manifested must be given effect, if lawful, and the estate created by one clause of a will may be limited or changed by some other clause. Conover v. Cade, 184 Ind. 604, 112 N. E. 7; Curry v. Curry, 58 App. 567, 105 N. E. 951; Nagle v. Hirsch, 59 App. 282, 108 N. E. 9.

If one clause of a will in clear and decisive terms devises a fee simple estate in land, such estate may be cut down to less than a fee simple by subsequent provisions of the will. Curry v. Curry, 58 App. 567, 105 N. E. 951.

Construction of a will that devised to the widow of the testator for her support during her life while she remains unmarried the use of all the real estate of the testator, and then provided that such real estate should be divided equally between the children of the testator after the death of the widow. Nagle v. Hirsch, 59 App. 282, 108 N. E. 9.

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