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if it is old enough to have an intelligent choice. This matter of the welfare of the infant may even prevent the court from appointing one of the parents if someone else interested in the child and capable of giving it better care is willing to become the guardian. The court will never appoint a foreigner. The general opinion of the court on this matter of choice may be well shown perhaps by the following excerpt:

While the Surrogates Court is vested with a discretionary power to appoint a stranger, the guardian of the person and estate of an infant, such power will not, other things being equal, be exercised where a relative of the infant is in existence and is competent and desirous of being appointed.

Where one sister of an infant applies to have a trust company appointed guardian of the infant's estate, and another sister of the infant applies to have herself appointed guardian of the infant's person and estate, the Surrogate may properly appoint the trust company guardian of the infant's estate, and the opposing sister guardian of the infant's person.*

Procedure for Appointment. The exact method or pro cedure for the appointment of a guardian differs in the various states, and the statutes of the particular locality in which it is desired to have a guardian appointed should always be consulted. The usual procedure, however, in almost every state where this law is statutory, is about as follows:

The infant, if over fourteen, or else a relative or a friend, will present a petition to the court, stating the name and the age of the infant, the name, age, and residence of the person proposed as guardian, the relationship between the infant and this proposed guardian, and the value and the situation or condition of the infant's property.

After this petition has been presented to the court, the court will find out for a certainty the age of the infant, and

Matter of Buckler, 96 App. Div. (N. Y.) 397.

if over fourteen will ascertain if the guardian nominated by the infant was his own voluntary choice. The court will also ascertain the exact amount of the property, both real and personal, and with this knowledge fix an adequate bond or security to be given by the guardian.

This petition must, of course, be presented to the probate court in the jurisdiction where the infant is living. All persons, such as a surviving parent or relative, who may be interested in the selection of the guardian and in the care of the infant's estate, must be cited to attend in the same manner in which it is done in the probate of a will, and they then have the opportunity of sending in protests, appearing personally to object to the choice, or of waiving notice, thereby signifying acquiescence in the court's choice of guardian.

§ 146. Rights and Responsibilities of Guardians

A general guardian is entitled to the custody of his ward, and may move the child, where necessary, to some other town or city within the same state. He may not change the infant's domicile to another state without good cause, but must show to the court having jurisdiction sufficient and satisfactory cause for so doing.

The guardian is entitled to either a commission or a reasonable compensation for his work, according to the statutes of the jurisdiction in which he performs his duties as guardian. A guardian's duty is the same as that of a parent-to maintain the infant in such manner as the income from the property will allow, to protect it, and to give it an education in keeping with the position in life it will assume after coming of age. There is no liability upon the guardian to care for the infant with his, the guardian's, own money; and therefore if there is no estate the ward may be put to work when he reaches the age allowed by law, and in the meantime may be placed in the care of some charitable organization.

§ 147. The Guardian's Care of Property

The guardian must look after the property of his ward with skill and diligence, and his standard of care will be that of a reasonable man in caring for his own property. Unauthorized acts of a guardian may be excused by the court if they were such as would benefit the infant, but if this were not the case the court would hold him responsible for such acts.

The guardian should never spend more of the estate than the income acquired therefrom, but the court, in its discretion and where it thinks necessary, will allow certain of the personal or the real property of the infant to be sold. The real property must never be sold unless it is necessary for the infant's maintenance, but when necessary the court will give the guardian permission to sell it.

The guardian should keep all moneys in connection with the infant's estate in a separate account. If this is done he is under no responsibility should the bank fail or some other accident happen.

As soon as the guardian has ascertained the amount of the infant's property, the income, and the amount of expenses each year, he should take any surplus and invest in approved and safe securities classed as legal investments for trust funds or put the surplus, if small, in a savings bank, in order to increase the infant's income as much as possible. If this is not done within a reasonable time, he will himself be liable for interest on such surplus lying idle, just as in the case of a trustee. (See §177.)

The guardian is required by the court to make an accounting at various times showing the condition of the estate in his care. The infant, whenever he may think it necessary, may bring an action by a next friend for an accounting or to restrain the guardian from abusing his trust. The court will also help an infant to the best of its ability where the guardian has stolen or wrongfully conveyed property of the ward.

In New York the law requires an annual accounting, but the rule is not enforced unless the court is asked to act. Banks and trust companies always file such annual accounts voluntarily.

Where a gift of any of the property has been made to the guardian by the ward, the court will scrutinize the gift carefully to be sure that it was voluntary, that no undue influence was used, and that the infant was capable of making such a gift without injury to his estate.

§ 148. Termination of the Guardianship

A guardianship will terminate: (1) when the infant comes of age; (2) where the infant marries, though still in his or her minority; (3) by the death of either infant or guardian; or (4) by the resignation or removal of the guardian.

Although guardianship of the person terminates when an infant marries, a guardian will still have authority over the property of a male ward.

A guardian may always resign, or, for neglect or carelessness in his duties, be removed by the court of probate. Natural guardians (parents) may always be removed for neglect of their duties, but may not resign their guardianship.

When the guardian's authority is to be brought to an end, he must file a final account, and when this has been examined by the court and approved, it closes up all matters pertaining to the particular guardian with the estate.

REVIEW QUESTIONS

1. What is a guardian? What is the distinction between guardianship of the person, and guardianship of property?

2. Can a guardian in socage control the personal property of his ward?

3. In your state, what are the usual forms of guardianship? What is a testamentary guardian? What is a probate guardiar? Who are the natural guardians?

4. When is it necessary to appoint a guardian? What is the object of appointing a guardian?

5. What is the procedure to appoint a guardian for a minor in your state? Who should be cited to be present?

6. What rights has a general guardian? In your state, what compensation does a guardian receive? How must he maintain his ward? How must he care for his ward's property? What is his duty as to accounting?

7. What terminates a guardianship? For what may a guardian be removed?

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