n -;■;■: •:■'!■■; II ill ^.-3^- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A M -A. N XJ A. L GUARDIANS AND TRUSTEES MINORS, INSANE PERSONS, IMBECILES, IDIOTS, DRUNK- ARDS, AND FOR GUARDIANS AD LITEM, RESI DENT AND NON-RESIDENT, A FFECTEB BY THE LAWS OF OHIO. WITH Forms, Notes of Decisions, and Practical Suggestions. BY * FLORIEN GIAUQUE, Editor of " Revised Statutes of Ohio;" Author of "A. Manual for Assignees," etc. THIRD EDITION. CINCINNATI: ROBERT CLARKE & CO. IN! H). Copyrighted, i88l, by ROBERT CLARKE & CO. ^ WM. F. MUCHMORE, — LAWYER,— Room 47, Wiggins Block, CINCINNATI, o. PREFACE TO THE THIRD EDITION. The original plan of the first edition has been adhered to in this edition, the principal changes made having been rendered necessary by the rather numerous amendments to old laws and the enactment of new ones, or by decisions of important questions by our courts. Numerous additional notes of decisions of courts of last resort in other states and of- our courts of inferior jurisdiction have been added. Some other changes, suggested as desirable by the experience of the writer and others, including the insertion of some additional forms, and of some statutory provisions not in the first edition, have also been made. This has made necessary the re-writing of considerable portions of the book and the insertion of some new pages. To learn what changes ought to be made, every line in the entire work has been examined, and every reference has been verified. Florien Gtauque. Cincinnati, September, 1890. (iii) PREFACE Law books upon special subjects of importance, if so prepared as to be clear and trustworthy, into which are gathered within a small cora- pass and convenient form the widely scattered statutory provisions, and at least the more important general principles of unenacted law and notes of decisions pertaining to the subject, with suitable refer- ences to the authorities relied on, are a great convenience to even the most experienced attorneys and officers of courts having access to the best of libraries, to say nothing of the less favored and less experi- enced, nor of other persons directly interested who can not have an attorney constantly within reach for consultation. To prepare such a work on the subject of guardianship in Ohio, with suitable forms, practical suggestions, index, etc., has been the aim of the writer since this volume was begun and announced. For this pur- pose, it has been necessary to examine, with care, the standard works on Trusts, Trustees, Domestic Relations, and other subjects in which guardianship is considered directly or indirectly, as well as a great many cases decided by the courts of our different states and of Eng- land, and to glean, condense, and arrange from these authorities such matter as would likely be most useful, and yet not to make the book a large or expensive one. The time devoted to it being chiefly outside of usual office hours, its progress was not as rapid as was hoped at first; and when almost ready for the press, it, with considerable other manu- script, was totally destroyed by fire. Its data had, therefore, to be again all collected as at first, and its writing done a second time. These are the causes of its delay. T ,e writer is under obligations in various ways relating to this vol- ume*, to Justice Stanley Matthews, Hons. Wm. Lawrence, W. M. Bate- man. Rums King, S. J. Thompson, Judge Isaac B. Matson and Deputy Daniel Herider, of the Hamilton county Probate Court, M. W. Myers, librarian of the Cincinnati Law Library, and others, which are thank- fully acknowledged. He should also state, that for the sake of the forma in F. J. Matthews' Guardian's Guide, its copyright was pur- chased, and that many of these forms, with or without modifications, will be found herein. p q Cincinnati, May, 1881. (iv) CONTENTS. CHAPTER 1. Preliminary — Including certain Definitions, and a Brief Review of English, Civil Law, and Ohio Guardianships '. 1 CHAPTER 2. Powers and Duties of Probate Courts, as Affecting Guardianship... 7 CHAPTER 3. Appointment of Guardians 15 CHAPTER 4. Resignation, Removal, Release, etc., of Guardian 40 CHAPTER 5. General Powers and Duties, etc., of Guardians :. 59 CHAPTER 6. Sale of Ward's Property 92 CHAPTER 7. Lease of Ward's Real Estate 139 CHAPTER 8. Taxation and Tax Titles, as affecting Guardian and Ward 144 (v) VI I nNTENTS. CHAPTER 9. Account and Settlement, and Compensation of Guardian 150 CHAPTER L0, Bond — Exceptions to — Release from — Suits on , 168 CHAPTER 11. Partition 186 CHAPTER 12. « >ccupying Clnimants to Peal Estate — Rights and Obligations of Guardians and Wards who are, or have Claims adverse to, such Claimants 196 CHAPTER 13. Road Laws, etc., as directly affecting Guardians and Wards 201 CHAPTER 14. School Laws, as affecting Guardian and Ward 205 CHAPTER 15. Apprenticeship of Ward 208 CHAPTER 16. Charitable, Reformatory, and Punitive Institutions, as Affecting Guardianship of Minors, etc 214 CHAPTER IT. Intoxicating Liquors- — Duties, Rights, and Liabilities of Guardians and Wards, with reference to the Sale of Intoxicating Liquors, as provided in Chapter 7, Title 5, Part I, Revised Statute:- 221 CONTENTS. Vll CHAPTER 18. Real Contracts of Ward's Ancestor . 22b CHAPTER 19. Guardians of Lunatics, Idiots, and Imbeciles 229 CHAPTER 20. Guardians of Drunkards 249 CHAPTER 21. Trustees Generally, and their Accounting 2o.'J CHAPTER 22. Trustees for Non-residents 264 CHAPTER 23. Guardians Ad Litem 2.0 CHAPTER 24. Appeals >•• 280 CHAPTER 2.3. Miscellaneous Matters 285 APPENDIX. Can a Married Woman be a Guardian? 297 TABLE OF SECTIONS Of the Revised Statutes of Ohio, showing page on which found. Xote. —The page referred to is the one on which the section, or quoted part of it, ends, and on which the number of the section may be found in the foot-notes or text. Sec. Page. Sec. Page. Sec. Page. Sec. Page. Sec. Page. 4 134 21 <4 218 4517 2S8 51461 5792 199 6 36 2185 218 4638 201 to !> 288 5793 199 524 10 2213 278 4642 201 5161 j 5794 199 52-5 10 2256 282 4645 201 5147 28S 5795 199 525 97 2262 203 4688 202 5227 284 5796 200 526 10 2263 203 4689 202 £228 284 5800 226 527 10 2272 204 4689 282 5228 282 5800 250 527 97 2613 278 4699 202 5228 283 5801 226 528 10 2656 278 4700 202 5241 291 5801 239 528 11 27:'>4 146 4701 202 5242 292 5802 227 530 11 27:;5 147 4744 204 5371 181 5803 2s9 532 11 2736 147 4745 204 5404 120 5806 290 533 10 2845 144 4774 1 to i- 5404 125 5808 290 534 12 2846 145 203 5404 126 5809" 291 635 13 2847 144 4864 J 5410 138 5810 291 535 28 2848 145 4S54 203 5411 138 5811 291 540 13 2850 146 4836 203 5416 120 5833 288 584 287 2851 146 4859 205 5628 271 5835 289 753 214 285 1 132 4952 33 5628 288 5937 243 753 215 2854 146 4953 32 5629 288 6038 294 769 215 2890 14^ 4975 288 5675 288 6047 258 770 215 2891 149 4984 180 5679 288 6049 258 771 215 2946 20 4984 181 56s7 288 6050 258 77: i 215 3120 209 4986 180 5707 291 6051 258 775 216 3121 209 4993 182 5714 117 6052 258 776 216 3122 209 4994 178 5717 113 6076 39 777 216 3123 209 4994 179 5719 111 6143 293 778 216 3126 210 4994 182 5720 111 6144 110 9291 3127 210 4995 182 5721 112 6144 275 to ;■ 216 3128 210 4998 232 5722 244 6144 276 956 J 3129 211 5000 233 5723 244 6175 254 931 216 3134 211 5001 233 5724 245 6176 254 932 217 3136 1 5002 23:: 5725 245 617S 258 945 217 31371 5003 110 5725a 245 6178 259 970 246 to j> 31 10 J 287 5003 271 5754 188 61S3 254 971 247 5004 271 5 , 55 189 6189 143 972 247 3408 295 5004 273 5756 ISO 6189 294 1094 147 3S36 69 5007 232 5757 189 6195 182 1095 147 4014 21 '5 5012 288 5758 190 6202 73 1097 148 4026 206 5022 1 5750 190 6203 283 1526 248 4027 207 to i- 181 5760 190 6254 16 1744 279 4127 286 5032 J 5761 190 6255 23 1752 284 412S 286 5037 105 5762 191 6255 24 2031 | [4029,-1] 1 to )■ 5046 105 5763 191 6255 70 to }• 220 206a 5047 101 5761 192 6256 28 2107 J [4029.-13J J 51 MS 107 5765 192 6257 25 2050 219 4163 138 5048 181 5766 192 6258 26 2056 219 4275 295 5049 108 5767 193 6258 151 2060 L<20 1 .'7'-. 295 5050 100 576S 193 6250 31 2062 1 4357 222 5i)51 [1 5769 194 6259 41 to "> 2066 J 220 4:. 5 s 223 51 1. , ; 108 5770 191 6260 31 1359 223 507S 235 5771 194 6260 70 21)71 220 ■l 60 223 5078 277 5772 1-7 6261 169 2075 220 4361 223 5103 112 5773 1SS 6261 170 2076 220 4361 22 1 5103 277 5774 195 6261 172 2077 220 1362 221 5105 102 5786 107 6261 174 2181 218 4363 224 5107 io.: 5787 197 6262 36 2182 218 4361 221 5111 288 5788 198 6263 32 2183 •J IS 4364 225 5115 288 5789 198 626 1 61 i ami: of sections of revised statutes. Table of Sections — Continued. Sec. Page. Sec. Page. Sec. Page. Sec. Page. Sec. Page. 70 6281 'JS 6302 230 6330 257 6415 295 6282 99 6303 230 6330 259 6474 279 6266 6282 102 6303 311 6331 261 6481 104 6267 ■ 7 113 6304 231 6332 262 6562 284 6268 27 628 1 115 6305 232 6333 259 6563 284 32 6284 116 6306 234 6333 263 6570 284 6] 6285 lis 6307 2 15 6334 263 6583 to y 6269 70 6286 120 6308 235 6384 70 284 6269 150 6286 121 6309 235 6390 71 6591 J 6269 151 6287 127 6309 236 6400 13 6600 138 6269 155 6287 131 6310 236 6402 161 6718 283 6270 69 6288 86 6311 238 6402 257 6721 295 6270 70 6288 159 6312 238 6403 162 68 12 296 6271 69 151 6313 238 6403 257 6856 296 6271 70 6289 165 631 1 242 6404 13 6984a 296 23 6289 166 6315 243 6405 13 7106 1 to y 6272 28 6290 17 6316 243 6406 102 296 6272 'J'.i 6290 136 6317 249 6406 105 7116 J 6272 52 6290 286 6318 249 6406 170 78131 6272 53 6292 .Ml 6318 251 6407 281 to y 7829 J 217 6272 151 6292 151 6319 252 6408 281 6273 L75 6292 311 6320 264 cms 282 7866 219 6273 177 6293 ■jn.s 6321 265 6409 281 7867 i 219 6274 49 6294 148 6322 266 6410 282 8903 225 6275 54 6295 13'.) 6322 267 6411 103 9172 287 6276 52 6296 140 6323 2G7 6411 104 9191 287 6277 52 6297 140 6323 288 6412 104 9206 287 6278 52 029s 140 6324 267 6412 131 95471 6279 72 6298 1-12 632.5 268 6413 68 to y 286 6280 94 6299 143 6320 268 64141 to > 9563 J 6280 95 6300 143 6328 254 295 9549 286 6280 'J 7 6301 143 6329 256 6453 J 9555 287 GUARDIANS AND TRUSTEES. CHAPTER 1. PRELIMINARY — INCLUDING CERTAIN DEFINITIONS, AND A BRIEP REVIEW OP ENGLISH, CIVIL LAW, AND OHIO GUARDIANSHIPS. Par. Pah. 1. Who are minors? 10-11. Guardian by nurture, and in '2. Wards. chivalry. 3. On what day full age attained? 12. These two included in guardian- 4. Guardians generally. ship of person. 5. Guardians of minors. 13-14. Guardian by socage. 6. Brief view of various English 15-16. Testamentary guardians. guardianships. 17. Chancery guardians. 7. Guardians by nature. 18-19. Guardianship under the civil 8-9. As a natural guardian in U. S. law. 1. Who are minors f — All male persons of the age of twenty- one years and upwards, and all female persons of the age of eighteen years and upwards are, by the laws of Ohio, held and considered to be of full age, to all intents and purposes, any law or custom to the contrary notwithstanding. 1 It therefore fol- lows that all male persons who are not twenty-one years old, and all female persons who are not eighteen years old are not of full age. 2 Such persons are called minors in the ordinary language of practical life, and infants or minors in the technical language of the law, these two words being used as having the same meaning.' 1 l \ 3136. 2 Previous to the year 1834, a female was not of full age until she was twenty one years old. McClintick v. Chamberlain, W. 547. By the laws of England persons of either sex become of full age when twenty-one years old. 1 Blackstone's Com. 463, Tyler Inf. & Cov. 34. This is the case also in probably most of the United States. 3 See 3 Redf. on Wills, 438, note 9. 2 PRELIMINARY, ETC. [dlAP. 1, 3-6 2. Ward. — A minor placed by authority of law under tho care of a gnardian is called a ward. 3. On what day full age attained. — It appears from the author- ities thai a male person is of full age the day before the twenty- first anniversary of his birth; 1 and it follows that, in Ohio, a female person is of full age on the day before the eighteenth anniversary of her birth. 4. Guardians generally. — A guardian is one who legally has the care and management of the person, or estate, or both, of a person who is incompetent to manage his own affairs. Such incompetency may be the result of incapacity imposed by nature or by law. Hence there are guardians of minors, of lunatics, of idiots, of drunkards, of spendthrifts, etc. 5. Guardians of minors.— Of these, the most important, be- cause the most common, are the guardians of minors. Concern- ing ihi 'in it is well said that " The relation of guardian and ward is nearly allied to that of parent and child. It applies to children during their minority, and may exist during the lives of the parents; but usually takes place on the death of the father, and the guardian is intended to take his place. If an infant have property and no guardian, neither the parent nor any other person can act for him in relation to such property." 3 G. Brief view of various English guardianships. — As our law concerning guardian and ward is chiefly of Engligh origin, it will assist in better understanding certain matters connected 1 Blackstone's Com., page 463; Sharswood's note thereto, same page, (citing State v. Clarke, 3 Harring. 557; Hamlin v. Stevenson, 4 Dana, 597.) If he is born on the 16th of February, 1808, he is of age to do any legal act on the morning of the 15th of Februarj-, 1829, though he may not have lived twenty-one 3'ears by nearly forty-eight hours. The reason assigned is, that in law there is no fraction of a day; and if the birth were on the last second of one day, and the act were on the last second of the preceding day twenty-one years after, then twenty-one years would be complete; and in the law it is the same whether a thing is close upon one moment of the day or on another. Christian's note to same, same page: (citing 1 Sid, 162; 1 Keb. 589; 1 Salk. 44; Raym. 84.) See also, to same effect, Schouler's Dom. Rel. 518, 519; Tyler on Inf. and Cov. 34 ; Jarman on Wills, Am: Ed., 30. *2 Kent's Com. 220 ; Swan's Treatise, 587. See par. 8, below. CHAP. 1, 7-8.] PRELIMINARY, ETC. 3 with ur statutory provisions, and others not there mentioned, to take a brief view of the different kinds of guardians known to English law. 7. Guardians by nature. — The guardian by nature is the father, and in case of his death, the mother, and at her death, the next of kin. It extends only to the person, and not to the estate, and continues till the ward is twenty-one years of age. It extends only to the oldest son, as he is the heir-apparent by the English law, and inherits all his father's estate. Such guar- dian is subject to the court of chancery, which might, for a just cause, interpose and control his authority. 1 S. As to natural guardian in U. S. — In this country the father is the guardian b} T nature, not of his oldest son only, but of all his children, and in case of his death, the mother is their natural guardian, during their minority. 3 But such guar- dianship gives to neither of them any right to manage the estate ur otherwise meddle with the property of the child, and extends only to the custody and control of the person of the infant, and to his maintenance, support, and education. 3 9. On principle, it would seem that the mother becomes the x Coke Litt. 88; 2 Kent's Com. 220, 221; Reeve's Dom. Rel. 314, 315; Bouv. Law Diet. Art. "Guardian"; 1 Bl. Com. 461, Har. note. Page 22 hereof. 2 2 Kent's Com. 220; Reeve's Dom. Rel. 315; Bouv. Law Die. "Guar- dian;" Schouler's Dom. Rel. 406; 3 Redneld on Wills, 435; Tyler on Inf. and Cov.j 166, p. 242. Mr. Francis Hargrave, the learned annotator of Co. Litt., holds that the term natural guardian or guardian by nature, when not applied to an heir- apparent, signifies only that nature points out the parent as the proper guardian where positive law is silent. Steph. Note to 1 Black. Com. 461. The mother is the natural guardian of lier illegitimate child. Wright v. Wright, 2 .Muss. 109; Somerset v. Dighton, 12 Mass. 383; Hudson v. Hills, 8 N. H. 417; People v. King, 6 Barb. 366; Dalion v. State, 6 Blackf. 357; Fields v. Law, 2 Hoot (Conn.), 320; Reeves' Dom. Rel. 315 note. B"uv. Law Die. 646; Shouler's Dom. Rel. *406; Tyler on Inf. & Cov., \ 166; 3 Redfield on Wills, 435. ■•1 Kent's Com. 220, 22; 3 Red. on Wills, 436; Schoal. Dom. Rel. 333-4, 391, 392; Bouv. Law Die , "Guardian," par. 5, this chap.; par. 14, chap. :'». Also Williams v. Storrs, 6 Johns. (N. Y.) Ch. 353; Miles v. Boyden 3 Pick. (Mass.) 213; Dagley v. Talferry, 1 P. Wms. 285; Ross v. Cobb, 9 Yenr. (Tenn.) 463; Anderson v. Darley, 1 Mott & McC. 369; Miles v Kaigler, 10 Yerg. (Tenn. ) 10 ; May v. Caldor, 2 Mass. 55; Gerrett v. Tallmadge, 1 Johns. (N. Y.) 3; Combs v. Jackson, 2 Wend. (N. Y.) 153; Hyde v. Stone, 7 do. 4 PRELIMINARY, ETC. [CHAP. 1 , 10-14. guardian by nature of the children whose custody is awarded to her because of her husband's personal unfitness. 1 10. Guardian by nurture and in chivalry. — The guardian by na- ture occupied much the same relations to his (or her) younger children thai he . S. 86. See notes, p. 151. CHAP. 2, 4.] DUTIES OF PROBATE COURTS. 9 4. To make inquests respecting lunatics, insane persons, idi- the said children, for the reasons stated in the petition for habeas corpus on file." In opposition to the claims of the father, the mother set up the decree of the court of common pleas, claiming, among; other things, " that said judg- ment and decree were final, and forever binding upon the parties thereto, and that in and bj r it were determined and settled the several matters and things sought to be investigated by the said John Hoffman in this proceed- ing and that the same facts which did exist at the time of rendering said judgment and decee, and upon and in accordance with which the same were rendered and given by said court, still exist, and no new fact or facts have since transpired or arisen which authorize, or give any right or power to any one whomsoever, in any way to interfere with or call in question any of the rights or powers given to this respondent by said judgment or de- cree; " and moved the probate court to " dismiss and discharge the proceed- ings, for reason that the judgment and decree set up . . is final and conclusive, and, can not be impeached or inquired into in this case." The probate court proceeded to judgment, and found "from testimony re- lating solely to facts transpiring since the decree of divorce . . set forth (no other testimony having been offered by the parties, nor admitted by the court), that the respondent, Mary Hoffman, is an unsuitable person to have the care, custody and tuition of said children now before the court by the writ of habeas corpus, and that the relator, John Hoffman, is a suitable per- son to have the care, custody and tuition of said children," and that the in- terest and welfare of the children required that the said John Hoffman should have the custody of them, and that therefore the children are unlaw- fully detained by the mother. Therefore the probate court appointed said John guardian of the children, and ordered the sheriff to deliver them into his custody, there to remain. The case was taken up to the district court of Lucas county, which af- firmed the judgment and order of the probate court. It was then taken to the supreme court, which decided, in 1864, that where a court of common pleas, on rendering a decree of divorce, further decree the " custody, care and control " of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, can not, as between the parties to the decree, legally interfere with the custodj' so decreed, either by habeas corpus or letters of guardianship; and that the jurisdiction of the court of common pleas over the subject of the custody of children in di- vorce cases is a continuing jurisdiction ; and that such common pleas court may, on proper application, be invoked to modify orders originally made in respect to the custody of children, whenever the character and circum- stances of the case or of the parties require it. There seems to be nothing in this case that could be construed to prevent 10 DUTIES OF PROBATE COURTS. [CHAP. 2,5-12. ots, and deaf and dumb persons, subjed by law to guardian- ship. 1 T). The jurisdiction acquired by any probate court over a mat- ter or proceeding, is exclusive of that of any other probate court, Ht where otherwise provided by law. 2 6 Concurrent jurisdiction. The probate court has concurrent jurisdiction in the sale of lands on petition of executors, admin- istrators and guardians, and the assignment of dower in such ca- - of sale. 3 7. Oaths to accounts, petitions, etc. Probate judges may admin- ister oaths in all eases where oaths are authorized by law; 4 and their deputy clerks are authorized to administer oaths in all cases in which it is necessary in the discharge of his duties as such deputy clerk. 5 8. What books are kept. The probate court must keep, among others, the following books: 6 0. A guardians' docket, showing the name of each ward (and if an infant, his age, and the name of his father), the amount of bond and names of sureties therein, containing a minute of the time of filing every paper, and brief note of every order or proceed i ng relating to the estate, with reference to the journal or record in which the order or proceeding is found. 6 10. A civil docket, in which must be noted the names of par- lies to all actions and proceedings: it must also contain a minute of the time of the commencement of such actions and proceed- ings, and filing the papers relating thereto, and also a brief note of all orders made in such action, proceeding, or matter, and the time of entering the same. 6 11. A journal, in which must be kept minutes of all official business transacted in the probate court or by the judge, in all civil actions and proceedings. 6 12. A final record, which must contain a complete record in each cause or matter of ail petitions, answers, demurrers, motions, re- turns, reports, verdicts, awards, orders, and judgments; which record must be made up and completed within ninety days after the final order or judgment has been made in any of said matters; the probate court from appointing a guardian of the estate only of such children, as this would not interfere with their custody. l §524. 2 §527. 3 §525. «§526. 5 §533. a § 528. CHAP. 2, 13-17] DUTIES OF PROBATE COURTS. 11 and he must also, within thirty days after the return of the same, record all inventories, sale bills, and allowances to widows, in a book provided for that purpose. 1 13. A record of accounts, which must contain an entry of the appointment of executors, administrators, and guardians, and all partial and final accounts of the same, and the orders and proceedings of the courts thereon, within sixty days after the filing and approval thereof 1 14. A record of bonds, in which must be recorded all bonds of executors, administrators, guardians, trustees, and assignees which have been taken and approved by him. 1 15. Probate judge must make all entries, records, etc., omit- ted by his predecessor. When a probate judge, whether elected or appointed, enters upon the discharge of his duties, he must make all proper and necessaiy entries, indexes, and records of the business, or any portion thereof, transacted in the court, during the continuance in office of any former judge thereof, which had not been made, as required by law, by the probate judge whose duty it was to make such entries or records ; and when so made, they will have the same validity, force, and effect, as though they had been made at the proper time, as prescribed Dy law. and by the officer whose duty it was to make them ; and such probate judge must sign all entries and records made by him, as aforesaid, as though such entries, proceedings, and records had been commenced, prosecuted, determined, and made before him. 2 16. Bow paid. The county treasurer, and not the guardian, must pay for the services mentioned in the preceding paragraph, if they have already been once paid for. 3 17. No probate judge or his clerk can prepare any papers, etc.. for guardian. No judge of a probate court, or any deputy clerk employed by him, or who* is engaged in the business of such court as clerk thereof, is permitted, during the term of his office, or employment, to practice law, or to be associated with another as partner in the practice of law, in any of the courts or other tribunals of this state; neither can such judge or clerk prepare any petition or answer, or make out any account which any ex- x §528. 2 §530. 3 ?532. . 12 DUTIES OP PROBATE COURTS. [CHAP. 2, 18. c< liter, administrator, guardian, or other person is required to presenl for the settlement of the estate committed to his care and management ; nor can such judge or deputy clerk make a record of any paper, receipt, or voucher, produced to verify any charge or credit in the account, filed or presented for settlement as aforesaid, unless the recording thereof is requested in writing by the party making such settlement; but nothing contained in this paragraph will be so construed as to prevent any probate judge or deputy clerk, aforesaid, from finishing any business by him commenced before his election or appointment, not connected with his official business. 1 IS. Guardianship, etc., when the probate judge is interested, etc. Letters of guardianship can not be issued to any person after his election to the office of probate judge and before the expira- tion of his term of office; and if a probate judge is interested, as heir. legatee, devisee, or in any other manner in an}' estate which would otherwise be settled in the probate court of the country where he resides, such estate, and all accounts of guar- dians in which the probate judge is interested, must be settled by the court of common pleas of such county; and in all such matters and cases in which the probate judge is interested, the original papers must be by him forthwith certified to the court of common ]>Ie;is ; and in all other matters and proceedings, pending in any probate court, which would properly be disposed of or decided therein, but in which the probate judge thereof is interested in any manner whatever, as attorney or otherwise, or in which he is required to be a witness to a will, such probate judge must, upon the motion of a party interested in such pro- ceeding, or upon his own motion, certify the matters and proceed- ings to the court of common pleas, and he must forthwith file with the clerk of the court of common pleas, all original papers connected with the proceedings, and the same must be proceeded in and heard and determined by the court of common pleas, at chambers, by any judge thereof, or in open court, in the same manner as though that court had original jurisdiction of the subject matter thereof, and upon the final decision of the ques- tions involved in such proceedings, or on the final settlement of ^534, 77 0. L. 183. CHAP. 2, 19-23] DUTIES OF PROBATE COURTS. 13 the estate in which the judge is interested as guardian, by the court of common pleas, or whenever the interest of the probate judge therein ceases, the clerk must deliver all the original papers back to the probate court, from which they came; and the clerk must, also, make out an authenticated transcript of the orders, judgments, and proceedings of the court therein, and must file the same in the probate court, from which the paper*} came and the judge thereof must record the same in the ordin- ary records of similar business. 1 19. Questions arising in probate court; how determined. In pro- ceedings in probate courts, all questions, except those arising in criminal actions and proceedings, unless otherwise provided by law, must be determined by the probate judge, unless, in his discretion, he shall order the same to be tried by a jury, or re- ferred, as provided for references in the court of common pleas. 1 2bi ■ cases bearing m< -- directly on this section, see note- on pp. 178-9, and others there specified. ng to recite guardian's appointment in bond, making bond to jus- - - -.ling by name, making conditions less extensive than law re- quires, does not invalidate bond. Equity has jurisdiction of guardian liv- ing out of state. Pratt r. Wright. 13 Gratt. (Va.1 175. Bond good though condition not in words required by statute, but in more general terms. 27 Vt. 202. .Surety signing bond in unusual place, bound. Intention may be shown by parol. Richardson o. Boynton, 12 Alien (.Mass. 138. Guardian held who had not signed bond; sufficient if sureties sign. Sure- ties held though guardian he a married woman, who?e appointment is not void but ■• at not assailable collaterally. Appointment of guardian for minor over fourteen ;. -id if minor not cited. Guardian's sale not void Iditional bond and notice not given. Palmer v. Oakley, ■j I) ug. Mich. 41:;: b. c, 47 Am. Dec. 41. Bond _ igh ward's names inserted in wrong place. Sprinkle v. Mart.- .175. Additional bond being given, both bonds are in full force. In what pro- portion sureties bound. Loring v. Bacon, 3 Cu.-h. Mass. 465; Common- wealth r. I - 442. If sureties on first bond pay full deficiency, they may enforce contribu- tion from other sureties. Commonwealth p. Cox, 36 Pa. St. 442. -\ 6, as am. 80 v. 80. This applies to bonds of administrators, executors, trustees, and others, also. lb. See also 37 O. S. 484; 38 O. S. 375. Bond good in equitv, though penaltv left blank. Bumpas v. Dotson, 7 Humph. (Tenn. 310; s. e.. 40 Am. Dec. 81. CHAP 3, 72-79.] 3UARDIA - 7 72. 1 - . vrt. — T; giu against frauds, forj - -. the bond should b^ always signed at the office of the probate jt: _ and in b :.ce. or that of his clerk. The pra if mitting the bond to be carried out and signed by the pa: to it. and then returned, is very improper, and fraught with many dangers. A moment's reflection will convince any one of this T_~ infant has no part in this matter, and can give no attention t has he any control ova It is the peculiar pre the infant the m - ar- row ften ru:. a great nuc: -ars. before there is any oecas into them, or before any inquiry is mai gthem; then some of I ^d some disL the bond that his name is forgery rard may be defrauded of his who".-. - E safest g ssibility : "1 ..'- is to ha gned and _-d in court, before the judge or his I witnesses "-- ■ Form :e. if. instead of frr gag - _'.■■ Bed in paragraph -40, such mortgage may be in form as follows Know all men by these presents Thatwh - I : county. Ohio, having applied for appointment asgv Fthe person and estate [or. estate only, if so] of C. D. [and if more ~~ sbil- dren] of E. F - Nowl said A. 1 . u of and in pursuance of the statute in such made and provided, and in coi - M be im- - sed upon said A. B., reas - - grant. ba _ LI and com ^renamethes or minors] his [or. her ssjgnsl low _- state, situate in the [city. or. village. niay be] of , in the county of , and S Ohio, to-wit [here descrbe the property by metes :- in and all the estal st of the said A. B. either in law or in eq :'. in and I - ...i prem 38 APPOINTMENT OP GUARDIANS. [CHAP. 3, 72-79. Ises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same to the only proper use of the said [here name the said minor or minors] his [or, her, or, their] heirs and assigns forever. And the said A. B., for himself and for hin heirs, executors and administrators, does hereby covenant with the said [here again name said minor or minors'] his [or, her, or, their] heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the same ; and that the title, so conveyed, is clear, free, and unincumbered ; and further, that he will warrant and defend the same against all claim or claims of all persons whomsoever. Provided, never- theless, that if the said A. B. shall faithfully discharge all of his [or, her] duties as said guardian, then these presents shall be void. In witness whereof, the said A. B. [and, if he has a wife, here add, and W. B., his wife, the latter of whom hereby releases her right and expectancy of dower in the said premises] has hereunto set his hand and seal 1 [or, have hereunto set their hands and seals], this day of , in the year of our Lord one thousand eight hundred and . Signed, sealed and acknowledged in A. B., [seal.] the presence of us [there mast be [W. B. if so] [seal.] two witnesses to each signature; but the same two can witness any num- ber of signatures] : The State of Ohio, county of , ss. Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , before me, the sub- scriber, a notary public [or other officer authorized to take acknowl- edgment of deeds] in and for said county, personally came A. B. [and W. B., if so], the grantor [or, the grantors] in the foregoing mort- gage deed, and acknowledged the signing and sealing thereof to be his [or, their] voluntary act and deed, for the uses and purposes therein mentioned. 2 1 Private seals :tre abolished in Ohio. See \ 4. as am. 81 O. L. 198. But since, if used, they are merely harmless surplusage, and as some may fear that an unsealed bond is nudum nudum and void as to sureties, it may be best to retain them on such bonds as guardians,' etc. Official seals are still required. See, a~ to deeds, note 1, page 134. 2 Wife's separate examination now useless in Ohio. See \ 4107, before, and after, its amendment in 84 v. 133. CHAP. 3, 80-82. J APPOINTMENT OF GUARDIANS. 33 In testimony whereof, I have hereunto subscribed my name [if the officer have an official seal, say and affixed my official or notarial seal], on the day and year aforesaid. [seal.] Eichard Eoe, Notary Public, [or, J. P. etc.'], as aforesaid. 80. Where mortgage to be fled. The law does not provide where in the court such mortgage must be filed ; but as it is in lieu of security that would otherwise be in the bond itself, it should no doubt be filed with the bond, and not with the gene- ral papers in the case. 81. The requisites of affidavit as to the value of land security. The law does not prescribe the number nor character of the affi- davits mentioned in paragraph 40, and in these respects they are entirely within the discretion and control of the probate judge ; but by analogy to statutory provisions in other and somewhat similar circumstances, 1 we may infer that the judge should re- quire the affidavits of at least three judicious, disinterested per- sons, whose opinion, from the fact of their being property own- ers in the vicinity of the mortgaged premises, or dealers in real estate in that vicinity, or for other good reasons, may fairly be presumed to be entitled to credit in this matter. 82. How to proeeed when mortgage security is given. If the ap- plicant proposes to give mortgage security, he will observe 2 that he must first furnish the court with an abstract of title to the property offered as security ; and as this and the execution of the mortgage necessitate the expenditure of money, time and trouble which no one interested desires to have thrown away, probably the best course for the applicant to pursue would be to obtain say three such affidavits as are described in the preceding paragraph, and submit them to the probate judge, along with the statement described in paragraphs 91-99, below; and the judge can then inform him whether these affidavits are suffi- cient, or whether additional ones will be required, and also whether a mortgage on the property described in them would 1 See ? 6076; Raff's Guide, p. 83. 2 See par. 40, this chapter. 40 APPOINTMENT OF GUARDIANS. [OHAI. ?>, 83 bS be satisfactory security, in case the abstract shall show it to bo free and unincumbered, for the amount of the bond he must give. 83-6. The form of the affidavits ma}' be, for instance, as fol- lows; and they may be taken before the probate judge, or no- tary public, a justice of the peace, or other officer authorized to administer oaths : The State of Ohio, county, SS. Before me, Richard Roe, a notary public [or, justice of the peace, etc.] in and for said county, personally appeared L. 0., who, being duly sworn, says that for fifteen years last past he has been a resident of, and owner of a farm of one hundred and sixty acres in,the immediate vicinity of the real estate owned by A. B., and described as follows [here give a description of the real estate similar to that which must be given in the mortgage, ichich see ; change the foregoing, as the facts require.'] Affiant further says that said real estate of A. B. is worth, exclusive of all improvements thereon, the sum of dollars, to the best of his knowledge and belief. (Signed) L - °- Sworn to and subscribed before me, this day of , a. d. 18—. [seal.] Richard Roe, Notary Public [or, J. P., etc.] as aforesaid. 87-8. Another form. The State of Ohio, county, ss. N. S., being duly sworn, says that he, as sheriff of said county, has, during his present term of office, sold two tracts of land in the vicinity of the land of A. B. [if one affidavit has already been taken, the sheet on which this one is written may be attached to that affidavit, if desired], described in the annexed affidavit of L. O., and that by reason of his former residence in that vicinity, and other reasons, he is well acquainted with the value of real estate in that locality ; and he verily believes that said land of A. B. is fully worth dollars, exclusive of all improvements thereon. (Signed) N. S. CHAP. 3, 89-91.] APPOINTMENT OF GUARDIANS. 41 Sworn to and subscribed before me, this day of , A. d. 18—. [seal] Eichard Roe, Notary Public, county, Ohio. 89. Further consideration of bonds, found where. The steps so far directed with regard to the bond are those which are prelim- inary to the appointment, and which had to be treated as a part of that subject. The further consideration of bonds, exceptions thereto, suits upon, sureties, rights and liabilities under, etc. r will be found in chapter 10. PROCEEDINGS TO APPOINT A GUARDIAN. 90. Statement of ward's estate must be filed. Before any person can be appointed guardian of the person and estate, or of the estate only, of any minor, he must file in the office of the court having such appointment to make, a statement of the whole estate of such minor, and the probable value thereof, and also the probable annual rents of such minor's real estate, and must verify the same by affidavit. 1 91-99. Form of. This statement may be in the following form : To the Honorable, the Judge of the Probate Court, of County, Ohio : Your petitioner represents it to be necessary that the coui-t ap- point a guardian for the following named minor [or minors, if more than one], residing in said county, to-wit: C. D., aged years; [and if more than one, add, G-. H., aged years, J. H., aged years, etc.], child of E. D., de- ceased [or, now living, if so ; and use the plural number of the words minor, child, person, estate, etc., when necessary']. Your petitioner makes this his application to be appointed guardian for the person and estate [or, estate only, if so] of said mi- nor ; and he represents that said minor has an estate consisting of [here give a full statement, including the "Recapitulation" on next page ; or a statement like this Recapihdation only, as the court may re- quire] : 1. One house and lot in Glendale, probable value.. $12,500 2. 160 ac. farm in Co., ()., probable value 5,200 1 § 6259. 42 APPOINTMENT OF GUARDIANS. [CHAP. 3, 100-1. 3. 200 acres wild land, in Louisiana, probable value 400 4. 14 shares Little Miami E. E. stock, " " 1,436 5. Cash on deposit at K. W. Hughes & Co's bank 1,080 6. TJ. S. bonds, from the estate of E. F., after settlement. 1,000 7. Promissory note of H. S., from same estate 1,100 $22,776 The probable annual rent of Glendale house and lot is.. $900 Of the 100-acrc farm, (90 acres cleared) 300 $1,200 RECAPITULATION. Probable value of real estate $18,100 '< " " personal property 4,676 " annual rents of real estate 1,200 The following freeholders are offered as sureties: P. Q. and E. S. Petitioner's post-office, ; his residence, ; his place of business, ; his attorneys, ; their office, . The State of Ohio, county, ss. A. B., being duly sworn, says that the foregoing statements air in all respects true and correct, to the best of his knowledge and belief. {Signed) A. B. Sworn to and subscribed before me, this day of , A D . A. O, Probate Judge, etc. 100. What officer may take affidavit. This affidavit may be made before the probate judge, a notary public, or any officer authorized to administer oaths generally; but it*would be well to make all affidavits before the judge, at least when convenient. 101. Judge should appoint applicant, if. — If the probate judge is satisfied that the person proposed as guardian is a proper and suitable person, and that the statement as to the estate of the minor is correctly and honestly made, he should then appoint such person, and make a minute thereof upon the journal of the court. OHAP. 3, 102-7.] APPOINTMENT OP GUARDIANS. 43 102-5. Form of journal entry 1 of appointment of a guardian. In the matter of the guardianship of 0. D. This day came A. B., and made application to be appointed guardian of C. D., and the court being satisfied that said C. D. is a minor, of the age of years {any age less than fourteen, if a male; or twelve, if a female~\* on the day of , a. d. , and child of E. F., deceased, late of , [or, say, now living], and that said minor is a resident of this county ; and the said A. B., having filed in this office a statement, duly verified by his affidavit, of the whole estate of said minor, and the probable value thereof [and if there be real estate, add: and also the prob- able annual rents of said minor's real estate], it is, therefore, by the court ordered, that said A. B. be, and he is hereby ap- pointed guardian of the person and estate [or, if not of the person, say: of the estate only] of the said C. D. And thereupon came the said A. B., in open court, and ac- cepted said appointment, and took an oath that he would faithfully and honestly discharge the duties devolving upon him as such guardian, and also gave and filed herein his bond in the sum of dollars, conditioned according to law, with and , residents of county, O., freeholders, as sureties [or, mortgage security on 160 acres of land (or otherwise briefly describe the real estate) situated in township of said county of .], which bond was approved of by the court. [If all these events did not occur on the same day, enter them as of the day on which they occurred.~\ 106-7. Form of journal entry, where the minor selects a guardian. If the guardian appointed is one selected by the minor of the proper age, the form of the entry should vary from the above in this : proceed to the * as in the following : In the matter of the guardianship of G. D. This day came the said C. £>., and made choice of A. B. as his guardian, which choice is approved by the court, and the court being satisfied that said C. D. is a minor of the age of years [fourteen or more if a male, and twelve if a female, — and from the * proceed as in the above form.'] 1 See direction about plural number on page 41. 44 APPOINTMENT OP GUARDIANS. [dlAP. 3, 108-13. 10S-110. Form of entry when minor notified and fails to appoint. If the minor has been notified to make his selection, and has failed to do so, the above form may be modified, thus: In the matter of the guardianship of C. D. It appearing to the court that said C. D. has been duly notified to come into this court and select a guardian for himself, upon the day of , a. d. [some day prior to the day of this entry], which he has failed to do [or say, if the case be so: and having selected L. P. as his guardian, who was not approved of by the court], and the court being satisfied that said C. D. is a minor child of E. F., deceased, of the age of .years, on the Jay of , A. D. , and is a resident of this county, and the court having thereupon selected A. B. as a suitable person to act as such guardian, the said A. B. this day came and filed in this office a statement, duly verified by his affidavit, etc. [proceed from here as in the first form of a journal entry.'] 111-113. Form of journal entry of appointment of guardian of the person only. In the matter of the guardianship of C. D. This day came A. B., and made application to be appointed guardian of the person only of C. D. And the court being sat- isfied that said C. D. is a minor, of the age of years [any age less than juurteen for males, and twelve for females'], on the day of , A. D. , and child of E. F.. deceased, late of [or, if the father or mother be living, but are unsuitable per- sons, say, and child of E. F., now living, and the court being further satisfied that said parent (or, parents) is an unsuitable person (or, are unsuitable persons) to have the custodj- and tuition of said minor], and being further satisfied that said minor is a resident of this county, and that it is for the interest of said minor to have a guardian appointed for his person only. It, is therefore by the court ordered, that said A. B. be, and he is hereby appointed guardian of the person only of said C. D. And thereupon came the said A. B., in open court, and accepted said appointment, and took an oath that he would faithfully and honestly discharge the duties devolving upon him as such guard- CHAP. 3. 11G-17.] APPOINTMENT OF GUARDIANS. 45 ian, and also gave and filed herein his bond in the sum of dollars, conditioned according to law, with and , free- holders, as sureties [or with mortgage security, as in preceding entry'], which bond was approved of by the court. 114-115. Form of guardian's oath at appointment. (See par. 39.) A. B., guardian of CD., a minor, being duly sworn [or af- firmed], says that he will faithfully and honestly discharge the duties devolving upon him as such guardian, as he will answer to God [or, as he will answer under the pains and penalties of perjury, if the guardian affirms]. (Signed) A. B. Sworn to [or affirmed] and subscribed before me, this day of , a. D. 18 — . A. C, Probate Judge, etc. 116. Oath may be indorsed on bond, or filed with it. — This oath may very properly be indorsed upon the back of the bond, as a safe and convenient place for keeping it; or it may be on a sep- arate paper, annexed to and filed with the bond, although this is not expressly required. 117. Wlxat the journal entry should show, and why — It should be remembered that these appointments may come under the review of other courts than the one where the appointment of a guardian is made, both in this state and in other states and coun- tries ; it is therefore important that the journal entry of the order, making the appointment, should in itself show all the matters requisite to give the court jurisdiction, and also those things done on the part of the guardian, which authorize him to act under the appointment. 118. What is effective part of the appointment. — The actual taking out letters of guardianship is nothing of itself; the entry on the court journal is the effective part of the appointment, and the letters usually issued are only a certificate of the fact. 1 1 A guardian for a minor, appointed by the court * * * , has no power to act or control the property of his ward, until he has given bond, with surety approved by the court. Letters of guardianship, issued to him by the clerk, before such bond is given, confer no such power, and have no legal effect whatever. 1851. State v. Sloane, 20 0. 327. A guardian derives his power to act from the appointment and giving ii; APPOINTMENT OP GUARDIANS. [CHAP. 3, 118-22. 119. Another form of oath — How filed in some counties. — In some counties it is the practice to combine the oaths as to the amount of estate and the one just given into one form, let- ting it follow the statement given in paragraphs 91-99 ; and blanks for these statements and oath are bound into a volume for con- venience of filing and reference. Tbe form is substantially as follows : 120-3. The State of Ohio, Hamilton county, ss. Before me, the undersigned, judge of the probate court, in and for said county, personally appeared A. B., who upon oath [or affirmation] deposes and says that the foregoing statement is true according to the best of his knowledge; and that he will faithfully and honestly discharge the duties devolving upon him as guardian for the person and estate of C. D., a minor of said county, as required by law. (Signed) A. B. Sworn to [or affirmed'] and subscribed before me this day of 18 — . A. O, Probate Judge. By A. G., Deputy Clerk. 124. When appointment is complete. — When the appointment of a guardian has been made, the bond given and approved by the court, and oath taken as already stated, then the guardian is clothed with full powers to act in that capacity to the extent for which he has been appointed. 1 bond. Letters of guardianship need not in fact issue. Maxsom v. Sawyer, 12 O. 195. A letter of guardianship is in the nature of a certificate or commission; and, in the absence of any statutory provision requiring it, it is not essen- tial to its validity as evidence of the appointment that it should recite the mode and particulars of the nomination, and all reasonable presumption must be indulged in favor of its having emanated regularly and after lawful proceedings. Burrows v. Bailey, 34 Mich. 64. The fact that the letter of guardianship, though the minors were shown to be over 14 years of age, does not show in terms that the guardian was nom- inated by them, or that they were asked to nominate or to appear for that purpose, will not justify its exclusion as evidence, lb. 1 See note 1, preceding pajie. CHAP.3, 125-131.] APPOINTMENT OF GUARDIAN* 47 125. WJmt to do first after appointment. — Immediately after his appointment, the guardian should get a suitable book for properly- keeping the accounts required of him by law, as more fully set forth in chapter 9, especially paragraphs 4 and 5. 126. Must file inventory. — As more fully appears from paragraphs 4 and 5 of chapter 5 (page 62), the guardian must promptly file an inventory of the ward's real and personal property, or be re- moved for failure so to do. 127-131. The form of inventory may be as follows: Inventory of the real and personal estate of C. D. minor ward of A. B. , guardian. Description of Personal Estate. Cash on hand 2 U. S. $500 4 per cent bonds, par value 14 shares Little Miami K. R. stock, par value, $100 each 1 note by H. S [Eic, etc., as may be.] Total value of personal estate Description of Real Estate. One lot in Glendale, Ohio, with brick dwelling-house thereon. Yearly rental of said house and lot, $900. One 120-"acre farm in Green township, Hamilton county, Ohio. Yearly rental of said farm, $350. 200 acres wild land, in Sabine Parish, La. Yearly rental of said 200 acres, nothing. [Etc.. etc., as the facts may be.] Total value of real estate Recapitulation. Total value of personal estate Total val ue of real estate Total yearly rent of real estate, $1,250. Value. $ cts. 1,000 00 1,400 00 1,160 00 350 75 3,910 12,500 5,200 400 18,100 3,910 18,100 State of Ohio, county, ss. Before me, the undersigned, judge of the probate court [or state what other officer] in and for said county, personally appeared A. B. guardian of the person and estate of C. D.. a minor, who, being dulv sworn, savs that the foregoing [or, annexed] inventory is a full and true inventory of the real and personal estate of the said minor, his ward, with the value of the same, and the value of the yearly rent of said real estate. (Signed,) A. B. Sworn to and subscribed before me, on this — iay invest funds. Guardians trustees, executors, and administrators may, when they have funds be- longing to the trust which are to be invested, invest tin- same in the certificates of the indebtedness of this state or of the United States, or in such other securities as may be approved by the court having- control of the administration of the trust. 1 15. Duties of guardian of the estate only. When the guardian funds paid to a banker, and charged the trustee for the sum lost by failure of the banker after that time, except small amounts paid in from time to time, derived from rents, interest and dividends. Guardians and trustees are held to a stricter rule in relation to investments than executors acting as trustees, as guardians generally take an estate ready to be invested. See Perry on Trusts, §462; 2 Kent's Com. 230-1; Tyler on Inf. and Gov., §175; Schouler's Dom. Rel. 475; Barney v. Saunders, 16 How. 54;!; Ashley v. Martin, 50 Ala. 537; Be Mott, 26 N. J. Eq. 509; Bradford v. Bodfish, 39 la. 681 ; Colburn v. State, 47 Ind. 310. In the absence of statutory provisions similar to the foregoing, the general rule established by the courts is that guardians must be charged with an- compounded interest, at the legal rate, from the time beyond which it was unreasonable for him to retain it unproductive to the ward, subject to the qualification that if the guardian has made more from the money in any way than such interest, he must account for all he has made; and ah'o, that if he was bound to have made any specific designated investment, he should account for all the income that would have resulted therefrom, or to such interest, at the option of the ward ; and the court might, in its discretion, subject the guardian to the payment of compound interest. Perry on Trusts, I 468-472 ; Tyler on Inf. and Cov. \ 175. 1 § 6413. This section further provides that " Whenever money coming into the hands of an executor, administrator, trustee, agent, assignee, attor- ney, or officer, shall be stopped therein by reason of litigation or other lawful cause, and the same will probably be so detained for more than six months, such executor, administrator, trustee, agent, assignee, attorney, or officer, may invest the same during such detention in the same manner that trust funds are now authorized by law to be invested, or in such other man- ner as the probate court or other court haviug jurisdiction of the pending litigation, or person aforesaid, may direct." By mentioning who may invest money so stopped, and omitting guardians from this list, the law seems to prohibit them from investing monej' tempor- arily stopped in their hands. In such case, especially if the sum were con- siderable, it would be judicious to apply for an order of court, directiug in what manner such funds should be cared for during such detention. See paragraph 12, above, and notes thereto. CHAP. 5, 16-22.] POWERS OF GUARDIANS. 69 is appointed to take charge only of the estate of the minor, his duties are the same as those above specified in paragraphs 3-l: j ., except that he will not be required to perform the sixth duty there mentioned, if a guardian of the person of such minor has been appointed. 3 l(i. Duties of guardian of person only ; must protect, control, maintain, and educate his ward, etc. — When a guardian is ap- pointed to have the custody, maintenance, and education of a minor, his duties are as follows : 2 17. First. To protect and control the person of the ward. 18. Second. To provide a suitable maintenance for his ward, when necessary, which must be paid out of the estate of such ward in the hands of the guardian of such estate, upon the order of the guardian of the person of such ward. 19. Third. When such ward has no father or mother, or having a father or mother, and such parent is unable or fails to maintain or educate such ward, it is the duty of the guar- dian so appointed, to provide for him such maintenance and education as the amount of his estate may justify, which must be paid out of the estate of such ward in the hands of the guar- dian of such estate, upon the order of the guardian of the person of such ward. 20. Fourth. To obey and perform all the orders and judg- ments of the proper court, touching the guardianship. 3 21. How enforced. How these duties are to be enforced is specified in chapter 4. 22. Stock in building associations held by trustees, etc. All shares of stock held in such associations by or in the name of a minor, must, upon application therefor, be paid to such minor or persons who hold such shares of stock for the minor, and it will be a valid payment. 4 l g 6270. 2 The guardian is the judge in the first instance, of what are necessaries for the infant, his ward. If he, acting in good faith, refuses his consent to the ward's taking a journey, undertaken only for the purposes of pleasure and companionship with her friends, another person who advances money for the expenses of the journey, can not recover it from the ward, after ma- joriiy as " necessaries." McKanna v. Merry, 61 111. 177. See note 3, p. 64. 3 1 6271. 4 1 383G, as am. 83 O. L. 117. 70 POWERS OF GUARDIANS. [CHAP. 5, 23-25. 23. Guardians' and parents' powers as to custody and education of minor. For the sake of avoiding confusion, it may be well to summarize the various provisions of the law relating to the re- spective right of the parents and guardians in this matter, which provisions might seem, at a hasty glance, to be in conflict in some respects: First. The guardian of the person only of a minor has the custody and must provide for the education of such ward, as the parents of such ward must be either dead, or are unsuitable persons to be intrusted with these duties. 1 Second. The guardian of the person and estate of a minor does not have the custody of the person, nor the control of the education of such ward j. unless the ward has neither father nor mother, or unless ^jj^ v $arents are respectively unsuitable persons to be in- trusted therewith. 2 Third. The guardian of the estate only has nothing to do with the custody of the person, nor with the edu- cation of his ward, except to pay the proper bills therefor out of the ward's estate. 3 24. Certain minors may not marry, unless guardian, etc., consent. Male persons under the age of twentj^-one years, and female persons under the age of eighteen years, must first obtain the consent of their fathers, respectively, or in case of the death or incapacity of their fathers, then of their mothers or guardians, before they can be joined in marriage. 4 2."). Others may. Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage, if consent as above directed be first obtained. 4 1 § 6255 ; § 6260 ; Third of ? 6271. See par. 18, chap. 3 ; pars. 16-19, chap. 6. 2 §6255; §6264; Sixth of \ 6269. See pars. 19, 33, chap. 3; pars. 1,2, 11, chap. 5. 3 g£ 6270, 6269. See paragraphs 15, 18, 19, this chapter. *§6384. The marriage contract of one affected with congenital imbecility of mind, to a degree rendering him incapable of consent, is void ad initio. A court of chancery, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile's guardian, to declare such marriage a nullity. Waymire v. Jetmore, 22 0. S. 271. Mutual promises to marry in the future, though made by parties compe- tent to contract, and followed by cohabitation as husband and wife, do not CHAP. 5, 26-27] POWERS OF GUARDIANS. 71 26. Such consent must be witnessed and certified. If any of the persons intending to marry are under age, and have not had a former wife or husband, the coneenl of the parents or guardians must be personally given before the probate judge, or certified under the hand of such paronl or guardian, attested by two witnesses, on.' of whom must appear before said judge, and make oath that he saw the parent or guardian, whose name is annexed to such certificate, subscribe, or beard him or her acknowledge the same; and the probate judge is authorized to administer such oath, and thereupon issue and sign a proper license, 1 and affix thereto the seal of the court. 2 27. What tin' minister or officer mud know before 'performing the ceremony. Every minister, mayor, or justice of the peac£> must, lie!-. re he solemnizes any marriage between parties, either of whom is required by the provisions of paragraph 24 above, to obtain the consent of his or her parent or guardian (except in cases where license has been obtained from the judge of the probate court), be satisfied that the marriage bans have been duly published, and also that the consent of such parent or guardian has been obtained, either by acknowledgment in presence of such minister, mayor, or justice of the peace, or by a certificate under the signature of such parent or guardian, and attested by one or more credible constitute a valid marriage. Duncan v. Duncan, 10O. S. 181; but where the person who solemnized the marriage had no license, it was held that it was to be inferred that the parties openly and mutually consented to a contract of present marriage — then to become husband and wife — and when they thereafter cohabited as such, that this constituted a legal marriage, and the man having then a wife living, might properly be convicted of bigamy, on proof of such second marriage. Carmichael v. State, 12 0. S. 553. Marriages contracted in this state by male persons under the age of eighteen, and females under the age of fourteen, are invalid, unless con- firmed by cohabitation after arriving at those ages respectively ; and such marriage, not so confirmed, does not subject a party to punishment for bigamy for contracting a subsequent marriage while the first husband or wife is living. Shafher v. State, 20 0. 1. 1 In an action for damages by a father, for the wrongful issuing of license for the marriage of his daughter, evidence of the bad character of the hus- band may be received and considered by the jury in aggravation of damages. Larwill r. Kirby, 14 0. 1. 2 2 6390, as amended, 82 0. L. 202. 72 POWERS OF GUARDIANS. [CHAP. 5, 28-33. witnesses, who must be present for the purpose of satisfying such minister, mayor, or justice, that such certificate was actually signed by the parent or guardian, for the purpose aforesaid. 1 28-30. The form of such certificate may be as follows: I hereby certify, that I give my consent, as guardian of C. D., that he [or, she, as the case may be] may marry O. P. Witness my hand, this day of , A. D. . Attest: A. B., (Two witnesses sie/ti here.) Guardian of C. D. 31. Effect of marriage on the guardianship. For effect of the ward's marriage on his or her guardianship, sec page 50. 32. WJtrn foreign guardian of foreign ward may demand or receive property of his ward in this state. — In any case in which a guardian not appoiuted in this state and his ward are both non-residents of this state, and the ward is entitled to money or other property in the lawful custody of any executor, administrator, or other person in this state, such guardian may, by the order of the probate court of the proper county, upon filiug therein the proofs named in paragraph 14, of chapter 4, and giving notice to such custodian as therein prescribed, be permitted to demand, receive, or recover, by suit, such money or other property, and remove the same, unless the terms of limitation attending the right by which the ward owns the same, conflict with such removal. 2 33. Guardian and others interested may get direction of court. — Any executor, administrator, guardian, or other trustee, may maintain a civil action in the court of common pleas against the creditors, legatees, distributees, or other parties, asking the direction or judg- ment of the court in any matter respecting the trust, estate, or property to be administered, and the rights of the parties in inter- est, in the same manner, and as fully as was formerly entertained in courts of chancery; and in case any executor, administrator, guardian, or other trustee, after being requested in writing by any creditor, legatee, distributee, or other party in interest to bring such action, fail for thirty days so to do, the creditor, legatee, dis. I I 6393, as am. 86 v. 209. 2 g 6279. chap. 5, 34-35.] powers of guardians. 73 tributee, or other party making such request, may himself institute such action. 1 34. Other statutory powers and dirties will be found in preceding and succeeding chapters, especially in chapter 25. GENERAL PRINCIPLES AND OBSERVATIONS. 35. As to duties, etc., not statutory. — The statutes by no means point out the entire duties of trustees, 2 especially of those treated of in chapters 21 and '22 of this hook, nor the manner in which these duties must be performed. Numerous, extensive, and learned treatises have been written upon these subjects, taking for the basis of their contents the immense mass of decisions of the courts of the various states of the United States and of Eng- land, as well as the common law, most of which are accepted as 1 §6202. An action by executors against devisees, distributees, and heirs, asking the direction and judgment of the court touching the construction of the testator's will, and the duties of the executors thereunder, and although pray- ing, among other things, for an order to sell lands, in pursuance of the sup- posed intention of the testator, for the payment of legacies, is appealable from the common pleas to the district court. Townsend v. Townsend, 24 Ohio St. 1. See also Steinberger v. Steinberger, 19 Ohio, 106. An action brought for the mere purpose of obtaining the opinion of the court upon the construction of the will, can not be maintained in cases where no trust is involved. Collins v. Collins, 19 Ohio St. 468. When no trust is involved, and no advice or guidance to an executor or other trustee is required, parties claiming under or against a will can not maintain an action for the mere purpose of obtaining the court's opinion as to its meaning or legal effect. Corry ». Fleming, 29 Ohio St. 147. A trustee who is also executor, there being two claimants to a fund, may ask the direction of the court. First Presbyterian Society v. Same, 25 Ohio St. 128, 133. A trustee in doubt as to his powers, has a right to apply to a court of equity to define them, and give judicial sanction to his acts. Wiswell v. First Congregational Church, 14 Ohio St. 31. 2 Guardians are trustees. Schouler's Dom. Rel. 437-9; Redf. on Wills, 440, n. 15; Bouv. Law Die. 61G; Hill on Trusts, 49. Other writers on trusts show that they consider them such, as a matter of course, without expressly saying so, by treating of their duties, etc., in their works on trusts and trustees. It also follows that they are from the fundamental principles of trusteeship as prescribed by all authorities and as defined in law and other dictionaries, which see. 74 POWERS OP GUARDIANS. [CHAP. 5, 36-39. binding in this si ate, or at least as worthy of being followed by our courts having special jurisdiction in such matters, where the statutes make no special provisions; 30. Though not infrequent references are made throughout this volume to many of these treatises and decisions, it ma}' be well here to attempt a summary of some other well-defined and generally accepted principles governing guardians and trustees. 37. The reader should also bear in mind that in relation to some trustees, and especially executors and administrators, the statutory provisions are quite minute in many particulars. Though these provisions do not apply in express terms to guar- dians and trustees, yet if the statutes are silent on any given point of practice as to guardians or other trustees, they would most probably be looked to, whenever, in the nature of things, they would be as fitting in the one case as the other. The coui't, being without guide in the one case and being compelled to adopt some course or plan, would most likely, and very properly, adopt the plan pointed out in the other case, so far as applica- ble. 38. Guardian subject to these -principles. — In the management of his ward's estate, a guardian is bound by the principles which regulate the general conduct of all trustees. 1 39. As to deposits of money in bank. If a guardian deposits money in his own name in a bank, and the money is lost by the bank's failure, or otherwise, he will be personally responsible for such money. But if he, as guardian, deposits it in a bank in good credit and repute, till the proper time for paying it to cred- itors, for use in paying the current expenses of supporting and educating the ward, or till it can be judiciously invested, etc., and the bank fails, he will not be responsible. He must act in regard to this as a prudent man would in his own affairs, and must keep the account of such funds separate from the account of his own. 2 His bank book and bank account for such ^chouler's Dora. Rel. 461. 2 Although the following authorities do not all mention guardians, the gen- eral principles are those which govern them in such circumstances, as well as executors and other trustees. In Shaw v. Bauman, 34 0. S. 25 (in which a justice of the peace was held CHAP. 5, 40.] POWERS OF GUARDIANS. 75 funds should show that the account is with "A. B., as guardian of CD." 40. Rule as to proper care and diligence. No doubt the rule i9 that where trustees, including guardians, act within the scope of their authority, in good faith and according to the best of their judgment, and exercise such prudence, care and diligence as men of ordinary prudence, cure and diligence manifest in like matters of their own, they will not be held accountable for liable for money officially collected by him, and deposited in his own name in a bank which failed), the court used this language (p. 32) : " The rule in equity is well settled, . . . that if a trustee deposits the funds of a trust estate in bank, in his own name, individually, with his own private funds, he thereby becomes debtor to the trust estate, and a creditor of the bank : ami in case the trust funds are lost through the insolvency of the bank, trustee becomes individually liable for the loss. (Citing Wren v. Kirton, 11 Ves. 377: Macdonnell v. Harding, 8 Eng. Ch. 177; Re Stafford, 11 Barbour, 353; Brown v. Recketts, 4 John. Ch. 303; Ins. Co. v. Lynch, 11 Paitie, 520; Phillips v. Lamar, 27 Geo. 227.) See also McLain v. McGregor, 1 C. S. C. R. 327; {or, W. & B. Digest, "Trusts," 55.) A trustee may deposit money temporarily in some responsible banking- house; but he will be liable for the money in case of a failure of the bank, or for its depreciation, if he deposits it to his own credit, and not to the sep- arate account of the trust estate. . . . It is the duty of the trustee to withdraw the money from the bank upon the slightest indication of danger or loss. . . . He will be liable if he keeps money in bank an unreason- able length of time. . . . 1 Perry on Trusts, g§ 443-7, 914; (citing nu- merous English and American authorities, especially to the first sentence of this paragraph.) See also Schouler's Dom. Rel. 474. In all cases, however, in which a trustee places money in the hands of a banker, he should take care to keep it separate, and not mix it with his own in a common account; for, if he should so mix it, he would be deemed to have treated the whole as his own, and he would be held liable to the ceslni que trust for any loss sustained by the banker's insolvency. 2 Story on Equity Jurisprudence, §1270. Also, Hill on Trustees, 375,376; Perry on Trusts, §444, 463; Schouler's Dom. Rel. 474; 3 Redf. on Wills, 539. But, with respect to losses sustained by the failure of bankers, or other persons into whose hands the money of the testator has been deposited by the executor, the rule, at least in equity, seems to be that where the deposit was made from necessity, or conformably to the common usage of mankind, the executor will not be responsible for the loss. 2 Willliams on Executors 1545, 1546; 3 Redf. on Wills, 529. An executor will not be liable for money allowed to remain with bankers who fail, where it is not an unreasonable sum for the executor to keep in 76 POWERS OF GUARDIANS. [CHAP. 5, 41-43. losses happening from their management of the trust funds. 1 But this rule will only protect the guardian as long as he man- ages the trust fund strictly as the law requires him to do. 2 41. It has also been held that the maxim that every person is presumed to know the law, is not always applicable to trustees ; on the contrary, they may be exonerated from losses resulting from their ignorance of the law, in cases where they exercise proper diligence and precaution, and act upon the advice of counsel.'' 4l\ Guardian responsible for criminal acts of his agents. Though a trustee is not responsible for the crimes of stran- gers, he is responsible for the criminal acts of agents em- ployed by himself about the trust funds. 4 43. Must pay right person. Guardians, and others having trust money to distribute, must see that it reaches the person bank, or where it was only reasonable for the monej- to be deposited there under the circumstances. Smith on Equity, paragraph 355. " . . If a guardian deposits his ward's money in his own name, and it is lost, he is accountable for it. Tyler on Inf. and Cov., 2 175. 1 Miller v. Proctor, 20 0. S. 442; States. Guilford, 18 0. 500; Perry on Trusts, £2441, 914; Tyler on Inf. and Cov., 2 175; Schouler's Dom. Rel. 468, 469, 479 ; 3 Redf. on Wills, 535, 563, 453, n. 6 ; Morley v. Morley, 2 Ch. Ca. 2; Jones v. Lewis, 2 Ves. 241 ; Massey v. Banner, 1 J. & W., 247 ; Att'y. Gen. v. Dixon, 13 Ves. 534; Exp. Belchier, Arab. 220; Exp. Griffin, 2 Gi. & J. 114; Taylor v. Benham, 5 How. 233; King v. Talbot, 50 Barb. 453; 40 N. Y. 86; Neff's App., 57 Penn. St. 91; King v. King, 37 Ga. 205; Camp- bell v. Campbell, 38 Ga. 304: White v. Parker, 8 Barb. 48, 53; Glover v. Glover, 1 McMullin (S. C), 153; DePeyster v. Clarkson, 2 Wend. 77, 106; Smith v. Smith, Marsh. (Ky.) 238; Lovell v. Minot, 20 Pick. 116; Ashley v. Martin, 50 Ala. 537; Longmire v. Herndon, 72 X. C. 629; State v. Mor- rison, 68 N. C. 162; Love v. Logan. 69 N. C. 70; Atkinson v. Whitehead, 66 N. C. 296; Genet v. Tallmadge, 1 Johns. Ch. (N. Y.) 3; In re Spencer's Appeal (Logan Co. O., C. P.) 3 W. L. M. 408; Lay v. O'Neil, 29 La. Ann. 722. See also last three pars, of note 1, p. 67. In 3 Redf. on Wills, 541, it is stated that trust funds must be kept and in- vested not only with that care, skill and watchfulness which the trustee would exercise in regard to his own funds of like character and amount, but with that which the most vigilant exercise about such matters (citing, at end of a long paragraph, 1 Lewin, 241 et seq., and cases there cited). But the rule in Ohio is as stated above. See Ohio cases referred to in this note. 2 See paragraphs 12, 37. 3 Miller v. Proctor, 20 O. S., 442; see also 3 Redf. on Wills, 565. * Perry on Trusts, 2441; Schouler's Dom. Rel. 471; 3 Redf. on Wills, 542. CHAP. 5, 44.] POWERS OF GUARDIANS. 77 entitled to receive it, for if paid to the wrong person, by mis- take or otherwise, they are still liable to pay it to '.he rightful claimant. 1 44. Guardian can in no way derive profit from ward's property. — It is a well settled rule in equity, that a trustee is not permit- ted to so manage the subject of his trust as to make profits or gain therefrom, either directly or indirectly, for himself. The beneficiaries in the trust have a right to expect and require the exercise of his best judgment, care and diligence on their be- half, and the gains resulting therefrom inure to their sole benefit. Among other things, this would effectually prevent a trustee from buying up a debt or incumbrance to which the trust estate is liable for less than the amount due thereon, and appropriate the difference as a profit to himself. 2 1 Perry on Trusts, §926; 3 Redf. on Wills, 538. But not for interest thereon, lb. 445-6. 2 Cox v. John, 32 O. S. 532; Perry on Trusts, §2427-432, 464, G21 ; Schouler's Dom. Rel. 468-9, 478, 510, 511 ; 3 Redf. on Wills, 533-5 ; 2 Kent's Com. 229; 4 do. 371, note c; Tyler on Inf. and Cov., H75. Among recent cases, not cited in above works, see Bt rkmeyer v. Keller- man, 32 O. S. 239; Lowry v. State, 64 Irid. 421; Chanslor v. Chanslor, 11 Bush (Ky.), 60S; Wood v. Safford, 50 Miss. 370; State v. Peebles, 70 N. C. 10. What such trustee may not do directly, he is not permitted to do through the intervention of an agent or attorney. Cox v. John, 32 O. S. 532. An administrator [and this applies with equal force to guardians. — Ed.'] can not, therefore, be allowed, directly, or through his attorney, to com- promise, adjust, and settle claims against the estate for which he is acting, for less than their face, and to put the difference in his own pocket. lb. And the rule is the same, whether the attorney, through whom such com- promise and settlement is effected, acts for the administrator officially or personally; and whether he acts, in making such settlement, as the attorney of the administrator, solely, or for him and others, with a view to their joint profit. What the administrator may not do singly, the policy of the law will not permit him to participate in doing. In either case the discounts ob- tained from creditors must inure to the benefit of the estate, lb. It is the peculiar province of equity to take cognizance of transactions growing out of relations of trust, and to prevent those holding such posi- tion? from using them and their influence for their own aggrandizement. Berkmeyer v. Kellerman, 32 O. S. 239. All the power, influence, and skill of one occupying such a relation is to be used for the advantage of the beneficial owner and not for personal gain; 78 POWERS OF GUARDIANS. [CHAP. 5, 45-46. 45. Guardians can not speculate with, nor use ward's money in business. — Trustees can not use any part of the trust fund. in their own speculations or business. Should they nevertheless do ill profits whatsoever derived from such use must be accounted for as the property of the beneficiaries ; and should any loss re- sult from such use of the funds, it must be borne entirely by the trustee. 1 4G. In ease of sueli use by a guardian, the wards may. on ar- riving of age. elect to take either (1), all the profits made in such and all increase, gains or profits, whether arising from the natural increase in value of the property or from the management of the trustee, are the ab- solute property of the beneficiary. lb. One standing in the relation of a parent and guardian, in fact, of a minor, having the custody and control of such minor and of his property during his minority, is bound to the most scrupulous good faith in the management of the estate, lb. If a guardian convert land-scrip, receivable at the land-office in the pur- chase of public lands, into money, by investing it in land for himself and others, and accounting with bis wards for the scrip, with interest from the time of its investment, he can not, if he acted in good faith in the trans- action, be charged as a trustee of the land purchased, or compelled to ac- count for the profits growing out of the investment. 1846. Davies v. Lowrey, 15 0. G55. 1 See Schouler's Dora. Rel., §427-432. Trustees can not make a profit from trust funds by using them in any kind of trade or speculation, nor in their own business; nor can they put the funds into the trade or business of another, and receive a bonus or other profit or advantage. In all such cases, the trustees must, account for every dollar received from the use of the trust money, and they will be absolutely responsible for it if it is lost in any such transactions. By this rule, trus- tees may be liable to very great losses, while they can receive no profit; and the rule is made thus stringent, that trustees may not be tempted from selfish motives to embark the trust fund upon the chances of trade and speculation. Perry on Trusts, §429. If a trustee stands by and sees his co-trustee employ funds in that man- ner, he will be equally liable; and the same rule applies if the trustees simply continue the trade or business of the testator. It is their duty to close up the trade, withdraw the fund, and invest it in proper securities at the earliest convenient moment; and this is so, although the trustees may have been the business agents or partners of the testators. It the person from whom the trust fund comes authorize his trustees to continue the fund in a trading firm, it will be a breach of trust to allow the fund to remain after a change in the firm, as by the death or withdrawal of one of the part- CHAP. 5, 47-48] POWERS OP GUARDIANS. 79 way; or (2) interest compounded annually on all funds so era- ployed during the time of such wrongful use ; and of course, in case of loss, could recover the funds so lost, with interest. l»y suit if necessary, on the guardian's bond. 1 47. Guardian should generally use. only the Income. — No part of the eapital of the infant should ever be used for its maintenance ' without first obtaining an order of eburt permitting -this to be done It is probable that in case the capital is small and the ward can not be maintained on the income, and the guardian so uses a part or all of the capital, the courl would, upon satis- factory proof that it was necessary to do so. ratify such action. But there are cases where it has refused, and the burden would always be on the guardian to show this necessity. The proper and safe plan would be to get an order of the court in every sueh ease, before infringing on the capital at all. 3 48. Capital used for education. — Courts are much more willing ners. If the trustees arc directed to continue the testator's trade, they can invest none of his general assets in the business. They are con6ned to the fund already embarked in the trade. //>., \ 154, 456, 459: 2 Kent's Corn. 230; Corcoran v. Allen (1877), 11 R. I. 567. See also references in note 2, page 77. x See par. 12, this chapter. Perry on Trusts, §?462, 404, 621; Schooler's Dom. Rel. 470, 478, 510-511 ; 3 Redf. on Wills, 535. See also note 2, page 77 ; as to suit on bond, see chap. 10. 2 Cohen v. Shyer, 1 Tenn. Ch. 192 ; Johnston v. Haines, 68 N. C. 514. (See U. S. Dig. G. 262, 275.) If a guardian has not infringed upon the capital, he can not be held re- sponsible for the profits nor interest of the estate, though he may have spent for his ward more than the interest of a given year that year, or less another year, if, during the entire guardianship, he has not expended more than the entire interest, and has disbursed it reasonably and suitably to the circum- stances of his wards, and legally in other respects. Speer v. Tinsley, 55 Ga. 89. 3 Perry on Trusts, §618-19; Tyler on Inf. and Cov., ?H6; Schouler's Dom. Rel. 457 ; Story's Eq., \ 1355. " The order in which the ward's property should be expended for his sup- port and education is as follows: First, the income of the property; next, if that proves insufficient, the principal of personal property ; lastly, if both are inadequate, the ward's real estate, or so much of it as may be neces- sary." Schouler's Dom. Rel. 457-8- It is competent for the probate court to fix the amount to be expended in 80 POWERS OF GUARDIANS. [CHAP. 5, 49. to permit the use of ward's capital to properly educate him for business or life than for mere maintenance, as it is then consid- ered to be nol expended so much as converted into a different and useful form. 1 49. Purchase of ward's property by guardian, at his sale. — It is a well settled principle, applied with greal strictness in this state, 2 that a trustee can not. cither directly or indirectly, pur- chase the property lie holds in trust. 3 Of course, this would prevent a guardian from purchasing land of his ward at sales the maintenance and education of the ward, and to say how far the principal of ihe funds belonging to the ward shall be encroached upon. Wiggle v. Owen, 45 Miss. 691. The pension of wards from the U. S. on account of their dead father's military services may he used for their support, but to justify an allowance therefrom to their surviving mother for their past support would require a stronger showing than for a future allowance, and should only be made under special circumstances. Welch v. Burris, 29 Iowa, 186. 1 Perry on Trusts. \ 51S. . , See "sixth," page 64. 2 " This principle . . . has been pushed to a vigorous extent in our own courts."— Chief Justice Lane, in Dunlap v. Mitchell, 10 0. 117, 120. 3 Welsh i\ Perkins, 8 0. 52, 55; v. , 6 Dana. 171 ; Armstrong ». Huston, 8 O. 552, 554; Dunlap v. Mitchell, 10 O. 117, 120; Glass v. Great- house, 20 O. 503; Sheldon v. Newton, 3 O. S. 4it4; Barrington v. Alexander, 6 O. S. 189; Pdddle v. Roll, 24 0. S. 572; Piatt v. Longworth, 27 0. S. 159; Rammelsberg v. Mitchell, 29 0. S. 22; Beard v. Westerman, 32 O. S. 29. See also Perry on Trusts, g§ 602 v, 602 w, 194-210, 787; 3 Redf. on Wills, 534; 537, 551; 2 Kent's Com. 229; 4 Kent's Com. 433, n. (c); Tyler on Inf. and Gov., § 175. Courts of equity will presume without proof that such contracts are fraudu- lent, and declare them void, or at least will throw upon, the purchaser in such cases the entire burden of proving the entire fairness of the trans- action, and that it was advantageous to the ward. Perry on Trusts, §# 194, 195, and the many cases there cited. See also Jacox v. Jacox, 40 Mich. 473; Morrison v. Kinstra, 55 Miss. 71. Such a sale, having proven very advantageous to the ward and injurious to the guardian, was sustained. Redd v. Jones, 30 Gratt. (Va.) 123. A guardian having bought his ward's land and paid for it, restitution will not be required when the infant, having come of age, seeks a disaffirmance of the contract. Green v. Jones, 14 N. Y. S. C. 492; (1876.) Such purchase held good, on full payment of purchase money, the sale being fair and price good. Small v. Small, 74 N. C. 16; Blackmore v. Shelly, 8 Humph. (Tenn.) 439; Elrod v. Lancaster, 2 Head, (Tenn.J 571. CHAP. 5, 5 0-51. J POWERS OP GUARDIANS. S\ treated of in chapter 6; and should he, nevertheless, attempt so to buy, the beneficiary can have the sale set aside. 1 50. Such sale would be good, if ratified by the wards after they became of age. 2 51. Guardian's purchase with ward's money. — If a guardian of a minor purchases property with the ward's funds and takes the title in himself, a trust will result to the ward, 3 who may take the land at what it cost, or the money, with interest, when he becomes of age.* Also when bought to save property from sacrifice, at auction. But trustee held to account for profits made in reselling. 3 Redf. on Wills, 555-6. " Where a gurdian purchases for himself at sales of his ward's property, his conduct will be closely scrutinized. But where no fraud appears, and the sale appears beneficial to the ward, the more reasonable doctrine is that the transaction is sustainable in equity, subject to the ward's subsequent election, on reaching majority, to disaffirm the sale. The guardian mean- while takes the legal title; more especially if the sale was conducted through a third party, who afterward conveyed to him." Schouler's Dora. Rel. 469; also 511. To similar effect, 3 Redf. on Wills, 537, n. 21, 555; Doe v. Hassell, 68 N. C. 213; Lee v. Howell, 69 N. C. 200. It is believed that the only way such sales could be rendered safe for the purchaser at all in Ohio, would be by their ratification by the ward some time after his becoming of age. — Ed. 1 Perry on Trusts, #602w; Schouler's Dom. Rel. 469; Beam v. Frone- berger, 75 N. C. 540. See also par. 180, chap. 6; notes on pp. 126, 163-5. For general principles concerning this point, see Ohio case cited in note 3, p. 80. See also Devoue v. Fanning, 2 Johns. (N. Y.) Ch. 252; Michoudw. Girod, 4 How. (U. S. Sup. Ci.) 503; both leading and exhaustively con* sidered cases. z Dunlap v. Mitchell, 10 O. 117. 3 Perry on Trusts, § 127; Tyler on Inf. and Cov., § 175; 3 R<-df. on Wills, 557; 4 Kent's Com. 371, n. (c); Freeman v. Kelly, 1 Hofl. 90; Harris- burg Bank v. Tyler, 3 Watts & S. 373; Martin v. Greer, 1 Geo. Dec. 109, Moffit v. McDonald, 11 Humph. 457; Kirkpatrick v. McDonald, 11 Penn. St. 387 ; Wilhelm v. Folmer, 6 Penn. St. 296; Day v. Roth, 18 N. Y. 488; Lathrop v. Gilbert, 2 Stoct. 344 ; McLarren v. Brewer, 51 Me. 402 ; Thomp- son's App. 22 Penn. St. 16; Pugh v. Pugh, 9 Ind. 132; Valle v. Bryan, 19 Mo. 423; Neil v. Keese, 13 Tex. 187; Hancock v. Titus, 33 Miss. 224; White v. Parker, 8 Barb. 48; Vason v. Bell, 53 Ga. 416; Chanslor v. Chans- lor, 11 Bush, 663; Sterling o. Arnold, 54 Ga. 690; Kepler v. Davis, 80 Penn. St. 153 . . (applying rule) ; Armitage v. Snowden, 41 Md. 119; Mor- gan v. Johnson, 68 111. 190. 4 Edmonds v. Morrison, 5 I >;in;u 224; Alexander d. do., 46 Ga. 283. 82 POWERS OP GUARDIANS. [CHAP. 5, 52-54. 52. There can be no doubt but thai the guardian could also be sued on his bond for the amount so appropriated to his own use. 1 53. Contracts between guardian and ward. — The relation be- tween guardian and ward is one of great influence over the ward, and while it exists, no contracts between them can be made. 2 But if a contract or conveyance is made by the ward to the guardian just after attaining his property, and before a full settlement is made, and while the influence of the guardian is still in full force, courts will examine it in all its aspects; and the guardian claiming under such a conveyance must satisfy the court that the transaction was fair and proper, and that it did not proceed from undue influence, or from tear, hope, or other unworthy motive induced in the mind of the ward by the con- duct of the guardian. 3 54. Gift from ward to guardian. — Much the same principles apply to gifts from wards to their late guardians. It has been said that, although a gift from a ward ma)- be a highly moral act, and alike creditable and honorable to him, yet, if the court 1 Arinitage v. Snowden, 41 Md. 119. 2 Perry on Trusts, § 200; Schouler's Dom. Rel. 512; Dawson v. Massey, 1 B. & B. 226; Blackmore v. Shelly, 8 Humph. 439; Bostwick p. Atkins, 3 Comst. 53; Gallatian v. Cunningham, 8 Cow. 361; Clarke v. Devereaux, 1 S. C. 172. If a party having an infant under his influence and control, against whom he is prosecuting a suit in which no defense is made for the infant, intends to insist on the rights of an ordinary adversary, he ought first to surrender the advantages arising from his fiduciary or quasi-fiduciary character. 1867. Long v. Mulford, 17 0. S. 484. The jurisdiction which courts of equity employ to protect infants is not confined to cases of a strictly fiduciary character. The principle on which relief is given applies to all cases where influence is acquired and abused, and confidence reposed and betrayed. In cases of a fiduciary character, influence is presumed; in others, its existence must be proved. lb. 3 Perry on Trusts, § 200; 3 Redf. on Wills, 443; Tyler on Inf. and Cov. §178; Schouler's Dom. Rel. 512-14. See note 1 on page 163. Riebardson v. Linney, 7 B. Mon. (Ky.) 571; Andrews v. Jones, 10 Ala. 400; Eherta v. Eberts, 54 Penn. St. 110; Dawson v. Massey, 1 B. & B. 229; Wright v. Proud, 13 Ves. 136; Wedderburn v. Wedderburn, 4 M. & C. 41 ; Ay I ward v. Kearney, 2 B. & B. 463; Mulhallen v. Murum, 3 Dr. & W. 317; Gary v. Mansfield, 1 Ves. 379; Garvin v. Williams, 44 Mo. 465; 11 Am. Law Reg. (N. S.) 656. CHAP. 5, 55-56.] POWERS OF GUARDIANS. 83 is not entirely satisfied by clear demonstration that the gift was properly made, it will be set aside. Nothing can be allowed to stand that proceeds from the pressure of the relation of guar- dian and ward fresh upon the mind of the ward. 1 55. The statement that a gift from a ward to his late guardian is creditable and honorable, etc., is much more applicable to England, where the law does not provide for any compensation to the guardian, than it is to this state and to the United States generally, where the guardian is allowed reasonable pay for his time, trouble, and services. But this is an additional reason why such gifts here should be closely scrutinized by our courts. 56. The ward, may recover property wrongfully conveyed by guar- dian. — If a trustee wrongfully conveys any of the trust property, real or personal, to a purchaser with notice 2 of the trust char- acter of such property, the beneficiary may pursue and recover 1 Perry on Trusts, § 200 ; Tyler on Inf. and Gov., § 178; Schouler's Dom. Rel. 513-15; Hatch v. do., 9 Ves. 297; Hyltou v. do., 2 Ves. 548; Pierce v. Waring, same, and 1 Ves. 380, and 1 P. Wms. 120 n. ; 1 Cox, 125; Wood v. Dowries, 18 Ves. 126; Johnson v. Johnson, 5 Ala. 90; Williams v. Powell, 1 lied. (N. C.) 460; Gaplinger v. Stokes, Meigs, 175; Somes v. Skinner,*. 16 Mass. 348; Whitman's App., 28 Penn. St. 348; Hawkins App., 32 Penn. St. 263; Scott v. Freeland, 7 Sm. & M. 420; Garvin v. Williams, 44 Mo. 465. 2 Where a guardian has the legal power to sell or dispose of the personal estate of his ward in any manner he may think most conducive to the pur- poses of his trust, a purchaser who deals fairly has a right to presume that he acts for the benefit of his ward. He is not bound to inquire into the state of the trust, nor is he responsible for the faithful application of the money, unless he knew or had sufficient information at the time that the guardian contemplated a breach of trust, and intended to apply the money, or was, in fact, by the very transaction applying it to his own private pur- poses. Field v. Schieffelin, 7 Johns. Ch. 150; Conrad v. Griffey, 16 How. 37,38; Elliott v. Merryman& Notes, 1 Lead. Cas. Eq. 74, 111). See also Bank v. Carpenter, 7 O. 1 pt. 21 ; Giles v. Pratt, 1 Hill (S. C. ) 239 ; Mulford v. Stalz- enbach, 46 111. 303. But see Strong v. Strauss, in note, p. 138; note, p. 94. Among the duties of a guardian prescribed by statute are the education of the ward in such amount as the estate may justify, the investment, of the money of the ward, and generally the management of the estate lor the best interest of the ward. These duties involve discretion. While it may be a general principle, although not indeed universally true, that a pur- chaser having notice of a trust is bound to see to the proper execution of the trust, the principle does not prevail where the purchase money is to be applied by the trustee himself to purposes requiring time, deliberation, or discretion on his part. Clyde v. Simpson, 4 O. S. 445, 464; Coonrod v. Coonrod, 6 O. 115, 116; Story's Eq. \ 1134 (Redfield's Ed. \ 977a.) 84 POWERS OF GUARDIANS. [CHAl-. "). 57-58. the property, or he may hold the trustee responsible personally; and if the trustee purchases land in bis own name with the trust funds, the beneficiary may have the land, or hold the trustee responsible for the trust fund so expended, with interest. 1 f>7. Ward's labor and services. — The guardian, occupying, as he does, to a considerable extent, the place of a parent, may, when circumstances render it expedient, compel the ward to contribute to his own maintenance by such labor and services as he is capa- ble of rendering without detriment to Ids health, character, and reasonable education ; and this would be especially true of a ward whose income is insufficient for his support. But the guar- dian can not receive such services rendered to himself, nor their proceeds when rendered to others, without being responsible and liable to account for the same, just as he must for other property or thing of value belonging to his ward, and he can set off against any claims for board, etc.. of the ward, the real value of the services rendered by the ward to the person furnishing such board, care, 2 etc. 58. Where ward resides with guardian. — But when the ward resides with his guardian as a member of his family, the courts 1 Perry on Trusts, 2? 828-844; Schouler's Dom. Rel. 470. See also Branch v. Du Bose, 53 Ga. 514; Shelton v. Lewis, 27 Ark. 190; Younce v. McBride, 68 N. C. 532 ; Lemley v. Atwood. 65 N. C. 46. 2 See Schouler's Dom. Rel. 499; Tyler on Inf. and Gov. 265: Starling v. Balkum,47 Ala. 314; Lewis v. Edwards, 44 Ind. 333; also, note 2, p. 64. If a guardian of a minor knows that the minor and her mother have agreed with a third person as to the services of the minor, the compensation there- for, and the payment therefor to the minor, and permit the agreement to be executed, and the amount to be paid to the minor, without objection, he is estopped from collecting the amount as guardian. (27 Ind. 534; 31 Ind. 76; 32 Ind. 309.) Boulton v. Black, Sup. Ct. Ind. 1880; 5 Cin'ti Law Bui. 129. A minor had a guardian other than his father, and such guardian con- tracted with the minor's father for the sale of the minor's time during the remainder of his minority, and paid the father for the time according to the contract. Held, that the amount could not be allowed to the guardian on the settlement of his account with the probate court, without his showing affirmatively that his ward was at least no worse off than if he had his mone}', with interest, on arriving at bis majority. Bannister v. do., 44 Vt. 624. Guardians should keep their wards employed when able to earn their own support, rather than permit them to consume in idleness the principal of CHAP. 5, 59.] POWERS OF GUARDIANS. 85 generally consider that such services as children render are a fair equivalent for their board, and are not disposed to allow the guardian any compensation for the ward's mere maintenance, nor the ward for his services. 1 However, the court should con- sider the circumstances of each particular case, taking into ac- count the age, sex, strength, and other elements affecting the usefulness of the services of the ward, the amount of time he may have been compelled to work when he ought to have been at school, etc., and do substantial justice accordingly. It can readily be seen a strong boy, kept at work on a farm most of the time between the years of, say twelve and twenty, is not on an equal footing with a sickly child between the years of four and eight, capable of and doing little or no work. And a guardian who would permit his ward to be improperly deprived of suita- ble means of education, taking into account the amount of his ward's estate and other circumstances, is not fit for his trust, and ought to be promptly removed. - 59. Allowance of fixed sum for word's maintenance. — In Eng- lish chancery practice it is the general rule that when the ap- pointment of a guardian is sought, a fixed sum for the support of the ward is asked for at the same time. Though this rule is not general in the United States, 3 yet it is not uncommon, especially when the minors are living with their mother and have property of their own, for the care of which a guardian of their patrimony. State, v. Clark, 16 Ind. 97 ; Clark v. Clark, 8 Paige (N. Y.) 152. Where a minor is living with A., under his control, and B. hires his services from A. ; in an action by A. to recover for such services, B. is estopped by his contract from denying A.'s right to control his services. 1833. Lowry v. Button, W. 330. ^chouler's Dom. Rel. 449, 500. When a guardian takes his ward into his own family, an intention to maintain such ward gratuitously may be inferred from circumstances. Proof of an express promise is not necessary. 1869. Crosby v. Crosby, 1 S. C. 337. 2 Where a ward has been properly maintained and educated, it is no ground for removal of the guardian that he has merely given his notes for the expenses, there being no complaint by the creditor. Sweet v. Sweet, Spears (S. C.) Ch. 309. See note 3, p. 64; also, note 1, p. 53; last part of note 2, p. 90; also par. 17 et seq., p. 52. 3 Schouler's Dom. Rel. 459, 461. ,86 POWERS OP GUARDIANS. [CHAP. 5, 60-62. the estate bus been appointed, to represent to tbe court tbe amount of income or property the wards each have, and to ask the court to fix an amount per annum which the mother may be allowed for the maintenance and education of each ward. This sum may be changed in amount from time to time, as the needs of the ward or the change in value of the ward's property may require. This is the most convenient and desirable, and a safe way of proceeding, when the circumstances arc; such as to justify its adoption. 60. Costs of litigation, etc. ; who must pay. —It may be stated as a general rule, that all costs and expenses, including reasonable attorney fees, fairly incurred by the guardian in suits lor receiv- ing, properly administering, and protecting the trust fund, must be allowed to him by the court; and he should also be allowed those of suits decided against him, if he was honest and acting in good faith in such suits, and they were such as a reasonable and prudent man might reasonably have undertaken or resisted in the management of his own affairs. 1 61. Suit on uncertain claims. — It should be borne in mind that there may be claims of'such uncertain validity, both in favor of the trust estate and against it, that it might amount to a breach of trust to abandon them in the one case or to pay them in the other, without a decree of court to direct the guardian what he should do in relation to them. In such cases he should get the sanction of the court, and his costs and proper expenses will be allowed. 62. Obligations of parents and guardians as to support of minor 1 Perry on Trusts, \\ 891-903,910; Schouler's Dom. Rel. 462; Moore v. Shields, 69 N. C. 50; McNickle v. Henry, 4 Brews. (Pa.) 150. A guardian will not be allowed to charge the estate of his ward with any part of the expenses of a controversy on the settlement of his accounts, when the controversy was occasioned by his own fault. Blake v. Pegram, 109 Mass. 541 ; see also Moore v. Shields, 69 N. C. 50. The court has, however, full power to assess the costs, in such cases, against the guardian, the trust fund, or otherwise, as in its discretion shall seem just and right. § 6288. Perry on Trusts, §2 892, 910. But if a suit is made necessary by the misconduct or failure of the guar- dian to do his duty, or by his mere caprice or obstinacy, or by his refusal to account, or by his careless manner of keeping correct accounts, etc., he must pay the costs. lb. gg 900-903, 910. ciiAT. 5, 63-65.] towers of guardians. 87 children. The general rule is that a father must support his minor children, if* he is able to do so, and in such case the guardian can not apply any part of the income of the infant's estate to its sup- port, or at least not without an order of the court. 1 63. But the courts now look' more than formerly to the circum- stances of each case, and take into consideration the respective es- tates; and if the infant's estate is much larger than the father's, or when, though able to support such children, he is yet not able to support them in such a manner as their future prospects, fortune, and expectations justify or require, the court may order' their main- tenance out of their separate estate. 1 64. How order for, granted. If the estate belongs absolutely to the minor, and no conflicting interests can arise, the order for main- tenance may be made on an application and without suit; but if there are opposing and complicated interests, the court will not act without a regular suit and notice to all parties. 2 65. A mother not compelled to maintain her children. A mother is entitled to maintenance of her children out of their funds, whether she is living with the husband by whom she had the children, or is living with a second husband, or is a widow. 3 1 See 2 Kent's Com. pp. 191. 192, text and notes; Perry on Trusts, \\ 612- 615; Schouler's Dom. Rel. 322,-326, 459; Story's Eq. gf 1346, 1347f, 1354a. See also notes on pp. 79 and 90, and § 3110, as am. 84 v. 132. G. was guardian of his children as to property bequeathed to them. G. was wealthy, and maintained and educated his children without charge against them. When he died, his estate was ample to pay all his debts and leave a large surplus to his heirs, but his estate became insolvent by losses incurred after his death. On suit by his creditors against his administrators, held, that the guardianship account was not chargeable for the benefit of these creditors, with the cost of educating and maintaining the children. Griffith v. Bird, 22 Gratt. (Va.) 73. The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a vinculo, on account of the husband's misconduct, gives to her the custody, care, and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child's support. Pretzinger v. Pretzinger, 45 O. S. 452. The mother may recover a reasonable compensation from the father, for necessaries furnished by her to the child after such decree, and may main- tain an original action for such compensation against the lather, in a court other than that in which the divorce was granted. Id. 452. 2 Perry on Trusts, g 017. 3 Perry on Trusts, § 613; Schouler's Dom. Rel. 326; 2 Kent's Com. 191; Halev v. Bannister. 4 Mod. 275; Hodgson v. do., 4 CI. & Fin. 323; 11 Bligh (N. S.) 62; LI. & Goo. Sugd. 259; LI. & Goo. Plunk. 137; Lanoy v. Athol, 2 Atk. 447; Exp. Pet re. 7 Ve<. 403; Beasli-y v. McGrath, 2 Sch. & L. 35; Green well v. do., 5 Yes. 194; Douglas c. Andrews, 12 Beav. 310; 88 POWERS OF GUARDIANS. [CHAP. 5, 66-67 66. Stepfather need not maintain stepchildren, miles*. A step- father need not Bupport his wife's children, and is entitled to maintenance out of their income, unless their maintenance costs him nothing. 1 But if they are taken into his house as a part of his family, he is bound to maintain 1 and educate them as if they were his own children. - ti~. Effect of ward's death. If the ward dies, all of his prop- erty, both real and personal, at once vests, subject to the payment of debts and legal charges, in the heirs of such ward, and the guardian must at once render his account. 3 The guardian can not proceed to settle such decedent's estate, but an administrator must be appointed for that purpose, 4 and to him the guardian must turn over all of such ward's personal property. The ward's heirs of course become the joint owners of his real es- Heyward o. Cuthbert, 4 Des. 445; Re Bostwick, 4 John. Ch. 100; Whipple V. Dow. 2 Mass. 415; Dawes p. Howard, 4 Mass. 97: Bruin v. Knott. 1 Phil. 573; Anderton v. Yates, 5 De G. &, Sm. 202; Smee v. Martin. 1 Bunb. 131 ; Hughes v. Hughes, 1 Bro. C. C. 387. Bui it is also held that the mother, after the death of th^ father, being then the head of the family, and having control of the minor children, is bound to support them, if she is of sufficient ability. Schouler's Dom. Rel. 325; Dedham v. Natick, 16 Mass. 140. See page 69 ante, and am. § 3110. 1 2 Kent's Com. 192; Perry on Trusts, § 613. Also, Appendix, par. 12. 2 2 Kent's Com. 192; Schouler's Dom. Rel. 378, 499; Mulhern v. McDavitt, 82 Mass. 404. See also Douglas' Appeal, 82 Pa. St. 169; Bradford v. Bodfish, 39 Iowa, 681. See par. 1 1. p. 22, ante. 3 Schouler's Dom. Rel. 424-5; Tyler on Inf. & Cov. \ 177; 1 Bouvier's In- stitute. 147. 4 Raff's Guide to Executors and Administrators, 50; Schouler's Dom. Rel. 425. Where a judgment was recovered against H. by the guardian of a minor, and the minor dying, the judgment was paid to her administrator, the debtor may have an injunction against the collection of the judgment by the guar- dian. But he must make the administrator a party, that he may contest the payment if he desires. 1833. Harper v. Seely, W. 390. F. inherited land from his father. A guardian was appointed for him, who, under an order of the court, sold a portion of the land for the support and education of his ward. F. died before coming of age. The guardian had money in his hands arising from the sale of the land. Held, that the money was to be regarded as personal property acquired by the intestate ward, and passed as such to his half brothers and sisters, childien of his mother by a second marriage. Armstrong v. Miller, 6 O. 118. CHAP. 5, 68-71.] POWERS OF GUARDIANS 89 tate, and with its partition among them or otherwise, the guar- dian has nothing whatever to do. 1 See par. 255, chap. 6. 68. When one of two or more guardians ceases to act. When there are two or more guardians appointed for the same minor, and one dies, removes from the state, is removed, resigns, or,. being an unmarried female, marries, or otherwise ceases to be a guardian, this does not affect the powers or duties of the remain- ing guardian or guardians, but lie or they will continue as if such former one had never been appointed. 2 69. In such a case, however, the situation of those left to act, might be so changed as to require a settlement of their accounts, and a new bond might be demanded. Of all this, the probate judge is the sole judge, and must act as circumstances seem to require, in each particular case. 70. Ward can not manage nor dispose of his estate. — It is the guardian's duty not to permit the ward to sell, or otherwise dis- pose of his estate, real or personal; but on the contrary, to con- trol the same himself, keep it and make it as productive as pos- sible, unless the real estate be ordered to be sold by the proper court. And if the ward persist in selling or attempting to sell his estate, the guardian should not give up the possession thereof to the purchaser; and if he does sanction such sale, and sur- render possession under it, he is guilty of a breach of his fiducial duties. 3 71. Guardian's duty as to ward's character, etc. — A guardian should fill the place of a good parent. He should maintain the ward in a manner suitable to his condition in life; should pro- vide him the opportunities of education, and use his authority to compel the ward to embrace the opportunities offered. The edu- cation should not consist of schooling merely, but the morals of the ward should be carefully attended to, and the authority of 1 Where a guardian, under an order of court, had sold the land of his in- fant ward, who died before coming of age, a bill by parties claiming to be next of kin to recover the proceeds remaining in his hands, was sustained, though the demand was for money only. Armstrong v. Miller, 6 0. 118. See par. 2, chapter 11. 2 3Red6eld on Wills, 532; Schouler's Dom. Rel. 438; Be Reynolds, 18 N. Y. Supreme Ct. 41 ; Pepper v. Stone, 10 Vt. 427. 8 4 Dana, 631. 90 POWERS OP GUARDIANS. [CHAP. 5, 72. the guardian should be judiciously used and kindly advice and warning given, to the end that the associations of his ward be proper ones, and his moral deportment, so far as possible, unex- ceptionable. 1 Education includes also the proper training of the ward, so as to fit him for some of the useful pursuits of life, such as a trade, profession, or business. The guardian assumes fidelity to these things and the; like when he accepts the appointment, gives the bond, and solemnly takes the oath required. 2 72. Repairs. — It is the guardian's duty to make the proper repairs on ward's real estate, and pay for them out of the income. 1 As the guardian is bound to promote the moral welfare of the person in- trusted to his care, he may warn off from the ward's premises any persons improper for him to associate with, and, if necessary, expel them forcibly. This right is to be reasonably construed ; and in the use of means and the amount of force necessary to effect this object, he is allowed a liberal dis- cretion, such as a parent might exercise under like circumstances. And in many other respects the rights of a guardian resemble closely those of a parent. Schouler's Dom. Rel. 455 (citing Wood v. Gale, 10 N. H. 247). 2 "The guardian's duties as to the ward's person are those of protection, education and maintenance. In exercising them, he is bound to regard the ward's best interests. Guardians, as we have seen, are seldom appointed where there is not some property. But even though the ward is penniless, we are not to suppose that one vested with the full right of custody can ne- glect with impunity those offices of tenderness which common charity as well as parental affection suggest. For to the orphan he stands in the place of a parent, and supplies that watchfulness, care, and discipline which are es- sential to the young in the formation of their habits, and of which, being deprived altogether, they would better die than live. "It is, however, to be always borne in mind that while the father is bound to educate and maintain his children absolutely and from his own means, no such pecuniary responsibility is imposed upon. the guardian. The hitter need only use for that purpose the ward's fortunes. Hence, in supplying the wants of his ward, he is to consider, not the style of life to which they have been accustomed, so much as the income of their estate at his dis- posal. Whatever their social rank may have been, he may, provided they are left destitute, place them to work, or if they are too young and feeble, surrender them to some charitable institution. He should, however, act with delicacy and prudence; he may properly consider in this connection the habits and tastes of the children and the wishes of their relatives; and he can relieve himself of responsibility by asking judicial guidance." Schouler's Dom. Rel. 455. chap. 5, 73-74.] powers of guardians. 91 73. Row guardian may collect interest due ward on registered gov- ernment bonds. — See chapter 25, paragraphs 32-48. 74. Other duties, etc. — As to the guardian's duties relating to the lease of land, sale of real and personal estate, bonds, etc., see the chapters respectively devoted to those subjects. See also chapter 25. 92 SALE OF WARD'S PROPERTY. [CHAP. 6. CHAPTER 6. SALE OF WARD'S PROPERTY. Par. PERSONAL PROPERTY. 1. When ward's personal property may be sold. REAL PROPERTY. 2. Who may sell ward's real estate, and why. 3-4. Jurisdiction of courts in such sale. 5. The petition for sale of real es- tate must contain what? 6. Dower of widow. 7. Liens, leases, partition, etc. 8. Who are defendants. 9-23. Form of petition. 24-26. Verification of petition. 27. Who administers oath. 28-29. Notice of filing petition, how served, etc. 30. Code of common pleas to gov- ern in probate court, so far as applicable. 31. Since when. 32. Infants; how served; law found where. 33. Of summons. 34. Infant's age; why stated. 35-36. Should the notice be served by the guardian. 37. Further provisions as to notice. 38-39. Form of journal entry of or- der of the court as to notice to defendant. Par. 40-41. Form of notice to defend- ants. 42. When, and how to be served. 43. Return of. 44-45. Form of affidavit to. 46. Directions to sheriff, etc. 47-49. Service by publication ; af- fidavit required, etc. 50-56. Form of affidavit for service b} r publication. 57. Form of notice by publica- tion. 58-59. Publication made where, and how long. 60-63. Form of proof of publica- tion. 64-66. Is a guardian ad litem ne- cessary in such sales. 67. As to duties, appointment, etc., of guardian ad litem. 68. How widow or widower may elect to be endowed out of proceeds of sale. Effect of such elec- tion. 69. Guardian of insane person may act for ward. 70-73. Answer waiving dower in land, and asking for value in money. 74. Verification not required. 75. Minor heir not prejudiced by collusive assignment of dower. CHAP. 6.] SALE OF WARD S PROPERTY. 93 Par 76. Hearing of petition; appraisers appointed; town lots laid off, 77-88. Form of order of appraise- ment, and finding of court; de- cree for appraisement, etc. 89. Guardian usually suggests ap- praisers. 90. When appraiser fails to act. 91-97. Certificate to the appraisers, and form of. 98. If no dower to assign, what to omit. 99. Oath of appraisers. 100-103. Form of appraisers' oath. 104. How appraisers to proceed. 105. Dower assigned in rents, etc. 106. Appraisers duty in such £ases. 107. How returned to court. 108-111. Form of appraisement and assignment of dower. 112. Guardian to execute additional bond before sale. 113-118. Form of journal entry ap- proving appraisement, plat and survey. Widow's do we; order- ing guardian's bond. 119. If no dower, what to do. 120-126. Form of guardian's bond where real estate is to be sold. 127. Order of sale; how sale to be made. 128. Deferred payments secured by mortgage. 129. May be sold at private sale, when, if. 130. Decree, etc. , when town lots are" laid out. 131-146. Form of decree for sale. 147. When decree for private sale may be made. 148. How decree for private sale obtain eel. 149-152. Form of application to sell real estate at private sale. Par. 153-157. May be sworn to. Form of oath. 158-160. The form of affidavit for private sale. 161-165. Another form. 166. Precipe for order of sale. 167-170. Form of precipe for. 171. Notice of sale. 172-175. Form of notice of sale. 176. Where sale must be made. 177. Guardian may sub-divide and sell; his risk in so doing. 178. Best to get order of court. 179. How sale conducted. 180. Appraisers, etc., can not buy. 181. Reportof sale; confirmation and deed. 182. If no sale made, what to do. 183-185. Form of a return to an order of sale, when a sale has been made. 186. Attached copy of notice, etc. 187-194. Forms of the affidavit prov- ing the publication of the no- tice. 195. If no newspaper in the coun- ty. 196-197. When not sold for want of bidders. 198. Report, when no sale is effected. 199-203. Form of report; sale not made. 204-206. Form of order of re-ap- praisement. 207-208. Order to sell at a fixed price. 209. Report of private sale. 210. Affidavit required in case of private sale. 211-215. Form of affidavit, etc. 216. Confirmation of sale. 217-219 Form of order of confirma- tion. 94 SALE OF WARD'S PROPERTY. [CHAP. 6, 1. Par. Par. 220. Entry, if liens adjusted. 243-246. Form of bond. 2l'1. Taxes and penalties must be 247-248. If no bond be given, what paid out of proceeds. to do. 222-229. Guardian's deed. 249. If given, what. 230. To whom note and mortgage 250. If bond not required. given. 251. Remedy of purchaser, if guard- 231-238. Form of mortgage. ian's sale is invalid. 239."' Sale of lands in this state by 252. How possession gained of hinds foreign guardians; application sold at guardian's sale. for sale; security. 253. Kind ol title guardian's sale 240. The proceedings. conveys ; caveat emptor. 241-242. Order of court for security; 254. Application of purchase money. Form of. 255. As to ancestral property. 1. When ward's personal property may be sold. The guardian of the person or estate, and of the estate only, can, when for the interest of the ward, sell all or any part of the personal estate of the ward. 1 1 1 6280. It would not be prudent for the guardian to make any important change in the character of any considerable part of the ward's estate, such as sell- ing the personal property and investing the property in real estate, without first obtaining, for his protection, an order of court permitting or directing him to do so. See Story's Eq., § 1357 ; Perry on Trusts, ??606, 607; Schoul- er's Dom. Rel. 466, 480; paragraph 12, chap. 4. Of course, be must even then act in good faith for the best interests of his ward. See par. 40, chap. 5. The guardian may dispose of the personal estate of his ward as he may think most beneficial for the ward, and a person who purchases, in good faith and for value, such property, with no knowledge of fraudulent intent on the part of the guardian, is not responsible for a misapplication of the proceeds. Strong v. Hope (Ham. Co. Dist. Ct. 1879); 4 Cinti. Law Bui. 1034; Field v. Schieffelin, 7 Johns. (N. Y.) Ch. 150; Woodward v. Don- nally, 27 Ala. 198. See also notes on pp. 83, 96, 138. This applies to every species of personal property, though it is not usual to sell family pictures, plate, watches, and personal ornaments, but to keep them, by which to remember their former owners. And in other peculiar cases, as where the ward is nearly of. age, and is soon to enter upon a well- stocked farm, which is his own property, the guardian will be justified in not selling off the stock. (Reeve's Dom. Rel. 326; Tyler on Inf. and Cov. 262; Sehouler's Dom. Rel. 475.) But see paragraphs 44-46, 56, and notes thereto, of chapter 5, as to con- ducting any business for ward's benefit. CHAP. 6, 2.] SALE OF WARD'S PROPERTY. 95 2. Who may sell ward's real estate, and why. Whenever nec- essary for the education, support, or payment of just debts of any minor, or for the discharge of any liens 'on the real estate of such minor, or whenever the real estate of such minor is suf- fering unavoidable waste, or a better investment of the value thereof can be made, and the court shall be satisfied that a sale thereof will be for the benefit of any minor, the probate court by which a guardian of the person and estate, or of the estate only, has been appointed, may, on the application of such guard- ian, order the real estate of such minor, or a part thereof, situ- ate in this state, to be sold. 1 1 §6280. The court of common pleas that appointed a guardian may empower him to sell the land of a minor situate in another count}'. Where a guardian's sale has been examined and confirmed by the court, and the journal entry shows that a bond has been directed and sureties approved, it will be presumed that the bond was executed. The law does not require the bond to be carried into the record. Maxsom v. Sawyer, 12 0. 105. A military land-warrant was issued to the widow and minor child of a de- ceased soldier of the Mexican war, under the act of Congress of February 11, 1847, which provided that the guardian of such minor may, " upon being duly authorized by the orphans' or other court having probate jurisdiction, have power to sell" the warrant; and the guardian of the minor, with the widow, assigned the warrant, without being authorized to do so by the pro- bate court, to a person who knew all the facts of the case, but supposed the assiguraeutgave him a clear title to the warrant : Held — The assignment of the guardian, without the authority of the proper court, did not transfer the right of the minor in the warrant to the purchaser. Mack v. Brammer. 28 0. S. 508. A sale made by an administrator, on the joint application of himself and the guardian of the minor heirs, for the support of such heirs and the widow, is void. The application may not have been fatally defective — too many may not vitiate; but the guardian alone could make application for this purpose, and the administrator had no power to apply for or execute the sale for this purpose. Newcomb's Lessee v. Smith, 5 0. 447. Formerly, the guardianship of a minor female expired, by operation of law, when the ward arrived at the age of twelve years. A guardian ap- pointed for such ward, when under the age of twelve years, could not, as such guardian, by petition filed after the ward arrives at the age of twelve j r ears, Bell the ward's land. A sale, under an order of court, upon such petition, was void. Perry v. Brainard, 11 0. 442. See note 4, page 25. Under the act relating to guardians, passed February 9, 1824 (2 Chase 96 SALE OF WARD'S PROPERTY. [i HAP. 6, '6. 3. Guardian may ask for sale of real estate of two or more wards; guardians may join. Where any person is such guard- ian for two or more minors whose real estate is owned b}' them, 1317, Swan's Rev. Stat. 444), the i nly power to authorize a guardian to sell the real estate <>i' his ward, prior to the creation of the probate court, was vested in the court of common pleas of the county in which the guardian was"appointed. Foresman v. Haag, 36 0. S. 102. The provision in section 3 of the amendatory act of February 2!!, 1846 (2 Curwen, 12?>7, Swan's Rev. Stat. 447), requiring guardians to be governed, "in the execution of any order of sale" of the real estate of their wards "by the same regulations that maybe prescribed, and in force when such order is made, for the sale" of lands by administrators, does not prescribe the court to which application may be made by the guardian to obtain such order of sale, but relates to the manner in which the order is to be executed after it has been granted by the proper court. lb. As to compelling guardian to pay over to administrator, for the payment of debts in pursuance of an agreement to that effect, the proceeds of a sale made by the guardian, see Bradstreet v. Shank, (Hamilton District Court) 5 Cinti. Law Bui. 362. A guardian can receive nothing but money in payment for a sale of his ward's property. He, can not receive his own note in payment, and if he does so, and afterwards fails to account for and paj" over in money the pro- ceeds of the sale, his ward may maintain an action against the purchaser for the purchase-money, or set aside the sale. 17 Barb. 15; 51 Ind. 148; 14 Ind. 324; 43 Ind. 203. The appellee herein who purchased the property of the guardian, insists that he had a right to expect he would apply his individual note on the pur- chase-money due Esther Bevis, who was a married woman, and that Stover was acting as her agent, as the law did not permit him to apply it on the amount due his ward, upon the principle that it will be presumed, in the ab- sence of notice to the contrary-, that the trustee will do his duty in the man- agement of the business of his trust. But Stover, being only the agent, of Esther, had no right to accept any thing for his principals. Bevis v. Heflin (Sup. Ct. Ind. '79), 3 Cin. Law Bui. 1132. See also Story on Agency, § 98, and note 2, next page. The estate of a ward in remainder in land, depending on the life of his father, may be sold in the manner prescribed by law for guardian's sale of ward's land, during the life of the father. Garland v. Loring, 1 Rand (Va.) 396. The provisions of the statute relating to guardian's sales must be com- plied with, or the sale will be void. Cooper v. Sunderland, 3 Iowa, 114 ; Fra- zier v. Steenrod, 7 Iowa, 339; Shanks v. Seamonds, 24 Iowa, 131; Wells v. Cowherd, 2 Mete. (Ky.) 514; Bell v. Clark, same, 573; Mattingly v. Read, 3 same, 524 . Watts v. Pond, 4 same, 61 ; Carpenter v. Strothers, 16 B. Mon. CHAP. 6, 4-5.] SA.LE OF WARD'S PROPERTY. 97 jointly, or in common, the guardian may in one application ask for the sale of the interest of all, or any number of his wards, in such real estate ; and where different persons are guardians of minors so interested jointly, or in common, in the same real estate, such guardians may join in one application ; and on the hearing, in either case, the court may authorize the sale of the interest of one or more, or of all such wards, as, in its discre- tion, it may deem right and proper. 1 4. Jurisdiction of courts in such sale. The probate court has concurrent jurisdiction in the sale of lands on petition by ex- ecutors, administrators and guardians, and the assignment of dower in such cases of sale; 2 and such jurisdiction, once ac- quired, is exclusive of that of every other probate court. 3 5. The petition for sale of real estate; must contain what ; town lots. The application for the sale of real estate must be by pe- tition, which must set forth specifically : First — The value and (Ky.) 289; Burnett v. Churchill, 18 same, 387; Wyatt v. Mansfield, same, 779; Banker v. Hopewell, Mete. (Ky.), 260; Megowan v. Way, same, 418; Leary v. Fletcher, 1 Ired. (N. C.) L. 259; Ducket v. Skinner, 11 same, 431; Spruil v. Davenport. 3 Jones (N. C), L. 42; Pendleton v. Trueblood, same, 96. 20 Cal. 352; 47 111. 278; 2 Pel. (U. S.) 157; 41 Pa. St. 120; 25 Mo. 584. 1 g 6280. 2 I 525. Concurrent jurisdiction conferred upon probate courts, in the sale of land on petition of executors, administrators and guardians, by section 3 of the act of March 14, 1853 (3 Curwen, 2041, S. & C. 1213), vests in tht probate court of the several counties only such jurisdiction in regard to ordering such sales as was possessed by the courts of common pleas in such coun- ties respectively. Foresman v. Haag, 36 O. S. 102. Hence, where, at the time of the passage of said act, the court of com- mon pleas in a particular county was authorized to order the sale of the lands of a ward, on the application of his guardian, the probate court of such county could not order such sale. lb. The probate court of Pickaway county duly appointed, in 1853, guard- ians for certain minors residing in Scioto county, and on proceedings insti- tuted by the guardians in the probate court of Cuyahoga county, certain real estate of the wards, situate in the county last named, was, in 1854, sold by order of that court, the sales confirmed, and the deeds executed accord- ingly. Held, that the proceedings in the probate court of Cuyahoga county were void for want of jurisdiction. lb. See also 4th, 5th and 6th paragraphs of note 1, page 95. 3 §527. 7 98 SALE OP WARDS PROPERTY. CHAP. G, 5.] character of all personal estate belonging to such ward that has come to the knowledge or possession of such guardian. Second — The disposition made of such personal estate. Third — The amount and condition of such ward's personal estate, if an}-, de- pendent upon the settlement of an}- decedent's estate, or the execution of any trust. Fourth — The annual value of the real estate of the ward, with a pertinent description of such real estate. Fifth — The amount of rent received, and the applica- tion thereof. Sixth — The proposed manner of re-investing the proceeds of the sale, if asked for that purpose. Seventh — Each item of indebtedness, or the amount and character of the lien, if the sale is prayed for the discharge thereof. Eighth — The age of the ward, where and with whom residing. Ninth — If there be no personal estate belonging to such ward in possession or expectancy, and none has come into the hands of such guardian, and no rents have been received, the fact must be stated in tho petition : If it is desired that the land sought to be sold, or any part thereof, shall be laid out in town lots, that fact must be stated, and the reasons therefor, and the manner in which the same is to be laid out. 1 1 ? 6281. The statute for the sale of infants' estates by guardians requires that the petition of the guardian shall contain a description of all the real estate of the ward, and, when the contrary does not appear, it will he presumed that the real estate described in the petition includes all that the ward owns. Mauarr v. Parrish, 26 0. S. 636. In a proceeding under the statute for the sale of lands of a minor by a guardian, the petition described the lots as Nos. 73, 74 and 76, in East Iron- ton, and as having corne to the ward by descent. The appraisement and or- der of sale described them as Nos. 173, 174 and 175, the latter being the true description of the lots actually owned by the ward, and which came to her by descent. In an action by the ward against the purchaser of one of the lots, at a sale b} T the guardian in pursuance of said order of the probate court, it was held, that it is to be presumed that the ward owned only the three lots sold, and that there was a mere mistake in numbering them in the petition, and that the petition was sufficient to give the court jurisdic- tion. Ibid. The failure of the court to require an additional bond of the guardian, be- fore allowing the order of sale, or to appoint appraisers who have the proper qualifications, in this case residence in the county, although it may be ground for error, does not render the proceedings void, or the saie invalid. Ibid. ; also, to same effect, Arrowsmith v Harmoning, 42 O. S. 254. See note, p. 118. For construction of tormer law, see Armstrong v. Stiller, 6 O. 118. CHAP. 6, 6-23.] SALE OF WARD'S PROPERTY. 99 G. Dower of widow, If there is a claim of a widow for dower, that should also be set out in the petition, 1 and in case dower should already have been assigned to the widow in the premises described in the petition, under proceedings previously instituted by her, a description of that portion of the premises covered by the dower should be given in the petition. 7. Liens, leases, partitions, etc. The petition should contain a statement of the mortgages, 2 judgments, vendor's liens, or other liens existing against such real estate, known to the petitioner; and if there be any questions relating to the title of the ward, whether growing out of trusts, equities, or any other matter, they should be specifically stated ; as well as any leases of any portions of such real estate, with the terms of the same. If the ward holds the real estate in common with others, that fact should be set forth in the petition ; in which case the pe- tition should ask for a sale of the ward's undivided interest — Leaving a division of the premises for the joint action of the pur- chaser at the sale, and those holding in common with iho ward, in the manner provided in chapter 11, below; and in all cases the nature and extent of his interest, or the title in and to the real estate prescribed in the petition should be clearly and fully men- tioned. 8. Who are defendants. — The ward or wards, and others specified in paragraph 28, below, together with the other parties in interest designated above, are the defendants to the petition. 3 9-23. Form of petition. — The form of petition, journal entries, etc., will be given as if there wei'e but one ward. Should there be more, the necessary changes are easily made: v. Macalester, 9 O. 19 ; Este v. Strong, 2 O. 401; and jVIaxsom v. Sawyer, 12 O. 195. 1 See paragraphs 4 and 28, this chapter. 2 The mortgage lien remains in full force,, if the mortgagee is not made a party to the suit. Holloway v. Stuart's admr., 19 O. S. 472. See also note 1, above. 3 A ward will not be bound by a decree affecting his property, where the guardian was a party to the suit, but not the ward; nor will a court of equity entertain a bill to enforce such decree against the ward, it being as to him a nullity. Este v. Strong, 2 O. 401. 100 SALE OF WARD'S PROPERTY. [CHAP. G. count}-, Ohio, ss., Probate Court [or, Court of Common Picas]. A. B., guardian of C. D., a minor, plaintiff, vs. Sa X V'l 77^77; ^ Fetition t0 seU real estate - trustee [and name all other per- sons ichose lights this suit affects, and give age of each minor de- fendant^. ' The plaintiff represents that he is the duly appointed and qualified guardian of C. D., now of the age of years, and re- siding with , at . [If there was never any personal property, say .] That no per- sonal estate of any kind, belonging to said ward, ever came to the possession or knowledge of the plaintiff. [But if there ever was any personal estate, then say, instead of the above :] That all of the personal estate belonging to said ward, that ever came to the possession or knowledge of the plaintiff, consisted of [Here describe it generally ; as, farming implements, horses, cattle, notes, moneys, bonds and mortgages, state stocks, bank stock, etc., etc.,'] and was of the value of dollars. That the plaintiff has dis- posed of said estate in full [or if in part only, say, to the amount of dollars] as follows, to-wit : Expended for said ward in clothing, dollars; boarding, dollars; tuition, books, etc., dollars ; in payment of a certain mortgage held by X. Y. upon lot No. — , in Grlendale, dollars ; for taxes on same lot, dollars ; paying mechanics' lien thereon, dollars [And so of any other general expenditure ; and if any such liens as mentioned above are in force and unpaid, state the facts accordingly']. That there is no personal estate of said ward dependent upon the settlement of any decedent's estate or the execution of any trust, nor in expectancy ; [or if the fact be otherwise, instead of the above, say, That there will be the amount of dollars, or, an amount not yet ascertained, supposed to be about dol- lars, coming to said ward from the estate of E. D., not yet finally settled ; or such an amount will be due to said ward from the CHAP. 6.] SALE OF WAKD's PROPERTY. 101 trust estate in the hands of G. H., who was made trustee by E. D. That [state facts required by par. 28, as to descent of land, kinship, etc., when necessary], and which will probably be paid [state when]. That said ward is the owner of the fee simple [or, life estate or leasehold, a* the ruxp may be] of the following described real estate, situate in [state in what village, city, or township, county, and state],. to- wit : [Here describe it by metes and bounds* or in other proper way, as carefully as should be done in a deed], which real estate is worth annually dollars; [or if unproductive land, say, which is wild land, and yields no income, etc., as may be.] That the plaintiff has received dollars, in rents, from all the real estate of his ward, and has expended the same as follows : In repairs, dollars ; taxes on real estate, dollars [etc., etc., as the facts are, and if any money is remaining on hand, so state, and the amount; or if all the lands yield no income at all, say, instead of the above, That the plaintiff has received no rents whatever from any of said ward's real estate.] That the sale of said real estate is necessary for the mainte- nance and education of said ward [or if it is proposed to reinvest the money arising from the sale, say or add, That the plaintiff be- lieves it will be for the interest of said ward to sell said real es- tate and reinvest the money arising therefrom in (state stocks, loans upon mortgage or otherwise).] That said ward is indebted to J. K. for necessaries in clothing, in the sum of dollars ; to L. M. for boarding, dollars ; to O. P. for tuition, dollars, etc. ; [or if the fact be so, say, There is no indebtedness of the said ward.] That X. Y. has a lien on said real estate, by way of mortgage, to sesure the sum of dollars now due [or not yet due, as the case may be], and T. U. has a mechanics' lien for dollars, which accrued in the lifetime of E. D., father of said ward [or if no liens exist, say, There are no liens upon said real estate to the knowledge of the plaintiff.] [If there be rights of dower on the land, say :] That L. D., widow [or, widower] of E. D., has a dower estate in said lands. [If it is desired to lay out the land, or part of it, in town lots, say:] That it is desired to lay out said land [or state ivliat part of it] into town lots, for the reason that said land [or, tract last designated] 102 sale of ward's property. [chap. 6, 24-28 is situate within the corporate limits of the village of [or other- wise give the reasons according to the facts'], for which reason said laud would sell for more money thau if not so divided. [And also state clearly any other fact* directed by laiv or required by the circumstances of the case to be stated.] The plaintiff therefore prays that the said C. D. [and here add the names of 'ill persons to be made defendants'] may be made defend- ant [or, defendants, as the case may be] to this petition. [If there be doiver rights and lienlwlder*, add: That dower may be set off to said widow and the rights and liens of said lienholders may be ad- justed], and that plaintiff may be ordered to sell said real estate [and if it is proposed to reinvest the money, add, and to reinvest the money arising therefrom as is hereinbefore proposed], and for other proper relief, etc. A. B. , Guardian of C. D. 24. Verification and form of. — The petition must be verified by the oath of the gu irdian, 1 which may be in form as follows : 2 25-26. The State of Ohio, county, ss.: A. B. , being duly sworn, says that he, as guardian as aforesaid, is the plaintiff mentioned in the foregoing petition, and that the facts therein stated are true, as he verily believes. A. B. Sworn to before me, and signed in my presence, this day of , a. d. . A. C. Probate Judge, etc. 27. Who administers oath. — This oath may be administered by any officer authorized to administer oaths generally. 3 28. Notice of filing petition, how served, release of doiver, etc. — "Upon such petition being filed, verified by the oath of the guar- dian, the court shall order the petitioner to give notice to his ward, to the husband or wife of such ward, and to all persons entitled to the next estate of inheritance m such real estate, who shall be defend- ant-; to the petition, of the filing and demand thereof, and the time when the same will be heard, in such maimer as to the court shall seem reasonable and proper. But only the ward and husband or wife of such ward need be so notified or made defendants, unless the said estate came to such ward by devise, descent, or deed of gift from any ancestor, and if such ward has then living a brother 1 §6282. 2 H 5105, 5107. 3 §5107. CHAP. 6, 29-31.] SALE OF WARD',? PROPERTY. 103 or sister of the half blood and of the blood of such ancestor, or their legal representatives ; and in such proceeding the right and expectancy of dower of the husband or wife of such ward in such premises, may be released in the manner and otherwise treated and dealt with as is provided in section 6306 of the Revised Statutes." 1 29. Journal entry, ordering notice of sale, and time of hearing. Said A. B., as guardian of B. C, plaintiff, having filed his peti- tion for the sale of real estate of said B. C, it is now ordered that said A. B. give notice in writing to his said ward (and date to whom else, if any one), defendants herein, of the pendency and prayer of said petition ; and the hearing of this cause is set for , the day of , A. d. 18 — , at o'clock — M. 30. What laws to govern in probate court, so far as applicable. — "The provisions of law governing civil proceedings in the court of common pleas shall, so far as applicable, govern like proceedings in the probate court, when there is no provision on the subject in this title." 2 31. Since when. — Previous to the adoption of the codified law 3 x \ 6282. See also § 6406, found in paragraph 37. this chapter. These words of the former as well as tin- present law, "shall order the pe- titioner to give notice," were never construed >" as to require the petitioner in person to give the notice; he may do so by some third person, or by the sheriff or other officer, as the court may direct or permit. See par. 37. Where a record of a proceeding in the court of common pleas s^ts out that it was "shown to the court that due notice had been given to the de- fendants: Held, that this language imports a finding by the court that the notice which the law required under the circumstances had been regularly given. Evidence will not be received to contradict this finding of the court. Where jurisdiction is shown, or must be presumed, the judgment or order of the court can not be collaterally impeached." Richards v. Skiff et al.. 8 Ohio St. 586. A sale of the ward's land, by his guardian, without the notice required by law, is void for want of jurisdiction of the court ordering such sale. Lyon v. Vanatta, 35 Iowa, 521 ; .Mus_ r rave v. Conover, 85 111. 374. If, however, the notice is defective merely, the jurisdiction is saved, and the proceeding can not be attacked collaterally. Lyon v. Vanatta, 35 Iowa, 521. 2 § 6411. 3 See 75 0. L. pp. 836-970. 104 SALE OF WARD'S PROPERTY. [CHAP. 6., 32-35. governing procedure in probate courts, and now being Title II of Part Third of the Revised Statutes, the foregoing provision was not in force. 1 32. Infants; how served; law found where. — Title I of Part Third of these statutes contains the law governing "Procedure in the courts of common pleas and superior courts, and district courts on appeal" referred to in paragraph 30, above; and this Title I contains the following provision, which is no doubt ap- plicable to the service of notice in probate courts. 33. " When the defendant is under the age of fourteen years, the service [of summons] must be upon him, and also upon his guardian, or his father; or, if neither his guardian nor his father can be found, then upon his mother, or the person having the care of such infant, or with whom he lives ; if neither of these can be found, or if the defendant is a minor over fourteen years of age, service upon the defendant alone shall be sufficient; and the manner of service may be the same as in the case of adults." 2 34. Infant's age; why stated. — So that service may be properly made on the minor defendants, their ages should be stated in the petition, as already shown. 3 35. Should the notice be served by the guardian ? — The law as found in the paragraph 28 above docs not seem to forbid the guardian's making the service ; yet it seems better that it should be made, if not by the sheriff or other officer, at least by a dis- interested party, rather than by the guardian, who, as plaintiff, stands in the relation of antagonist to all the defendants, and consequently, in theory at least, if not in fact, may be interested 1 The nearest approximate provision in the old law was as follows: "In the exercise of the jurisdiction conferred by this act, the probate judge shall have the same powers, perform the same duties, and be governed by the same rules and regulations as are provided by law for tbe courts of com- mon pleas, and the judges thereof, in vacation, so far as the same may be consistent with this and other acts now in force." Swan & Critchfield, p. 1217, § LVIII. It seems to have been the belief of the codifying commission and of the legislature that this differed in meaning from section 6411, as no reference whatever is made to it at the end of the section. See close of sec- tion 6412, also new. 2 § 5047. See also \ 6481. 3 See par 9, above. CHAP. 6, 36-39.] SALE of ward's property. 105 ill their not being served at all, and in having it appear of record that they have been duly notified. 36. It may well happen that one of the defendant wards, or possibly the only defendant, may be a child less than, say, two years old. To serve a written notice on such a defendant, except as directed in paragraph 33, would be a most useless absurdity; and it would be an absurdity almost equally great, should the parents of the ward be dead, and the plaintiff be compelled to serve the notice on such infant, and upon himself as its guardian. 37. Further provisions as to notice. — The chapter containing the law given as paragraph 33 above provides that summons shall be served by the sheriff, 1 or by any person not a party to the suit. 2 And it is provided in another place that "when notice of any pro- ceedings in a probate court are required by law, or deemed neces- sary by the probate judge, and the manner of giving the same is not directed by statute, the probate judge shall order notice of such proceedings to be given to all persons interested therein, in such manner and for such length of time as he may deem reasonable. 3 38-39. Form of Journal Entry of Order of the Court as to Notice to Defendants. A. B., Guardian of C. D.,~) vs. > Petition to sell land. Said C. D., his Ward. ) This day came the said A. B., as guardian of C. D., and filed his petition, duly verified, asking for the sale of the real estate of his ward, for the allotment of dower and the adjustment of liens upon said land, and for its division into town lots ; where- upon it is by the court ordered, that said A. B. , by the sheriff, [if so~\ shall cause notice thereof to be given to said C. D., [and to L. D., his mother or father, etc.; and also to L. D., if there be a widow, and to X. Y. and T. N., etc., as facts may require], in writing, personally, and by leaving copies thereof at t lie usual place of residence of each of those who can not be served personally, ■ weeks [or, days] before the day of the hearing of said ap- plication to sell said real estate; which time of hearing is hereby 1 §5037. 2 2 5041. 8 §6406. 106 SALE OF WARD'S PROPERTY. [CHAP. (5, 40-43. fixed by the court, for the day of , a. d. , at — o'clock, — M. 40. Service of summons or notice. — If the court directs that service of notice be made by the sheriff, the service will proba- bly be in the form of a summons, as in civil actions, in which '•u. V. as given. ~\ [/r there be an heir or devisee, as mentioned in paragraph 49, inseit also.] that the residence [and name, if so] of the said defendant, heir of , mentioned in the petition in said cause, is ))r, are] unknown to said plaintiff; and omit or retain 1 1 504». 2 ? 50.")?,, as amended, 79 0. L. 26. CHAP. 6, 57-62.] SALE of ward's property. 109 the matter concerning A. Y. and B. "P., as the circumstances reqiure.~\ Sworn [or, affirmed] to and subscribed before me this day of , 18—. H. M., Notary Public, county, Ohio. 57. Form of Notice by Publication. LEGAL NOTICE. A. V., who resides at Fairfield, in the State of Iowa [add, if so, B. V., whose residence is unknown, and the unknown heirs of L. V.] will take notice that A. B., guardian of C. D., a minor child of E. B., deceased, late of county, Ohio, (and proceed substantially the same as in form of notice in paragraph 41 above.'] 58. Publication made where, and how long. — The publication must be made six consecutive weeks, in a newspaper printed in the county where the petition is filed ; or, if there be no news- paper printed in the county, then in a newspaper printed in this state, and of general circulation in such county ; and if it is made in a daily newspaper, one insertion a week will be suffi- cient. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer. 1 59. Service by publication is deemed complete at the date of the last publication, when made in the manner and for the time prescribed in the preceding paragraphs ; and such service must be proved by affidavit. 2 60-62. Form of Proof of Publication. The State of Ohio, county, ss. P. F. being sworn, says that he is the publisher [or, bookkeeper or otherwise, as the fact may be~\, of the , a newspaper printed and of general circulation in said county, and that a notice, of which the annexed is a true copy, was published in said paper on of each week for six consecutive weeks, beginning on the day of , 18 — . [The following may be added, if so]: Affiant further says that a daily and weekly edition of said newspaper is published ; that ^OSO. 2 2 5051. 40 O. S. 636. 110 SALE OF WARD'S PROPERTY. [CHAP. G, G3-65. said notice appeared in the daily edition, the circulation of which in said county exceeds that of the weekly edition, and that the cost of publication in the daily does not exceed that in the weekly edition. Sworn to and subscribed before me, this day of , 18—. Eichard Eoe, Notary Public. county, Ohio. 63. This affidavit might be made by the guardian or other person connected with the ease, but it is customary and best to have it made by some one connected with the paper printing it. 64. Is a guardian ad litem necessary t There is no provision made in the statutes governing guardian's sales of ward's real estate, for a guardian ad litem, nor is there any allusion to such guardian. But section 5003 is a part of Title I., mentioned in paragraph 32 above, and is as follows: " The defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a pro- bate judge." 65. It may be stated as a general principle of law, so well es- tablished as to need no citations of authorities to sustain it, that every defendant is entitled to a hearing in court, and that he is not bound by the action of the court unless this is granted him. Can a minor, as the law now is, be said to have such a hearing in such matters as are now under consideration, unless he ap- pears by a guardian ad litem, or by some person acting substan- tiall} r in that capacity? 1 Section 6144, relating to sale of lands by executors or administrators to pay debts of decedents, expressly provides that " It shall not be necessary, unless the prayer of the petition for a sale is contested, to appoint guard- ians ad litem for infant heirs or devisees or other persons having the next estate of inheritance from the deceased who are defendants; and no such guardian shall have authority to waive notice or service of summons." See also, in such case, Ewing v. Hollister, 7 0. 2d pt. 138. But the law relating to sales by guardians contains no such provision. In the case of only one child-defendant, supposed in paragraph 36, and similar cases, who would there be to make a contest, if no guardian ad litem is ap- pointed, no matter how great the need of a contest might be? Under the chancery act of 1810, and the supplementary act of 1812, pro- ceedings in a court of common pleas were held binding against minors CHAP. 6, 66-69.] SALE of ward's property. Ill 66. It may be safely said that it is good practice, and the only safe and prudent course to pursue, to appoint a guardian for the suit in all cases where a guardian sells real estate of his ward. There is no good reason to be urged against it, except the attend- ant expense; and if it be granted, for argument's sake, that the law does not require it, would not cautious persons be deterred from bidding on lands to which the ward, or some one under him, might set no a claim long afterwards, and thus more loss result than could occur by a compliance with the probable, if not the certain, mean- ing of the law ? 67. As to duties, appointment, etc., of guardians ad litem, see chap- ter 23. 68. Hoxv widow or widower may elect to he endowed out of proceeds of sale — effect of suck election. In actions for the sale of real estate by guardians, the widow or widower of any decedent who has a dower interest therein, being a party, may file an answer, and waive the assignment of dower by metes and bounds, and ask to have the estate sold free of dower, and to have allowed, in lieu thereof, such sum of money out of the proceeds of the sale, as the court deems the just and reasonable value of her dower interest therein. 1 The answer of the widow or widower will have the same force and effect, and must be taken and held to be, in all respects, as a deed of release to the purchaser of such estate of the dower interest therein of such widow or widower. 2 69. Guardian of insane person may act for ward. — The guardian of a widow or widower who has been adjudged insane may appear and answer for such insane person in such action, subject to the ap- proval of the court in which the action is pending; and the answer of the guardian will have the same force and effect as if the widow or widower answered personally ; but the guardian will be liable to who were made defendants and served by publication, though no guardians had been appointed. Morgan v. Burnett, 18 O. 535. It was held to be error on a bill of revivor, to decide against infant de- fendants, until a guardian ad litem had been appointed. St. Clair v. Smith 3 O 355. It is not mere irregularity, but is error in fact, to take judgment against infant defendants without the appointment of a guardian ad litem. The remedy, under Mew York Code of Procedure, is by motion to set aside the" proceedings. McMurray v. same, 9 Abb. (N. Y.) Pr. N. S. 315; 41 How. Pr. 41. x § 5719, as am. 86 O. L. 185. 2 § 5720, as am. 86 O. L. 186. 112 SALE OF WARD'S PROPERTY. [(HAP. 6, 70-75. the widow or widower, or the heirs, for nil damage or loss sustained by his fraud or collusion, notwithstanding the approval of the court. 1 70-73. Answer, waiving dower, etc. (change " widow" to "widower" etc., when facts require it.) A. B., guardian of C. D., ~\ county, ss. vs. > Probate Court. Said C. D. and others, defendants. ) Answer of widow. The said L. D., widow, [by A. D., her guardian, if so], hereby consents to the sale of the premises prayed for in plaintiff's pe- tition in this cause, and waives the assignment of dower in said premises to her by metes and bounds, or in rents and profits, and asks the court to allow her, in lieu of said dower, such sum of money, out of the proceeds of such sale, as the court may deem to be the reasonable value of her dower interest in said premises. L. D., (widow's own signature.) [or, L. 1)., By A. G-., her attorney]. [or, L. D., By A. D., her guardian.] State of Ohio, county, ss. L. D., being duly sworn, says that she is the widow men- tioned in the foregoing answer, and that the several matters and things set forth in said answer are true. L. D. Sworn (or, affirmed) to and subscribed before me, this day of a. d. 18 — . A. C, Probate Judge, [or, other competent officer.] 74. Verification not required. The foregoing answer, when made by the guardian, need not be verified on oath. 2 75. Minor heir not to be prejudiced by collusive assignment of dower. — If, during the minority of an heir, dower be assigned to a widow or widower not entitled thereto, or, if the same was recovered by the de- 1 §5721, as am. 86 0. L. 186. 2 §5103. CHAP. 6, 76-88.] SALE OF ward's PROPERTY. 113 fault, fraud, or collusion of the guardian, such heir may, oncoming of age, have an action against such widow or widower to recover the lands wrongfully awarded. 1 76. Hearing of petition — appraisers appointed — town lots laid off. At the time appointed for the hearing of said petition, and upon being satisfied that the notice named in the order (and re- required in par. 28) has been given, and that such real estate ought to be sold, the court must appoint three freeholders of the county where the real estate pi'oposed to be sold is situated, who are not of kin to the petitioner, to appraise such real estate ; and if the petition seeks to have the land, or any part of it, laid out into town lots, and the court finds that it will be to the advan- tage of the ward to have the same done, the court must also au- thorize the survey and platting of the land for that purpose. 2 77-88. Form of Order of Appraisement, and Findings, of Court. [In the following forms omit parts not applicable to case in hand, change singular to plural number, widow to widower, etc., when necessary.] A. B., guardian of C. D., ) county, ss. Probate Court. v. > Decree for appraisement, etc., in pro- Said C. D. and others, j ceedings to sell ward's land. This cause coming on this day to be heard, upon the petition of plaintiff, exhibits and testimony, and upon the return of the notice heretofore ordered, and the answers of G-. L., the guardian ad litem, of L. D., the widow, and of [name them] the other de- fendants ; and the court being fully advised in the premises finds : That all the defendants herein have been duly and legally served with process, and have been duly notified of the pend- ency and prayer of the petition, as prescribed by law. That the statements of said petition are true, and that the real estate described therein ought to be sold, as prayed for in said petition. That it would be for the advantage of said ward to have said land [or. a part of said landj laid out into town lots, as prayed for in said petition [or otherwise, as the court may deem best.] 1 g 5717, as am. 86 v. 185. 2 § 6283. 114 SALE OF WARD'S PROPERTY. ("CTIAP. G, 89. That said L. ~D., widow of said E. D., is entitled to dower in said real estate. That said L. D , widow, waives, as in her answer herein set forth, assignment of her dower in said premises, and de-' sires that the same may be sold free and clear of her said dower, and that the court set off to her, out of the proceeds of the sale of said premises, such a sum of money as may be just and reasonable, in lieu of her said dower interest. [0/ course, omit this when not so, and find such other things as each case may require.'] Therefore it is ordered : That G-. H., I. J., and K. L., judicious freeholders of this county, [or, if the lands are in another county, say of ■ county], and i>ot of kin to the petitioner, be and are hereby ap- pointed appraisers in said cause, and that they be sworn as required by law, before entering upon the discharge of their du- ties as said appraisers. That said appraisers, upon actual view of the premises, de- scribed in said petition, appraise the same at its fair cash value, free from [or, subject to, as may be] the dower of said L. D., widow of E. D., deceased. That said appraisers assign and set off to said L. D., widow, as her dower therein, the one equal third part in value of said real estate described in said petition. That said appraisers divide said real estate \or, a part of said real estate, and designate what part] into town lots, and make a correct survey and plat of said land so divided, first calling to their assistance, if they deem it necessary, a competent engineer or surveyor. [And make such further orders as the case may require.] And that said appraisers make return of their appraisement and other doings hereunder to this court, on or before the day of , a. d. 18 — . 89. Guardian usually suggests appraisers. It is customary for the guardian to suggest the names of the appraisers-, he being pre- sumably better acquainted with suitable persons therefor in the vicinity of the land than the court, and if no objection is known or made to them, the court usually appoints those so suggested. chap. 6, 90-97.] sale of ward's property. 115 90. When appraiser fails to act. In the sales of lands by ex- ecutors, etc., it is provided that when any person appointed by the court as an appraiser fails to discharge his duties, . the executor or administrator may apply to the court making the order of appraisement and have another appraiser appointed thereby 1 Though, i n such eases, in sales by q;uardians. the law- is silent, the same course as indicated in this paragraph should be pursued. But to avoid all doubts, as well as delays, such persons should be selected as will attend to the matter, first consulting each one as to whether he can and will do so, if ap- pointed, and see that he appears at the proper time and place. 91-97. Certificate to the appraisers, and form of. The court should then issue a certificate to the appraisers, of their appoint- ment, 2 which may be as follows : county, Ohio, ss. Probate Court. A. B., guardian of C. D.,") vs - [ Appraisers certificate of appointment. Said C. D. and others. ) To G. H., I. J, K. L : You are hereby notified that you have been appointed by said probate court of county, Ohio, as appraisers in said case; and you are hereby ordered, upon your oaths, and upon actual view of the premises described below — To truly and impartially appraise, at its fair cash value, free from [or, subject to, as may be'] the dower of L. D., widow of B. D., deceased, the following described real estate, to-wit [here clearly describe the property] : You are further ordered to assign and set off to said L. D., widow, as her dower therein, the one equal third part of said real estate. [And give such further orders as are found in the preceding de- cree for appraisement, and no others.] You will make return of your appraisement by the day of , a. d. 18 — . Witness my hand and the seal of said court, this day of , a. d. 18—. A. C, L L - s -] Probate Judge. 1 § 6029. See par. 37, chap. 5. » § 6284. 116 SALE op ward's property, [chap. 6, 98-105. 98. If no dower to assign, what to omit. If there be no dower to be assigned, all the above relating thereto must be omitted; and should no assignment of dower be required, an order of ap- praisement and sale may be made at the same time by the court; and in that case the report of the appraisers need not be pre- sented for confirmation until after the sale, and until the report of sale is also ready to be submitted. 99. Oath of appraisers. The appraisers must take an oath to truly and impartially appraise said real estate at the fair cash value ; and this oath must be indorsed on the certificate of their appointment, or order of sale issued by the court. 1 100-103. Form of appraisers' oath may be as follows . The State of Ohio, county, ss. G. H., I. J., and K, L., being duly sworn, say that they will truly and impartially appraise the below [or, within] described real estate, and will faithfully and impartially discharge all the duties enjoined upon them by law, as appraisers of the real estate of C. D., a minor ward, under an order of the probate court of said county, in the case of A. B., guardian of said C. D., against said C. D. and others, according to the best of their understanding and ability. &• H.., I. J-, K. L. Sworn to and subscribed before me, this day of , a. d. 18—. L- L., Justice of the Peace [or other proper officer]. 104. How appraisers to proceed. The appraisers must actually go upon the premises, when about to perforin their duty, being first sworn as above ; and if dowei is to be assigned in several tracts, it may be set off all in one tract, or in the several tracts, as the appraisers shall think proper. When assigned, the dower should be clearly described in their return, so that any one with the description can go upon the land and find the boundaries of the dower, or be able distinctly to separate it from the re- mainder of the estate. 105. Dower assigned in rents, etc. — Where no division can be 1 I 6284. CHAP. 6, 106-109.] SALE OF WARD'S PROPERTY. 1 17 made by metes and bounds, dower must be assigued in a special manner, as of the third part of the rents, issues and profits, to be computed and ascertained by the commissioners. 1 106. Appraisers duty in such cases. In such cases, the ap- praisers should ascertain and report to court, what are the rents, issues, and profits of the land, clear of taxes, reasonable repairs, and such like expenses. 2 And in that case, too, the property should then be appraised subject to such dower incumbrance. 107. How returned to court. — The assignment of dower and ap- praisement should be attached to the certificate of the appoint- ment and returned to the court, within the time named in such certificate, and be signed by the appraisers. 108-109. Form of Appraisement and Assignment of Bower. (Here is the most appropriate place for the oath of appraisers, given in pars. 100-103; then add:) In obedience to the order of the court hereto attached, we, the undersigned appraisers, being first duly sworn, and upon actual view of the premises described in said order, do 3 (set off and as- sign to L. D., widow, etc., for her dower estate * in said real estate, so much thereof as is contained within the following bounds, to-wit : \Here give the particular description, by metes and bounds ; or say, if the case be so], we do find that a division there- of can not be made by metes and bounds, and do therefore set off and assign to said L. D., as and for her dower therein, the sum of dollars yearly, during her life, that being one-third of the net annual rents, issues, and profits of said real estate, as computed and ascertained by us. And we do) estimate the real cash value of said real estate (incumbered by said dower, so assigned) at dollars. (Signed by the Appraisers.) 1 1 5714, as am. 86 v. 185. 2 In Hillgartner v. Gebhart, 25 O. S. 557, the court held that " one-third of the net rents, issues, and profits, is the measure of the dower interest in such cases. By this measure the doweress is compensated for ' one full and equal third part of all the lands, tenements, and real estate' which is her primary right. The net rents, issues, and profits, are equivalent to the use of the estate. In ascertaining the net rents, the expenses of reasonable re- pairs and taxes should be deducted from the gross rents ; but no deduction shoull be made for expenses of water rent or insurance." See also Dunseth v. Bank, 6 O. 77, 79; 2 Scribner on Dower, 661,662; Hale v. Jones, 6 Johns (N. Y.), 258; Riley v. Clamorgan, 15 Mo. 331; Beavis v. Smith, 11 Ala. 32. 3 See par. 110, next page. 118 SALE OF WARD'S PROPERTY. [CHAP. G, 110-118. 110. If there be no dower to be assigned, the above form can be used, leaving out all the matter, as to dower, within the par- entheses. 111. When several tracts are described in the petition, and dower is assigned in one tract for all, the preceding form may- be used to the *, and then continue as follows: '-in all the real estate mentioned in said petition, the following described tract (or tracts) to-wit : [Here describe the dower.'] And we do ap- praise the value of said several tracts as follows : The one con- taining acres, in which dower has been assigued, and sub« ject to and incumbered by said dower, at dollars; the one containing acres, which is not incumbered by dower, at dollars." etc. 112. Guardian to execute additional bond before sale. — Upon the appraisement of said real estate being filed, signed by the appraisers, the court must require the guardian to execute a bond, with sufficient freehold sureties, payable to the state in double the appraised value of such real estate, with condition for the faithful discharge of his duties, and the faithful payment and accounting for of all moneys arising from such sale accord- ing to law. 1 113-118. Form of Journal Entry approving Appraisement, Plat, and Survey, Widow's Dower, ordering Guardian's Bond, etc. A. B., guardian of CD.") „ . , ' ° I Decree approving appraisers report in Said C. D. and others. j Proceedings to sell ward's lands. This day came the appraisers heretofore appointed in this case, and filed their report herein [say, if so, including the survey and plat, heretofore ordered by the court, of the lands to be di- vided into town lots, as prayed for in said petition, and the as- signment of dower to L. D., widow of E. D.,] all of which, being examined, the court finds has been duly made. It is thereupon ordered by the court that said report [includ- ing said plat and survey], be approved and confirmed. *§ 6285. As to effect of not giving, in Ohio, see notes, p. 98 A sale made without giving such bond, held to be void. Ryder v. Flan- ders, 30 Mich. 330; Stewart v. Bailey, 28 Mich. 251. CHAP. (), 119-12li.] SALE OP WARD'S PROPERTY. 119 [That said L. £)., widow, hold in severalty the" lands so assigned and set oft" to her, as her dower estate in said real estate; [or if an amount of money is assigned to her, say], and thai said L. D., widow, shall receive the sura of dollars annually, during life, as and for her dower estate in the lands in the petition described, and that the same be and is hereby made a lien and charge upon said lands, and that the same shall be payable annually [or quarterly, etc., as the case may be], on the day of , of each year during her life, and in default of payment thereof, an execution shall issue therefor against said lands, asupon judgments at law.]* That said A. B. execute, within days, to the State of Ohio, a bond with sufficient freehold sureties, to the acceptance of the court, in the sum of dollars [double the amount of the appraised value of the real estate], conditioned according to law. 119. If no dower, what to do. — If no dower is assigned, or no plat and survey made, then leave out of the above form all matter relating to the dower, or plat and survey, or both, as the facts ma}- require. 120-126. Form of Guardian's Bond where Real Estate is to be Sold. Know all men by these presents, that we, A. B , of county, Ohio, P. Q., of count}-, Ohio, and E. S, of .county. Ohio [or if all of same county, say here, all of county, Ohio, and omit accordingly], arc held and firmly bound unto the State of Ohio, in the sum of dollars [double the amount of the ap- praised value of the real estate], for the payment of which we hereby jointly and severally bind ourselves, our heirs, adminis- trators, and assigns firmly by these presents. Sealed with our seals, and signed at , this day of , a. d. . (See note 1, page 38.) The condition of the above obligation is such, that whereas the above bound A. B. was, heretofore, appointed guardian of the person and estate [or of the estate only, if such be the case] of C. D., minor child of E. 1>., deceased, late of [or, then living, if such was the case], and which appointment the said A. B. ac- cepted, and gave bond and made the oath required by law. And whereas the said A. B., as such guardian, has made application to the probate court of county, Ohio, for an order to sell certain real estate of his said ward, which, under proceedings 120 sale of ward's property, [chap. 6, 127-128. there duly had, has been appraised at the sum of dollars; and whereas said court has ordered said A. B., as guardian as aforesaid, to execute a bond as such guardian, according to the statute in such case made and provided : Now, therefore, if the said A. B. shall faithfully discharge his duties as guardian of said C. D., and shall faithfully make pay- ment and account for all moneys arising from such sale, according to law, then the above obligation will be void; otherwise it will be and remain in full force. Signed, sealed, and delivered in A. B., [seal.] our presence : P. Q., [seal.] J. N. E. S., [seal.] V. W. This bond approved by me, this day of , a. d. . A. C, Probate Judge. 127. Order of sale; how made. — Upon such bond being filed and approved by the court, it must order the sale of such real estate, 1 at auction, for not less than two-thirds of the appraised value thereof, providing in the order for reasonable notice and the place of such sale in the county in which such real estate is situate, and what credit to be given for the payment of the pur- chase-money. 2 128. Deferred payments secured by mortgage. — The deferred payments of the purchase-money must be secured by a mortgage executed by the purchaser on the real estate sold, and they 1 Where, by virtue of proceedings and an order of sale in the probate court, a guardian sells, at public sale, and conveys the land of his ward, but by mistake, such proceedings, order of sale, and conveyance do not embrace all the land that was intended by the guardian to be sold, and was supposed to be bought by the purchaser, a court of equity will not interfere, as against the minors, to correct such mistake, and to give to the purchaser the addi- tional land intended to be sold, and supposed to be purchased, but which was not in fact sold or conveyed. Dickey v. Beatty, 14 0. S. 389. The guardian's deed made under such orders of the court has usually only the effect of a quitclaim, except so far as he may have covenanted on his part that he has complied with the statute requisites, and that he is the guardian duly authorized; and, in general, he can not bind his ward by any covenants of warranty in the deed. Schouler's Dom. Rel. 483. 2 §6286. 2 § 5404. See par. 30, this chapter. CHAP. G, 129-14C] SALE op ward's property. 121 must bear interest at the legal rate per annum from the clay of sale, payable annually. 1 129. May be sold at private sale, when.— If it is made to appear to sueh probate court that it will be more for the interest of the ward to sell such real estate at private sale, it may authorize the guardian to sell the same at private sale, either in whole or in parcels, 2 and upon such terms of payment as may be prescribed by the court; but in no case can such real estate be sold at pri- vate sale for less than the appraised value thereof. 1 130. Decree, etc., when town lots are laid out. — If the petition includes an application for the laying out into town lots of the land to be sold, or any part thereof, and the court approve the survey and plat made for that purpose, the court must also au- thorize the guardian, on behalf of his ward, to sign, seal, and acknowledge the plat in that behalf for record according to law. 1 / 131-146. Form of Decree for Sale. county, Ohio, ss., Probate Court. A. B., guardian of C. D,)^ . , . ys> ! Decree for sale in proceedings to sell Said C. V., and others, j lan(l This cause coming on this day further to be heard, and it ap- pearing to the court, That the appraisement hereto ordered has been made and con- firmed by the court ; That said A. B., guardian, the plaintiff above named, has given bond in double the amount of said appraisement, with P. Q. and E. S. as sureties, conditioned as provided by law, and which bond is approved by court. [Here, say, if so~\ That it has been made to appear upon satis- factory evidence to the court, that it would be more for the inter- est of said ward to sell the lands described in the petition in this cause, in parcels [or, in whole.] 1 1 6286. See paragraphs 177, 178, this chapter. "Sheriffs, administrators, and guardians making public sale of lands, may, in their discretion, divide a tract levied upon and appraised entire, and sell in parcels, being responsible for the abuses of that discretion. Stall ». Macalester, 9 0. 19. 122 BALE OP WARD'S PROPERTY. [dlAP. G. 147. It is therefore ordered, by the court: That the petitioner proceed to sell the lands in the petition de- scribed. [If private sale is ordered, here order.~\ That the petitioner may sell lands at private sale, at not less than the appraised value thereof, in parcels. [If so, and. in such case, omit the two next succeeding paragraphs, unless advertisement of notice is nevertheless desired.'] That the petitioner shall give notice weeks [or, days] consecutively, of the terms and time and place of sale, prior thereto, in some newspaper printed and of general circulation in county, Ohio [the county where the lands lie ; or the court may name the newspaper, and if none be printed, in that county, then the court may order the notice to be given in some paper of gen- eral circulation in that county, or by hand-bills, or both, or in any other way the court may think proper, .]* That said sale shall be at public auction, at the door of the court-house of county [the county where the lands lie, or, on the premises]. That said sale shall be for one-third cash in hand on the day of sale, one-third in one, and one-third in two years from the day of sale [or such other terms as the court think proper] ; the de- ferred payments to be secured D3- a mortgage, executed by the purchaser to the said C. D., on the premises sold, and to bear in- terest at the rate of per centum per annum, from the day of sale, payable annuall}'. That said A. B., guardian, is hereby authorized, on behalf of Scdd C. D., his ward, to sign, seal, and to acknowledge the plat of the sub-division of lands into town lots, heretofore approved by court, for record according to law. That the petitioner make return of his proceedings herein im- mediately after such sale is made [or the court may fix a day for the return to be made]. 147. When decree for private sale may be made. — Should the foregoing decree for sale be made without any reference to a private sale, and it should at any time afterward be made to ap- 1 As to manner of notice, when not provided by statute, see par 37, this chapter. CHAP. 6, 148-157.] SALE of ward's property. 123 pear that such private sale ought to be had, the findings and order of the court, relating to private sale, in the preceding de- cree, may be made as a separate decree. 148. How decree for private sale obtained. — The method usually adopted for satisfying the court that a private sale would best subserve the interests of the ward, is to procure the affidavits of at least three men of good character and recognized good judg- ment, living in the vicinity of the land, or for other reasons presumed to know the facts and needs of the case, though the judge exercises his discretion about this, and may act on the application of the guardian alone. Such application may be as follows : 149-152. Form of Application to Sell Real Estate at Private Sale. , county, Ohio, ss., Probate Court. A. B., guardian of C. D~, ") vs. v Application to sell land at private sale. Said C. D. and others. ) The undersigned applicant represents that it would be best for the interest of the said A. B., to sell the real estate described in the petition in this cause, at private sale, for the following rea- sons. [Here give the reasons. - ] The applicant therefore asks for an order authorizing him to sell said real estate at private sale. A. B., Guardian as aforesaid. 153-157. May be sworn to — Form of oath. — The facts in the foregoing application may be sworn to, if desired, as follows, and such application would then have the force of an affidavit : The State of Ohio, county, ss. A. B., being duly sworn, says that the various matters set forth in the foregoing application are true, as he verily believes. A. B. Sworn to and subscribed before me, this day of , a d. 18—. A. C, Probate Judge, [seal.] [or other proper officer.] 124 SALE OF WARD'S PROPERTY. [CFiAP. 6, 158-170 158-160. The form of affidavit for private sale, mentioned in paragraph 148, may be as follows : The State of Ohio, county, ss. D. E., being duly sworn, says that * he has read [or, has heard read ; or, that he knows the facts set forth in] the application to which this affidavit is annexed; that he has no interest whatever in the matters therein referred to, and that it will be more for the interest of the said C. D. to sell said land at private sale, as he verily believes. D. E. Sworn [or, affirmed] to and subscribed before me, this day of , a. d. 18—. N. E., Notary Public, county, Ohio. 161-165. Another form. — Three or more affidavits similar to the above, may be combined into one. in form, as follows : State of Ohio, county, ss. D. E., G. H., I. K., and L. M , being duly sworn, each for him- self says that [and continue from the * exactly as above to the sig- natures. Each affiant must then sign his name, as follows :] D. E., G. H, I. K, L. M. Sworn [or, affirmed] to and subscribed before me, this day of . a. d. 18 — . N. E., Notaxy Public, county, Ohio. 166. Precipe for order of sale. — Upon request, in writing, of the guardian, the probate judge, or clerk of the court of common pleas, will issue the order of sale, which will be simply by giving the guardian a copy of the order, duly certified to as being a correct copy of the journal entry. 167-170. Form of Precipe for Order of Sale. count}-, Ohio, ss., court. A. B., Guardian of C. D., ") „ . . , . 7 . ,. f Precipe for order of sale in proceedings 0. D., and others. j ^ sell land. Issue the order of sale in this case. A. B., Guardian of C. D. CHAP. 6, 171-177.] SALE OP ward's property. 125 171. Notice of sale.— When the guardian has fixed upon a time when he will offer the property for sale, he should advertise the time, place, and terms of sale, in accordance with the order of court. 172-175. Form of Notice of Sale. guardian's sale. In pursuance of an order of -the probate court of county, Ohio, made on the day of , a. d. , in the case of A. B., guardian of C. D.. against his ward, the undersigned will, on the day of , a. d. , at 12 o'clock [or any other hour named'], at the door of the court house, in county [or, on the premises, as the court may order], offer at public sale, the following described real estate, situate in county, Ohio, to- wit [Sere describe it.] Terms of sale, one-third cash on the day of sale, one-third in one and one-third in two years from the day of sale, to be secured by mortgage on the premises sold, and the deferred payments to bear interest at the rate of 6 per centum per annum, payable annually [or otherwise, as the court may have directed]. Appraised at $ . A. B., Guardian of C. D. 176. Where sale must be made. — All sales of lands under order of sale must be made at the court house of the county in which the land is situate, unless otherwise ordered by the court; ' but, as a general rule, it will be for the interest of the ward to sell the land on the premises. 177. Guardian may subdivide and sell — his risk in so doing. — If the lands are in one entire tract, and appraised as such, the guardian may, in his discretion, subdivide the tract, and sell such subdivisions separately ; but in that case, the whole together must sell for two-thirds of the appraised value of the entire tract, 2 else the sales will be all set aside; and the court may set them aside, at the costs of the guardian himself. Or, if any of such sales were confirmed, and the result of all the sales together should prove to be less than two-thirds the appraised vale of the 4 5404 3 Stall v. Macalister, 9 0. 19; see same, p. 24. 126 SALE OF WARD'S PROPERTY. [CHAP. 6, 178-180. entire tract, the guardian would probably' be held bound for any loss occasioned to his ward thereby. 178. Best to get order of court. — If it is deemed advisable to subdivide the entire tract, it is far better to have an order of court specially authorizing it. when the appraisement is ordered, and then let the subdivisions be appraised separately. 179. How sale conducted. — The sale should be made by the guardian, by a professional auctioneer, or other person as may seem besl for the interests of the ward ; and alter having dwelt a sufficient length of time to be assured that no more bids can be had, it should be struck off to the highest bidder, if he offers two-thirds or over of the appraised value. 180. Appraisers, etc., can not buy. — Purchases of real or per- sonal property, by the officer making sale thereof, or by an ap- praiser of such property, will be considered fraudulent and void; but this section does not affect, unless for fraud, sales by execu- tors, administrators, or guardians, prior to March 29, 1841. 1 1 \ 5404. See also paragraphs 49, 50, chap. 5, and notes thereto. An appraiser of land at an administrator's sale, stands in such a relation v that his purchase, although without actual fraud, will be set aside, in equity, at the instance of the heirs. 1838. Armstrong v. Huston's Heirs, 8 0. 551. The principle of equity which prevents those from acquiring a title, to whose discretion or agency the management of a sale is confided, applies not only to trustees, executors, attornej'S, and agents, but to every person to whose integrity or judgment is committed the execution of any step needful in making the sale. lb. 554. Fullness of price, absence of fraud, and fairness of purchase are not suffi- cient to countervail this rule of policy. To give it effect, it is necessary to recognize a right in the former owner, to set aside the sale in all cases, on repayment of the monej- advanced. lb. In proceedings in partition, an appraiser, in the absence of fraud, prior to the act of March 29, 1841 (1 Curwen, 793), might become a purchaser at the sheriff's sale. The rule of policy applied in the case of Arm- strong v. Huston, 8 O. 552, is a rigorous one, and will not be extended to a case not strictly in point. Applies also to attorneys in a case (see second paragraph of this note, also, Wade v. Pettibone, 11 O- 57). In such proceedings, the acts of the guardian of a minor, done in good faith, are binding upon his ward. Where a minor, in such case, on arriving at full age, ratifies the acts of CHAP. 6, 181-182.J SALE op ward's property. 127 181. Report of sale — confirmation ami ieed. — Upon the return day of the order of sale issued by the court, such guardian must make a report of the sale by him made; whereupon, the court, on being satisfied that such sale was fairly and legally made, must confirm the same, and order the petitioner to execute a deed of conveyance for the real estate so sold, upon the pur- chaser securing the deferred payments of the purchase money in the manner prescribed in paragraph 128. 1 182. If no sale made, what to do. — And if no sale is madt-, for want of bidders, or other cause, a return of that, fact should be made on the order of sale issued ; for every order of sale issued, — 1 ■ his guardian, by receiving and appropriating the proceeds of the sale, with full knowledge of the facts, he is estopped in equity from taking advantage of a mere irregularity in the proceedings. 1846. Bohart v. Atkinson, 14 O. 228. A purchase of real estate at a judicial sale, by one who, at the appraise- ment under which such sale was made, served as an appraiser, is not, under the provisions of section 441 of the code [now # 5404]. strictly void, but is voidable only; and will " be considered fraudulent and void" only on an interposition or proceeding by a party in interest directly for the purpose of avoiding such sale. 1862. Terrill v. Auchauer, 14 0. S. 80. Section 441 of the code, provides that " no sheriff' or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall, either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void." Held, that a purchase by an appraiser was not strictly void, but voidable only, and will be "considered fraudulent and void" only on an interposition or pro- ceeding by a party in interest directly for the purpose of avoiding the sale. lb. 1 §6287. The report should show that be in all respects complied with the require- ments of the law and the order of the court, in giving notice, in offering the premises at the time and place mentioned in the notice, and in the time allowed for the payment of the purchase money. It is not sufficient that the report state generally that notice was given and the sale made according to law ; but must set forth particularly how, and for what length of time the notice was given ; and when and where the property was offered ; to- gether with the terms of sale, and whether the same were complied with by the purchaser. It is the province of the court, and not of the executor or administrator, to say whether his proceedings were according to law. Raff's Guide, pp. 150-1. The foregoing extract relates to the report of sale by executors and ad ministralors, but it is equally applicable to -reports of guardian's sales. 128 SALE OF WARD'S PROPERTY. [CHAP. 6. 183-188. is noted on the execution docket, and it is important, in order to make a clear record, that every order of sale should be returned to the court whence issued, whether it has been acted upon or not, and with the action, if any was had, and why not, if none was had. 183-185. Form of return to an Order of Sale, when a Sale has been made. In obedience to the within [or, attached] order, I dulj- adver- tised the real estate therein described for sale, for consecu- tive weeks [or, days] before the day of sale, in , a newspaper published and of general circulation in said county, stating in in said notice the time, place, and terms of said sale ; and on the day of , a. d. , I attended, at the door of the court house, of said county [or, on the premises, as the order directs], at the hour of — o'clock, that being the time and place specified in said notice for said sale, and then and there, at public auction, offered said real estate [subject to the dower estate of L. D., therein, if so], when H. S. offered for the same the sum of dollars, which, being the highest and best bid that was offered, and more than [or, equal to] two-thirds of the appraised value of said premises, I then and there sold the same to him [subject to said dower estate, if so], for that sum. Terms of Sale — One-third of the purchase money to be paid in hand, one-third in one year, and one-third in two years from day of sale, with interest on the two deferred paj-ments, said de- ferred payments to be secured by mortgage on the premises sold A copy of said notice, with proof of publication, is hereto at tached and filed. Dated this day of . a. d. 18 — . A. B.. Guardian of C. D. 186. Attached copy of notice, etc. — A copy of the notice should be attached to the order issued, and returned with it, with an affidavit of its due publication. 187-8. Forms of the Affidavit proving the Publication of the No- tice of salt State of Ohio, county, ss. : X. Y., being duly sworn, says that ho is the publisher [or, fore- man, or otherwise, as may be] of the , a newspaper printed* CHAP. 6, 189-197.] SALE of ward's property. 129 and in general circulation in said county, and that a notice, of which the annexed is a true copy, was published in said paper on day of each week for consecutive weeks, beginning on the day of , 18 — . 189-192. If said paper be a daily, the following may be added : Affiant further says that a daily and weekly edition of said newspaper is published ; that said notice appeared in the daily edition ; that the circulation of the daily in said county exceeds that of the weekly, and that the cost of publication in the daily does not exceed that in the weekly. Sworn [or, affirmed] to and subscribed before me, this day of , 18—. S. C, Notary Public county, Ohio. 193-4. "When the affidavit is made by the guardian, the fore- going may be altered as follows. A copy of the notice must be attached to the affidavit in either case: A. B., being duly sworn, says that the is a newspaper printed [and conclude as above after the*~\. 195. If no neivspaper in the county. — If no newspaper is pub- lished in the county where the petition is filed, the court should point out the mode of advertising the sale in the order of sale, in which case all the foregoing must be modified accordingly. 196. When not sold for want of bidders. — The law in the chap- ter on guardians does not direct what course to pursue when the land can not be sold for want of bidders; but in such case, no doubt, the law stated in paragraph 30 would govern, and this would necessitate action under section 5416, which is as follows : 197. ' : When real estate, taken on execution and appi\aised, and twice advertised and offered for sale, remains unsold for want of bidders, the court from which the execution issued shall, on motion of the plaintiff, set aside such appraisement, and order a new appraisement to be made, or set aside such levy and ap- praisement, and award a new execution to issue, as the case may require ; and when such real estate, or any part thereof, has been three times appraised as aforesaid, and thereafter twice adver- tised and offered for sale, and then remains unsold for want of 130 SALE op ward's property, [chap. 6, 198-206. bidders, the court may direct the amount for which the same shall be sold." 198. Report when no sale is affected;. — After having twice adver- tised and offered the land for sale, as directed in the preceding paragraph, the guardian should make the following report : 199-203. Form of Report, Sale not made. County, Ohio, ss., court. A. B., guardian of C. D., ) „ . . 7 . ,. vs L Report of no sale in proceedings for Said C. D. et ah ) sale °f lanrL In pursuance of the order of court in this case, I gave notice of sale by publication in the , a weekly newspaper of gen- eral circulation in said county of , for at least four success- ive weeks prior to the day of , 18 — ; and on that day, at — o'clock, forenoon, upon the premises, in accordance with said notice of sale, I offered the real estate in the petition described for sale, subject to the dower estate of Y. B. therein ; and no bids being offered, said premises were not sold. I thereupon gave notice of sale by publication [and continue as already stated in this form~\. , 18 — . A. B., Guardian. 204. Form of order of reappraisement. — The order of reap- praisement may be as follows : 205-6. A. B., guardian of C. D., ^) n , vs I Order of reappraisement in Said C D et al \ proceedings to sell land. On motion to the court by , counsel for the plaintiff, and it appearing that the real estate described in the petition has been twice offered for sale and not sold for want of bidders*, it is ordered that the appraisement heretofore made may be set aside, and that said premises be reappraised by the oaths of D. H., O. B., and F. S. ; and that said plaintiff thereupon proceed to sell said premises subject to such reappraisement, in accord- ance with the former order of this court. CHAP. 6, 207-216.] SALE of ward's property. 131 207. Order to sell at a fixed price. — Follow the preceding form to the*, then proceed as follows : 208. It is ordered that said plaintiff proceed to sell said prem- ises according to law, and the previous order of this court, at a sum not less than dollars. 209. Report of private sale. — The circumstances being so various under which private sale might be ordered, no general form can well be given ; but the instructions for forms of report of sale, found on preceding pages, should be followed, so far as applicable. 210. Affidavit required in case of private sale. — Before the court can confirm a sale by a guardian, made under an order allowing such officer to make private sale, the court must require such officer to make and file an affidavit that such private sale has been made after diligent endeavor to obtain the best price for the property, and that the sale reported is for the highest price he could get for the property. 1 211. Form of affidavit, etc. — The affidavit should be attached to the report of sale, and may be in form as follows : 212-215. The State of Ohio, county, ss. : A. B., being duly sworn, says that the private sale of property, made by order of court, as represented in the report to which this is attached, was made after diligent endeavor to obtain the best price possible for said property, and that the sale reported is for the highest price that he could get for said property. A. B. Sworn to and subscribed before me, this day of , A. d. 18 — . A. C, Probate Judge [or other officer]. 216. Confirmation of sale. When any return is duly made to the court, the proceedings should be examined carefully by the court, and if found fair, legal, and correct, the sale must be con- firmed, 2 and a deed, and mortgage, if required, will be ordered. 1 §6412. 2 6287. If the court had no jurisdiction to make such sale, it will be void. Perry v. Brainard, 11 O. 442. If guardian dies before giving deed, his successor should complete the sale, giving deed. Lynch v. Kirby, 36 Mich. 238. 132 sale ok ward's property, [chap. 6, '217-226. 217-lD. Form of Order of Confirmation. A. B., guardian of C. D.,| 0rder j cmfirmatwn in proceedings to Said C. D. and others. ) This day this cause came on to be heard, upon the motion of the petitioner to confirm the sale made in obedience to the order hereto- fore made in this case ; and the court having carefully examined the proceedings of petitioner upon said order of sale, and finding them in all matters correct, and being satisfied that said sale was fairly and legally made, it is ordered that the same be, and it is hereby approved and confirmed, and it is further ordered that the petitioner make a deed of all the right, title and interest of the said C. D. in and to said lands to the purchaser named in the petition- er's report of sale herein, upon the said purchaser's executing to said guardian a mortgage upon the premises, to secure the deferred pay- ments of the purchase money, with interest at the rate of six per centum per annum, payable annually. And it is further ordered that the petitioner pay the costs of these proceedings, taxed at dollars, out of said money for which said land was sold, within days, and in default thereof, that execution issue therefor against the property of said C. D., as upon judgments at law. 220. Entry, if liens adjusted. — If there are any mortgages or other liens to be adjusted, the journal entry must of course be modified, so as to conform to the findings of the court as to them, and to any order the court may make as to their payment out of the money for which the real estate was sold. 221. Taxes, etc., must be paid out of proceeds. — Among the liens which must be ordered paid out of the proceeds of such sale, are taxes and penalties that may be due against the land sold. 1 222-229. Guardian's Deed. Know all men, that, whereas, A. B. , as guardian of C. D. , a minor, on the day of , a. d. one thousand eight hundred and , filed his petiti* >n in case No. , in the probate court of county, Ohio, against said C. D. (and others, if so), asking upon legal cause therein set forth, for an order to sell the following described real estate, belonging to said ward, to wit: \_here give description by metes and bounds, or of he noise, as in tlie petition. ] 1 § 2854. chap. 6, 222-228.] sale of ward's property. 133 And whereas, such proceedings were afterwards had upon said petition, that, on the day of , A. d. 18—, it was by said court ordered and adjudged [here give substance of judgment and order of court to sein. And whereas, on the day of , a. d. 18 — , in pursuance of said order and judgment, an order of sale was issued out of said court, under the seal thereof, directed to said A. B., guardian as aforesaid, commanding him to execute the said order, and of the same, together with his proceedings thereon, to make due return. And whereas, the said premises having been duly appraised and advertised according to law and the order of the court, and the pro- visions of the statute in such case made and provided having been fully complied with, the said A. B., as guardian, as aforesaid, did, on the day of , a. d. 18—, at the door of the court-house of said county [or, on the premises, or otherwise state where the sale was made'], expose to sale at public auction, the said above described premises, and thereupon, D. M. did bid for the same [state how much], which sum being the highest and best bid for the same, and two-thirds [or, more than two-thirds] of the appraised value there- of, the said premises were then and there struck off to said D. M. for the sum and upon the terms above mentioned. And whereas, on the day of , A. D. 18 — , the said court having examined the proceedings of the said A. B., guardian, un- der said order of sale, and being satisfied that said sale was made in all respects according to law and the order of the court, ordered that said sale be confirmed, and that said A. B., guardian, should execute a deed, conveying the premises so sold, to said D. M. Now, therefore, the said A. B., as guardian as aforesaid, in con- sideration of said sum of $ , paid, or secured to be paid to him by said D. M., the receipt whereof is hereby acknowledged, and by virtue of the proceedings, orders, etc., aforesaid, does herebv grant, bargain, sell and convey unto said D. M., his heirs and assigns for- ever, the said real estate, so as aforesaid sold and above described : to have and to hold the same, with the appurtenances, to the said D. M., his heirs and assigns forever, as fully and completely as said A. B., as guardian as aforesaid, by virtue of said proceedings, or- ders, etc., and of the statute in such case made and provided, may, can, or should convey the same. 134 sale of ward's property, [chap. 6, 230-238. In witness wnereof, the said A. B., as guardian as aforesaid, lias hereunto set his hand and seal, 1 the day of , A. D., one thousand eight hundred and . Signed, sealed, and acknowledged") A. B. [seal.] in presence of L. M., > A.s Guardian as aforesaid. N. O. ) The State of Ohio, county, ss. Be it remembered, that on the day of , a. d. 18 — , be- fore me, the undersigned, a notary public [or, mayor, etc.'] within and for said county, personally came A. B., as guardian of C. D., the grantor in the foregoing deed, and as such acknowledged the signing and sealing thereof to be his voluntary act and deed for the uses and purposes therein specified. In testimony "whereof, I have hereunto subscribed my name and affixed my notarial seal, on the day and year above mentioned. Richard Roe, Notary Public as aforesaid 230. To whom note and mortgage given. — The notes and mortgage for deferred payments should be given to the guardian as such. 231-8. Form of Mortgage. KNOW ALL MEN BY THESE PRESENTS. That H. S., of county, Ohio, in consideration of dol- lars [naming here the entire unpaid part of the purchase price], to him paid by A. B. , as guardian of C. D., a minor, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell, and con- vey to the said A. B., guardian as aforesaid, his heirs' 2 and assigns forever, the following described real estate, situate in [here fully de- scribe the real estate conveyed] ; and all the estate, title, and interest of the said H. S. , either in law or in equity, of, in, and to the said premises ; together with all the privileges and appurtenances to the same belonging, and all the rents, issues, and profits thereof; to have and to hold the same to the only proper use of the said A. B., as truardian as aforesaid, his heirs and assigns forever. And the said H. S., for himself, and for his heirs, executors, 1 Private seals are now unnecessary (see £4, 80 0. L. 79), but are still occasionally used in deeds, etc., especially by the older lawyers so long ac- customed to tbem. Being mere surplusage, they can do no harm. See note 1, page 38, as to seal on bond. 2 The wurd "heirs," not "successors," must be used. 10 O. 1; "W. 144. chap. 6, 238-239.] sale of ward's property. 135 and administrators^ does hereby covenant with the said A. B., guardian as aforesaid, his heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the same ; that the title, so couveyecl, is clear, free, and unimcumbered ; and further, that he will warrant and defend the same against all claim, or claims, of all persons whomsoever. Provided, nevertheless, that if the said H. S. shall pay or cause to be paid his two certain promissory notes of even date here- with lor dollars each, with interest thereon from date till paid at six per cent, per annum, payable annually; one of said notes being due and payable one year after date, and the other two j'ears after date, each to the order of A. B., as guardian of C. D., and being given to secure the unpaid balance of the pur- chase money of said premises, then these presents shall be void. In witness whereof, the said H. S. has hereunto set his hand and seal, this day of , in the year of our Lord one thousand eight hundred and . H. S. [seal.] Signed, sealed, and acknowledged in presence of us : T. M., E. 0. The State of Ohio, county of , ss. Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , before me the subscriber, a notary public [or other officer, as 'may be] in and for said county, personally came H. S., the grantor in the fore- going mortgage deed, and acknowledged the signing and sealing thereof to be his voluntary act and deed, for the uses and pur- poses therein mentioned. In testimony whereof, I have hereunto subscribed my name, and affixed my notarial seal, on the day and year aforesaid. [seal.] K E., Notary Public as aforesaid. Sale of Lands in this State by Foreign Guardians. 239. Application for sale — security.— All applications for sale of real estate by guardians to minors, who live out of this state, must be made in the probate court of the county where the lands 136 sale op ward's property, [chap. 6. 240-246. are situate; and if situate in more counties than one, then in one of the counties in which a part of such real estate is situate; and additional security will he required of such guardian, when deemed necessary, and such as may be approved by the probate court of the county in which such application is made. 1 240. The proceedings, in case of a foreign guardian making ap- plication to sell real estate of his ward lying in this state, will be the same precisely as that in the case of a guardian appointed here; the necessary variations in the forms already given, to adapt them to such a case, can be readily made. 24 1 . Order of court for security— form of. — If the probate court, in which such application of a foreign guardian is made, deems it necessary to require additional security to that already given by the guardian, in the state or county where he was appointed, an order of court should be made so requiring it after the ap- praisement is made; and in so doing, the usual order made after the appraisement, the form of which has heretofore been given in paragraphs 113-118. may be used To the *, and then proceed as follows : 242. And the court deeming it necessary that an additional security should be given by said guardian, it is therefore further ordered, that the said A. B., within days, execute to the State of Ohio, a bond with sufficient freehold sureties, to the ac- ceptance of this court, in the sum of dollars [double the amount of the appraised value of the real estate'], conditioned ac- cording to law. 243—46. The form of bond will be like that already given in paragraphs 120-126, but the condition will be modified thus: The condition of the above obligation is such, that whereas the above bound A. B., has heretofore been, by the court of county, State of [or, Dominion of Canada, etc., as the case may be~], duly appointed and qualified as guardian of C. D., a minor child of E. F., deceased, late of [or, then and now living, if such is the case], and which appointment the said A. B. accepted, and is still authorized to act under; and whereas the said A. B.. as such guardian, has made application to the probate court of county, Ohio, for an order to sell certain real estate of his said ward, situate in the county of , Ohio, and which !§ 6290. See par. 1, chap. 25. chap. G, 247-251] sale op ward's property. 137 is particularly described in the petition of said application, which real estate, under proceedings there duly had, has been appraised at dollars; and whereas said court has ordered said A. B., as guardian as aforesaid, to execute a bond as such guardian, according to the statute in such case made and pro- vided. Now, therefore, if the said A. B. shall faithfully discharge his duties, as guardian of said C. D., and shall faithfully make pay- ment and account for all moneys arising from such sale, accord- ing to law, then the above obligation will be void, otherwise to be and remain in full force. A. B., [seal.] C. D., [seal.] E. F., [seal.] This bond approved by me, this day of , a. d. -. A. C, Probate Judge of said county. 247. If no bond be given, what to do. — In case the foreign guar- dian can not or does not give the bond required, no further pro- ceedings can be had, and no order of sale can be made; and in such case, the court should simply dismiss the proceedings at the costs of the guardian. 248. In such case, if it be necessary still to sell the lands of a foreign minor, a guardian must be appointed in this state, as directed in chapter 3. 249. If given, what. — If, however, the bond be given by the foreign guardian, and approved by the court, then the mtitter will proceed as heretofore directed in other cases. 250. If bond not required. — If no bond is required by the court, then so much of the order confirming the appraisement, and as* signment of dower, if dower there be, as relates to giving a bond will be omitted ; and in that case, the fact that no further bond is deemed necessary by the court, should be stated; and the order of sale may then be included in, and follow the order con- firming the appraisement and assignment of dower. 251. Remedy of purchaser, if guardian's sale invalid. — The stat- ute provides that if, upon the sale of property on execution, the title of the purchaser is invalid by reason of a defect in the pro- ceedings, the purchaser imiy be subrogated to the right of the 138 sale op ward's property, [chap. 6, 252-254. creditor against the debtor, to the extent of the money paid and applied to the debtor's benefit, and, to the same extent, will have a lien on the property sold, as against all persons, except bona fide purchasers without notice; but this will not be construed to require the creditor to refund the purchase money, by reason of the invalidity of any such sales; and that this shall apply, also, to all sales by guardians. 1 252. How possession gained of lands sold at guardian's sale. — Persons occupying lands sold at guardian's sale may be evicted by proceedings before a magistrate, in the manner provided in the chapter relating to Forcible Entry and Detainer, sections C599-6612. 2 253. Kind of title guardian's sale conveys. — As in other judicial sales, the general rule is that the guardian sells only such title to the land as the ward has, and the purchaser must make inquiry as to the title, and the authority of the guardian to sell. The guardian makes no warranty, and if he does, he only binds him- self personally. 8 254. As to application of purchase-money, etc., see notes below. 4 255. As to an&stral property. — Any fund in the hands of any guardian, or any other such trustee, which has arisen from the sale of real estate, after the death of an intestate owner, which came to such intestate by descent, devise, or deed of gift from an ancestor, must descend as is provided in section 4158, concerning such real estate. 5 But see par. 67, chap. 5. l ?5 5410, 5411. 2g6600. 8 Black v. Walton (1877), 32 Ark. 321. See notes, pp. 83, 120. + "W. E., guardian of the estate of three minors, upon a sale of their real estate, took the notes of the purchaser, drawing interest, for frhe deferred payments, payable to the order of said "YV. R., guardian of A. K., C. K., and E. K., and secured by a mortirase on the real estate sold. Held, that one who buys such notes, bearing on their face the marks of a trust fund, is put upon inquiry; and if he buys them from the guardian, under circumstances fairly indicating that they were sold against the interest of the wards, he gets no title from the guardian who misappropriates the proceeds of the sale. Strong v. Strauss, 40 0. S. 87. The statute only requiring an order of court to empower a guardian to sell in case of real estate, the sale for full value, by a guardian, of a note and mortgage to one who had no reason to suppose that the guardian would mis- appropriate the proceeds, is a good transfer, and the buyer need not look to the application of the purchase money nor to the necessity of a sale. (Ham. Dist. Ct.) Strong v. Hope, 4 Bull. 1034. See also notes on pp. 83, 94, 96. 5 §4163, as am. 87 O. L. 66. CHAP. 7, 1, 2.] LEASE OF WARD'S LANDS. 139 CHAPTER 7. LEASE OF WARD'S REAL ESTATE. Par. Par. 1. Power of guardian to lease for 14. Proceedings on preliminary hear- th ree years. ing. 2. Power to lease for fifteen years to 15. Forms of appointment. save property from sale. 1»'>. Final hearing and orders thereon. 3. Application for power to make 17. How the improvements may be such lease. made. 4. Who may unite in application. 18. When such lease extending be- 5. Rule as to parties, and notice. yond majority shall determine. 6. Dower. 19. Lien of tenant for improvements. 7-12. Form of application. 20. Certain unlawful lease. 13. Verification. 21-27. As Lo leases of coal lands, etc. 28-32. As to leases of oil lands, etc. 1. Power of guardian to lease for three years. — A guardian of the person and estate, or of the estate only, of any minor may lease the real estate of his ward for any terra not exceeding three years and not extending beyond the minority. 1 2. Power to lease for fifteen years to save property from sale. — Such guardian may also lease the real estate of his ward for any term not exceeding fifteen years, although such term extend beyond 1 §6295. The guardian should, of course, rent his lands to the best possible ad- vantage, and see that the rent money is well secured; he should see that the tenant uses the lands, houses, etc., as not abusing them; that the premises are kept in reasonably good repair, without extaordinary expense. See par. 72, chapter 5, as to repairs. A guardian leased his ward's land in January, several years, where it was customary to lease lands in the spring. In an action against the guardian it was shown that the land would have rented for more money in the spring than in January, and the guardian was made to pay the difference to the ward. Knothe v. Kaiser, 5 T. & C. (N. Y.), 4. A guardian is not liable for an error of judgment in having leased the lands of his wards for a less rent than could have been obtained, where he acts in manifest good faith, having first secured the approval of the probate court. McElheny v. Musick, 63 111. 329. 140 LEASE OF WARD'S LANDS. [CHAP. 7, 3-12. the minority, whenever the court appointing him finds, on his application, that such lease will be to the advantage of the ward, and is necessary to secure the improvement of the real estate and to increase its rents, and that such increase is needed for the support and education of his ward or to pay his liabilities or any liens on, or claims against his estate, and that by such lease a sale of real estate for these purposes may be prevented. 1 3. Application for porter to make such lease. — Such application must be by petition, which must contain a description of the real estate and a particular statement of its value and the value of all other property or effects of the ward, and his income and ex- penses, a detailed statement of the improvements proposed and the liabilities or expense of support and education to be provided for, the rent of the real estate as it is, and the prohable increase of rent if the improvements are made, the means intended to be used in making the improvements and the proposed terms and time of the lease ; and such other facts as shall be pertinent to the question whether the authority for making the lease should be granted. 2 4. Who may unite in application — In such application the guardian may act on behalf of two or more wards, and two or more guardians of different wards may unite, when all the wards are jointly or in common interested in the real estate. 3 5. Rules as to parties and notice. — The same rules apply in such matters as to parties and notice as in application for sale of real estate. 3 (See chapter 6.) 6. Dower. — The widow's dower may be one of the liens on the real estate of a minor, but as probate courts have jurisdiction, in the assignment of dower, only in cases of sales of real estate to pay debts. 4 the court could not, in a proceeding to lease the real estate, assign such dower, and it seems that no conflicting liens could be adjusted in such proceeding. 7-12. Form of a implication. — The petition may be substantially as follows, varying it to suit the number of guardians or wards, and in other respects as the facts of each case may require: 1 §6296. 2 ? 6297. 3 § 6298. 4 See par. 4, chap. 6. CHAP. 7.] LEASE OP WARD'S LANDS. 141 county, Ohio, ss. Probate Court. A. B., as guardian of C. D., plaintiff, vs. Said C. D, a minor, aged 10 years, h. D., X. Y. [etc , naming all per- sons whose lights this application affects], defendants. Petition to Lease Ward's Land. Said plaintiff says that he is the duly appointed guardian of said C. D., minor; that said minor is the owner in fee simple of the following described real estate, situate in the city of Cincinnati, county of Hamilton, and State of Ohio, to-wit: Lot No. [describe it. as in a deed] ; that said lot is probably worth dollars, is totally unimproved, and produces no income whatever [or, if improved and rented, say, that the gross receipts derived therefrom for the past years have been dollars per year; or, state the income for each year], that there has been expended on said lot, during that time, amounts as follows: for taxes, dollars; for street improvement, dollars ; [if im- proved, for repairs, dollars ; etc., as may be] ; that there is a mortgage on said property to secure a note of dollars, given by E. D., the father of said C. D.. during his life, to said X. Y., and due in three months from [state when]; that said L. D., widow of said E. D., has a dower interest in said lot. for which she has agreed in writing to accept dollars, if paid within three years ; that there are no other liens upon said lot. Plaintiff further says that said C. D. has other property, as follows : [here describe his property as directed above, each piece separately, if necessary ; or. if so, says that said C. D. has no other property] ; that the gross annual income of said C. D. is dollars [or. for the past years has averaged dollars per year]; that his expenses, in addition to the taxes [etc.] above mentioned, during the past years, have been, for clothing, dollars; for tuition and other educational expenses. dollars, [etc.] ; being an average of dollars per year; that the amount of said expenses per year will increase in the future by reason of [state why, if so.] Plaintiff further says that said lot, by reason of its location, is valuable for business purposes, and will probably become more so year by year ; and that its sale, either to satisfy said mort- 142 LEASE OP WARD'S LANDS. [CHAP. 7, 13-16. gage or for the assignment of said dower, will be extremely dis- advantageous to said C. D. ; that said lot can be leased for a period of twelve years to G. T., a responsible person, upon the following terms. Said G. T. will erect thereon a [describe the structure'], which would be a permanent improvement, for the purpose of carrying on therein the business of [state what — or, here state such facts as are pertinent, and tend to show that the lease should be made'], and will pay, during said twelve years, an annual ground rent of dollars, payable semi-annually. Plaintiff further says that said ground rent, together with the personal property above mentioned, would be sufficient to pay off said liens, and to support and educate said C. D. ; but that if said lot is not leased, it must be sold to satisfy said liens. Wherefore plaintiff Sprays that he maybe ordered by the court to lease said lot upon the terms and conditions above specified, or upon such other terms and conditions as the court may di- rect. A. B., Guardian as aforesaid. 13. Verification. — This petition must be verified in the same way as petition on page 102. 14. Proceedings on preliminary hearing.— On the hearing, the court must appoint three disinterested freeholders of the county in which the real estate is situate, who are not of kin to the pe- titioner, to view the premises and report under oath their opin- ion of the probable cost of the improvements proposed, whether the same and the proposed lease would be for the best interest of the ward or wards, and if so, upon what terms the lease should be made ; and the report must be returned on or before a day named in the order for the final hearing of the case. 1 15. Forms of appointment. — The forms for the appointment of the freeholders alluded to in the preceding paragraph, as well as of their oath, report, etc., can readily be adapted from the simi- lar forms in chapter 6. 16. Hearing and orders thereon. — On the final hearing, if the report of the freeholders be in favor of the lease, and the court be of opinion that it will be to the advantage of the ward or wards to improve and lease the real estate, and that such lease is neces- sary to secure the improvements and increase the rents, and that 1 g 6298. CHAP. 7, 17-21.] LEASE, OF WARD'S LANDS. 143 such increase is needed for the support and education of the ward or wards, or to pay his or their liabilities or liens or other claims against his or their estate, and that by such lease a sale of real estate for any of these purposes may be prevented, the court must make an order authorizing the lease to be mad.0 on such terms and in such manner as the court shall think proper. 1 17. How the improvements may be made. — In the lease made in pursuance of such order, it may be provided that the improve- ments must be made by the tenant as part of the rent, or by the guardian, either out of the rent or other means of the ward or wards, as the court may have directed. 2 18. When such lease extending beyond minority shall determine. — Any lease made by a guardian to extend beyond the minority must, nevertheless, determine when the ward, if there be but one, arrives at full age, or if more than one, when all of them arrive at full age, unless such ward or wards then confirm the same; and in case of the death of the ward, if there be but one, or of all of them, if more than one, the lease must also deter- mine, unless the legal representatives of such ward or wards confirm the same ; if there be more than one ward, and some, but not all, die, the lease will continue till the survivor or sur- vivors reach full age. 3 19. Lien of tenant for improvements. — When such lease is de- termined by reason of the death or majority of the ward or wards, the tenant will have a lien on the premises for any sum or sums expended by him in pursuance of the lease in making improvements, and for which compensation shall not have been made, either by the rent or otherwise. 3 .20. Lease of, for gambling purposes or sale of liquor. — A guard- ian, or trustee of a minor, insane person, or idiot, renders him- self liable to heavy penalties by leasing his ward's premises for gaining, or for the sale of intoxicating liquors therein, and also by permitting these things to he done in the premises. See pages 01 and 224. 21. Minor ward's real estate may be leased for mining purposes. — ■ The guardian of the person and estate, or estate only, of any minor, may be authorized hy the probate court of the county in which the 1 \ G299. 2 §6300. 3 gti:J01. 14-V/ LEASE OF WARD'S LANDS. [CHAP. 7, 22-2'). lands are situated, to lease, upon such terms and for such period of time, not exceeding ten years, any lands in such county belonging to such ward, supposed to contain coal, for the purpose of mining for and removing the same. But if said period of ten years extend beyond the minority of such ward, such lease must then terminate as to such ward, unless such ward confirms the lease. 1 22. Petition; time for hearing. — Upon the filing of such petition, the court must fix a time for hearing it, which time must not be less than five nor more than fifteen days from the filing of the peti- tion, and must order the petitioner to give notice in wiitiug to his ward, who must be defendant to said petition, of the filing and prayer thereof, and the time it will be heard. This notice must be served not less than five days before the hearing. He must return to the court a copy of said notice, stating the time and manner of service thereof." For adaptable forms, see paragraphs 7-12, above, and paragraphs 41-45, chapter 6. 23. Land to be viewed by disinterested freeholders. — At the time ap- pointed for the hearing of the petition, if the court find that it will be to the advantage of the ward to lease the lands as prayed for in the petition, said court must appoint three disinterested freeholders of the vicinity, who are not of kin to the petitioner, to view such lands and report in writing to the court their opinion as to the pros- pects of their containing coal, and in what quantity, and the terms upon which it would be advantageous to said ward to lease said lands for mining said coal. Before entering upon the discharge of their duties under this act, said freeholders must take an oath faithfully and impartially to discharge such work. 1 24. Probate court to order lease. — Upon the report of said free- holders being returned to and filed with said court, if said court is satisfied that it will be to the advantage of said ward to lease the lands for such mining purposes, such court must order such guard- ian to lease the same, upon such terms as said court may direct, which must not be less favorable to the ward than those reported by the freeholders. 4 25. Royalty; report of by guardian : band. — The guardian, must, within six months after the receipt of the first n ya-lty under such lease, report to the court the amount thereof, and the court musl then fix a bond which will cover the royalty from said lease; and the court may, at any time he may deem the bond insufficient to secure the same, increase the bond or require new bond. 5 1 g 1, 87 v. 223. 2 § 2, 87 v 223. 3 § 3, 87 v. 223. 4 2 4, 87 v. 223. 6 ? 5, 87 v. 223. chap. 7, 26-32.] lease of ward's lands. 1436 26. Change in terms of leasing.— If the guardian shall be unabfe to lease the lands upon the terms ordered, he may report the fact to the court, and the court may, in its discretion, change the terms of leasing, but not below the customary royalty in the vicinity of said lands. 1 27. Lands owned in common by minors. — Where the same person is guardian of two or more minors owning lands in common, said minors may be joined as defendants in the same petition ; or if such minors have different guardians, such guardians may unite in the same petition under this act. 2 28. Guardian may lease tvard's land for oil or gas purposes. — A guardian of the person and estate, or of the estate onlv, of any minor, or of a lunatic, idiot or imbecile, may lease the real estate of his ward, or of said lunatic, idiot or imbecile, for petroleum oil or natural gas purposes, or either, for such period of time not ex- ceeding ten years, as may be authorized by the probate court ap- pointing such guardian. 3 29. Petition therefor. — Before executing such lease said guardian must file his petition for authority to make the same in the probate court appointing him, which petition must contain a description of the real estate sought to be so leased, a particular and detailed state- ment of the terms, time and conditions of the proposed lease, and, as near as may be, the net annual value thereof to said ward/ For adaptable forms, see chapter 5, and first part of this chapter. 30. What to contain. — In cases where it is sought to lease the real estate of a lunatic, idiot or imbecile, for said purpose, said guard- ian must also set forth in his petition the number, name.-, ayes and residences of those who have the next estate of inheritance from said ward, all of whom, as well as the ward, must be made defend- ants, as in other cases. 5 31. Notice of hearing to be given paHies interested.— On filing the petition, notice of the filing thereof, and its object and purport, and of the time of hearing of the same in said court, must be given the ward and. all other defendants in the same manner as in proceedings in said court to sell the real estate of a minor. 6 Pee chapter 5. 32. Court to prescribe terms, covenants, etc. — Upon the final hear- ing, if the court is satisfied from the evidence that it will be for the best interests of said ward, and the prayer of the petition is granted, the court may prescribe the terms, covenants, conditions and stipu- lations of the lease, either in accordance with those set forth in the petition, or otherwise ; and such lease, when so made by said guard- ian, must be reported by him to said court. Such lease will not take effect until it is approved and confirmed by said court. 7 >?6, 87 v. 223. 2 ?7, 87 v. 224. 3 g 1, 87 v. 162. * g 2, 87 v. 162. 6 §3, 87 v. 162. 6 H. 87v. 162. U 5, 87 v. 162. 10 144 TAXATION AND TAX TITLES. [CHAP. 8, 1-2. CHAPTER 8. TAXATION AND TAX TITLES, AS AFFECTING GUARDIAN AND WARD. Par. Par. 1. Guardian must pay ward's land 12. When property to be listed, and tax. as of what day. 2. And list same for taxation. 13. How ward's property should be 3-5. Penalty for neglect. listed. 6-7. Must pay out of his own funds, 14. How county treasurer may col- if necessary. lect from guardian. 8. Compensation and lien for such 15. Release of ward's tax title by advances. guardian. 9. When guardian or trustee sells 16. Effect of tender to release, land, tax paid out of proceeds. 17. Lands sold for taxes may be re- 10. Guardian must list the personal deemed within two years, property of ward for taxation. 18. As to general validity of tax 11. Where personal property shall titles. be listed. 19. How lands may be redeemed. 1. Guardians must pay ward's land tax. — Every person must pay tax each year for the lands or town lots of which he or she may have the care as guardian. 1 2. And list same for taxation. — It is the duty of every person 1 §2 2845, 2847. Under the statute relating to taxation, the guardian of minors is charged with the duty of representing the real estate of their wards in listing it for taxation and payment of taxes as well as in the gen- eral management of such estate, and as such guardian he ma}" represent his ward's estate under the statute above cited [2 S. & C, p. 509, petitioning for road improvements], either to ask for or oppose such improvement. Where minor children, who are tenants in common of the lot of land, re- side on the same, they are resident owners, but whether each is to be counted, or all counted as one. Quaere. If the names of such minors, and of the guardian individually, are signed to a petition by direction of the guardian, and in his presence, it is equivalent to his signing as guardian. Campbell v. Park, 32 0. S. 544. CHAP. 8, 3-6.] TAXATION AND TAX TITLES. 145 seized of or holding real estate (as guardian or otherwise) to list the same for taxation with the county auditor, on or before the third Monday of May next, after the same shall be subject to taxation ; and in case of neglecting to list the same as aforesaid, the county auditor must, when the same shall be thereafter listed, charge upon each tract so neglected to be listed, the taxes for each year they shall have been omitted, after becoming liable for taxation, together with twenty-five per centum penalty and six per centum interest thereon, in addition to the taxes of the cur- rent year. 1 3.» Penalty for neglect. — If any guardian neglect or refuse to list 2 or pay the taxes on the same, in the manner above indicated, such guardian is made liable, in an action, to his ward, for any damage sustained by such neglect or refusal. 3 4. Therefore, if by reason of the guardian's neglect to list the lands, there be a penalty suffered to be charged against the lands, he will be liable to pay the ward that penalty. 5. So if, by failure to pay the taxes, the lands be subjected to the payment of a penalty, or be sold for the taxes at delinquent or forfeited sale, the guardian will be liable to the ward for any such penalty, or for the penalty and. interest required to be paid to redeem them ; or, in case the lands are thereby lost, then for the value of the lands. 6. Must pay out of his own funds, if necessary. — It seems that the guardian must in all cases list and pay the taxes upon the lands of his ward, whether he has money of the ward's in his hands or not, because it is expressly made the duty of guardians and executors having lands in charge to pay the taxes. The statute makes a difference between them and agents and attor- 1 1 2846. 2 Three executors of an estate resided in the same township, two within a village, another without it, and a fourth in another county; Held, that the taxable moneys, etc., of the estate must be entered for taxation, one-third as of the place of residence of each executor in the first county. Harkness v. Mathews, 10 Ohio St. 431. Two administrators resided in different counties; Held, such property must be taxed in the county of the administrator who has actual possession and control of the property. Brown v. Noble, 42 Ohio St. 405. This would very probably apply to guardians, also. 3 §2848. 146 TAXATION AND TAX TITLES. [CHAP. 8, 7-10. neys, as these latter are only required to pay the taxes, and made liable for the consequences of not paying them, when they have funds of the principal in their hands. 1 7. So that, if the guardian have no personal estate in his hands, and the ward lias no means but the land itself, the guar- dian may make application to court for an order to sell the lands; 2 or, if he does not think it best to pursue this course, or does not do so in time to pay the taxes, he must then pay them from his own funds. 8. Compensation and lien for such advances. — Every guardian, having the care of lands as aforesaid, who is put to any trouble or expense in listing or paying the taxes on such lands, or who has to advance his own money for listing or paying the taxes on such lands, will be allowed a reasonable compensation for the time spent, the expenses incurred, and money advanced, which must de deemed in all courts a just charge against the ward. 3 9. When guardian or trustee sells land, tax paid out of pro- ceeds. — Whenever any land is sold by guardians or trustees, the court must order the taxes and penalties, and the interest thereon against such lands, to be paid out of the proceeds of such sale.* 10. Guardian must list the personal property of ward for taxa- tion. The personal property of every ward must be listed by his guardian, of every minor child, idiot, or lunatic having no guardian, by his father, if living; if not, by his mother, if liv- ing ; and if neither father nor mother be living, by the person having such property in charge ; of every wife by her husband, if of sound mind ; if not, by herself; of every person for whose benefit property is held in trust by the trustees, etc. 5 1 § 2850. 2 In such case the tax is a debt of the estate, and if the administrator have not personal assets to pay for the same, he may apply for an order to sell lands for that purpose. Welsh v. Perkins, 8 Ohio, 52 3 §2851. 4 §2854. 5 §2734. This same section of the law provides that " every person of full age and sound mind must list the personal property of which he is the owner, and all moneys in his possession, all moneys invested, loaned, or otherwise controlled by him, as agent or attorney, or on account of any CHAP. 8, 11-15.] TAXATION AND TAX TITLES. 147 11. Where personal property must be listed. Every person re- quired to list property on behalf of others, must list the same in the same township, city, or village, in which he would be re- quired to list it if such property were his own ; but he must list it separately from his own. specifying, in each case, the name of the person, estate, company, or corporation, to whom it belongs. 1 12. When property to be listed, and as of what day. Each per- son required, to list property must, annually, upon receiving a blank for that purpose from the assessor, or, within ten days thereafter, make out and deliver to the assessor a statement, veri- fied by his oath, of all the personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, annui- ties, or otherwise, in his possession, or under his control, on the day preceding the second Monday of April of that year, which he is required to list for taxation, either as owner or holder thereof, or as parent, guardian, trustee, or otherwise. 2 13. How ward's property should be listed. The guardian should get two such blanks from the assessor, and list the per- sonal property of his ward on a different blank from that on which he lists his own. This latter he should list as the prop- eety of C. D. ; the former he should list as the property of C. D. as guardian of A. B. 14. How county treasurer may collect from guardian. The law provides that, among other means, the county treasurer may adopt to compel the payment of taxes, he may distrain (seize) goods and chattels of the delinquent, 3 and also provides that if he is unable to collect, by distress (seizure), the taxes assessed upon any guardian (among others), then such treasurer must apply to the clerk of the court of common pleas in his county, at any time after his semi-annual settlement with the county other person or persons, company or corporation whatsoever, and all mo- neys deposited subject to his order, check, or draft; and all credits due or owing from any person or persons, body corporate or politic, whether in or out of such county; all money loaned on pledge or mortgage of real estate although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely." Judgments must be listed for taxation, the same as other property, at their true, not their nominal, value. Cam, Ton r. Cappelhir, II (). S. 533. The guardian must list ail such property of his ward. 1 \ 2735. See note 2, page 145. 2 g 2736. See note 2, page 145. 3 i^ ]0U\, 1095. 148 TAXATION AND TAX TITLES. [CHAP. 8, 15-18 auditor, and said clerk must cause a notice to be served upon such guardian, requiring him forthwith to show cause why he should not pay such taxes ; and if he fails to show a sufficient cause, the court, at the term to which said notice is returnable, must enter a rule against him for the payment of such taxes and the cost of such proceeding, which rule will have the same force and effect as a judgment at law; and be enforced by at- tachment or execution, or such process as the court directs. 1 15. Release of ward's tax title by guardian. When any minor has title to any real estate by tax title only, the guardian of such minor may, if he deem it advisable, by deed of release and quit- claim, convey such minor's interest or title to the person entitled to redeem such real estate, upon receiving from such person the full amount paid for such tax title with the penalty and interest allowed by law in that behalf. 2 As to what this penalty and in- terest are, see paragraph 19, below. 16. Effect of tender to release. If any such guardian tenders such deed to the person so entitled to redeem such real estate, and such person refuses to accept the same, and pay as afore- said, such person, in any proceeding thereafter instituted to re- deem or recover such real estate can not recover costs. 2 17. Lands sold for taxes may be redeemed within two years. All lands aud town lots sold for taxes at delinquent sale, may be re- deemed at any time within two years after the sale thereof; but any lands sold for taxes, belonging to any person within the age of minority, of unsound mind, or imprisoned, may be redeemed at any time within two years after such disability is removed/* 18. As to general validity of tax title. Although the statutes iridi- dicate that a tax title is good after two years, it is in edict not much, if any thing, more than a lien on the land fur the taxes paid, and the penalties and interest prescribed by law, as the courts almost universally find some way of restoring the lands 1 1 1097. State nut liable for fees. 39 O. S. 207. 2 \ 6294. 3 \ 2890, as am. 83 O. L. 75. And without paying for improvements made by purchaser. Reynolds v. Liepers, 7 O. (pt. 1)17. OHAP. 8, 19.] TAXATION AND TAX TITLES. 149 to their rightful owner, if these items are paid ; and this is quite just and right. Twenty-one years' possession under a tax title would generally not be disturbed ; but then it would be the lapse of time, rather than the tax deed, that would make the title good. 19. How lands may be redeemed. Any person desiring to re- deem an}- land or town lot sold at delinquent tax sale, under or by virtue of any law of this state, within one year after the sale thereof, or within one 3-ear after the expiration of any of the disabilities named in paragraph 17, above, may deposit with the county treasurer, upon the certificate of the county auditor, par- ticularly describing such land or town lot, and specifying the same, an amount of money equal to that f>r which such land or town lot was sold, and the taxes subsequently paid thereon by such purchaser, or those claiming under him, together with in- terest, and fifteen per centum penalty on the whole amount, paid, including costs, and one dollar to pay the expenses of advertis- ing, as provided by law ; and any.person desiring to redeem any land or town lot so sold for taxes, after the expiration of one year from the sale thereof, and within the time limited by law for such redemption, may deposit with the county treasurer, upon the certificate of the county auditor, particularly describ- ing such land or town lot, and specifying the same, an amount of money equal to that for which such land or town lot was sold, and the taxes subsequently paid thereon by such purchaser, or those claiming under him, together with interest and five per centum penalty on the whole amount paid, including costs, and one dollar to pay the expense of said advertising. 1 1 § 2891. The proceeding to redeem is essentially in rem ; and it is not necessary that any person be named as party defendant. Plumb v. Rob- inson, 13 0. S. 298. Parol evidence admissible to show trust estate. lb. Validity of title can not be drawn in question in a proceeding to redeem. Masterson v. Beasley, 3 0. 301 ; nor authority of agent questioned. 76. Right of appeal under former laws. Street v. Francis, 3 0. 277 ; Rawson v. Boughton, 5 0. 328. Married women can redeem. Plumb v. Robinson, 13 O. S. 298. 150 ACCOUNT OP GUARDIAN, ETC. [chap. 9, 1. CHAPTER 9. ACCOUNT AND SETTLEMENT, AND COMPENSATION OF GUARDIAN. Par. 1-2. When settlements must l>e made. 3. Object of account, and how made. 4. Should get blank book for ac- count. 5. Account of each ward separate. 6. Should charge himself with what. 7. As to interest on funds in his hands. 8. Should credit himself with what. 9. Bad debts, what to do about. 10. Guardian should take receipts. 11-12. Concerning the form of the account. 13-15. Form of account. Par. '.Y2. For taxes paid, etc. 33. When no compensation allowed. 34. Compensation of guardian's ex- ecutor, etc. 35. Notice of filing accounts to be published. 36. Who may file exceptions to ac- count. 37. The hearing. 38. Examination of accountants un- der oath. 39-40. Guardian and ward can not sue each other, until. 41-42. When to settle with ward, and take receipts. 16-17. The final account must show 43-48. Form of journal entry of con- what. 18-22. Bad debts, how noted. 23-25. Guardian must make affidavit to the account. Its form. Form of journal entry wheu the accounts are filed. 26. COMPENSATION OF GUARDIAN. 27-30. Its amount. 31. For care of real estate. firmation of accounts. 49. To whom guardian must pay bal- ance in hand at settlement. 50. Effect of settlement with court. 51. When, and how ward may review the settlement. 52. Guardian should get final re- lease from ward. 53-54. Form of such release. 55. Such release no defense, when. 56. Notice of filing of, etc. 1. When settlements must be made. — As already stated in chap- ter 6, the guardian must make a settlement ot his account with the court, under oath, at least once in every two years, and at such other times as the court may, either upon its own motion or upon the motion of any interested person, require; 1 and he 1 ? 6269. as am. 77 O. L. 77. Newton v. Hammond, 38 < >. S. 430. The juri.-d.ctK f pmbate court- over the settlement of such accounts is exclusive. Newton v. Hammond, 38 O. S. 430; Gorman v. Taylor, 43 O. S. 86. The account required by section 14 of the guardian act of April 12, 1858 CHAP. 9. 2-3.] ACCOUNT OF GUARDIAN, ETC. 151 must make a final settlement in the same manner, at the expira- tion of his trust, 1 whether by resignation, removal, marriage of a female guardian, 2 removal from the state, choice of another guardian by the ward at a proper age, 3 the arrival of the ward at full age, death of the ward, 4 or from other cause. 5 2. In either of the above cases, the court should at once re- quire the guardian to make a full and final settlement 6 of his account, and a failure to comply would be a breach of his bond.' 3. Object of account, and how made. — The language of the stat- ute requiring the guardian to render, on oath, to the proper court, an account of the receipts and expenditures, means, of course, all the receipts and expenditures, and the account should be a full statement of all the transactions of the guardian and condition of the ward's estate. The object of the account is to (S. & C. 670; I 6269 Rev. Stat.), to be rendered by a guardian to a probate court at least once in every two years, when rendered and judicially passed upon by the court, is a settlement within the meaning of section 31 of the act. (§6289; see pars. 50, 51.) Under the provisions of said section 31, every settlement so made by a guardian is final between the guardian and the ward, unless an appeal is taken therefrom, or the settlement is opened in accordance with the provis- ions of the section. Woodmansee v. Woodmansee, 32 0. S. 18. A failure by a guardian to settle his accounts within the time prescribed by law is clearly a breach of his bond. Hocking District Court, 1852. Case v. State, 10 W. L. J. 163. A guardian, appointed in Pennsylvania, received the assets of his ward, and removed, with the assets of his ward, to Ohio, and died, without settle- ment of his accounts as guardian : Held, that the ward could sustain a bill in equity, in the courts of Ohio, for an account against the personal rep- resentative of the guardian. Pedan v. Robb, 8 O. 227- Guardian must account for building removed by his permission from ward's land. Johnson v. Meyer, 2 Clev. Rep. 81 ; 17 of Art. "Guardian and Ward,'' 3 Bates's Dig. 1 \ 6269. A probate court, in settling an account, would act upon equita- ble principles. Perrv on Trusts, \ 407. "- 1 6292. 3 $ 6258, 6272. * See par. 67, chap. 5. 5 \\ 6269, 6272. 6 Upon closing his final account in the probate court, an amount being due his ward, the guardian induces her to feign a receipt for the money as though paid, agreeing to be responsible to her for said amount with interest: Held, an action may be maintained upon such agreement by the ward, and the sum actually due from the guardian recovered, without in any way open- ing and reviewing the accounts which had been settled in the probate court. Lindsay v. Lindsay, 28 U. S. 157. 7 10 W. L. Jour. 167. See notes above, and on pp. 177-8. See chap. 10. 152 ACCOUNT OF GUARDIAN, ETC [CHAP. 9, 4-6. show the court and the parties in interest what these transac- tions have been and what this condition is, and to perpetuate this of record. For these and other reasons, the account should be so clear and definite that it may be understood both by the court and all parties in interest without the presence of the guar- dian, and without making it necessary to call him into court for the purpose of explaining any of its items. 4. Should get blank book for accounts. — As soon as the guardian is ready to enter upon the discharge of his duties, he ought to procure a convenient sized blank account book, sufficiently large to last him during his appointment. And if he be guardian of several wards, he should procure as many such books as he has wards, or one sufficiently large to open in it a separate account with each of them. 5. Account of each ward separate. — It does not matter whether they be all the children of the same parents, and derive their property from the same source or not, since, as each ward has a separate and exclusive share of such property, to which his co- wards have no claims whatever, the accounts of each must be kept separate and distinct. 6. Should charge himself with what. — The guardian should charge himself with all moneys, goods and chattels, notes, 1 bonds, mortgages, or other evidences of debts due to the ward from any source, which come to the guardian's knowledge ; also all rents received by the guardian, as well as those which may be lost, all 1 A guardian is liable to his ward for accepting from an administrator or other party a note or other obligation in lieu of money coming to the ward's estate, when the same proves uncollectible. Bescher »>. State, 63 Ind. 302. But see page 67, as to assets from estate. Where a person occupies the double relation of administrator of a dece- dent's estate, and guardian of his minor heirs of such estate, and it becomes his duty as such administrator to pay over a fund in his hands for distribu- tion to himself as guardian for the minor heirs, the law will, in general, presume such payment to have been made. Wilson v. Wilson, 17 0. S. 150. Where a party acting in a double capacity is possessed of a fund in one capacity, which it is his duty (so to speak) to tranfer to himself in another, such transfer will in law be presumed. lb. 156. But this legal presumption may be rebutted ; and where he charges him- self with the fund in his account as administrator, but fails to credit himself in that account, with its payment to himself as guardian, and in an at- tempted settlement of his account as guardian, refrains from charging him- CHAP. 9, 7-8.] ACCOUNT OF GUARDIAN, ETC. 153 earnings of the ward, and all interests upon money due the ward, and jf lands be sold, with the proceeds thereof, giving the dates when the amounts were received, and entering the princi- pal and interest separately. 7. As to interest on funds in his hands. — He is not chargeable with interest 1 upon money in his hands, unless he apply the same to his own use, or derive some benefit from the loan of it, or unless he unreasonably and unnecessarily delayed investing it or paying it over to the proper person, especially if the claim of such person was drawing interest. 2 8. iShould credit himself with what. — He should credit himself with all payments he actually makes for the ward, whether for board, clothing, tuition, just and proper debts due from the ward, incumbrances on the estate, taxes upon personal and real property, repairs upon real propertj-, insurance in proper cases, expenses of the guardianship, as probate fees, reasonable attorney's fees in proper cases, 3 etc., etc. If the guardian has advanced money for his ward, when no funds of the ward were in his hands, to pay taxes, or to redeem land of the ward from a mortgage that was about to be fore- self therein with such fund, the legal presumption of a transfer of the fund is rebutted; and in an action by his former wards on his bond as adminis- trator, for the recovery of the fund, he will be estopped to deny that he still holds the same as administrator, lb. 1 See page 67, as to when the statutes makes him liable for interest. Also, pages 79, 81, 84, and notes thereon. 2 " The proper mode of taking the account of trustees is to treat all the income of the trust received during the current year as unproductive, and to charge against the income of the current year all the disbursements, in- cluding the compensation or commissions of the trustees for the same year, and to strike a balance, upon which, as a general rule, interest is to be al- lowed, but in such a way as not to compound it. If, however, these bal- ances are too small to invest, or for any reason the trustees might equitably keep them on hand, interest upon them will not be allowed upon them until the balances so accumulate as to be properly invested, or until the trustees ought to invest them." Perry on Trusts, §468. 3 It is stated in Perry on Trusts (§432), Redfield on Wills (vol. 3, pp. 537, 557), and by other writers, as a strict rule, that an attorney, being a trustee, can make no charge against the trust estate for services rendered by him in his professional capacity to the estate of which he is trustee; the learned author first named above citing thirteen English, three New York, and one 154 ACCOUNT OP GUARDIAN, ETC. [CHAP. 9, 9. closed, the l.md being of more value than the amount of the mortgage, he will be allowed interest on the money so advanced, and may credit himself, in his account, with the same. 9. Bad debts, what to do about. — If there are any bad debts due the ward, rents not collectible, etc., they should be entered in the form of a note or otherwise in the account, with an explanation as to why they were not collected. If this is not done, interested par- ties may, in after years, learn of them for the first time, and charge the guardian with negligence in not collecting them, by which time he might have forgotten, or be unable then to show why they were not collected. For this reason it is sometimes well, especially if a debt be large, to reduce it to judgment, and get the sheriff's or other officer's return of "no goods" as evidence of the impossibility of collecting. Still, expenses should not be North Carolina oases to sustain this rule; the others, so far as observed, citing some of the same cases. That this rule is not of universal application is shown by the following extract from a note in Schouler's Domestic Relations (page 500) : " Where commissions at the court's discretion are allowed, special services performed bv the guardian may be considered in fixing the rate of commission, but not as an additional charge. . . . McElhenny's Appeal, 46 Penn. St. 347. Even in New York the unfairness of an inflexible rule, applicable to all who hold trust moneys, has led to the assertion of a doctrine in a recent case, which threatens to disturb the chancery rule, formerly considered as well settled, namely, that services of a professional or personal character, ren- dered the ward, may be allowed to the guardian, besides the usual commis- sion, on the ground that they were rendered not as guardian but as an in- dividual. Morgan v. Morgan. 39 Barb. 20. In Maine, Massachusetts and other states where the court allows what is reasonable, the guardian may charge specific sums for special services, instead of or in addition to a com- mission ; provided the whole does not exceed a fair rate of compensation. Longley v. Hall, 11 Pick. 120; Rathbun v. Colton, 15 Pick. 471 ; Emerson, appellant. 32 Me. 159 ; Dixon v. Homer, 2 Met. 420 ; Roach v. Jelks. 40 Miss. T.'.l ; Evarta v. Mason, 11 Vt. 122." In view of the authorities given in the two preceding paragraphs, and of the fact that the English rule forbids trustees receiving any pecuniary com- pensation whatever, the first paragraph of this note maybe said to state the English, rather than the American rule; and in view of the further fact that Ohio is one of the states where the court is to allow reasonable compensa- tion, the concluding part of the second paragraph of this note may be con- sidered as the rule in this state; and as far as known to the writer, it is in accordance with the practice of our probate courts. CHAPTER 9, 10-15.] ACCOUNT OF GUARDIAN, ETC. 155 needlessly incurred in this way. 1 But the guardian must make every reasonable effort to collect such debts, and if he does not succeed, he should note the result as directed in paragraphs 18- 22, below. 10. Guardian must take receipts. — For every payment the guar- dian makes, he should take a receipt. It is required by statute, that his accounts be verified by vouchers or proof; and unless he makes it an invariable rule to pay out no money without get- ting a proper receipt for it, he will be unable to prove to the court, as he must do on settling, that the payments were made. 11. As to form of account. — The form of the account may be such as will be most readily prepared and understood by per- sons having a limited knowledge of accounts. The plainest form of " single entry " will be found to meet the necessities of nearly all the transactions of guardians ; the most complicated statements perhaps will be where loans and investments have been made ; but whatever the transactions may have been, they should be definitely stated. 12. The account should clearly show the debits and credits of the guardian, and refer by number or otherwise, to the vouchers produced ; the footings should be made and the balance struck; and the whole statement should be so complete that any person, including the ward after he shall have arrived at full age, can tell, from the account, without explanation, exactly how the guardian stands with the trust. 13-15. Form of account. — The following form and statement of an account is given as an example, showing the transactions of a guardian, and of the manner of striking the balance, and showing the condition of the estate of the ward at the time of filing the account. Another form substantially the same is given on pages 254-6. x " Ordinary prudence and diligence is the rule; and for culpable negli- gence subjecting the estate of his ward to loss he may make himself person- ally liable, even though the demand be against a person residing in another stale. He is not to sue in all cases where ordinary modes of collection fail; for the expenses of litigation are 10 be weighed against the chances of realizing a benefit." Schouler's Dom. Rel. 474. See page 86, above. 2 ? 6269, as amended, Vol. 77, O. L.. p. 77. Son pnr , 7, ehapter 5. 156 ACCOUNT OP GUARDIAN, ETC. [CHAP. 9. Current account of A. B., Guardian of the person and estate Receipts. 1878. Sept. 10.. Sept. 10.. Oct. 1.... '• 1.... " 15.... 1879. Jan. 2... " 2... " 15... March 1. April 1. . July 1.. •< ]o;; Oct. 1... " 1... " 15... 1880. Jan. 2... " 2... " 12... March 1. 1. April 1 " 16.. July 1 " 1 " 16 STATEMENT OF ASSETS RECEIVED, OTHER THAN MONEY AND LANDS. From J. L., administrator of said decedent, the following prop- erty <>ii distribution in kind, to-wit: 2 U. S. .$500.00 4 per cent, bonds .-..$1,000 00 14 shares L. M. R. R. stock 1,400 00 1 note on H. S 1,160 00 $3,500 00 CASH RECEIPTS. From J. L., administrator, on distribution of the estate of said E. D., dec'd.. interest on U. S. bonds 1 mo's rent of house in Glendale quarterly dividend L. M. R. R. bonds 3 mo's rent house in Glendale interest on U. S. bonds quarterly dividend L. M. R. R bonds 1 year's rent of farm in Green township, Hamilton County, Ohio 3 mo's rent of house in Glendale amount of note of H. S interest at 6 per cent., 1 year quarterly dividend L. M. R. R. bonds 3 mo's rent of house in Glendale interest on U. S. bonds quarterly dividends L. M. R. R. bonds interest 6n U. S. bonds 3 mo's rent of house in Glendale quarterly dividend L. M. R. R. bonds 3 mo's rent of house in Glendale interest on U. S. bonds quarterly dividend in L. M. R. R. bonds.. 1 year's rent of farm in Green township. for fallen timber, Green township 3 mo's rent of house in Glendale interest on U. S. bonds.., quarterly dividend L. M. R. R. bonds — interest on IT. S. bonds 3 mo's rent of house in Glendale.. quarterly dividend. L. M. R. R. bonds — Total Cash Receipts Total expended and invested (see next page) Balance of cash on hand, Sept. 10, 1880 — 1,080 10 •££0 10 28 350 225 1,160 69 28 22.' 10 28 225 10 28 350 32 225 10 28 10 225 00 28 00 4,985 4,755 230 CHAP. 9] ACCOUNT OP GUARDIAN, ETC. 157 of C. D., minor child of E. _D., dec'd., with estate of said minor Expenditures. 1878. Sept. 1.. " 20.. Dec. 10.. " 10.. " 10.. " 19. March 1 1879. Feb. 16 16, " 16 27, 27, Sept. 1. . . " 1... " 1... " 1... " 1.... 1.... 15.. " 15.. " 15.. " 15.. 1880. Jan. 10. . . " 10.... " 10.. May 1.. June 25 . . Dec. Sept. 1879. Dec. 10... 1880. Aug. 1.... 1880. Sept. 18.. Paid, probate court, letters of guardianship. " probate court, riling inventory " taxes on farm in Greene towns'p " taxes on house in Glendale " on personal property " repairing house in Glendale " back taxes, Louisiana land repairing fences on farm repairing barn on farm suit of clothing for ward underclothing " " repairing shoes " " tuition and room rent at college car fare : furnishing ward's room at college. cash to ward for incidentals. boarding for ward suits of clothing, underwear, etc., for ward . boots and shoes for ward books and stationery for ward. taxes on Louisiana land taxes on farm in Greene township taxes on house in Glendale taxes on personal property bills for clothing for ward cash to ward for incidentals boarding for ward boarding " " cash to ward for traveling expenses home, and incidentals clothing for ward ward's tuition and room rent at college books and sundries for ward boarding and sundries for ward cash to ward for incidentals ward's car fare, etc., to college guardian's compensation for all services to date tax on Louisiana land . ! . . Voucher, 9 10 11 12 13 14-16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Total expenditures Loaned cash to M. D., on mortgage note, at 7 per cent., paya- ble annually Purchased, as investment, U. S. Government bond Total expended and invested. STATEMENT OF ASSETS OTHER THAN REAL ESTATE, NOW ON HAND. Cash , U. S Government bonds. L. M. R. R. bonds Mortgage note of M. D.. Total. 4 1 31 212 49 66 25 28 1 120 in:. 10 245 42 Id 20 1 31 250 45 5 60 60 15 30 120 40 245 15 20 160 1 2,255 1,500 1,000 $230 35 2,000 00 1,400 00 1,50000, 5,13035 15S . ACCOUNT OF GUARDIAN. ETC. [CM AP. 9, 1 G-21 . 16. The entries showing the balance of cash, bonds, stocks and other property in the hands of the guardian, should he carried to the next account, and should be the first entries therein. 17. The final account must show that the guardian has settled with and paid to the ward all the remaining and unexpended money and property which came to the possession of the guardian. 18-21. Bail debts, how noted. Should there be uucollectible dehts, they may be noted as follows in the final account: " The following debts were uncollectible, and are still due, though every proper and reasonable effort has been made to collect them : From B. C, rent of Avondale house for Jan- uary and February of 18 — , at $25.00 per month $50.00 From J. L., admr. as aforesaid, said ward's share of the estate of said E. D., not paid over to said guardian 870.00 (Etc., etc.) "Said B. C, though previously a good tenant, failed in business in December, 18 — , with no assets whatever which his creditors could obtain, as proceedings against him by other cred- itors demonstrated ; and therefore, though said guardian often asked for the payment of said $50, no legal proceedings were ever had to recover it. 'Said administrator failed to pay over a large amount of money belonging to said estate, for which said guardian, with others, brought suit on his bond, which proved to be of no use, as will be seen by reference to records and papers in case No. , of the court of common pleas of this county. " (Etc., etc.) " 22. Ox*, the guardian can chai'ge himself with these items on the debtor side of the account, and credit himself with them on the other side, And explain them in a foot-note, or in any other clear and satisfactory way. 1 X A guardian is presumably liable to his ward for the nominal amount of debts due his ward's estate, which he has failed to collect; if they were not CHAP. 9, 22-27.] PAY OF GUARDIAN, ETC. 159 23. Guardian must make affidavit to the account — its form. The guardian must make oath to the account, which oath may be in form as follows : 24-5. The State of Ohio, county, ss: A. B., guardian of 0. D., a minor, being duly sworn, says that the foi-egoing account is in all respects true, just and correct, to the best of his knowledge and belief. [If any property sold at private sale by order of court is therein accounted for, here add~] and that the private sale of the property therein mentioned as made by order of court, was made after diligent endeavor to obtain the best price for the same, and that the sale reported is for the highest price that could be obtained for said property. A. B. Sworn to and subscribed before me, this day of , 18—. A. C, Probate Judge. 26. Form of Journal Entry when the Accounts are Filed. In the matter of the guardianship of CD. This day came A. B., guardian of said C. D., and filed his ac- counts, as such guardian, for partial [or, final] settlement. COMPENSATION OF GUARDIAN. 27. The amount of guardian's compensation. The statute fixes no definite amount or mode of ascertaining what compensation shall be allowed to the guardian for his services, but this is left wholly to the judgment and discretion of the court. It is sim- ply provided that every guardian shall be allowed by the court settling his accounts, the amount of all his reasonable expenses incurred in the execution of his trust; and also such compensa- tion for his services as the court shall deem reasonable. 1 28. Ordinarily, perhaps, as good a rule as carl be adopted, at least where the guardianship is of short continuance, is to allow the same fees as are allowed to executors and administrators, which is six per centum on the first thousand dollars, four per collectible for their face, that is for him to show in defense. Seigler v. same, 7 S. C. (1876) 317. 1 g 6288. See note 3, p. 153; also 12 Law Bui. 59. 11 160 ACCOUNT OF GUARDIAN, ETC. [CHAP. 6. 29-32. centum on all over that and not exceeding five thousand dollars, and two percentum on all over that amount. 29. Tnese percentages are what would properly be allowed once only on the principal of the ward's estate, after which the percentage should be on the income only ; 1 otherwise, by making short investments, and re-collecting frequently, the estate would soon all be the guardian's, and not the ward's. For extra- ordinary, services or trouble, such additional sum as under all the circumstances is thought by the court reasonable and proper.' 2 30. But no absolute rule can be given, cither for ordinary or extraordinary services. The court must estimate these services from all the circumstances of the particular case, taking into consideration the trouble incident to the guardianship, whether of the person or estate, or both, the responsibility of the guar- dian in handling the moneys ; of training, educating, and caring for the person of the ward; and the fact whether these things have been faithfully done, etc., etc. 31. For care of real estate. The trouble incident to the care of real estate is also a proper subject to be considered in fixing the compensation. 32. For taxes paid, etc. The guardian is entitled to his expenses, and a reasonable compensation for his time and 1 Where more than one account is filed by an executor or administrator, the rule for the allowance of commissions remains unchanged. Upon the filing of the second, or any subsequent account, the computation is taken up where left by the preceding account, and the money contained in the preceding account, or accounts, is added to what is subsequently ac- counted for, and the computation of the commissions is made as though the moneys were all comprehended in one account. For example: If an estate amount to six thousand dollars; and in the first account nine hundred dollars be accounted for; in the second, four thousand dollars, and in the third and final one, eleven hundred dollars ; on the settlement of the first account, the commissions would be six per cent. ; of the second, six per cent, on one hundred dollars, and four per cent, on three thousand nine hundred dollars; and of the third, four per cent, upon one hundred dollars, and two per cent, on the residue. But an executor or administrator may claim compensation for extra services upon the filing of every account. Raff's Guide, page 160. 2 See note 3, page 153, as to compensation for special services as attorney. CHAP. 9, 33-37.] ACCOUNT OF GUARDIAN, ETC. 161 trouble in listing lands for taxation, and paying the taxes thereon. 1 33. When no compensation allowed.— But if the guardian fails to render, upon oath, to the proper court, an account of his re- ceipts and expenditures as such guardian, verified by vouchers or proof, at least once in every two years, he will, unless excused by court, receive no allowance for bis services. This is the per- emptory command of the law. 2 34. Compensation of guardian's executor, etc. — As already stated, if the guardian dies before settlement of his accounts, and his executor or administrator settles them, such executor or administrator making such settlement must be allowed such com- pensation for the same as the court with which the settlement is made shall deem reasonable. 3 In such case there should un- doubtedly be an apportionment of the compensation, and the deceased guardian's actual necessary expenses incurred as guar- dian, and a reasonable compensation for his services to the time of his death, should be allowed to his estate. 35. Notice of filing accounts to be published. — It is the duty of the probate judge to cause notice to be published in some news- paper of the county, of the filing of any accounts by guardians and trustees, specifying the time when such accounts will be heard, which must not be less than three weeks after the publi- cation of such notice. The probate judge may then, for cause, allow further time to file exceptions to said accounts ; and the costs of such notice must be paid, if more than one account be specified in the same notice, in equal proportions by the guar- dians or trustees, respectively.* 36. Who may file exceptions to account. — Any person interested in such account may file exceptions to it at any time before the day set for the hearing, pointing out the particular items ex- cepted to. 37. The hearing. — When the day of hearing arrives, the judge should examine closely the account, and compare the same with 1 See par. 8, chap. 8. 2 See par. 8, chap. 5. 3 See par. 11, chap. 4. * § 6402. 162 ACCOUNT OF GUARDIAN, ETC. [dlAP. 9, 38-40. the vouchers, and see that the footing of figures are all correct ; and this the judge should do whether exceptions are filed or not. 38. Examination Sf accountants under oath. — The probate judge has full power and authority to examine guardians and trustees under oath touching their accounts ; and if he thinks proper to do so, he may reduce such examination to writing, and require such guardian or trustee to sign the same ; and such examination must be filed with the papers in the ease. 1 39. Guardian and ward can not sue each other, until. — It may be remarked here that a guardian is not liable in an action by his ward, until he has been called on by the judge of probate to set- tle his account, and has refused ; or has settled, and a balance has been found due to the ward. 2 40. And on the other hand, if the guardian has advanced money for his ward, he can not sue his ward therefor, when he arrives at full age, but must have it adjusted by a settlement of his accounts with the probate court. 3 1 \ 6403. 2 Schouler's Dom. Rel. 502, 506; also Gibbs v. Lum, 29 La. Ann. (1877). 526; 38 O. S. 430; 12 W. L. B. 197. See par. 65 and note 2, p. 178. 3 Davis v. Ford, 7 O. 2d pt, 104, 109. See more fully note 1, page 165, 166; also Schouler's Dom. Rel. 502. A guardian may, in his account, filed for settlement in the probate court, charge all proper debts due him from his ward, although accruing prior to the guardianship. Such accounts will be scrutinized with great jealousy, but they must be settled in that way, since the guardian can not sue his ward or himself. Such accounts may be filed for settlement at any time when the probate judge will receive them. When so filed, the probate judge has no discretion to refuse to settle them, though he disallowed items not proper charges, and he must receive such account once in every two years at least, and whenever guardianship is terminated. If the probate judge refuse to settle such account, and dismiss it for want of jurisdiction, there is no remedy by appeal to the common pleas. The remedy is by mandamus to require the judge to proceed and settle the account. A resignation of the guardian does not abate the proceeding on the account, but the court should proceed to settle it. The probate court exercises but a limited jurisdiction, but having power to settle guardian's accounts, would generally follow the analogies of the chancery jurisdiction over the same subject. And in chan- cery, allowances for maintenance and repairs will be limited to the income of an estate, unless made on order of the chancellor, or unless very pecu- CHAP. 9, 41-42.] ACCOUNT OP GUARDIAN, ETC. 163 41. When to settle with ward, and take his receipt. — Some pro- bate judges direct the guardian to settle in full with his ward after he arrives of age, file his receipt as a voucher, and to pre- sent the final account closed up, the judge of course reserving the right to review and change the account. Other judges re- quire the guardian to come to court with his vouchers and his account completed, except as to his compensation and the amount due the ward, the respective amounts of which the court decides. I n such case, the guardian must afterward pay the ward the amount so found due, and take his receipt therefor. The account may be kept open by the court till such receipt is obtained and filed, thus completing the account. 1 42. Or such account may be treated as an account current, and a final account, showing such receipt, may be filed later. liar circumstances exist, when claims incurred by a guardian without au- thority, beyond the income, may be allowed as a charge on the principal. Walker & Bates Digest, art. Guardian. 1 One standing in the relation of a parent and guardian in fact, of a minor, having the custody and control of such minor, and of his property during such minority, is bound to the most scrupulous good faith in the manage- ment of the estate, and where, on such minor's coming of age, he attempts to make a settlement of his trust with him, a court of equity will examine the transaction with extreme jealousy, to see that no undue influence has been exercised, that the parties have been put on an equal footing, by full dis- closures, and that no advantage has been taken. Berkmyer v. Kellerman, 32 0. S. 239. Where a party occupying such a relation, claims any benefit or advantage from a settlement with his ward on his coming of age, of his trust transac- tions, the burden of proof is on him to show that he has made full disclos- ures, that he has exercised no undue influence, and that such settlement is fair and equitable. 76. A conveyance by such minor on the day he comes of age, of all of his real estate to the persons occupying such relations, in execution of such a settle- ment made for such minor by others not authorized to bind it, and while he is still under their influence and control, and not advised of his rights, is not binding, and can only be upheld in a court of equity by clear proof, that under all the circumstances it is just and equitable. lb. If the settlement relied on to uphold such conveyance embraces distinct and several claims of two or more, who hold such relations to the child, such conveyance may be sustained as to one, and set aside as to the others, ac- 164 ACCOUNT OF GUARDIAN, ETC. [CHAP. 9, 43-47. 43—46. Form of Journal Entry of Confirmation of Accounts In the matter of the guardianship of C. D. Notice of the filing of the account of A. B., as guardian of C. D., heretofore filed for partial [or, finalj settlement, having been duly given by publication in , a newspaper of this county, and this day being the day named therein for a hearing of said account, the same came on this day to be heard ; * and no exceptions thereto being filed, the court carefully examined the same, and finding it in all things true and correct, it is or- dered that the same be and it is hereby confirmed and settled. And the court does further find that there is in said guardian's hands none of said ward's money [or> a balance of dollars of said ward's money ; and if on an account intended to be final, add, which he is hereby ordered to pay to said C. D , or ivhomsoever is entitled thereto.'] 47. [Or, if there be exceptions filed and overruled, begin at tlie--', ami say:"] Upon the account and the exceptions thereto file-d by . and having heard the testimony, and the court being fully advised in the premises,* finds that the said exceptions are not well taken, but that said account is true and correct; where- cording as the equity of the ease will warrant. lb- See also notes on pp. 82, 165. Suit on a guardian's bond, Held: 1. A receipt signed by a ward after he became of legal age, acknowledging that he had received from his guar- dian a certain sum "in full of all demands," etc., was not conclusive evi- dence of a settlement between the guardian and ward, and could be ex- plained or contradicted by parol evidence. 2. The final report of the guar- dian, which had not been allowed and approved by the court, was not com petent evidence to show a settlement. If the facts in the case were true, the guardian was a competent witness to prove them; but his simple ex parte statement, though verified by oath, was not competent evidence to prove such facts. The unapproved and allowed report was nothing but an ex parte sworn statement. Beedle v. State, ex rel. (Sup. Ct. Ind., Nov. '78.) 3 Cin. Law Bui. 902. Where a ward, on coming of age, joined with her brothers, sisters, mother, and step-father in executing a release of a farm, etc., to her guardian, who was her eldest brother, in order to carry out a family arrangement of what had before been done, Held: that the ordinary presumption as to a release "from a ward just out of the leading strings" did not apply. Cowan's Ap- peal, 74 Pa. St., 329. CHAP. 9, 48-51.] ACCOUNT OF GUARDIAN, ETC. 165 upon it is ordered, that the said account ought to be and it is hereby confirmed and settled. [If the facts require it, add: And the court further finds, that there is remaining in the hands of said guardian, a balance of dollars of his ward's moneys; ami if on an account intended to be final, add, which he is hereby ordered to pay to whomsoever is entitled tlieretoj. 48. [Or, if the exceptions are allowed, proceed as in the last form to the *, and then say:'} do find that the exceptions are well taken, and they are therefore allowed ; and the court further find that in all else, the said account is true and correct ; whereupon it is ordered that the items objected to in said exceptions be not al- lowed in said account, and that in all things else the same be and it is hereby confirmed and settled. And the court further find that there is remaining in the said guardian's hands a bal- ance of dollars of said ward's mouevs ; [if facts require it, conclude as before.} 49. To whom guardian must pay balance in hand at settlement. — When a settlement intended to be final is made, and an amount is found in the hands of the guardian, he must pay that balance over to the ward, if or' full age; or to the. succeeding guardian, if one be ap- pointed, the ward not being of age; or to the administrator of the ward, if dead, whether of age or not; or into court, if the court so order it to be done; and in cither case the guardian should take a receipt therefor, and then file a final account. 50. Effect of settlement with court. — The settlement made in the probate court of the accounts of a guardian will be final between him and his ward, unless an appeal be taken therefrom to the court of common pleas in the manner provided by law. 1 51. When and how ward may review the settlement. — But any such ward has the right of opening and reviewing such settle- 1 jj 6289. Astoappeals, see, chap. 24. As to compelling payment, see p. 182. The account required of the guardian, to be rendered at least every two years to the probate court, when rendered and judicially passed on by the court, is a settlement within the meaning of section 31 (6289); and under the provisions of that section, every settlement is final between the guardian and ward, unless an appeal is taken therefrom, or it is opened under the provisions of that section. Woodmansie v. Woodmansie, 32 (). S. 18. When a guardian closes his account with his ward, by filing a flnal settle- ment in the probate court, an amount being due his ward, for which he in- 166 ACCOUNT OF GUARDIAN, ETC. [CIIAP. 9. ment, for fraud or manifesl mistake, by civil action in the court of common pleas of the county in which such settlement was math', or the county where such guardian may reside when the petition is filed, at the option of the plaintiff in such action, at any time within two years alter the said ward shall arrive at full age. 1 A.s to compelling payment, see par. 81, chap. 10. duces her to sign a receipt as for money paid, he agreeing to he responsible to her for the amount, with interest, an action may be maintained upon such agreement by the ward, and the sum actually due recovered from the guard- ian, without in any way opening or reviewing the accounts* winch had been settled in the probate court. Lindsay v. Lindsay, 28 0. S. 157. A guardian can not sustain an action against his ward while the relation of guardian and ward subsists, tin- advances made to his ward, as evidenced by a balance due to him on settlement with the court. Davis v. Ford, 7 O. 2 pt. 104. The action to recover any balance that may be due him from his late ward must be brought in the proper court, after such balance is declared in the probate court, and after the relation between them ceases to subsist, lb- But a guardian may, in his account filed for settlement in the probate court, charge all proper debts due from his ward, although accruing prior to the guardianship; for he can not bring an action against himself or his ward while the relation continues. When so filed, the probate judge has no discretion to refuse to settle them, though he should scrutinize them with great jealousy, and disallow items which are not proper charges. lb. After a ward becomes of age, he stands in the relation of creditor to his guardian. His cause of action is then complete; and if he fails to bring suit within the time limited by statute thereafter, the claim is barred. Cole- man v. Willis, 46 M. 236. The accounts rendered from time to time by a guardian during ward's minority, and approved by the probate court, are only prima facie correct, and do not bind the ward when he is able to show that they are erroneous. Willis v. Fox, 25 Wis. 646. 1 \ 6289. In the absence of fraud, account can not be attacked by ward after two years. High v. Snedicor, 57 Ala. 403. See 25 Wis. r>46, ahove. Only upon clear and satisfactory proof will a final settlement, made by a guardian with his ward after she has arrived at majority, be impeached after a lapse of a long interval of time — as here, nearly a quarter of a century. Railsback v. Williamson, 88 111. 494. The final settlement of a guardian made in the probate court, unless re- voked, reopened or appealed from, is conclusive upon the parties ; it can not be attacked collaterally, in a suit by the ward on the guardian's bond, for the allowance to a third person of an unjust and fraudulent claim in sucb settlement. Holland V State, 48 Ind. 391. CHAP. 9, 52-56.] ACCOUNT OP GUARDIAN, ETC. 1G7 52. Guardian should get final release from ward. After the guardian has fully settled his accounts and paid over any balance due to the ward, and taken a receipt therefor, it would be good and prudent practice to ask the late ward, some time after the settlement, to examine, in person, or with an accountant or at- torney, the accounts to his own satisfaction, and if explanations are then wanted, to ask for them ; and if all matters are found to be satisfactory, then to give to the guardian a full release 1 and discharge from all obligations arising from the guardianship. 53. Form of. Such release' might be in form as follows, or be i varied to suit the facts : 54. 1 have examined, in person {or, by attorney; or, in per- son and with the assistance of H. M., my attorney) the accounts and final settlement of A. B., my late guardian, and find said accounts and settlement to be in full, just, fair, and satisfactory; and for a valuable consideration to me paid, I hereby release him from any further obligations on account of or arising from his relations to me as said guardian. (Date) C. D. 55. Such release no defense, when. Such a release would not protect the guardian from any fraud, deception, or manifest mis- take. 2 " 56. Notice of filing accounts, etc. — Paragraphs 20-24, pp. 256-7, are applicable to the accounts considered in this chapter. 1 A valid release from the ward, absolving the guardian from all liability to account, and her acceptance of the consideration of the release, in satis- faction of her demands, bars her of all right to call him to account for the profits derived from the unauthorized use of her estate. Satterfield v. John, 53 Ala. 127; Cheever v. Congdon, 34 Mich. 296. 2 Lindsay v. Lindsay, 28 0. S. 157; Beedle v. State, 62 Tnd. 26; Bruce v. Doolittle, 81 111. 103; Monnin v. Beroujon, 51 Ala. 196; Traders. Lowe, 45 Md. 1; Womackv. Austin, 1 S. C. 421. "As before stated, a release executed upon proper advice, with ample time for mature deliberation, and upon full information, is prima facii valid; and the burden is upon the party disputing it to impeach it." Perry on Trusts, § 923. 168 EXCEPTIONS TO BOND, ETC. [CHAP. 10 CHAPTER 10. BOND. EXCEPTIONS TO — RELEASE FROM — SUITS ON. Tar. EXCEPTIONS TO THE BOND. 1. Already treated in part. 2. Who may file exceptions, and when. 3-G. Form of exceptions. 7. Notice must be given to guar- dian. 8-9. How served. 10-U. Form of notice. 15. When served. 16. By whom served, and how ser- vice proved. 17-20. Form of affidavit in proof of service. 21. Adjournments. 22-23. Form of journal entry of ad- journments. 24. Final hearing. 25. Court may require additional sureties, etc. 26-28. Form of journal entry. 29. If exceptions sustained, what. 30-32. Form of journal entry, sus- taining exceptions, revoking letters, and assessing costs. 33. Costs, who to pay. 34. Court must act of its own mo- tion. 35. Guardians right to notice, etc., in such case also. THE RELEASE OF SURETIES. 36. How surety of guardian re- leased. 37-39. Form of the request to be re- leased as surety. Par. 40-45. Form of notice to the guar- dian. 46. The service of such notice. 47-49. The form of the affidavit of service. 50. Journal entries. 51-52. Form of entry noting the fil ing of the request. 53-54. Form of entry requiring new bond. 55. Entries when new bond given. 56-57. Form of entry where the bond is approved. 58. Guardian removed, if bond not given. 59-60. Form of journal entry where bond is not approved or not given. 61. As to release of sureties, if guar- dian removed. 62. New guardian should be at-once appointed. 63. Extent of old surety's liability. 64. As to joint bonds. SUITS ON THE BOND. 65. How suit on bond brought, and by whom. 66. Effect of judgment. 67-69. Extent of remedy by suit on bond. 70. Separate liability of guardian. 71-72. Liability of the sureties on the bond. 73-75. When suit on guardian's bond must be brought. CHAP. 10, 1-7.] EXCEPTIONS TO BOND, ETC. 169 Par. Par. 76. Sureties may be made parties to 82-88. Form of petition by ward in judgment. such case. 77. Where guardian may be sued. 89-93. Form of petition by a creditor 78. When non-resident guardian may of the ward. be served by publication. 94. Form of petition in other cases. 79. Guardian may sue in his own 95-99. Form of citation upon petition name. being filed. 80. How guardian's bankruptcy ef- 100. How to proceed, if guardian fects his liability. has become a non-resident. 81. Special proceedings to compel 101-103. Form of notice by publi- guardian to pay money found cation in suit to compel distri- due on settlement. bution. 1. Already treated in part. It having been deemed necessary to specify in chapter 3, paragraphs 37-89, who must give bond and who need not, its form, requisites, and certain journal entries concerning it, these matters need not be again mentioned here. EXCEPTIONS TO THE BOND. 2. Who may file exceptions, and when. At any time after the bond has been given, any person, whether of kin to the ward oi not, who may judge the bond to be insufficient, may appear on behalf of the minor, in the court where the appointment of the guardian was made, and there file exceptions to the bond of such guardian, as to the sufficiency of the amount of the penalty thereof, or the sureties therein. 1 3-6. Form of exceptions. These may be in the following form : Exceptions taken by M. JS\, in behalf of C. D. , a minor, to the bond of A. B., as his guardian. And now comes M. N., on behalf of said minor, and excepts to the bond of said guardian, because, (1.) The amount of the penalty thereof is not sufficient. (2.) The sureties are not suf- ficient. M. N., For C. D. 7. Notice of, must be given to guardian. When the exceptions are so filed, notice thereof must be given to the guardian whose bond is excepted to, requiring him to appear before the court 1 §6261. 170 EXCEPTIONS TO BOND, ETC. [CHAP. 10, 8-16. within a reasonable time, not exceeding ten days, and show cause against the allowance of the exception. 1 8. How served. The law provides that when notice of any proceeding in a probate court is required by law, or deemed necessary by the probate judge, and the manner of giving the same is not directed by statute, the probate judge must order notice of such proceedings to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable. 2 9. In this case the statute fixes the time within the limit of ten days, but not the form of the notice, nor the manner of serving. The following 10-14. Form of notice — would meet all the requirements of 1?he case, the court therein fixing the day and hour of hearing the exceptions. To A. B., guardian of C. D. : You are hereby notified, that on the day of , A. D. 18 — , M. N., on behalf of the said C. D., filed in the probate court of- county, Ohio, exceptions to your bond as guardian of C. D. You are therefore required to appear before said court on the day of , a. d. 18 — , at — o'clock, — . M. [not exceeding ten days from the date of the notice'], and show cause, if any you have, why said exceptions should not be allowed by the court, and you be required to give further security. Witness my hand and the seal of said court, this day of , a. d. 18—. [l. s.] A. C, Probate Judge, etc- 15. Wlxen served. The notice should be served upon the guard- ian without delay, as he will otherwise be adjudged not to have had sufficient time to prepare himself to meet the exceptions, and the court will therefore not act upon them on the day fixed upon in the notice. 16. By whom served, and how service proved. The notice may be served and returned by the sheriff of the proper county, as 1 §G261. 2 § 6406 CHAP. 10, 17-25.] EXCEPTIONS TO BOND, ETC. 171 other process is served and returned by him, or it may be served by the person taking the exceptions, or by any one else. If served by any one other than the sheriff, an affidavit of service should be made on the back of the notice by the person making the service, and returned to the court on or before the day set for the hearing. See paragraph 8, this chapter. 17-20. Form of affidavit in proof of service. Such affidavit may be in the following form : The State of Ohio, county, ss. M. N., being duly sworn, says, that on the day of , a. d., 18 — he served the within notice upon the said A. B., by giving him personally a true copy thereof. (Signed) M. N. Sworn to and subscribed before me, this day of , a. d. 18—. A. C, [seal.] Probate Judge, etc. 21. Adjournments. Upon the day set for the hearing, the court may, undoubtedly, upon good cause shown, adjourn the hearing, at the instance of either party, to any other day; but no adjournment should be had without good cause, nor should it then be so long as to occasion unreasonable delay upon either side. But the whole matter of adjournments is within the sound discretion of the court. 22. If an adjournment is at any time had, the same ought to be noted on the the journal of the court, and may thus : 23. Form of Journal Entry of Adjournment. In the matter of the exceptions of M. N. to the bond of A. B., as guardian of C. D. This matter is continued until the day of , a. d. . at o'clock — M. 24. Final hearing. Upon the final hearing of the exceptions to the bond, the court will hear the parties testify, and such other witnesses, including the sureties, if they are offered, as either party may produce; and arguments of counsel may also be heard. 25. Court may require additional sureties, etc. Upon such hear- ing, the court may either dismiss the exceptions, or require the 172 EXCEPTIONS TO BOND, ETC. [CHAP. 10, 26-29 guardian to find additional sureties, or security in a larger amount, or make such other order as the ease may require. 1 2G-28. Form of journal entry. If the exceptions are dismissed, the following entry should be made: In the matter of the exception of M. N. to the bond of A. B., as guardian of C. D. This day this matter ca'me on to be heard, upon the allega- tions of the parties and the testimony offered, and the court, being fully advised in the premises, find the exceptions are not well taken ; and it is therefore ordered by the court that the same be dismissed, and that the said M. N. pay the costs herein, taxed at dollars, within days, and in default thereof that an execution issue therefor, as upon judgments at law. 29. If exceptions sustained, what ? If the court, however, sus- tain the exceptions, in any or all particulars, then an order must 1 £62til- The proper court has the power to require the guardian to give an additional bond for the discharge of the general duties of the of- fice. Suit may be brought upon the additional bond before the original bond given by the guardian is exhausted, or the sureties thereon shown to be worthless. Where it does not clearly appear to have been the intention that such additional bond was to be subsidiary to, and security for, the orig- nal bond, the obligors in the additional bond are liable for breaches of it, either in a separate suit against them and the obligors in the original bond upon both bonds. In such case the additional bond is a primary concurrent security. Allen v. State; 61 Ind. 261; same, 3 Cin. Law Bui. 747. The late court of common pleas, acting as a probate court, had authority to require a guardian to give a second bond, in case the first had become in- sufficient. (Hocking District Court, 1852.) Case v. State, 10 W. L. J. 163. The sureties on a second bond required a guardian, on the first having be- come insufficient, providing for a faithful discharge of his duties, are liable for failure to pay over all money of his ward, whether received prior or sub- sequent to the bond. lb. In a suit by a guardian against the sureties of a former guardian, under section 7 of the act of April 17, 1857 (S. & C. 621), the defendants are not precluded by the proviso contained in said section from denying the fact of the plaintiff's guardianship, though after judgment against their principal. 1866. Shroyer v. Richmond, 16 0. S. 455. The liability of a surety on a new bond is prospective only. Lowry v. State, 64 Ind, 421. CHAP. 10, 30-35.] EXCEPTIONS TO BOND, ETC. 173 "be made accordingly; and, in such case, the entry may be in the following form : 30-32. Form of Journal Entry, sustaining Exceptions, Revoking Let- ters and Assessing Costs. In the matter of the exceptions of M. N. to the bond of A. B., as guardian of C. D. This day, this matter came on to be heard, upon the allegations of the parties, and the testimony offered ; and the court, being fully advised in the premises, find that the sureties upon said bond are insufficient [or, if the case be so, say, the amount of said bond is in- sufficient by the sum of dollars] — [or if both of these facts are found by the court, then state them both as found] ; it is therefore or- dered by the court that the said A. B., within days [a reason- able time to be fixed by the court], give bond as guardian, as aforesaid, in the same amount as the former bond, with additional sureties, to the satisfaction of the court [or if the finding require it, say, give an additional bond, as guardian, as aforesaid, in the sum of dol- lars]; and it is further ordered by the courts that in case the said A. B. shall fail to comply with the foregoing order within the time limited in that behalf, then he shall be removed from his office as guardian of the said C. D., and his powers and authority as such guardian shall thenceforward cease and determine. And, it is further ordered, that the said A. B., out of his own private estate [or, out of the estate of said C. D.], pay the costs herein within days, and in default thereof, that execution issue therefor, as upon judgments at law. 33. Costs, who to pay; court decides. — The question as to who shall pay costs, is one for the court to determine, upon the whole cir- cumstances of the case, exercising a sound discretion therein. 34. Court must act of its oivn motion . — But even if no exceptions are filed by any one, the statute nevertheless makes it the duty of the court, by whom any guardian is appointed, to require, of its own motion, such guardian to give an additional bond, whenever, in the opinion of the court, the interests of the ward of such guar- dian demand the same. 1 35. Guardian's right to notice, etc., in such case also. — A notifica- 1 1 6261. 174 EXCEPTIONS TO BOND, ETC. [CHAP. 10, 06. tion similar to that in paragraphs 10-14, so modified as to show that it is a movement of the court itself, should be served upon the guardian ; and proceedings and orders similar to those made where exceptions are tiled, should be had when the court acts upon its own motion. THE RELEASE OF SURETIES. 1 36. How surety of guardian released. — Any surety of a guar- dian may, at any time, apply to the proper probate court to be released from his bond of such guardian, by filing his request therefor with the judge of such court, and giving ten day's no- 1 See notes on pp. 36, 164-7, 172, 177-181. The judgments and orders of the probate court, including the approval of partial and final accounts of guardians, import absolute verity as between the parties thereto, and they can not be contradicted or questioned collater- ally; but where a surety in the bond of a guardian is discharged before any account is filed, and a new bond, with other surety, is accepted in lieu of the first bond, and, before such substitution, the guardian of the ward embezzled money of the ward received after the first bond was given, the fact that, subsequently to such substitution, the guardian files his first account, which is approved by the probate court, failing to show the receipt of the money so embezzled, will not bar an action by the person who was ward, on arriv- ing at Cull age, against the surety in the first bond, if the guardian, in a sub- sequent account, charges himself with the money so embezzled; and parol evidence is admissible to show when it was received, and also when it was embezzled. Eichelberger v. Gross, 42 O. S. 49. On December 28, 1872, N. was appointed guardian of an imbecile; he gave bind with B. and T. as sureties, and entered upon his trust. At sun- dry times thereafter, by order of court, he sold real estate of his ward, and at each sale gave the special bond required by law. He received in cash the proceeds of the land sales, and he also received a small amount for the rents of real estate. After the proceeds and amounts were so received, B. was released as surety, and N. gave a new bond, with T. and T. as sureties, and he continued in his trust. N. resigned, and settled his accounts with the court, which found a large amount due from him t > his ward, and or- dered the same paid to his successor. Thereupon N. paid the greater part of the amount due, but he made default as to the residue, and his successor brought suit on the last general bond, against N. as principal, and T. and T, as sureties. Held, the sureties on such bond are liable for the unpaid residue whether or not the same i* partly or entirely the proceeds of the sale of such real estate. Tuttle v. Northrop," 44 O. S. 178. In the settlement of a guardian's account, he was credited with the pay- ment of moneys for his ward, which in fact had not been paid, and the ac- count was subsequently corrected during the minority of the ward. Held, that in such case the liability of the surety in the guardian's bond is not af- fected. Scobey v. Gano, 35 O. S. 550. Release by court of one of two sureties on a joint and several guardian's bond, and accepting another surety in his place, releases the co-surety not having consented thereto. But such bond is good against the new surety. Dovvell v. Guion, 2 Bull. 135; 7 Bee. 273. CHAP. 10, 39-49.] EXCEPTIONS TO BONDS, ETC. 175 tice to such guardian when application will be made to such court to release such surety. 1 37-39. Form of the Request to be Released by Surety. To the Probate Court, county, Ohio: The undersigned, a surety on the bond of A. B., as guardian of C. D., requests to be released from said bond. P. Q. 40-45. Form of Notice to the Guardian. To A. B., guardian of C. D.: Sir : On the day of , a. d. 18—, I filed with the pro- bate judge of county, Ohio, a request to be released from the bond on which I am surety for you, as guardian of C. D. . The matter will be beard, by said probate judge, on the day of , a. d, 18 — , at o'clock, — m. [this day must be ten days from the day the notice is served'], at which time you must give a new bond, with sureties to be approved by the court, otherwise you will be removed from such guardianship. Dated day of a. d. 18 — . [Signed] P. Q. 46. The service of such notice may be by leaving a copy thereof with the guardian at the time above directed. Such service may be made, unless otherwise ordered by the judge, by some disin- terested person, who should afterwards appear before the pro- bate judge, or some other officer authorized to administer oaths, and make affidavit on the back of the notice as to its service. The notice itself should then be filed in the probate court as evi- dence of service. 47-49.- — The form of the affidavit of service may be as follows : State of Ohio, county, ss. M. .N. oeing duly sworn, says, that on the s day of , a. d. 18 — , he served the within notice upon A. B. personally, by lea vim!; with him a true copy thereof. [Signed], M. N. !§ 6273. See notes on pp. 179, 180 ; 42 0. S. 549. If proper notice is not sprved, as required by law, a surety's discharge would be void. Dupont v. Mayo, 56 (la. .104. 12 176 EXCEPTIONS TO BONDS, ETC. [CHAP. 10,50-57. Sworn to and subscribed before me, this day of a. d- 18 — . A. C, Probate Judge, etc. 50. Journal entries. — There should be an entry of these pro- ceedings upon the journal of the court, as each step is taken. 51-52. Form of Entry Noting the Filing of the Bequest. In the matter of the guardianship of C. D. This day came P. Q., a surety on the bond of A. B., as guar- dian of C. D., and filed his written request to be released as such surety. 53-54. Form of Entry Requiring New Bond. In the matter of the guaixlianship of C. D. This day came P. Q., a surety on the bond of A. B., as guar- dian of C. D., and produced here to the court the notice to A. B., of his application to be released as such surety, and it being proved to the satisfaction of the court, that said notice was duly given to said A. B., by copy served upon him personally by M. N., on the day of , a. d. . [a day ten or more days be- fore the day of hearing,] it is therefore ordered that said A. B. shall give a new bond in the sum of dollars, as guardian as aforesaid, conditioned according to law, with surety to the ac- ceptance of the court, within days. 55. Entries when new bond given. — If the new bond be given within the time limited therefor in the last order, then an entry should be made of its approval or rejection, as tbe case may be. 56-57. Form of Entry where the Bond is Approved. In the matter of the guardianship of C. D. This day came A. B., guardian of C. D., and gave a new bond as such guardian, in the sum of dollars, conditioned accord- ing to law, with and , as his sureties thereto, in accordance with the former order of this court, which last named bond and sureties are approved by the court. And it is thereupon ordered that said P. Q., a surety upon the former bond of said A. B., as such guardian, be and he is henceforth released upon said former bond, for and on account of the acts of said A. B., as guardian as aforesaid, from this time forth. CHAP. 10, 58-63.] EXCEPTIONS TO BONDS, ETC. 177 58. Guardian removed if bond not given. — If the guardian fails to give bond when directed by the court to do so, he must be removed and his letters must be superseded. 1 59-60. Form of Journal Entry where Bond is not approved or given. In the matter of the guardianship of C. D. This day being the day fixed by the court, by the former order herein, when the said A. B. should give a new bond as guardian of C. D., in the sum of dollars, conditioned according to law, and with sureties to the acceptance of the court, the said A. B. failed to give such bond. It is therefore ordered by the court, that the said A. B. be, and he is hereby removed from the said guardianship of the said C. D., and that his letter of guardianship be, and is hereby superseded, and his powers as such guardian henceforward revoked. 61. Order releasing sureties not needed, if guardian removed, be- cause the guardian's removal of itself releases the sureties as to the guardian's future art.--. 62. New guardian should be at once appointed, in case of removal of the guardian, so that the ward's estate, as well as the ward, may he properly taken care of. 63. Extent of old surety's liability. — The original surety will not be released until such guardian so gives bend : but such original surety will be liable only for the acts of such guardian from the time of the execution of the original bond to the filing and approval by the court of such new bond. 2 >§G273. 2 ?6273. State v. Paee. 73 Ind. 209. See notes pp. 36, 174, 180. The sureties on an administration bond, given by an executor who has been removed are liable thereon to the administrator appointed in his place for the indebtedness of such executor to the estate for assets received by him and converted to his own use; and a recovery may be had therefor by the successor in a suit on the administration bond. Foote v. Wise, 46 O. S. 20; Slagel v. Entrekin, 44 O. S. 637, approved and followed. See same case fur- ther. The same principles govern a guardian's bond. The estate of a deceased surety on a guardian's bond is liable for a default which occurs after the surety's death. Cotton v. State, 64 Ind. 573; 47 Ind. 316; 59 Ind. 485. A guardian t'ivinc another bond upon order of court for other and better security, does not release the sureties upon the original bond, nor render those upon the new bond primarily liable. McGlothlin v. Wyatt, 1 Lea (Tenn.) 178 EXCEPTIONS TO BOND, ETC. [CHAP. 10, 64-65. 64. As to joint bonds. If two or more trustees or guardians have given a joint bond, it is in the nature of an agreement to be answerable for each other's acts and defaults. The remedy for a breach of trust in such cases is a suit upon the bond, in the name of the proper person, for the benefit of those interested, against all the joint makers and sureties of the bond ; and any breaches of trust, committed by either or all the guardians, may be given in evidence, and a judgment against all will "be ren- dered, although the breach of trust was committed by one alone. But the estate of a guardian who had died before the wrongful act of a co-guardian, would not be liable for such act. 1 SUITS ON THE BOND. 65. Mow suit on bond brought, and by whom. When a guard- ian, by any misconduct, neglect of duty, etc., forfeits his bond, or renders his sureties liable, any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon, in his own name, against the person and bis sureties, to recover the amount to which he is entitled by reason of the delinquency. Such action may be prosecuted on a certi- fied copy of the bond, and the custodian of the bond must de- liver such copy to any person claiming to be so injured, on tender of the proper fee. 2 (For other remedies, see par. 19, p. 53 ; par. 35. The finding of the court, that the person assuming to act as guardian in partition proceedings under the act of 1820 is such guardian, imports abso- lute verity, and is sufficient, prima facie, to show that the court had ob- tained jurisdiction over the ward, Merritt v. Home, 5 0. S. 307; and under that act, where all the persons interested in the land had the same guardian, he might appear ex parte, and process was unnecessary to give the court jurisdiction. Goudy v. Shanks, 8 0. 415. In proceedings in partition, the acts of a guardian of a minor, done in good faith, are binding upon his ward. Bohart v. Atkinson, 14 O. 228. Where a minor, in such case, on arriving at full age, ratifies the acts of his guardian, by receiving and appropriating the proceeds of the sale in par- tition with full knowledge of the facts, he is estopped in equity from taking advantage of a mere irregularity in the proceedings. 1846. lb. If, upon sale of the land under such a proceeding, the husband of the in- fant, acting as her guardian, with a full knowledge of the facts, acknowledges such person to have been guardian, and receives from him as such the con- sideration money for the property, he will be estopped to prove that such person was not duly appointed, and can not, after the death of the wife, con- trovert the jurisdiction of the court over the infant. The estoppel is equally effectual at law and in chancery. One who has induced another to part with his money or property, and has taken the fruits of a judicial proceeding, is precluded from afterward questioning its regularity, or, by evidence aliunde, impairing its effect. 1855. Merritt v. Home, 5 0. S. 307. Sections 2 and 9 of the statute or" 1820 (2 Chase, 1162) authorized guard- 183 PARTITION. [v!HAP. 11,4-5, may, upon being duly authorized in this state to take charge of such estate situated in this state, act in the partition of such es- tate to the same extent that the guardian of an idiot or insane person is authorized to do by the last preceding paragraph! 1 4. Who may be compelled to partition. — Tenants in common, and coparceners of any estate in lands, tenements, or heredita- ments within the state, may be compelled to make or suffer par- tition thereof in manner prescribed below. 2 5. Where proceedings for partition may be had. — When the ians of minors to bring petition and do any act necessary to make partition of the land of their wards. Where one was a guardian of all interested in the land, having the right hoth to institute and defend, or consent to pro- ceedings, no process of an adversary nature was necessary to confer juris- diction upon the court. 1838. Goudy's Lessee v. Shank, 8 0. 415. J § 5773. 2 g5754. Neither reversioners nor remaindermen can have partition, the right only extending to those who have the possession, or an immediate right to the possession of the lands sought to be aparted, Tabler v. Wiseman, 2 0. S. 207; Davison v. Wolf, 9 0. 73; but the owner of a life estate in the whole, or a part of the tract, who also owns an interest in the remainder, may have partition. Morgan v. Staley, 11 0. 389; Tabler v. Wiseman, above. A right of entry, without actual seizin, there being no intervening estate, will entitle a party to partition. Tabler v. Wiseman, above. A partition operates only upon the possession, and does not create any new title, Tabler v. Wiseman, 2 0. S. 207; McBain v. McBain, 15 0. S. 337 ; and when parties to a proceeding for partition are made such by pub- lication and without actual notice, they are not estopped thereby from setting up their legal title. McBain v. McBain, supra. An answer to a petition for partition, denying that the plaintiffs have any title to or interest in the premises, does not oust the court of jurisdiction. Perry v. Richardson, 27 0. S. 110. The fact that two actions for partition were prosecuted at the same time does not vitiate the regular proceedings in the one upon which partition is made. Smith v. Barber, 7 O. 2 pt. 118. The regularity of proceedings in partition can not be inquired into in a collateral proceeding. Wilson v. Bull, 10 0. 250; Bohart v. Atkinson, 14 U. 228. A purchaser from one tenant in common can not drive the owner of a paramount title, upon later purchasers of an interest in the land from other tenants in common. Dennison v. Foster, 9 0. 126. When separate interests have been acquired under an erroneous partition chancery will exercise jurisdiction to bring all parties before the court, and CHAP. 11, 6-8.] PARTITION. 189 estate is situate in one county, the proceedings must be had in that county ; and when situated in two or more counties, the proceedings may be had in any county wherein a part of such estate is situate. 1 6. Who may file petition, and what to set forth. — A person en- titled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, and a pertinent description of the lands, tenements, or heredita- ments of which partition is demanded, and naming each tenant in common, coparcener, or other interested person, as defendants therein. 2 7. The order of partition. — If the court find that the plaintiff has a legal right to any part of such estate, it must order par- tition thereof in favor of the plaintiff, or all parties in interest, appoint three disinterested and judicious freeholders of the vicinity to be commissioners to make the partition, and order a writ of partition to issue. 3 8. The writ of partition. — The writ of partition may be directed to the sheriff of either of the counties in which anj' part of the while it preserves all substantial rights, will so mould them, in making a new division of the land, as to impose burdens where, in equity, they ought to fall, and thus diminish, as far as practicable, the evils of previous errors. Dawson v. Lawrence, 13 0. 544. 1 §5755. 2 §5756. Where judicial proceedings are offered in evidence, a party to them can not avoid their effect on the ground of a slight mistake in his name; the mistake must be such as that the person can not be identified, or as to de- scribe another, and therefore the record is good if it contain the name Pillsby for Pillsbury. Pillsbury v. Dugan, 9 0. 117. The plaintiff is bound to set forth in his petition the title and interests of the several tenants, and to sustain the same by proof, Harman v. Kelly, 14 0. 502; the owner of the premises, although they are misdescribed in the petition, may come in and defend, and when it appears that a part of the persons claimed to be tenants in common have no interest in the land, the petition can not be maintained, lb.; and a title in fee, acquired by posses- sion, may be shown to defeat the partition, lb. A plaintiff who has the like interest in several tracts, can not join as de- fendant in a single action for partition the different persons who each own an interest in only one of the tracts. Prentiss' case, 7 0. 2 pt 129. 8 1 5757. 190 PARTITION. [CHAP. 11, 9-12. estate lies, an J must command bim that, by the oaths of the commissioners, which oath may be administered by him, be cause to be set off and divided to the plaintiff, or each party in interest, such part and proportion of the estate as the court shall order. 1 9. Duty of commissioners in making partition. — In making such partition, the commissioners must view and examine the estate, and, on their oaths, set apart the same in such lots as will be most advantageous and equitable, having due regard to the im- provements, situation, and quality of the different parts thereof. 2 10. Their duty when partition of more than one tract demanded. When partition of more than one tract is demanded, the com- missioners must set off to each plaintiff or party in interest, his proper proportion in each of the several tracts, unless the several tracts are owned by the same proprietors in the same proportion in each tract, in which case the whole share of any proprietor, in all the several tracts, may be set off to such proprietor ac- cording to the best discretion of the commissioners. 3 11. Amicable partition. — Before a writ of partition is issued the person of whom partition is demanded may appear in court, in person or by attorney, and consent to a partition of the es- tate, agreeably to the prayer and facts set forth in the petition. Such amicable partition, when made and recorded, will be valid and binding between the parties thereto. 4 12. Commissioners to appraise land when they can not divide it ; election of party to take at appraisement. — When the commissioners are of opinion that the estate can not be divided according to the demand of the writ without manifest injury to the value thereof, they must return that fact to the court, with a just val- uation of the estate; whereupon, if the court approve of the return, and one or more of the parties elect to take the estate at such appraised value, the same must be adjudged to him or them, upon his or their paying to the other parties their proportion of '§5758. 2 § 5759. In making partition among several tenants in common of sev- eral tracts of land, owning in the same proportion, it is regular to assign to any one, or to each one, an entire tract. 7 0. 2 pt. 118. 3 2 5760. 4 ? 5761, as amended, 78 O. L. 253. This amendment provides for the making of a deed to each party by the sheriff. CHAP. 11, 13.] PARTITION. 191 the appraised value thereof, according to their respective rights, or securing the same as provided below. 1 13. Terms of payment when estate taken by party ; execution of conveyances.— If one or more of the parties elect to take the es- tate at the appraised value, the terms of payment, unless the court, on good cause shown, by special order, direct and require tin- enl ire payment to be made in cash, or unless all the parties in interest agree thereon, must be one-third cash, one-third in one year, and one-third in two years, with interest, the deferred payments to be secured to the satisfaction of the court; and on payment being made in full, or in part, with sufficient security for the remainder, as above provided, the sheriff must, according to the order of the court, make and execute a conveyance to the party electing to take the same. 2 1 § 5762. A person residing thereon, but having no interest therein, was made a party to a proceeding to partition the land among the tenants in common, and a valuation being returned, he elected to take the same thereat, and the election being confirmed and deed made: Held, that he took a good title to the land. Rogers v. Tucker, 7 0. S. 417. A husband and wife united in a proceeding for partition, pending which the wife died, and a valuation being returned, the husband elected to take the land and received a deed : Held — 1. That he took the estate of the other coparceners, and the heirs of the wife could not claim that his election inured to their benefit. 2. That as to the interest which had been his wife's and in which he had curtesy, it was not affected by the election and deed, and the husband hav- ing died, the heirs were entitled to recover the land, Foster v. Dugan, 8 0- 87; and a husband, who is also a tenant in common, is competent to make partition of the wife's real estate, but the right he or his grantee acquires by the proceeding in partition does not extinguish her right, which survives to her or her heirs. Foster v. Dennison, 9 O. 121. When a division of the land has been reported by the commissioners, and possession was taken in severalty under it, and improvements made, it will not, after the lapse of several years, be disturbed, although no entry of con- firmation of the report was made by the court. Piatt v. Hubbell, 5 0. 243. 2 §5763. A sale in partition of real estate held in common divests the wife of a co-tenant of her inchoate right of dower therein, and passes the entire estate to the purchaser. Weaver v. Gregg, 6 0. S. 547. Where there is no statutory requirement in cases of partition, requiring a mortgage on the premises to be given to secure the price, a guardian may, in order to affect the partition, allow his ward's money to be secured on other real estate; and if a loss accrue, the guardian will not be liable if he acted 192 PARTITION. [cnAP. 11. 11-16. 14. Sale of the estate when the parties do not elect to take the same. If no such election to take the estate be made, the court may, at the instance of a party, make an order for the sale thereof at public auction, b}- the sheriff who executed the writ of partition, or his successor in office. 1 15. How such sale conducted, and terms thereof. — All such sales must be made at the door of the court-house, unless the court, for good cause, direct the same to be made on the premises, and must be conducted in all other respects as a sale upon execution, except that it will not be necessary to appraise the estate ; but the estate can not he sold for less than two-thirds of the appraised value thereof, as returned by the commissioners; and unless the court, by special order, direct and require, on good cause shown, the entire payment to be made in cash, the purchase money will be payable one-third on the day of sale, one-third in one year, and one-third in two years thereafter, with interest." 16. Confirmation of sale, and execution of conveyances. — On the return by the sheriff of his proceedings, the court must examine the same ; if sale has been made, and the court approve such sale, the sheriff, on receiving payment of the consideration money, or taking sufficient security therefor, to the satisfaction of the court, must execute and deliver a deed to the purchaser. 3 in good faith and with ordinary prudence. In re Spencer's Appeal, 3 W. L. M. 408. When at a partition among devisees, one of them had an inchoate right of dower in premises set off to another, which subsequently ripened into a perfect estate, she will not be estopped to claim her dower against her co- partitioners, but the court will enforce contribution from all the parties to the partition, to make good to the person in whose share the dower is as- signed his equal share in the estate remaining after the assignment of dower. Walker v. Hall, 15 0. S. 355. 1 § 5764. 2 §5765. One of the terms of a sale on partition being that possession of the premises was reserved to the tenants till the expiration of a current lease, and the deed to the purchaser not having been delivered till after the expiration of the lease, it was held that the tenants, and not the purchaser, were entitled to the rents reserved in the lease. Black v. George, 26 0. S. 629. 3 §5766. A misrecital in a sheriff's deeds does not estop the purchaser from showing what the fact was, and may be corrected. Glover v. Ruffin, 6 0. 355. CHAP. 11, 17-19.] PARTITION. 193 17. Distribution of proceeds ; sheriff's liability. The money or securities arising from a sale of, or an election to take, the estate, must be distributed and paid, by order of the court, to the par- ties entitled thereto, in lieu of their respective parts and propor- tions of the estate, according to their just rights therein; and all receipts of such money or securities by the sheriff will be in his official capacity, and his sureties on his official bond will be liable for an}- misapplication thereof. 1 18. Proceedings when estate has been once offered and not sold. — When the estate has been once offered and not sold, an alias writ for the sale thereof may issue as often as need be; and the court may order a revaluation, by three judicious and disinter- ested freeholders of the vicinity, to be appointed by the court, and direct a sale of the estate at not less than two-thirds of such revaluation, or, if the court deem it for the interest of the par- ties, it may order a sale without such revaluation, at not less than such sum as it may fix. 2 19. When successor of sheriff who made sale to execute convey- ance. — When a conveyance of land sold, or elected to be taken, is not made by the officer who made the sale, the court, being first satisfied that such sale or election was regularly made, and A deed executed by the sheriff during his term of office, but acknowledged after his term had expired, is good, Foster v. Dugan, 8 0. 87; but a sheriff's deed without a sea! is insufficient to pass the title. Merritt v. Home, 5 0. S. 307. The purchaser of land at a sale on partition, takes the same discharged of the lien of a judgment against a tenant in common therein, rendered after the order of sale was made, and the remedy of the judgment creditor is against the co-tenant's interest in the. proceeds of sale. Cradelbaugh v- Pritchett, 8 0- S. 646. 1 \ 5767. A failure of the sheriff to return or pay over the purchase money or securities by him received, does not affect the title of the purchaser. Goudy v. Shank, 8 0. 415; see also Collins v. Skillen, 15 0. S. 382; and Griffin v. Underwood, lb. 389. The sheriff can not release a mortgage given for the deferred payments, although it was given to the sheriff himself for the use of specified parties entitled to the payments, and the purchaser, and those claiming under him are affected with constructive notice of the lien of the parties for whose use the mortgage was made. Welsh ». Freeman, 21 0. S. 402; Preston v. Comp- ton, 30 0. S. 299. 2 § 5768. 194 PARTITION [chap. 11, 20-21. that the purchase-money has been fully paid or secured, may, on motion, order the sheriff of the county, or officer performing the duties of sheriff, to execute and deliver to the purchaser, or per- son electing to take the property, a deed for the lands so sold or elected to be taken. 1 20. When widow is entitled to dower, or an interest is subject to a life estate,. — When a widow is entitled to dower in an estate of which partition is sought, dower must be assigned her therein, except in the following cases : 1st. When an assignment thereof has already been made. 2nd. When she has, by answer, elected to be endowed out of the proceeds of a sale of the estate, 2 and the commissioners do not make partition, but return a valuation of the estate. 3d. When the right of dower extends only to an undivided interest in the estate. In the latter case, and in cases where an undivided interest is subject to a life estate, and the tenant for life has not, by answer, elected to receive the value of his estate out of the proceeds of a sale of the interest, the com- missioners may, if an appraisement of the estate is to be re- turned, assign the dower, or set off the life estate, or, if they find it for the interest of the parties so to do, they may appraise the whole interest, and the widow and the tenant for life will re- ceive the value of their interests out of the proceeds of a sale thereof. 3 21. Commissioners appointed to partition estate to assign dower. — The commissioners appointed by the court to make partition must set off to such widow her dower in the estate ; and in the performance of such duty they must be governed in all respects by, and the proceedings must conform to, the provisions pre- scribing the duties of commissioners in assigning dower, in sec- tion 5707 to 5725, inclusive, of the Revised Statutes." 2 See paragraphs 68-73, chapter 6. :1 £5770. Dower being assigned in a partition action by an annuity- charged on the lands, and the court having ordered that the parties, or their representatives or assigns, should pay the installments as they became due, and, in default of payment, that execution should issue therefor, it was held that the order was void for uncertainty, and that the remedy of the doweress was by action to enforce the lien on the land. Miller v. Peters, 25 O. S. 270 ♦2 5771. CHAP. 11, 22.] PARTITION. 195 22. Actions by one parcener against another, etc. — One tenant in common, or coparcener, may recover from another his share of rents and profits received by such tenant in common or copar- cener from the estate, according to the justice and equit}^ of the case; and one parcener may maintain an action of waste against another; but no parcener will have or possess any privileges over another, in any election, division, partition, or matter, to be made or done, concerning lands which have descended. 1 196 OCCUPYING CLAIMANTS. [CHAP. 12, 1-2. CHAPTER 12. OCCUPYING CLAIMANTS TO REAL ESTATE. rights and obligations op guardians and wards who are, or have claims adverse to, such claimants. Par. Par. 1. What position ward may oc- 5. Proceedings if verdict is for cupy. occupying claimant. 2. In what cases such claimant to 6. Where a writ of possession will be paid for improvements. issue. 3. Damages, value of improve- 7. When a claimant elects to re- ments, etc., determined by jury. ceive value of land. 4. Judgment and execution on 8. When occupant may have ac- verdictfor plaintiff. tion for title. 1. What position ward may occupy. — The ward may be either the occupying claimant, or the adverse claimant not in posses- sion referred to in the succeeding paragraphs. 2. In what cases such claimant to be paid for improvements. — A person in the quiet possession of lands or tenements, and claim- ing to own the same, who has obtained the title to and is in pos- session of the same without fraud or collusion on his part, can not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupy- ing claimant, or his heirs, are fully paid the value of all lasting and valuable improvements made on the land by him or by the person under whom he holds, before receiving actual notice by the commencement of suit on such adverse claim to turn him out of possession, unless such occupying claimant refuse to pay to the person so setting up and proving an adverse and better title the value of the land, without improvements made thereon as aforesaid, upon demand of the successful claim- ant, or his heirs, as provided below, when, 1st. Such occupying claimant holds a plain and connected title, in law or equity, de- rived from the records of a public office ; or, 2d. Holds the same CHAP. 12.] OCCUPYING CLAIMANTS. 197 by deed, devise, descent, contract, bond, or agreement, from and under a person claiming title as aforesaid, derived from the records of a public office, or by deed duly authenticated and recorded ; or, 3d. Under sale on execution, against the person claiming title as aforesaid, derived from the records of a publie office, or by deed duly authenticated and recorded; or, 4th. Under a sale for taxes authorized by the laws of this state, or the laws of the territory north-west of the river Ohio ; or, 5th. Under a sale and conve}-ance made by executors, administrators, or guardians, or by any other person or persons, in pursuance of an order of court, or decree in chancery, where lands are or have been directed to be sold ; * or, has possession under tax title. 2 1 § 5786. The office of township trustee, in which the leases of school lands made by them are recorded, is, as to such leases, a public office within the meaniug of this section. Hart v. Johnson, 6 0. 538. The words " by deed duly authenticated and recorded" mean a deed to a person under whom the occupant claims, and not a deed to the occupant himself overruling Glick v. Gregg, 19 0. 57; but it must he a deed ap- parently conveying an estate which will justify him in making improve- ments; therefore, a tenant for life obtaining his title and possession with knowledge of the quantity of his estate, is not entitled to the benefit of the statute. Beardsley o. Chapman, 1 0. S. 118. A purchaser of real estate at an administrator's sale, if evicted by the heir, is entitled to the benefit of this statute, Longworth v. Wolfington, 6 0. 9 ; and so is a purchaser upon a sale under execution, Seller's v. Corwin, 5 0. 398; but a purchaser from a judgment debtor of land actually levied upon by execution is not so entitled. Vincent v. Goddard, 7 0. 2 pt. 188. A person entering upon land, under color of title, paying taxes and mak- ing improvements as owner, being ejected at law, can not sustain a bill in equity for compensation and reimbursement against the rightful owner, Winthrop v. Huntington, 3 0. 327 ; but where the rightful owner asked to have his title quieted against claimants under a sale similar to that in Win- throp v. Huntington, the court required him to reimburse the defendant for taxes paid on the land. Nowler v. Coit, 1 0. 519. The provisions of this statute do not extend to the case of valuable im- provements made by a tenant in common under a will hj' which, in the con- tingency of his dying without issue, the survivor took the estate. Taylor v. Foster, 22 0- S. 255. A partition which was made regardless of a claim for improvements, valid under this statute, will not be enjoined when the occupying claimant is in adverse possession, and the claimant in partition will have to prosecute ejectment. Penrod v. Danner, 19 0. 218. An occupying claimant will not be presumed to know any defects or re 2 §5787. 198 OCCUPYING CLAIMANT. [dlAP. 12, 3-4. 3. Damages, value of improvements, etc., determined by jury. — If the court renders judgment against the occupying claimant, 1 a jury must be impaneled as the law provides, which must imme- diately view the premises, and, on oath, assess the value of all lasting and valuable improvements made on such land by t'.ie occupying claimant before he received notice of the adverse claim as above mentioned. The jury must also assess the damages, if auy, sustained by waste, including timber, etc., removed or de- stroyed, and the net annual value of rents and profits of the land which the occupying claimant has received since the receipt of said notice by service of said summons ; and must deduct the amount thereof from the estimated value of such improvements; and the jury must also find the value of the land at the time the judgment was rendered with the improvements thereon, and the value of the land without the improvements thereon, or damages sustained by waste, including removal or destruction of the timber or other val- uable material, and return their verdict in open court as in other civil eases. 2 4. Judgment and execution on verdict, for plaintiff. — If the jury report a sum in favor of the claimant not in possession, on the assessment and valuation of the valuable and lasting improve- ments, the assessment of damages for waste, and the net annual value of the rents and profits, the court must render a judgment therefor, without pleadings, and issue execution thereon, as iu other cases; or, if no such excess be reported, then, and in citals that appear in deeds prior to the deed of his grantor; and if a recital in that or in his own deed shows that the premises once belonged to a third person, it will not defeat the occupant's claim to the benefit of this statute. Beardsley v. Chapman, 1 O. S. 118. The mere fact that the occupant had notice of the claim which is success- fully asserted is not conclusive evidence of fraud and collusion on part of the purchaser, but he may show, notwithstanding snch notice, that he pur- chased in actual go >d faith, and made his improvements in the honest be- lief that the land was his mvn. Harrson v. Castner. 11 O. R. 339. 1 This i9 a separate proceeding, in which the party prevailing is entitled to cost*, though he be the party ejected. Martin's case. 1 O. 156. 2 2? 5788, 5789. See the=e sections as amended. 87 (>. L. 237. An occupying claimant is entitled to recover, as well for improvements made by himself, or the person under whom he claims, before his title com- menced, as for those made afterward Shaler v. Magin, 2 O. 235; Davis v. Powell, 13 O. 308. But he can not recover fur improvements made out- side of the land described in his title-deeds. Waldron v. Woodcock. 15 O. 13. CHAP. 12, 5-8.] OCCUPYING CLAIMANTS. 199 either case, the claimant not in possession can not maintain a suit for mesne profits. 1 5. Proceedings if verdict is for occupying claimant. — If the jury report a sum in favor of the occupying claimant, on the assess- ment and valuation of the valuable and lasting improvements deducting therefrom the damages, if any, sustained by waste, together with the net annual value of the rents and profits which the defendant has received after commencement of the action, the successful claimant, or his heirs, or, if they are minors, their guardians, may either demand of the occupying claimant the value of the land without the improvements so assessed, and ten- der a deed of the land to the occupying claimant, or may pay the occupying claimant the sum so allowed by the jury in his favor, within such reasonable time as the court shall allow. 2 6. When a writ of possession will issue. — If the successful claimant, his heirs, or their guardians, elect to pay, and do pay, to the occupying claimant, the sum reported in his favor by the jury, within the time allowed by the court, then a writ of pos- session must issue in favor of the successful claimant, his heirs, or their guardians. 3 7. When claimant elects to receive value of land. — If the suc- cessful claimant, his heirs, or their guardians, elect to receive the value of the land without improvements, so assessed to be paid by the occupying claimant, and tender a general warranty deed of the land conveying such adverse or better title, within the time allowed by the court for the payment of the money, and the occupying claimant refuse or neglect to pay the same to the successful claimant, his heirs, or their guardians, within the time limited, a writ of possession must be issued in favor of the suc- cessful claimant, his heirs, or their guardians.* 8. When occupant may have action for title. — The occupying claimant, or his heirs, can not be evicted from the possession of 1 2 5792. 2 §5793. 3 2 5794. *§ 5795. It is necessary that the successful claimant who elects to convey his land tender a deed with covenants of warranty; but it is not necessary that the deed be made by himself, provided it conveys the title; and the occupying claimant is not entitled to interest upon the valuation until the election ia made. Wilkins v. Huse, 15 0. 285. 200 OCCUPYING CLAIMANTS. [CIIAP. 12. such land, except as is provided in the two preceding para- graphs, where an application is made for the valuo of improve- ments ; and in all cases where the occupying claimant, or his heirs, pay into court the value of the land, without improve- ments, within the time allowed by the court, when an election has been made by the successful claimant, his heirs, or their guardians, to surrender land under the provisions of this and the preceding paragraphs of this chapter, such occupant, or his heirs, may, at any time after such payment is made, bring an ac- tion in the court where judgment of eviction was obtained, and obtain judgment for the title of the land, if the same had not been previously conveyed to such occupant as aforesaid. 1 wge. CHAP. 13, 1.1 ROAD LAWS, ETC. 201 CHAPTER 13. ROAD LAWS, ETC., AS DIRECTLY AFFECTING GUARDIANS AND WARDS. Par. Par. 1. As to new roads, and changes in 5-6. Powers of guardians as to one old ones; notice to guardians. and two-mile assessment pikes. 2. Guardians and others may ap- 7. Assessment for streets; duties peal in such matters. of guardians as to, etc. 3. Guardians need give no appeal 8. Guardian can not give right of bond. way over ward's land. 4. Appeals by claimant of damage; 9. Certificates for road material notice to guardian. taken. 10. How paid. 1. As to new roads and changes in old ones ; notice to guardian. When application is made for laying out, altering, changing the width of, or vacating any county road, the principal petitioner must give at least six days' notice, in writing, to the owner or his agent, if residing within the county ; or, if such owner be a minor, idiot, or insane person, to the guardian of such person, if a resident of the county, through whose land the road is pro- posed to be laid out and established, or through whose land tbe road which it is proposed to alter or vacate may have been pre- viously established, and also six days' notice to the viewers and surveyor named in the order of the commissioners, of the time and place of meeting, as specified in the order of the county commissioners concerning the road, and of the day by which claims for compensation must be filed ; and the principal peti- tioner, if the road is proposed to be laid out, altered, or vacated, on any lands owned by a non-resident of the county, must cause a notice to such non-resident to be published for four con- secutive weeks in some newspaper published in such county j but if there be no newspaper published therein, then in some newspaper in an adjoining county to that in which the lands sought to be affected by the road are situate, which notice shall state the time and place of the meeting of the viewers and sur- veyor, as specified in the order of the commissioners, and also the substance of the petition. 1 1 2H638, 4042, 4045, as am. 80 O. L. 111. 202 ROAD LAWS, ETC. [CHAP. 13, 2-5. 2. Guardians and others may appeal in such matters. — An ap- peal from the final order of the count} 1- commissioners establish- ing a county road, or altering or vacating, in whole or in part a state or county road, or changing the width of a county road, may be taken to the probate court of the same county by any person having an estate in fee, for life, or years, in any lands or tenements, situate in any township in the county, in or through which township such new, altered, changed, or vacated road passes, or by the husband of any married woman, or guard- ian of any ward, having such an estate. 1 3. Guardians need give no appeal bond. — Appellants must, to perfect such appeal, give such appeal bond as the law prescribes, on or before the twentieth day after the entry of the order ap- pealed from; but minors, idiots or lunatics, or their guardians, respectively, may appeal without giving bond, by causing an en- try to that effect to be made within the period aforesaid, by the county auditor, in the record of the commissioners. 2 4. Appeals by claimant of damages ; notice to guardian. — The law also provides that every claimant of compensation and dam- ages, on account of the establishment or alteration of a county or township road, or alteration of a state road, or change in width of a county road, may appeal to the probate court from the final decision of the county commissioners or township trustees, confirming the assessment of compensation and dam- ages made by the viewers in his behalf, or the refusal of the viewers to award damages to him, and also provides how such appeal shall be perfected and docketed, and how notice must be served on all interested parties; and that service of notice upon a guardian will be sufficient service upon his ward. 3 5. Powers of guardians as to assessment pike*. — Certain improved free roads, designated as one and two-mile assessment pikes, from the fact that they are constructed at the expense of property situate within one or two miles of them, may he huilr by the county commissioners, if a majority of the resident land-holders, most to be benefited, subscribe a petition asking for such road. To get such a road constructed, proceedings must be had in the probate court, viewers and a surveyor must be appointed, surveys, re- ■ « ? 4688. 2 ? 4689. 3 §§ 4699-4701. CHAP. 13, 6-7.] ROAD LAWS, ETC. 203 ports, and assessments must be made, damages may be claimed and recovered, and other things done which do not come within the scope of this volume to describe in detail. 1 (i. In all these matters, the guardian of any minor, idiot, or insane person may act for his ward, and all his acts will be binding upon the ward; 2 and in determining the majority above mentioned, minor heirs must not be counted for or against the road, unless represented by legal guardian ; and the action of such guardian will be binding upon such minor heirs; and all heirs or owners, either adults or minors, to any undivided estate, will be entitled to only one vote. 3 7. Assessments for streets, etc. ; duties of guardians as to, etc. — The law also provides 4 how assessments upon property may be made for various public improvements, including the laying out, im- proving, etc., of streets, alleys, and other public highways 5 in mu- nicipal corporations ; and among other things it is provided that, in cities of the first class, or in corporations in counties containing a city of the first or second grade of the first class, when a petition, subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description, between designated points, is regularly presented to the council for the pur- pose, the cost of any improvement of' such street or highway may be assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner to he indicated in the petition, or if not so indicated, then in the manner which may he fixed by council ; and the interest on any bonds issued by the corporation for the improvements, together with the annual installments pro- vided for, must he assessed upon the property so improved; hut where the lot or land of one who did not subscribe the petition is assessed, such assessment must not exceed twenty-five per cent of the value of his lot or land after the improvement is made; pro- vided, that whenever in the title of the Revised Statutes which relates to municipal corporations, the petition of the owners of property is required, a married women shall have the same au- 1 \\ 4774-4864. 2 H 4799, 4884. See also \ 4859. 8 1 4799 ; I 4836, as am. 80 O. L. 25. *2 2262 and following. 6 §2263, as am. 85 O. L. 229. 204 ROAD LAWS, ETC. [CHAP. 13, 8-10. thority to sign that she would have if unmarried ; and the guardians of infants or insane persons may sign such petition on behalf of their wards, only when expressly authorized by the probate court, on good cause shown. 1 8. Guardian can not give right of ivay over ward's land. — Where a road, as located, passes through land owned by minors, the right of way is not secured therein by a deed executed by the guardian of such minors, without authority from the probate court. A guardian has no power to make such a conveyance, and as against the minors it is void. 2 y. Certificates for timber, etc., taken for road. — A supervisor of roads, or a superintendent of a free turnpike, improved, or other macadamized road having no gate thereon, who takes any timber, stone, or gravel, for the purpose of making, improving, or repair- ing any road or structure, or repairing any bridge or crossway within his district, must, on demand of the guardian of any ward, having the lands in charge from which the same were taken, give a certificate showing the quantity of such timber, stone, or gravel, with the value thereof respectively, and the time, and purpose for which, the same was taken. 3 10. Hoiv paid. — Such guardian must present this certificate to the township trustees of the proper township, at any regular or called session, within twelve months after the taking of such tim- ber, stone, or gravel; and the trustees, if satisfied that the amount is just and equitable, must cause it to be paid out of the proper fund ; but a certificate so allowed and paid by the trustees must not exceed twenty-five dollars to any road district per annum ; any greater amount that may be presented must be examined, and if allowed, must be certified by the trustees to the commissioners of the county, with the accompanying vouchers, to be allowed by them if, in their opinion, the same is just and equitable; and the commissioners must cause the same to be paid out of the county funds for that purpose. 4 1 \ 2272, as am. 82 O. L. 155. For numerous notes of decisions as to such assessments, see notes to §§ 2263 and 2264, Rev. Stat, of Ohio. See note 5, p. 203. The guardian of the estate of an imbecile, is the proper person to sisrn a petition for street improvements affecting the property of the ward. [Ham. Dist. Ct.] Laird v. City, 5 Bull. 903; 9 Rec. 479. 2 State v. Commissioners, 39 O. S. 58. 3 § 4744. * g 4745. CHAP. 14, 1.] SCHOOL LAWS. 205 CHAPTER 14. SCHOOL LAWS, AS AFFECTING GUARDIAN AND WARD. Par. 1. Where wards may attend school ; suspension and expulsion from school; rights of guardians and wards, etc. 2. How books supplied, if guardian can not purchase. 3. Penalties tor violation of preced- ing provisions. 4. What children must attend school. 5. Unlawful to employ unschooled children. 6. Penalties for so doing. 7. As to certain minors who can not read and write English. 8. Penalties as to. 9. Where children have been dis- charged from employment by reason of this act. Par. 10. Habitual truant?. 11. Truant officers to bo employed; compensation of. 12. Truant officers to make daily re- ports. 13. Duties of such officers, of guard- ians, etc. 14. Proceedings against guardians, parents, etc.; penalty, bonds, etc. 15. Proceedings against truants, etc. 16. Further proceedings against iruardians, etc. 17. When law not in operation. 18. When law may be suspended for a time. 19. Duty of principals and teachers. 20. When corporations violate this law. 21. Penalties against officers, etc. Subdivision I. — Voluntary attendance, expulsion, etc., of wards ; books for, etc. 1. Where ward mmj attend school; expulsion from school; rights of guardian and ivard, etc. — The schools of each district are free to all youth between six and twenty-one years of age, who are children, wards, or apprentices of actual residents of the district, including children of proper age, who are or may be inmates of a county or district children's home located in any such school district, at the discretion of the board of education of the township in which said school district is located ; and all youth of school age, living apart from their parents or guardians, and who work to support them- selves by their own labor, are entitled to attend school free in the district in which they are employed. Each board of education may 206 SCHOOL LAWS. [chap. 14, 2-4. admit other persons upon such terms or upon payment of such tuition as it may prescribe. 1 No pupil can be suspended from school by a superintendent or teacher, except for such time as may be necessary to convene the board of education <>£ the district or the directors of the sub district, and no pupil can be expelled ex- cept by a vote of two-thirds of such board or directors, and not until the parent or guardian of the offending pupil has been notified of the proposed expulsion, and permitted to be heard against the same; aud no scholar can be suspended or expelled from any school beyond the current term thereof.' 2. How books supplied, if guardian can not purchase. — If it be shown to the satisfaction of the board of education that the parent or guardian has not the means wherewith to purchase for his child or children the necessary school books to enable him to comply with the requirements of this chapter, the board must furnish the same, free of charge, to be paid for out of the contingent fund at the disposal of the board. 3 3. Penalties as to violation of preceding provisions. — A parent, guardian, or other person who fails to comply with the provisions of this subdivision, will be liable to a fine of not less than two nor more than five dollars for the first offense, nor less than five nor more than ten dollars for each subsequent offense; such fine must be collected by the clerk of the board of education, in the name of the state, in an action before any court having competent jurisdic- tion ; and the money so collected by each clerk must be paid to the county treasurer, and be applied to the use of the common schools of his district.* Subdivision II. — As to compelling children under fourteen YEARS OF AGE TO ATTEND SCHOOL A CERTAIN LENGTH OF TIME EACH YEAR. 4. Wliat children must attend school. Duties of guardians, etc. — All par.ents, guardians, and other person who have care of children, must instruct them, or cause them to be instructed, in reading, spelling, writing, English grammar, geography and arithmetic ; and every parent, guardian, or other person having control and charge i ? 4013, as am ,87 O. L. 316. 2 g 4014. 3 i 4026, as am., 87 (). L. 317. * \ 4027. CHAP. 14, 5.] SCHOOL LAWS. 207 of any child between the ages of eight and fourteen years, must send any such child or children to a public or private school for a period of not less than twenty weeks in city districts in each school year, commencing September 1, ten weeks of which at least must be consecutive, which must commence within the first four weeks of the first term of the school year; and in special, village and township districts not less than sixteen weeks in each school year, eight of which must be consecutive, unless such child or children are excused from attendance by the superintendent of the public, private or parochial schools in cities, or by authority of the board of education in villages and townships, when it shall have been shown to the satisfaction of said superintendent or said board that the physical or mental condition of such child or children has been such as to prevent his, her, or their attendance at school, or that said child or children are taught at home by some qualified person or persons in such branches as are usually taught in primary schools. But all youth between eight and sixteen years of age, not engaged in some regular employment, must attend school for the full term the schools of the district in which they reside are continued in the school year, unless excused for the reasons named in this paragraph ; and if the parents or guardians having legal charge of such youth fail to send these youth to school regularly for said full term, or if said youth absent themselves from school without satisfactory ex- cuse, said parents and guardians and said youth will be subject to the provisions and penalties of paragraph 13 of this chapter. 1 5. Unlawful to employ children under fourteen years, except. — No child under the age of fourteen years can be employed by any per- son, company or corporation during the school term, and while the public schools are in session, unless the parent, guardian or other persons having care of such child, is able to give substantial proof that he or she has fully complied with the requirements of para- graph 4 above, or that such child has completed the usual course of primary and grammar grades in some public or private school, and such person, company or corporation must demand such proof before giving employment to any minor, and must make a record 1 § [4029,-1], as am. 87 O. L. 316. Certain portions of this law seem not to affect guardians; but it also seems advisable to give it all, so as to enable its required parts to be the better understood. 14 207a school laws. [chap. 14, 6-9. of said proof given, and shall be required, upon the request of the officer (hereinafter provided for), to allow said officer to examine the said record, and also the record as provided for in section 6986aa of the Kevised Statutes. 1 6. Penalties. — Any person, company or corporation employing any child contrary to the provisions of this subdivision will be liable to a penalty of fifty dollars for each offense, to be recovered in an action for debt in any court, or before any justice of the peace hav- ing jurisdiction. Such action must be brought in the name of the clerk of the board of education. 1 7. Concerning certain minors who can not read nor write. — All minors over the age of fourteen, and under sixteen years, who can not read and write the English language, must attend school at least one-half of each day, or attend some evening school organ- ized and maintained by the board of education, or take regular private instruction from some person qualified, in the opinion of the superintendent of schools in cities, and the clerk of the_ board of education in special, village and township districts, to teach such brandies until he or she shall obtain a certificate from the superin- tendent of schools in cities, and the clerk of the board of edu- cation in special, village and township districts, certifying that said minor can read at sight and write legibly simple sentences in the English language, and every person, company, or corporation hav- ing such minor in employment is required to exact such school attendance from such minor, and be prepared, upon demand of the officer mentioned above, to furnish evidence that such minor does comply with the requirements of this chapter. 2 8. Penalty. — Any person, company or corporation failing or neg- lecting to exact such school attendance from such minors will be liable as provided for in paragraph 6 of this subdivision, unless such person, company or corporation has made provisions for the private instruction of such minors. 2 9. As to children discharged from employment, etc. — Every parent, guardian or other person having charge or control of any child un- der the age of sixteen, who has been discharged from any business in order to be afforded an opportunity to receive instructions or 1 1 [4029,-2]. g 2, 86 O. L. 334. 3 I [4029,-3], as am. 87 O. L. 143. CHAP. 14, 10-11.] SCHOOL LAWS. 2076 schooling, must send such child to some public or private school until such child shall have acquired such instruction as paragraph 7 of this chapter requires; and in case of failure on the part of said parent, guardian or ottier person to comply with the provisions of this paragraph and of paragraph 4 of this chapter, unless such child shall have been excused from such attendance by the super- intendent of public schools or the clerk of the board of education in special, village, and township districts for reasons stated in said paragraph 4, such parent, guardian or other person will be deemed guilty of a misdemeanor, and will, on conviction, be liable to fine of not less than five dollars or not more than twenty dollars for the first offense, and not less than twenty for each subsequent offense, or to imprisonment for not less than one month nor more than three. Said fines are to be paid into the public school funds of the school district in which the offense occurs. 1 10. Habitual truants. — All children between the ages of seven and fourteen years who are habitual truants from school, or while in attendance at any public or private school are incorrigible, vicious or immoral in conduct; and all children between said ages, and all minors between the ages of fourteen and sixteen who cau not read and write the English language, who absent themselves habitually from school, and habitually wander about the streets and public places during school hours, having no business or lawful occupation, must be deemed juvenile disorderly persons and subject to the provisions of this act. 2 11. Truant officers to be employed; compensation of. In cities of the first and second class the board of education of said cities are required to employ one truant officer to assist in the enforcement of this subdivision, said truant officers to be vested with police powers, and are authorized to enter factories, workshops, stores and all other places where children may be employed, and perform such other services as the superintendent of schools or the board of edu- cation may deem necessary to the preservation of the morals and good conduct of school children, and for the enforcement of this law; and in special, village and township districts the board of edu- cation must appoint some constable or other person as truant offi- 1 I [4029,-4], as am. 87 O. L. 143. 2 § [4029,-5.] 207 c SCHOOL laws. [chap. 14, 12-14. cer, with the same power as said officers have in said cities. The compensation of such officers must be fixed by the board of edu- cation. 1 12. Truant officers' reports.— •The truant officers must make dady reports to the superintendent of public schools during the school term in cities, and to the clerk ot the board of education as often as the clerk shall require it to be done in special, village and town- ship districts, and he must also keep a record of his transactions, subject to the inspection of the members and officers of the board of educatiou, and the clerk of the board of education must provide suitable blanks for said truant officer. 2 13. Duty of truant officers, of guardians, etc.— Truant officers must examine into all cases of truancy when any such come before their notice, or when requested to do so by the superintendent of pub- lic schools, or by the board of education, and warn such truants, their parents or guardians, in writing, of the final consequences of truancy if persisted in, and also notify the parent, guardian or other person having the charge or control of any child between the age of eight and fourteen years, that the said child is not attending any school, and require said parent, guardian or other person to cause the said child to attend some recognized school within five days from said notice, and said parent, guardian or other person having the legal charge and control of said child, must cause the attendance of said child at some recognized school. 3 14. Proceedings against negligent guardian. Penalty. Bond. — If said parent, guardian, or other person having the legal charge and control of said child, willfully neglects, fails, or refuses to cause said child to attend some recognized school, said officers must make, or cause to be made, a complaint against said parent, guardian or other person ha\ ing the legal charge or control of such child, in any court of competent jurisdiction in the city, special, village or town- ship district in which the offense occurred, for such refusal, failure or neglect ; and upon conviction thereof said parent, guardian or other person, as the case may be, shall be punished by a fine of not less than five dollars nor more than twenty dollars, or the court 1 I [4029,-6], as am. 87 O. L. 325. 5 I [4029,-7], as am. 87 O. L, 144. 3 \ [4029,-7], as am. 87 O. L, 325. CHAP. 14, 15.] SCHOOL LAWS. 2Q7d may, in its discretion, require persons so convicted to give bonds in the penal sum of one hundred dollars, with one or more sureties to be approved by said court, conditioned that said persons so con- victed shall cause the child or children under his or her legal charge or control to attend some recognized school within five days there- after, aud to remain at said school during the term prescribed by law. 1 15. When juvenile may be sent to reformatory in dilution, etc. — But if said parent, guardian, or other person iu charge of such child proves inability to cause said child to attend said recognized school, then said parent, guardian or other person must be discharged, and said court, upon complaint of said truant officer or other person, that said child is a juvenile disorderly person, as described in para- graph 10, above, must proceed to hear such complaint; and if said court determines that said child is a juvenile disorderly person within the meaning of this law, such child must be deemed guilty of misdemeanor, and said court must thereupon sentence said child to some juvenile reformatory. But no child or children over ten years old can be sentenced by any court to a county children's home ; and where, in the judgment of the trustees of any such home, it shall be declared by resolution at a regular meeting by them held, that the character of any child thus sentenced and kept at such home is vicious and so bad as to be detrimental and harm- ful to the habits and good morals of other children at such home, said trustees are authorized and empowered to remove such child or children to the boys' industrial school at Lancaster, Ohio, or the girls' industrial home at Delaware, Ohio, as the case may be. Such child or children can not be kept at any such home beyoud the pe- riod prescribed in paragraph 4, or until such child shall arrive at the age of sixteen years, unless sooner discharged by the board of trustees of said reformatory or home. But said sentence may be suspended in the discretion of the court, for such time as the child shall regularly attend school and properly deport himself or herself. If for any cause the parent, guardian or other person having charge of any juvenile disorderly person, as defined in this subdivision, fails to cause such juvenile disorderly person to attend said recog- nized school, then complaint against such juvenile disorderly person 1 \ [4029,-7], as am., 87 O. L. 325. 207e school laws. [chap. 14, 16-18. may be made, heard and tried and determined in the same manner as provided for in ease the parent pleads inability to cause said ju- venile disorderly person to attend said recognized school. 1 16. Further proceedings against guardian. — Officers empowered or appointed under this subdivision to assist in the enforcement thereof, must institute, or cause to be instituted, proceedings against any parent, guardian or other person having legal control or charge of any child, or corporation violating any of the provisions of this sub- division i.-' 17. When this law not operative. — This law is not operative in any school district where there are not sufficient accommodation to seat children compelled to attend school uuder the provisions of this sub- division ; nor is any prosecution to be instituted against any parent, guardian or other person or child in charge of such, unless they have received due notification from any officer empowered under this subdivision that they are acting in violation of this subdi- vision. 2 18. When may be suspended. — When any truant officer discovers to his full satisfaction any child under the age of fourteen years, wholly or partially dependent upon his or her own labor for a liv- ing, or who is the support of others unable to provide for their own sustenance, or when, in the judgment of the superintendent of the schools, or of the board of education, it may be necessary for such child to contribute to the support of the family of which he or she is a member, said truant officer must report such case to the proper authorities, whose duty it is to look after and care for the poor, and to endeavor to obtain such relief as may release such child from labor for such length of time each year as will be required for com- pliance with paragraph 4 of this chapter; but such child must not be declared a pauper or removed to any infirmary, reformatory or children's home, unless he or she shall willfully neglect to take ad- vantage of the provisions made by said truant officer for his or her relief and instruction. If said truant officer fails to obtain such relief, the superintendent of the schools, or the board of education, may make suitable arrangements for the private instruction of such child while so adversely conditioned. 3 1 I [4029,-8], as am. 87 O.. L. 325. 2 § [4029.-9J. 3 1 [4029,-10]. CHAP. 14, 19-21. J SCHOOL LAWS. 207/ 19. Duty of teachers and principals under this law. —All principals and teachers of all schools, public and private, must report to the cl,erk of the board of education of the city, special, village or town- ship districts, in which schools are situated, the names, ages and residence of all pupils in attendance at their schools, together with such other facts as said clerk may require, in order to facilitate the carrving out of the provisions of this subdivision, and the clerk must furnish blanks for said purpose, and said reports must be made in the last week of September, December, February and April of each year; and it shall be the further duty of said principals and teachers to report to the truant officer, the superintendent of schools or the clerk of the board of education, all cases of truancy or incorrigibility in their respective schools as soon after these offenses shall have been committed as practicable. 1 20. When corporations violate this law. — When any of the pro- visions of this subdivision are violated by a corporation, proceed- ings may be had against any of its officers or agents of said cor- poration, who in any way participate in, or are cognizant of such violation by the corporation of which they are the officers or the agents; and said officers or the agents will be subject to the same penalties as individuals similarly offending. 2 21. Penalty against officers, etc.— Any person or officer mentioned in this subdivision, and designated as having certain duties to per- form in the enforcement of any of its provisions, neglecting to perform any such duties, will be liable to a fine of not less than twenty-five dollars nor move than fifty dollars for each and every offense; and mayors, justices of the peace, and probate judges have jurisdiction to try the offenses described in this subdivision, and their judgment will be final. 3 1 § [4029,-11], as am., 87 O. L. 32G. 2 g [4029,-12]. # 3 § [4029-12], as am., 87 O. L. 327. The last section of the statute constituting this subdivision is as follows: "Sec. 14. Any provision of statutes in force when this act takes effect, which conflicts with any provisions of this act, shall, to the extent it is inconsist- ent with the latter, and not otherwise, be held to be superseded by this act. The provisions of this act shall apply to children entitled under existing statutes to attend school at the institutions for the education of the blind, and the deaf and dumb. Other provisions of statutes in force, relating to school affairs, shall not be affected by this act; sections 4023, 4024 and 4028 of the Revised Statutes, are hereby repealed." 208 APPRENTICESHIP OP WARD. |~CHAP. 15, 1-2. CHAPTER 15. APPRENTICESHIP OF WARD. 1. Wards may be bound out up- 10. Judgment thereon, and its ef- on approval by the probate feet. cour t. 11. Proceeding when apprentice be- 2. As to other provisions on same comes dissolute, subject. 12- When guardian is liable. 3. By whom indenture to be exe- 13-15. Form of indenture to bind cuted. out a ward. 4. Must state minor's age. 16. Entry of approval by court. 5. What covenant indenture must 17-18. Form of journal entry of the contain. approval of the court of the 6-7. To be recorded when, and by binding out of a minor by his whom; effect of not recording. guardian. 8. Duties of guardians, etc., as to 19. Form of judge's certificate of apprentices; may complain to approval of indenture, justice. 20-21. Character, etc., of proposed 9. Jury to try complaint. • master. 1. Wards may be bound out upon approval by the probate court. The guardian of a female under twelve years of age, or a male under fourteen years of age, may, if it be necessary, bind such minor to any suitable person, until such minor shall arrive at the age of twenty-one if a male, or etghteen if a female, or for a shorter period ; but no such indenture can be executed unless the probate court appointing such guardian shall first approve such binding, and the terms and conditions of the indentures, and evidence such approval by a certificate under the seal of the court, indorsed upon the indentures. 1 2. As to other provisions on same subject. The preceding para- graph contains all the law as to the ward's apprenticeship found in that chapter of the Revised Statutes which is devoted to guardians and trustees ; but the following are other provisions relating to the duties of guardians and others as to such appren- ticeships. ^6293. CHAP. 15, 3-8.] APPRENTICESHIP OF WARD. 209 3. By whom indenture to be executed. — The indenture or covenant of service must be signed by the father; or, in case of the death or inability of the father, by the mother or guardiau ; or, in case of an orphan or destitute child, by the trustees of the township, of the one part, and by the master or mistress of the other part. 1 1. Must state minor's age. The indenture or covenant of serv- ice must contain a statement of the age and time of service of the minor, and, if such age is unknown, then it must be inserted according to the best information ; which age must, in relation to the term of service, be deemed and taken as the true age of such minor. 2 5. What covenant indenture must contain. The indenture or covenant by which a minor is bound, must contain a covenant, on the pai-t of the master or mistress, to send the minor to a common school for at least twelve weeks, in each school year during the apprenticeship, after the minor is eight years of age, and at the expiration of the term of service, to furnish the minor with a new Bible, and two good suits of clothes ; and all money or property stipulated to be paid by the master or mistress, must be secured to, and for the sole use and benefit of the minor. 8 6. To be recorded when and by whom; effect of not recording. The master or mistress must cause the indenture or covenant of service to be recorded within three months from the execution thereof, by the clerk of the township, or clerk of the municipal corporation where the master or mistress resides ; and on failure so to do, the minor will be discharged from service, and the mas- ter or mistress remain liable for the payment of all property stipulated to be paid by the covenants. 4 7. In such case, the minor would no doubt be again as com- pletely subject to the control of the guardian as though the arti- cles of apprenticeship had never been entered into. 8. Duties of guardians, etc., as to apprentices ; may complain to justice. It is the duty of parents and guardians, and the trustees of townships, to inquire into the usage of a minor who is bound, and to defend him or her from the cruelty, negleot, or breach of covenant of the master or mistress, for which purpose 1 I 3120, as am. 84 O. L. 45. 2 \ 3121. ■ \ 3122; see par. 3, p. 206. 4 g 3123. 14 210 APPRENTICESHIP OF WARD. [CHAP. 15, 9-11 such parent, guardian, or trustees, or the minor, by his or her next friend, may complain against the master or mistress, before any justice of the peace in the township where the master or mistress resides; and such justice must summon the master or mistress forthwith to appear before him, and if lie can reconcile tin- parties to each other, he must make such order therein as the right and justice of the case requires. 1 0. Jury to try complaint. If the justice be unable to settle and accommodate the difference in dispute between the parties, he must issue a venire to any constable of the township to summon five disinterested freeholders, to be therein named, to meet at a time and place certain, not exceeding three days thereafter ; the jurors, or such other persons as the justice may appoint in case of their failure to attend, when met and qualified, must proceed to hear the evidence in the case ; and if they find the master or mistress guilty of a breach of the indenture or covenant, or of neglect or refusal to furnish necessary food or clothing, or of cruelty toward the minor, they must render their verdict in writing accordingly, and assess such damages as the minor may have sustained. 2 10. Judgment thereon, and its effect. The justice must there- upon enter the verdict in his docket, and must render judgment thereon for the damages so found, and costs, against the master or mistress, and award execution accordingly; and the inden- ture or covenant of service will be void from the rendition of judgment; but if the jury find the defendant not guilty, the justice must render judgment for costs against the parent, guard- ian, next friend, or trustees — if the complaint of the trustees was without probable cause— as the case may be, and issue exe- cution accordingly. 3 11. Proceeding when apprentice becomes dissolute. If the con- duct and habits of the apprentice, clerk, or servant, become im- moral and dissolute, in disregard of the commands of his or her master or mistress, and their authority be exerted for his or her reformation without effect, the master or mistress may complain to any justice of the peace of the township, who must give no- tice to the parent, guardian, or trustees, and such proceedings i§3126. 2 ?3127. 8 ?3128. CHAP. 15, 12-15.] APPRENTICESHIP OP WARD. 211 must be bad, as to summoning and impanneling a jury, as are provided in paragraph 8 of this chapter; and if, upon such in- vestigation, the jurors are of opinion that the master or mistress should be discharged from his or her covenants, they must cer- tify the same in writing to the justice, who must enter the same upon his docket; and thereupon the indenture will be void ; but no judgment for costs can be entered against the parent, guard- ian, or trustees; but the same must be paid, except the costs of witnesses for the minor, by the master or mistress. 3 12. When guardian, etc., is liable. — No parent, guardian, or trustee, will be liable upon an}' covenant contained in an inden- ture or covenant of service, unless the same contain an express covenant therein that the said parent, guardian, or trustee, is made individually liable. 2 13-15. Form of indenture to bind out a ward. Articles of agreement made this — — day of , a. d. 18 — , by and between A. B., as guardian of C. D., a male [or, female] minor of the age 3 of years, on the day of , A. D. 18 — , and G-. JEL. witnesseth ; that the said A. B., as guardian as aforesaid, hereby binds the said C. D. unto the said Gr. H., until the said C. D. shall arrive at the age of twenty-one years [or., eighteen years, as the case may be ; or if for any shorter period, name either the number of years that is agreed upon, or the age up to which the minor is agreed to be bound~], to learn the art of a printer [or whatever art or business is agreed upon\ ; and the said A. B., as guardian as aforesaid [or if it be agreed that he is to be individually liable, say, instead of " as guardian as aforesaid,'' in- dividually 4 ], hereby covenants and agrees with said G. H., that the said C. D. shall faithfully serve the said G. H., and work un- der his direction at the employment aforesaid, during the term aforesaid, and conduct himself in a proper, becoming, and re- spectful manner towards the said G. H., and obey all his reason- able requests and demands. And the said G H. hereby covenants and agrees with the said A. B., as guardian as aforesaid, that he will this day [or if another day be fixed, when the minor is to commence the service, say, on the 1 §3129. 2 § 3134. 3 See paragraph 4. * See paragraph 12. 212 APPRENTICESHIP OP WARD. [CHAP. 15, 16-18. day of , a. d. 18 — ] receive the said C. D. into his ser- vice for the term and for the purposes aforesaid, and that he will faithfully and in good faith teach or cause him to be taught the art and mysteries of the trade of printing [or such other business or art as is agreed upon], so that said C. D. shall be as thoroughly instructed and learned therein as his capacity will permit; and will send the minor to a common school for at least twelve weeks in each school year, during his apprenticeship, after he is eight years of age ; and at the expiration of said term of service, will furnish said C. D. with a new bible, and at least two good suits of clothes [and if any money or property be agreed to be paid to the minor, say, and will pay the said C. D. the sum of dollars, or, will give the said C. D. a good saddle-horse, saddle and bridle, or, a set of good tools of said trade, etc., at the expiration of the term aforesaid, or add any other agreements between the parties]. Iu witness whereof, we have hereto set our hands. A. B., As guardian of C. D. G. H. 16. Entry of approval by court. — As has been seen, terms and conditions of the indenture must be approved of by the court which appointed the guardian ; and as every movement of the court must appear on its journal, this approval should be entered thereon. 17-18. Form of journal entry of the approval of the court of the binding out of a minor by his guardian. In the matter of the guardianship of C. D., in binding his ward to G-. H. This day came the said A. B., guardian of C. D., and produced to the court articles of indenture duly made and executed on the daj' of , A. d. 18 — , by the said A. B., as guardian as aforesaid, and the said G. H., whereby the said C. D. is bound unto the said G. H., upon the terms and covenants in said in- denture named, and the court being satisfied that said G. H. is a proper person for the purposes aforesaid, and that the terms and covenants of said indenture are legal, proper, and just; the binding, terms, and conditions aforesaid are, by the court, here- by approved. CHAP. 15, 19-21.] APPRENTICESHIP OF WARD. 213 19. Form of judge's certificate of approval of indenture. The State of Ohio, county, ss. I, A. C, probate judge of county, Ohio, hereby certify, that on the day of , a. d. 18 — , the probate court of said county examined the within indenture, and approve the binding and the terms and conditions therein, as will fully ap- pear by the records of said court. Witness my hand and the seal of said court, this day of , a. d. 18—. [l. s.] A. C, Probate Judge, etc. 20. Character, etc., of proposed master. — A minor may be bound to serve another person, of full age, of sound morals, and of ca- pacity to teach what is required, and to govern the minor; for none other, it is supposed, would be approved of by a court which did its duty. 21. The person to whom the minor is bound must be capable of contracting ; therefore, such minor can not be bound to an in- fant, an insane or imbecile person. 214 CHARITABLE INSTITUTIONS, ETC. [CHAP. 16, 1. CHAPTER 16. CHARITABLE, REFORMATORY AND PUNITIVE INSTITUTIONS, AS AFFECTING GUARDIANSHIP OF MINORS, ETC. Par. BOYS AND REFORM SCHOOL. 1. When guardians, etc., may send ward to. GIRLS, AND INDUSTRIAL HOME. 2. Vicious or criminal girl ; duty of judge or guardian as to. 3. May be sent to industrial home. 4. Detention and discharge; may be returned. 5. May be bound out; who her guardian in such case. children's homes. 6. Wards in children's homes erected by counties or districts. Management, etc., of such homes. 7. Who may be admitted to home. Par. 8. Power of trustees over inmates. 9. Children neglected and abused by guardians, etc. 10-12. Same as to children's home of cities. 13. May act as guardian of children and procure them homes. 14. Children may be apprenticed. 15. Trustees may remove children from unsuitable homes. ix houses of refuge. 16-19. When infants received into. 20. Infants entitled to private ex- amination and trial, unless. 21. How expenses shall be paid. 22. Guardian or other party may apply to the board. 23. Decision of application. 24. Action against directors. 25. Other provisions. BOYS AND THE INDUSTRIAL SCHOOL. 1. WJien guardian, etc., may send ward to. — Male youth, not over sixteen nor under ten years of age, may be committed to the Boys' Industrial School by any judge of a police court, judge of the court of common pleas, or the probate court, on conviction of any offense against the laws of the state. 1 The law formerly provided that this would be done on complaint by the parent, guardian, or next friend, if shown that such youth, by reason of his incorrigi- ble or criminal conduct, was beyond the control of such parent, 1 g 7-33, as amended, 83 O. L. 7. CHAP. 16, 2—i.] CHARITABLE INSTITUTIONS, ETC. 2J 5 guardian, or next friend, and that, from regard to his future welfare and the protection of society, he should be placed under restraint. 1 GIRLS AND INDUSTRIAL HOME. 2. Vicious or criminal girl; duty of judge and guardian. — When- ever a resident citizen files with the probate judge of his county his affidavit, charging that a girl more than nine and less than fifteen years old, who resides in such county, has committed an offense, punishable by fine or imprisonment, other than imprisonment for life, or that she is leading a vicious or criminal life, such judge must fix a time, not more than five days from the time such affi- davit is filed, for hearing its complaint; and he must forthwith issue a warrant to the sheriff of such county, or some other suitable person, commanding him to bring such girl before such judge, at the time so fixed. He must also, at the same time, issue an order in writing, addressed to the father of such girl, if living and resi- dent of such county, and if not living and so resident, then to her mother if living and so resident, and it there is no father or mother so resident, then to her guardian if so resident, and if not, then to the person with whom the girl resides, requiring such father, mother, guardian, or other person to appear at such hearing. Said judge may continue such proceeding from day to clay, and issue all necessary subpenas for witnesses. 2 3. May be sent to industrial home. — If the probate judge, after such time as is prescribed by law in such cases, 11 deems the accused to be a proper subject for the industrial home, he must commit her to that institution, in the manner provided by law. 4 4. Detention and discharge of; may be returned. — A girl so com- mitted must be kept there, disciplined, instructed, employed, and governed, under the direction of the trustees, until she is either re- formed and discharged, or bound out by them, according to their by-laws, or is eighteen years old; but the trustees, with the gov- ernor's approval, after a full statement of the cause, may discharge and return to the parents, guardian, or such probate judge, who may place her under the care of the infirmary directors of said county, any girl, who, in their judgment, ought, for any cause, to be removed from the home. In such case the trustees must record and transmit to said judge the reasons for her discharge. But the superintendent and trustees may receive back into the home any girl under twenty-one years of age, so discharged, when her best interests demand it. 5 1 ? 763. 2 I 7R9, as am., 84 v. 77. 3 % 770, 771. 4 I 770. 5 g 773, as am., 86 v. 180. 21G CHARITABLE INSTITUTIONS, ETC. [CHAP. 1G, 5-8, 5. May be bound out ; who her guardian in such case. — Any girl so committed may be bound out as apprentice or servant for a term not longer than till sbe arrives at the age of eighteen years, under conditions and restrictions imposed by the statutes ; 1 and the trustees of the industrial home will be her guardians while so bound out. and must take care that the terms of the contract are faithfully fulfilled, and that she is properly treated, and mnist cause every grievance to be redressed. 2 WARDS IN CHILDREN'S HOMES ERECTED BY COUNTIES OR DISTRICTS. 6. Management, etc., of such homes. — The statutes provide for the erection and maintenance of children's homes, under the control of trustees, superintendent, etc. 3 Among the further pro- visions are the following: 7. Who admitted. The home is to be an asylum for all children un- der the age of sixteen years, of a sound mind, and free from all in- fectious or contagious diseases, and having resided in the county not less than one year; .and such other children under such age from other counties in the State where there is no home located as the trustees of such home and the party, parties, or authorities, having the custody and control of such children, by contract, agree upon, who, by reason of abandonment by parents, or orphanage, or neglect, or inability of parents to provide for them, in the opinion of the trustees, are suitable children for such provision. They must be admitted by the superin- tendent on the order of a majority of the trustees, accompanied by a statement of facts signed by them, setting forth the name, age, birth- place, and present condition of the child named in such order. This statement of facts contained in the order, together with any addi- tional facts connected with the history and condition of said children, must be recorded by the superintendent in a book provided for that purpose by the commissioners of such county ; and this book must be at all times open for inspection, at the discretion of the trustees. 4 8. Powers of trustees over inmates. — All the inmates who have been so neglected or abandoned, or who have been voluntarily surrendered to the trustees by the parent or guardian, will be under the sole and exclusive guardianship and control of the trustees during their stay in said home; and, until they arrive at the age of six- teen years, if they are indentured or adopted as hereinafter pro- vided, then until they become of lawful age. The trustees may re- move any child or children becoming a charge upon the county, who 1 §? 775-7. 2 \ 778; see chap. 15. 3 \\ 929-956. 4 I 931, as am., 83 O. L. 196. CHAP. 16, 9-12.] CHARITABLE INSTITUTIONS, ETC. 217 has do legal settlement therein, to the county to which it or they may belong, and all charges and expenses so made must be paid by the county to which it or they belong. Said trustees also have the power to discharge any of the inmates of said home; and when so discharged, the parents or guardians must assume power and au- thority ; and the trustees may return any of the inmates of said home to the parents or guardians of such inmates, when they be- lieve them capable of caring and providing for themselves, or their parents or guardians for them. 1 9. Children neglected and abused by parents may be sent to home. — Children who are under the custody of parent, guardian, or next friend, and who, by reason of neglect, abuse or from the moral de- pravity, habitual drunkenness, incapacity or unwillingness of such legal custodian to exercise proper care or discipline over them, are being brought up to lead idle, vagrant, or criminal lives, may, if the trustees of the township in which they have a legal settlement, after a careful and impartial investigation of the condition and facts, as they exist, deem it manifestly requisite for the future wel- fare of such children, and for the benefit and protection of society, be committed to the guardianship of the trustees of a county or district children's home. 2 There are also special provisions, some- what similar to those in paragraphs 6 to 15, applicable to Cuyahoga, Meigs, and Muskingum counties only, but too long to give fully here. 3 SAME, AS TO CHILDREN'S HOMES OP CITIES. 10. Powers of trustees and managers. — In cities of the first and second class, where children's homes or industrial schools may be established under the incorporation law of the state, the trus- tees and managers of such institution may take under their guardianship all children who may be placed under their care and management in either of the following modes : 11. First — Children under sixteen years of age, who are vol- untarily surrendered by the father and mother, or in case of the death, or long continued or willful absence of the father, by the mother, or by their guardian, to the care of such trustees and managers, they being by virtue of such surrender invested with the same power over the persons of the children as the parents or guardians. 12. Second — Children under sixteen years of age who, upon 1 § 932, as am., 83 O. L. 196. See g 7866, G. R. S. 2 § 945. 3 \l 7813-29, 7843-09, G. R. S. 15 218 CHARITABLE INSTITUTIONS, ETC. [CHAP. 16, 13-17 the application of the trustees and managers, may bo committed to their care by any judge of probate court, or mayor of such city, on account of vagrancy or exposure to want and suffering, or neglect or abandonment bj* their parents or guardians, or other persons having custody of such children, or in accordance with the request of their mother or next friend in case of habitual intemperance, abuse, or neglect of their father. 1 13. May act as guar Jim of children, and procure them homes. — The trustees and managers will have the guardianship of such children during their minority, and ma}*, when it may seem proper, place them in suitable homes, having scrupulous regard to the religious and moral character of the persons with whom such children are placed, in order to secure to them the benefits of good example and wholesome instruction, and the opportunity of becoming intelligent and useful men and women. 2 14. Children may be apprenticed. — The law then further pro- vides that such children may be bound out, and on what condi- tions, etc. 3 15. Trustees may remove children from unsuitable homes. — The trustees and managers may i-eraove a child from a home when, in their judgment, the same has become an unsuitable one, and they must, in such cases, resume the same power and authority as they originally possessed ; but they may return a child to parents or a surviving parent or guardian, or when they believe the child to be capable of earing and providing for himself, may discharge him to his own care. 4 HOUSES OF REFUGE. 16. When infant received into. — The board of directors of houses of refuge of municipal corporations may, at its discretion, receive into such institution infants under the age of sixteen years, committed to their custody in either of the following modes, to- wit : 17. First Infants committed by the mayor of the corp<> ra- tion, or any judge or justice of the -peace of the county, on com- plaint and due proof by the parent, guardian, or next friend of such infant, that, by reason of incorrigible or vicious conduct, '§2181; 78 0. L. 154. 2 ? 2182 ; 78 0. L. 154. 8 # 2183-4; 78 0. L. 154. 4 ? 2185; 78 0. L. 154. CHAP. 16, 18-21.] CHARITABLE INSTITUTIONS, ETC. 219 such infant has rendered his control beyond the power of such parent, guardian, or next friend, and made it manifestly requisite that, from regard to the future welfare of such infant, and for the protection of society, he should be placed under the guard- ianship of the board of directors of such house of refuge and correction. • IS. Second — Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the directors of such institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity of the parent, guardian, or next friend, in whose custody such infant may be, or other cause, such parent, guardian, or next friend, is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious infant. 19. 'Lliird — Infants who are without a suitable home and ade- quate means of obtaining an honest living, or who are in danger of being brought up to lead an idle or immoral life, maybe com- mitted to the guardianship of the directors of such institution, by the trustees of any township within the county in which such institution is situated, or by the mother, when the father is dead, or has abandoned his family, or does not provide for their sup- port, or is an habitual drunkard. 1 20. Infants entitled to private examination and trial, unless. — In- fants under the age of sixteen 3*ears, who are accused of an of- fense punishable by imprisonment in a county in which a house of refuge and correction is situated, will be entitled to a private examination and trial, to which only the parties can be admit- ted, unless one of the parents, the guardian, or other legal representative demands a public trial, in which case all proceed- ings must be in the usual form. 2 21. How expenses shall be paid. — The expense of maintaining infants committed to a house of refuge and correction, by a court or magistrate of the county in which such institution is situated, or by the police or other court of the corporation, for offenses against a law of the state, or for trial, or as a witness, must be paid by the county; and the expense of infants committed by 1 #2050. This law is constitutional. Father not entitled to custody of child, when. 37 U. 6. 197. S'-< ; 39 0. 6. 2<;s. For further provisions as to commit- ting children to bouse.-; of reiuge, and their guardianship, see{$ 786G-7, G. U.S. *2 2tKJU. 220 CHARITABLE INSTITUTIONS, ETC. [CHAP. 16, 22-25. [township trustees must be paid by the township, and of those committed by] parents and guardians must bo paid by them, ex- cept in cases where the board otherwise determine; all which expense must be ascertained and fixed b} T the board. 1 22. Guardian or other party may apply to the board. — If a parent, guardian, master to whom an infant lias been appren- ticed, a person occupying the position of parent, protector, or guardian, in fact, or a relative by blood or marriage, not further remote than first cousin to such infant, feels aggrieved by the commitment of an infant to the directors of a house of refuge and correction, by a person authorized to commit such infant, he may make a written application to the board, at such time as the directors, by rule or resolution, provide for hearing applica- tions, not later than the next regular meeting of the board, fo have the infant delivered to him ; which application must state the ground of the applicant's claim to the custody of such infant, and the reason for claiming such custody. 2 23. Decision of application. — Within ten days after hearing such application, the directors must decide; and if they be of opinion that the welfare of such infant will be promoted by grant- ing the application, they must make an order to that effect; otherwise they must decline the app^cation. 3 24. Action against directors. — The applicant may, if the appli- cation be declined, upon first giving security for the payment of costs, commence an action against such directors in the court of common pleas or superior court of the county in which the house is situated, for the recovery of the infant, or his liberation ; which action must be conducted in all respects as actions undei the code of civil procedure, except, the case will have precedence of all others in the time of trial. 4 25. Other provisions. — There are many other provisions as to such houses of refuge and infants who may be wards, 5 for instance, a prescribed simple form of record of proceedings for commitment, unless the minor, his guardian or parent object, terms and conditions of binding out to apprenticeship, similar to those already specified, 7 etc., which it is not considered necessary to give here in full. 8 i § 2071. See note, p. -219. i § 2075. 3 §2076. * § 2077. 6 |g 2031-2107. H § 2060. 7 §§ 2062-2066, 2087. 8 See also §g 7796-7835 of Giauque's llevised Statutes, for provisions more or le>» kindred to the foregoing. CHAP. 17, 1.] INTOXICATING LIQUORS. 221 CHAPTER 17. INTOXICATING LIQUORS. duties, rjghts, and liabilities of cuardians and wards, with reference to the sale of intoxicating liquors, as provided in chapter 7, title v, part first, revised statutes. Par. Par. 1. The action for injury, or to 5. Sellers must not give publicity means of support, by causing to notice. intoxication. 6. Party fined not entitled to ex- 2. Notice to seller, or owner of emptions. premises; its record and effect ; 7. Liability of owner of premises penalty. for fines. 3. To whom damages to a minor 8. Guardian's liability. must be paid. 9. Criminal provision as to selling 4. Sale works forfeiture of lease. such liquor to minor. 1. The action for injury or to means of support, by causing in- toxication. — Every husband, wife, child, parent, guardian, em- ployer, or other person injured in person or property, or means of support, by any intoxicated person ; or in consequence of the intoxication, habitual or otherwise, of any person, after the giv- ing and during the existence of the notice provided for in the next paragraph, has a right of action in his or her own name, sev- erally or jointly, against any person or persons who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person ; and the owner of any build- ing or premises, and the person renting or leasing the same, having knowledge that intoxicating liquors are to be sold therein, in violation of law, or, having leased the same for other pur- poses, knowingly permit intoxicating liquors to be sold therein, that have caused the intoxication, in whole or in part, of such person, are liable severally or jointly with the person or persons 322 INTOXICATING LIQUORS. [CHAP. 17 gelling or giving intoxicating liquors as aforesaid, for all dam- ages sustained, as well as exemplary damages. 1 See par. 8. 1 §4:557. Under the seventh section of the act of May 1, 1854, (52 v. 153), contractors who had in their employ hired hands with teams, wagons, and other implements, were empowered to bring suit and recover damages against any person who, unlawfully, sold intoxicating liquors to such hands, whereby they became drunk, unable themselves to work, prevented other hands and teams from working to advantage, and hindered and delayed the progress of the work, and thus injured the contractors in their property and means of support. Duroy V. Blinn, 11 0. S. 331. Under this section as amended April 18, 1870, (67 v. 101) a justice of the peace had no jurisdiction against the owner or lessee of premises where the unlawful selling takes place, Bowers v. Pomeroy, 21 0. S. 184; injuries to the " person " of the plaintiff to support an action must be actual violence, or some physical injury to the person or health ; injury to " means of sup- port," does not imply that the plaintiff was at any time, in whole or in part, without present means of support; it is sufficient that the means of future support have been cut off or diminished ; and the rule of damages is the amount of diminution ; injury to "property" maybe the sale of chattels, and the plaintiff need not first demand them of the vendee ; and the liabil- ity of defendant is not confined to cases of injury resulting from drunken- ness, immediately and during its continuance, but, extends, as well, to cases where the injury results from insanity, sickness, or inability, induced by in- toxication. Mulford v. Clewell, 21 0. S. 191. Before the amendment of 1870, where the action was from injuries result- ing from habitual intoxication, it was not essential to recovery that the de- endant should have been the sole cause of such habitual intoxication ; one who contributes to cause that condition by illegal sales, which of themselves tend, and are calculated, to produce that result, is presumed to have in- tended it, and is liable for the damages resulting, though others may, by their illegal acts, have contributed thereto without his knowledge, and with- out preconcert with him; and where the damages resulting arise from inca- pacity for business and loss of estate, caused by such intoxication, and it- becomes impossible to separate the damages caused by others from those caused by the defendant, be is liable for all such damages, if the natural and probable consequences of his illegal acts were to cause such injury; and the statement of the vendee, a physician who was in the habit of getting intoxicated, made when purchasing, that, he wanted the liquor for a patient, and for medical purposes, does not, in the absence of proof to the contrary, raise a presumption that it was a sale to the patient. Boyd v. Watt, 27 O. S. 259. And under the amendment of 1870 separate actions might be brought against different defendants, and satisfaction and discharge of the cause of action against one afforded no defense in the other case, if in fact the intox- CHAP. 17, 2—4.] INTOXICATING LIQUORS. 223 2. Notice to seller or owner of premises ; its record and effect; penalty. — Such husband, wife, child, parent, guardian, or other interested person liable to be so injured by any sale of intoxi- cated liquors to any person, and desiring to prevent the sale of intoxicating liquors to such person, must give notice, either ver- bally or in writing, before a witness, to the person or persons so selling or giving the intoxicating liquors, or to the owner or lessor of the premises wherein such intoxicating liquors are given or sold, or file with the township or corporation clerk in the township or municipal corporation wherein such intoxicating liquors may be sold, notice to all liquor dealers not to sell to such person any intoxicating liquors from and after ten days from the date of so filing such notice. Such notice so filed must be entered by the clerk in a book kept for the purpose, and opened to inspection by all interested persons. Such notice ma}- be so erased as not to be legible, at the request of the person who filed it; but while it stands unerased, it inures to the benefit of all persons interested, as though served by each. By refusing to record such notice, the clerk would be subject to fine and forfeit- ure of office.! 3. To whom damages to minor must be paid- — All damages re- covered by a minor, under this chapter, must be paid either to fiuch minor or to his or her parent, guardian, or next friend, as the court may direct. 2 4. Sale icorks forfeiture of lease. — The unlawful sale or divine ications were separate and distinct, Miller v. Patterson, 31 O. S. 419; but the sale or giving away of liquor must, to give a right of action, be unlawful, Baker v. Beckwith, 29 0. S. 314; but it is not necessary that the sale should be in violation of the act of 1854; if sold in violation of any law prohibit- ing the sale, or if furnished in violation of the supplementary act of April 5, 1866 (63 v. 149), the right of action accrues under the amendment of 1870; and it is not error for the court to refuse to charge that if the jury award exemplary damages they should not consider the fact, if such they find the fact to be, that certain of the illegal sales were made on Sunday. Sibila v. Bahney, 34 0. S. 399. 1 g 4358, 4359, 4360. 2 1 4361. See 2ti O. S. 372; 27 O. S. CG9 A married woman has the same right to bring suits, and control them and the amount recovered, as an unmarried woman, under this chapter, § 4361 224 INTOXICATING LIQUORS. [CHAP. 6, 5-8 away of intoxicating liquors works a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place ; and all suits for damages under this chapter must be by a civil action in any court having jurisdiction thereof. 1 5. Sellers must not give publicity to notice. — Saloon-keepers, grocers, or others, are forbidden, under fine of ten to fifty dollars, from posting, printing in an}- newspaper, orin any other way giv- ing publicity that the notice above mentioned has been given. 1 6. Party fined not entitled to exemptions. — For all fines, costs, and damages assessed against any person in consequence of the sale of intoxicating liquors, as provided in the foregoing para- graphs, the real estate and personal property of such person, of everj^ kind, without exception or exemption, except to heads of families and widows, as specified in section 5430 ; and such fines, costs, and damages will be a lien upon such real estate until paid. 3 7. Liability of owner of premises for fines, etc. — If a person rent or lease to another, any building or premises to be used or oc- cupied, in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied, in whole or in part, such building or premises so leased, used or occupied, will be held liable for, and may be sold to pay, all fines, costs, and dam- ages assessed against any person occupying the same; proceed- ings may be had to subject the same to the payment of any such fine and costs assessed or judgment recovered, or any part thereof, which remain unpaid, either before or after execution issues against the property of the person against whom such fine and costs or judgment have been adjudged or assessed ; when execution issues against the property so leased or rented, the officer must proceed to satisfy the same out of the building or premises so leased or occupied. 4 8. Guardian's liability. — If such building or premises belong to a minor, insane person, or idiot, his guardian having control J §4361. 2 HB62. 3 1 4363. The words " shall be liable for the payment thereof," found in the old law (67 v 102 \ 10). were evidently omitted by mistake 03- the codi- fiers, and should be inserted next after " 5430." '• g 4304. See 23 O. S. 619; 25 O. S. 352 ; 26 O. S. 372. CHAP 17, ( J J INTOXICATING LIQUORS. 225 thereof, will be liable and must account to bis ward for all the damages on account of such use and occupation, and the liabili- ties for the fines, costs, and damages aforesaid ; and all contracts whereby any building or premises are rented or leased, and used or occupied, in whole or in part, for the sale of intoxicating liquors, will be void, and the lessor will, on and after such sell- ing or giving intoxicating liquors, be considered and held to be in possession of such building or premises. 1 9. Criminal provision as to selling such liquor to minor. — Who- ever sells intoxicating liquors to a minor, except upon the written order of his parent, guardian, or family physician, is liable to a fine of not more than one hundred nor less than twenty-five dollars, and to imprisonment of not more than thirty nor less than five days. 2 1 \ 4364. 2 83 v. 161. I 12; ? 8903. Giauque's Revised Statutes of Ohio. 226 CONTRACTS OP WARD'S ANCESTOR. [CHAP. 18, 1-3. CHAPTER 18. REAL CONTRACTS OF WARD'S ANCESTOR. Par. Par. 1. Action to complete contract for 4. So may guardian of minor heirs land. or devisees. 2 When court may order convey- 5-12. Form of petition when guar- ance ; deed and its effect. dian desires to complete a pur- 3. Heirs at law or devisees may chase for minor heir. compel conveyance. 13. Other forms in such cases. REAL CONTRACTS OP WARD'S ANCESTOR. 1. Action to complete contract for land. When a person, who has entered into a written contract for the sale and conveyance of an interest in land, dies before the completion thereof, and his executor, administrator, or other legal representative, desires to complete the contract, he may file a petition therefor in the court of common pleas or probate court of the county in which the land, or any part thereof, is situate; if the petition be filed in the probate court, service may be made therein as in civil actions ; and the heirs at law, devisees, or other legal representatives of the deceased vendor, when not plaintiffs, must be made defend- ants in the action. 1 2. When court may order conveyance ; deed, and its effect. The court, after causing to be secured to and for the benefit of the estate of the deceased its just part and proportion of the con- sideration of the contract, may authorize the executor, admin- istrator, or other legal representative to complete the contract, and to execute a deed for and on behalf of the heirs at law to the purchaser, which must recite the order, and will be as binding on the heirs at law, and all other persons interested, as if it had been made by the deceased in his lifetime. 2 3. Heirs at law or devisees may compel conveyance. The heirs at law or devisees of a person who purchased an interest in land ^SOO. 2 §5801. CHAP. 18, 4-12.] CONTRACTS OP WARD'S ANCESTOR. 227 by written contract, and died before conveyance thereof to him, may compel such conveyance as the deceased might have done. 1 4. So may guardian of minor heirs or devisees. The provisions of the three preceding paragraphs enable the guardian of any minor heirs of any person who had entered into such a written contract for the purchase of land or other real property, to com- pel the conveyance to be made, in the same manner as such person might have done if living. 5-12. Form of petition when guardian desires to complete a pur- chase for minor heir. county, ss., Court of Common Pleas [or, Probate Court], A. B., guardian of C. D., plaintiff, j potion to complete contract . J 5 ;. { for sale of land. O. P., defendant. ) J Plaintiff says that he is the duly appointed guardian of said C. D., a minor child of E. D., deceased, late of county, Ohio ; that on the day of , a. d. 18 — , the said E. D., then in full life, entered into a contract, in writing, with said O. P. for the sale of the following described real estate, situated in [here de- scribe the property, as should be in a deed']. Plaintiff further says, that said sale was to be on the following terms [state the terms'], as will appear by said contract [or, a copy of said contract], hereto annexed. [Here state in plain language all other pertinent facts, as for in- stance:] Plaintiff further says, that said E. D., during his life- time, paid to said O. P. [here state what he paid, and when], and that plaintiff, as guardian as aforesaid, is ready and willing to pay the balance due on said contract. Plaintiff therefore prays, that said O. P. be ordered to execute and deliver to said C. D. a good and valid deed in fee simple for Baid land, and that plaintiff, as guardian as aforesaid, be author- ized and directed to pay to said defendant the amount still due, as above stated, at the time of the delivery of said deed as aforesaid ; and that in default of his making such deed, that the 1 \ 5802. The order of the probate court in such cases may be appealed from. See paragraph 1, chapter 24. As to the effect of the right of dower in such cases, see Raff's Guide, chapter XII. 22S CONTRACTS OP WARD'S ANCESTOR. [CHAP. 18, 13-14 decree of the court shall operate as such deed, and transfer and convey the title of said land to said C. D., as fully and effectually as such deed would do. A. B., guardian. [or, E. H., att'y. for plaintiff] The State of Ohio, county, ss. A. B., being sworn, says that ho is the plaintiff above named, and that the various matters set forth in the foregoing petition are true, as he verily believes. A. B. Sworn to [or, affirmed] before me, and signed in my presence, this day of , a. d. 18 — . B.C., Notary Publie, county, 0. 13. Other forms in such cases. — For other forms easily adapted to the matter in the preceding paragraphs relating to real con- tracts, see paragraphs 43-59, chapter 19. CHAP. 19.] LUNATICS, IDIOTS, ETC. 229 CHAPTER 19. GUARDIANSHIP OF LUNATICS, IDIOTS AND IMBECILES. Par. Par. 1. Probate court must appoint. 24. 2. Will be guardian of ward's mi- nor children. 25. 3. Who is an imbecile. 4. When wife may be appointed 26. guardian. 5. Her and her sureties' liability. 27. 6. Laws applicable to such guar- 28. dians ; their settlement. 7. Notice of motion to reopen set- 29. tlement. 8-9. Form of motion to reopen set- 30. ment. 10. Form of notice of such motion. 31- 11. How served. 12. Proof of service. 37. 13. Suits by guardian of idiot, imbe- 38. cile, or lunatic, and revivor of 39. same. 14. How insane person must sue. 40-' 15. How insane person must de- fend. 43- 16. Guardian must deny what, in 53- answer. 17. Duties and compensation of guardian ad litem, and trustee. 55- 18. How insanity of a person de- 58- termined. 19. Sale of real estate by guardian 60. of idiot, imbecile, or lunatic. 61. 20. May be at private sale. 21. Petition, and hearing thereof; order of court. 22. Additional bond of guardian. 62. 23. Who must be parties; notice to; expectancy of dower. Dower of insane widow ; how assigned, or sold by guardian. Guardian should make written report. Leasing and improving by guar- dian. Rights of tenant. Long lease by guardian may be authorized by court. Lease for three years without order of court. Application for authority to make long lease. 36. Form of petition for long lease. Proceedings on the application. Final hearing and orders. Completion of real estate con- tracts. 42. The law relating to such contracts. 52. Form of petition. -54. Journal entry ordering guar- dian to make deed, and give ad- ditional bond, if required. ■57. Form of additional bond. 59. Deed of guardian in pre- ceding case. Insolvency of lunatic. Foreign guardian of foreign idiot, imbecile, or lunatic, may dispose of property belonging to his ward. Termination of guardianship; settlement. 230 LUNATICS, IDIOT-, ETC. [('HAP. 19, 1-5. 63. Petition to discharge land from 71. Real •.-tide of insane and other dower of insane person. paupers; how disposed of. G4. Inquest of lunacy. 72. Certain duties of assessors as to Qb. Proceedings on report of such guardians of insane, etc. facts to court. 73. How boundaries of idiot's, in- 66-68. Bow dower of insane person sane person's, etc., land fixed, mav be barred; guardian's duty, by written instrument. e t c 74-81. Insane, etc., ward's real es- 69. Apartments lor lunatics, etc., in tate may be improved; proceed- county itifirmary. ings, etc., therefor. 70. Who admitted, and how pro- vided for. 1. Probate court must appoint; notice as to. — The probate court, upon satisfactory proof that any person resident of the county, or having a legal settlement in any township thereof, is an idiot, im- becile, or luuatic, must appoint a guardian for such person. But no such guardian can be appointed until at leasi three days' notice to the pers »ns next of kin resident of the county of such person is given to attend at the same time and place. This notice must be served by delivering to each person named therein a copy thereof, or by leaving such copy at his usual place of resilience. 1 2." Will be guardian of ward's minor children.— -Such guardian will, by virtue of such appointment, be the guardian of the minor chil- dren of his ward, unless the court shall appoint some other person as their guardian. 2 3. Who is an imbecile f— An imbecile, in this chapter, means a person who, not born idiotic, has become so. 2 4. Wlien wife may be guardian.— -When any person having a wife shall be declared to be an idiot, imbecile, or lunatic, the probate judge may appoint the wife of such person his guardian, if it be made to appear to the satisfaction of the judge that she is compe- tent to discharge the duties of such appointment. 3 5. Her and her sureties' liability. — Any married woman appointed such guardian will, in her said capacity, have power to enter into official bonds, and she and her sureties thereon will We liable in the same manner, and to the same extent, as though said bond was exe- cuted by an unmarried woman/ 1 \ 6302, as am., 86 v. 61. B. was appointed guardian of ('., an infant of unsound mind, who continued so after coming of age. 13. continued to act as guardian more than seven years after C.'s majority, and was so recognized by court, in settling his accounts, taking and approving new bond, and ac- cepting his resignation on settling his final account. lb>ld, that appointment covered guardianship of minor "and also of lunatic; that new bond taken after C.'s majority was good, and sureties liable thereon. King v. Bell, 36 O. S. 460. See par. 22, p. 25. Under act of 1824, as to safe-keeping of idiots, etc., see Tp v. Co., 10 O. 283. Such appointment >< prima facie evidence only of imbecility: may be attacked. Messenger v. Bliss, 35 O. S. 587. Can sign improvement assess- ment. Laird v. Cin., 5 Bull. 903; 9 Kec. 479. 2 I 6302, as am., 86 v. 61. 3 § 6303. CHAP. 19, 6 9.] LUNATICS, IDIOTS, ETC. 231 G. Laws applicable to such guardians; their settlement. — All lawa relating to guardians for minors-and their wards, and all laws pointing out the duties, rights, and liabilities of such guardians and their sureties, in force for the time being, are applicable to guard- ians for idiots, imbeciles, and lunatics, and their children, except as otherwise specially provided ; but in the settlement of the ac- counts of such guardians, no voucher can be received from or -allowed as a credit to the guardian of any idiot, imbecile, or lunatic, which is signed or purports to be signed by such idiot, imbecile, or lunatic; and any settlement of the account of any such guardian heretofore made, in which any such receipt shall have been allowed as credit to such guardian, will be held and deemed absolutely null and void, and any settlement made by any such guardian must, at any time within two years after the appointment of another guardian, or after the disability of such ward may be removed, or such ward may die, be opened up and reviewed, on the motion of such newty appointed guard- ian, or legal representative, or of any interested person. 1 7. Notice of .motion to reopen .settlement. — Notice of such mo- tion must be given by publication or otherwise as the probate judge may direct. 1 8. Form of motion to open up settlement. — Such motion may be in form as follows : 9. Probate Court of county, Ohio. In the matter of guardianship ") Motion to re-open settlement of of C. D. \ A. B., late guardian of C. D. G. H., guardian [or, other interested person'], represents that said A. B.,in his settlement of his accounts as said guardian, received credit on a certain voucher [briefly describe it], which voucher purports to have been signed by said C. D. Said G. fl. therefore moves the court to open up and review said settlement, and to declare the same null and void. G. H., Guardian [or, otherwise, as may be]. 10. Form of Notice of Such Motion. To A. B., late guardian of C. D. You are hereby notified that a motion has been filed in the 1 ?• 6304. For details, consult index. See note*, pp. 54, 204. 232 LUNATICS, IDIOTS, ETC. [CHAP. 19, 11-14. probate court of county to open up the settlement of your accounts as said guardian, and to have the same declared null and void, because of the credit you received on a certain voucher [briefly describe it], purporting to have been signed by said C. D. ; and that said motion will be for hearing on the day of , 18—, at — o'clock — m. G-. H., Guardian [etc.] 11. How served. — This notice may be served by G. H., by the sheriff, by publication, or otherwise, as the court may direct. If served by publication, the third person, instead of the second, may be used, but need not be, as follows : "A. B., late guardian of C. D., is hereby notified that " [etc., giving same in substance as above]. 12. Proof of service.— Proof of service of notice may be re- quired, as in paragraphs 44-45, in chapter 6. 13. Suits by guardian of idiot, imbecile, or lunatic, and revivor of same.— Such guardian may sue in his own name, 1 describing himself as guardian of the ward for whom he sues, and when his guardianship ceases, by his death, removal, or otherwise, or by the decease of his ward, any suit, action, or proceeding then pending will not abate, if the right survive, but his successor as guardian, or such idiot, imbecile, or lunatic, if he be restored to his reason, or the executor or administrator of such idiot, imbe- cile, or lunatic, as the case may require, must be made party to the suit or other proceeding, in like manner as is or may be pro- {, vided by law for making an executor or administrator party to a suit or proceeding of a like kind, where the plaintiff dies dur- ing its pendency. 2 14. How insane person must sue. — The action of an insane per- son must be brought by his guardian. 3 1 Must sue in his own name. Wageman v. Brown, 1 W. L. J. (Clermont co., 0. S. C.)454. 2 §6305. Parties who are united in interest must be joined, as plaintiffs or defend- ants; but if the consent of one who should have been joined as plaintiff can not be obtained, or, if he is insane, and the consent of his guardian can not be obtained, or he has no guardian, and that fact is stated in the peti- tion, he may be made a defendant. §5007 3 H998. CHAP. 19, 15-19 ] LUNATICS, IDIOTS, ETC. 233 15. How insane person must defend. — The defense of an insane person must be by his legally appointed guardian, or, if there is no guardian, or the guardian has an adverse interest, by a trus- tee for the suit, appointed by the court; and if the insanity of a party be discovered, or he become insane, after the action is brought, it must be thereafter prosecuted or defended by his guar- dian, or his trustee appointed, as provided in this paragraph. 1 16. Guardian must deny what, in answer.— The guardian of a person of unsound mind must deny, in his answer filed in court, all allegations of the petition prejudicial to such defendant. 2 17. Duties and compensation of guardian ad litem and trustee. — The court must require a guardian ad litem, or a trustee ap- pointed under paragraph 15, above, faithfully to discharge his duty, and, upon his failure so to do, may remove him, and ap- point another in his stead ; and the court may fix a compensa- tion for his services, which must be taxed in the costs against the insane person. 3 18. How insanity of a party determined. — When the insanity of a party is not manifest to the court, and the fact of insanity is disputed by a party or an attorney in the action, the court may try the question, or impanel a jury to try the same. 4 19. Sale of real estate by guardian of idiot, imbecile, or lunatic. Whenever the sale of the real estate of such ward is necessary for his support, or the support of his family, or the payment of his debts, or such sale will be for the interest of such ward, or his children, the guardian may sell the same under like pro- 1 § 5000. Prior to the adoption of the act from which this section was taken, the court could appoint a guardian ad litem to defend the suit for a lunatic non- resident defendant, brought into court by publication ; and no decree could be taken against him without an answer from his guardian ad litem. Sturges v. Longworth, 1 O. S. 545. See notes, page 272, and 31 O. S. 247. 2 § 5078. The probate court has no power to set a guardian over the person, property, and minor children of a man upon ex parte affidavits that he is insane, without notice to him of the proceeding while he is a resident of the county, and in no way concealed. (Guernsey Co. 0. C. P., 1858). Cox v. Cox, 1 W. L. M. 96. 3 i) 5001. See par. 31, chap. 23. 4 2 5002. 16 234 LUNATICS, IDIOTS, ETC. [CHAP. 19, 20-24. ceedings 1 as are or ma}- bo required by law to authorize the sale of real estate by the guardian of a minor. 2 20. May be at private sale. — If it be more for the interest of such idiot, imbecile, or lunatic, or his children, the probate court, upon the petition of the guardian, may authorize him to sell said real estate at private sale, either in whole or in parcels, and upon such terms of payment as shall be prescribed by the court. 2 21. Petition and hearing thereof — Order of court. — Said petition must contain a pertinent description of the real estate proposed to be sold, a statement of its value as nearl}- as can be ascer- tained, and the facts on which the application is founded. If, upon hearing, the court shall be satisfied that it will be more for the interest of the ward that said real estate should be sold at private than at public sale, the court maj 7 make an order au- thorizing said sale, and prescribing the terms thereof. 2 22. Additional bond of guardian. — Before making such sale, the court must take from said guardian a sufficient bond for the faithful performance of his duty in the premises, and for ac- counting tor the proceeds of all sales made under said order; but the guardian can not be authorized to sell the real estate at pri- vate sale lor less than its full appraised value. 2 23. Wiw mud be parties; notice to; expectancy of dower. — If the ward have a husband or wife, such husband or wife must be made a defendant to the petition: and if he or she file an answer 3 con- senting to the sale, free and discharged of all right and expectancy of dower therein, such answer will, on the sale being confirmed, be a full release of his or 1km- expectancy of dower, and unless in such answer an allowance in lieu of dower be waived, the court must allow, out of the proceeds of the sale, such sum in money ' as is the just and reasonable value of his or her expectancy of dower; and, in addition to the husband or wife of such ward, all persons entitled to the next estate of inheritance in such real estate must be made defendants to the petition, and notified of the pendency of such proceedings in such manner as the court may direct. 2 24. Dower of insane, etc., widow; how assigned or sold by guar- dian—The guardian of an idiot, imbecile, or insane widow, who has or is supposed to have a right of dower iu any lands or ten- 1 See chapter 6. The forms there given c >iu he readily adapted to the re- quirements of the eale of land- under this chapter. 2 ? 6306, as am., 86 v. 106. See note from 44 O. S., on page 174, and notes, p. 98. 3 See paragraphs 70-7:1 chapter 6. 4 See "Dower, etc., Tables," pp. 2916-26 of Giauque's Rev. Stat, of Ohio. CHAP. 19, 25-29.] LUNATICS, IDIOTS, ETC. 235 ements, of which her husband was seized as an estate of inher- itance, or in any land held by bond, article, or other evidence of claim, where the dower has not been assigned, has power to sell, compromise, or adjust the same upon such terms as he may deem for the interest of such widow, and as the probate court of the county in which the guardian was appointed shall approve; and after such approval, the guardian may execute and deliver all needful deeds, releases, and agreements for the sale, compromise, or assignment of such dower. 1 25. Guardian should make written report. — The guardian should make a clear report in writing to the court of every act done by virtue of the power given in the preceding paragraph, and get the court's approval thereof. What these acts will be depend so much upon the circumstances of each case that no general forms can be given ; but somewhat similar forms are found in chapter 6. 26. Leasing and improving by guardian. — Such guardian may also, in like manner as the guardian of a minor, and on like pro- ceedings, 2 be authorized to lease and improve the real estate of his ward ; and if the lease extend beyond the time of the restor- ation of such ward to sound mind, or his death, such lease will determine on his restoration or death, unless the same be con- firmed by such ward or his legal representatives. 3 (See par. 28, ch. 7.) 27. Rights of tenant.— If such lease determine by reason of the restoration of the ward or his death, the tenant will have a lien on the premises for any sum or sums expended by bim in pur- suance of the lease in making improvements, and for which compensation shall not have been made either by the rent or otherwise. 3 28. Long lease by guardian may be authorized by court. — Such guardian may also be authorized by the probate court to lease the real estate of his ward or any part thereof for any limited term of years or by perpetual lease, with or without the privi- lege of purchase, whenever the court, on his application, shall find that the same is necessary for the support of his ward, or the support of his family, or that such leasing will be for the best interests of him or them. 4 29. Lease for three years without order of court. — Such guardian 1 3 6307. 2 See chapter 7. 3 2 6308. * § 6309. 236 LUNATICS. IDIOTS, ETC. [CHAP. 19, 30-36. may lease the real estate of his ward for any term not exceeding three years, without any application to the court.' 30. Application for authority to make long lease. — The applica- tion for authority to make such long lease or leases must be by petition, setting forth the character of the idioc}', imbecility, or lunacy of the ward ; whether curable or incurable; temporary or confirmed, and its duration ; the number, names, ages, and residence of the family of the ward, including the wife or hus- band of the ward, and of those who have the next estate of in- heritance from said ward, all of whom, as well as the ward, must be made defendants; and the petition must also contain a de- scription of the real estate ; its value, and the amount for which it can probably be leased ; the reasons for the proposed lease, and the terms, covenants, conditions, and stipulations on which it is proposed to lease the same. 2 31-36. Form of petition for long lease. — The following form may be used, of course changing the statements to conform to the facts of the case : State of Ohio, County, ss. Probate Court. A. B., as guardian of C. D., plaintiff, vs. "* Said C. D., H. D., wife of said C. J)., and M. D., a \ Petition for authority to lease land. minor, aged 15 years, L. D., a minor, aged 11 years, and J. D., a minor, aged 4 years, children of said C. D., defendants. Petitioner represents that said C. D. is an insane person whose insanity, as plaintiff is informed by said C. D.'s physicians, and as he verily believes, is hereditaiy and violent, incurable and confirmed ; that said C. D. has been insane since the month of , 18 — ; that he has a family consisting of his co-defendants above named, all residing on the farm of said C. D., in said county, said farm being more definitely described below ; that the three defendants last above named are the only children of 46309. 2 §6310. OHAP. 16, 37.] LUNATICS, IDIOTS, ETC. 237 said C. D., and are, therefore, together with said H. D., the per- sons who have the next estate of inheritance from said C. D. ; that said farm contains one quarter section of land, described as follows : [Here describe the land as it should be in a deed] ; that said farm is probably worth sixteen thousand dollars ; that it can be leased for eleven hundred dollars, money rent, per year, if leased for a term of five years, with the jmvilege of purchase at the expiration of lease, at the price of $16,000.00 ; that if not so leased, plaintiff believes it can not be leased at as favorable terms, if at all; that said C. D. owns said farm in fee simple, unin- cumbered, and personal property amounting to about 82,000.00 in value, and nothing else; that said defendants are all depend- ent on the income of said propert}', and they can not work said farm themselves, said defendant J. D. being the only son, and too young to do any work ; that it is proposed to lease said farm upon the following terms, covenants, conditions, and stipulations, to-wit: [Here give them; or, if this can be done, say, upon the terms, covenants, conditions, and stipulations set forth in the pro- posed lease to G. L., a true copy of which is hereto appended, and made a part hei'eof]. Plaintiff therefore prays the court that he may be authorized to lease said farm on the terms, etc., and in the manner designated above. A. B. [or, H. M.., attorney for plaintiff]. The State of Ohio, county, ss. : A. B., being sworn, says that he is the plaintiff in the foregoing petition, and that the various matters therein stated are true, as he verily believes. A. B. Sworn to before me, and signed in my presence, this day of -, 18 — . J. H., Notary public, county, Ohio. 37. Proceedings on the application. — On filing the petition, the same proceedings 1 must be had as on petition for sale of the real estate of a minor, except that the appraisers must appraise not only the value of the real estate, but also the value of its annual rent upon the terms, covenants, conditions, and stipulations of the lease as proposed in the petition; and the appraisers must also state in their report their opinion whether the proposed lease 1 See chapter 6. 238 LUNATICS, IDIOTS, ETC. [CHAP. 19, 38-41. will be to the interest of the ward and his family ; and they may also suggest any change in the terms, covenants, conditions, and stipulations proposed in the petition ; on the return of the ap- pruiseinent, the guardian will not be required to give an addi- tional bond ; but, in case or" sale under the terms of the lease, he must be required to give such bond before the confirmation of the sale. 1 38. Fined hearing and orders. — Upon the final hearing, if the prayer of the petition be granted, the court nnvy prescribe the terms, covenants, conditions, and stipulations of the lease, either in accordance with those set forth in the petition or otherwise, and authorizing the lease to be made by public or private letting, as may be deemed best; but in no case can the leasing be allowed for a less rent than that named in the report of the ap- praisers, and the lease can not take effect till the same, with the security therein, is approved and confirmed. 2 39. Completion of real estate contracts. Additional bond. — The guardian of an idiot, imbecile, or lunatic, whether appointed by a court in this state or elsewhere, may complete the real con- tracts of his ward, or any authorized contract of a guardian who has died or been removed, in like manner and by like proceed- ings as the real contract of a decedent may, under an order of court, be specifically performed by his executor or administra- tor ; but in all cases when the guardian, by virtue of such con- tract or the completion thereof, shall receive or be entitled to receive any moneys not amply covered by his bond, the court must require of him an additional bond, with sureties, in respect of such moneys. 3 40. The law relating to such contracts. — The provisions of the statutes concerning real contracts of a decedent, mentioned in the preceding paragraph, are given in the next two paragraphs.* 41. When a person who has entered into a written contract for the sale and conveyance of an interest in land dies before the completion thereof, and his executor, administrator, or other legal representative, desires to complete the contract, he may file l 86311. 2 §6312. 3 §6313. 4 As these two sections are brief, they are given here for the convenience of having all the law and the forms relating to this matter together, though the two paragraphs will also be found in chapter 18. CHAP. 19, 42-52.] LUNATICS, IDIOTS, ETC. 239 a petition therefor in the court of common pleas or probate court of the county in which the land, or any part thereof, is situated ; if the petition be filed in the probate court, service may be made therein as in civil actions; and the heirs at law, devisees, or other legal representatives of the deceased vendor, when not plaintiffs, must be made defendants in the action. 1 42. The court, after causing to be secured to and for the benefit of the estate of the deceased, its just part and proportion of the . consideration of the contract, may authorize the executor, ad- ministrator, or other legal representative, to complete the con- tract, and to execute a deed for and on behalf of the heirs at law to the purchaser, which must recite the order, and will be as binding on the heirs at law, and all other persons interested, as if it had been made by the deceased in his lifetime. 2 43-52. Form of petition mentioned in paragraph 41, above. State of Ohio, county, ss. Probate court [or, court of common pleas]. A. B., guardian of C. D., an insane \ person, plaintiff, D .... , 7 . 1 ' J I Petition to complete con- TOn-rrTB-T'rrt ~ • ( tract for sale of land. E. G., H. I., K. JL., JU. 1)., a minor \ J . J over 14 years of age, defendants. / Plaintiff represents that on the — day of — a. d., 18 — , the said C. D., then of sound mind, and under no legal disability, entered into a contract in writing with the said E. G\, for the sale of the following described real estate, situate in the county of , and State of Ohio, to-wit : [describe the property'] upon the following terms: [state the terms'] as will appear by said con- tract [or, a copy of said contract] hereto attached, [Here set forth in plain language all other pertinent facts, as for instance:] That said E. G. paid to said C. D., while yet of sound mind, the first, second, and third installments, and has paid to said plaintiff, since the insanity of said C. D., the fourth install- ment of said purchase-money. And plaintiff says that said E. G. is ready and willing to pay the balance due upon said con- tract, as soon as a valid deed can be made to him for said prem- ises. 1 i 5800. 2 g 5801. 240 LUNATICS, IDIOTS, ETC. [CHAP. 1 9, 53-54. Plaintiff further represents that all the other defendants named are heirs at law of said C. D., now insane. Plaintiff therefore prays that said heirs at law may be made defendants to this petition, and (hat said plaintiff may be author- ized, upon payment of the residue of said purchase money, to ex- ecute and deliver to said E. G.. in behalf of the aforesaid C. D., and his heirs at law, a deed in fee simple for the real estate here- inbefore deseribed. A. B., Guardian, [or, If. G., attorney for plaintiff. The State of Ohio, county, ss. A. B., being sworn, says [and conclude in all respects as in paragraph 12, page 228]. 53-54. Journal entry, ordering guardian to make deed, and give bon<1, ichen required. A. B., guardian of C. D., ~) vs. > Petiton to complete contract. E. G-. and others. ) [If there are minor defendants, first enter the appointment of a guardian ad litem. See par. 15, chap. 23.] The said defendants having been all legally notified of the pend- ency of said petition, this cause now comes on for hearing upon said petition, the answer of the guardian ad litem, and the testi- mony. And the court being fully advised in the premises, finds that said C. D., on the da}- of A. D., 18 — , being then of sound mind and under no legal disability, entered into a con- tract in writing with E. G., for the sale of the premises, in the petition described ; that said E. G. paid the first, second, and third installments of the purchase money to said C. D., before his insanity, and has since paid to the petitioner the fourth in- stallment of the same : and the said E. G. is ready and willing to comply with so much of said contract as remains unfulfilled by him, so soon as a valid deed for said premises can be made to him. It is therefore ordered, that upon payment of the residue of said purchase money, said A. B., guardian for and on behalf of the said C. D. and his heirs at law, execute and deliver to said E. G. a deed in fee simple for said premises, according to the statute in such case made and provided [a., is plaintiff, and B. G. is defendant, [or, E. G. and others are defendants,) the said A. B. has been ordered by said court to complete the real con- tract described in the petition in said cause. Now, if the said A. B. shall account for and pay over to the persons entitled thereto, all the money that shall come into his hands by reason of the completing of said contract, then this ob- ligation will be void; otherwise it will be and remain in full force and effect. Signed and sealed by us, at , this — day of a. d. 18 — . Executed in presence of A. B. [seal.] L. E. [seal.] S. T. [seal.] 58-59. Deed of guardian in preceding case. Know all men by these presents, that, whereas, on the day of A. D. 18 — , A. B., guardian of C. D., an insane person, filed his petition in the probate court within and for the county of and State of Ohio, against E. G. and others, heirs at law of said C. D., for authority to make a deed to E. G., on behalf of the said C. £>., and of his heirs at law, for the following described real estate, situate in said county of , and State of Ohio, to- wn: [describe the property, ,] in compliance with the terms of a contract in writing entered into on the day of , A. D. 18 — , between the said C. D., then of sound mind, and said E. G. And, whereas, such proceedings were had that the said A. B. was ordered by said court as guardian as aforesaid, and for and on be- 242 LUNATICS, IDIOTS, ETC. [CHAP. 10, 60-61. half of the said C. D. and his heirs, to execute and deliver to the said E. G. a deed in fee simple for said premises, upon payment of the purchase money remaining unpaid, which order is in words as follows, to-wit : [here copy the order in full, inclosing it in quotation marks], all of which will more fully appear by the records of said court, to which reference is here made: and the said E. G-. having paid the residue of said purchase money ; now, therefore, I, the said A. B., guardian of said C. D., by virtue of the powers in me vested b}' law and the order of said court, for and on behalf of the said C. D. and his heirs, do hereby give, grant, bargain, sell, and convey unto the said E. Gr. the prem- ises hereinbefore described, with all and singular the appurte- nances, to have and to hold the same unto him, the said E. G-., and unto his heirs and assigns forever. Signed, sealed, and acknowledged A. B., in our presence. as guardian as aforesaid. This deed must be acknowledged just as shown in par. 100, of chapter 6. 60. Insolvency of lunatic. — If the estate of the idiot, imbecile, or lunatic, is insolvent, or will probably be insolvent, such estate must be settled by the guardian in like manner, and like pro- ceedings may be had as is or may be required by law for the settlement of the insolvent estate of a deceased person. 1 61. Foreign guardian of foreign idiot, imbecile, or lunatic may dispose of property belonging to his ward. — The foreign guardian (conservator, trustee, or other person having power similar to those of guardians in this State), of a foreign idiot, imbecile, or lunatic, appointed in any other State of the United States, or any territory thereof, may possess, manage, or dispose of the real and personal estate of his ward, situate in this State, in like manner and with like authority as guardians of idiots, imbeciles, or lunatics appointed by the courts of this State, after complying with the following requirements: First — An authenticated copy of the foreign commission of idiocy or lunacy proved, allowed, and recorded in the probate court of the county, or one of the counties, in which such estate is situate, in like manner as is or may be provided by law for the admission to record of an au- 1 \ 6314. See Raff 's Guide, chapter 9. CHAP. 19, 62] LUNATICS, IDIOTS, ETC. 243 thenticated 1 copy of a will made in any other of the United States. Second — Evidence satisfactory to the court here, before which such foreign commission is approved, that such idiocy or lunacy still continues. Third — The foreign guardian, conser- vator, trustee, or other person, having powers similar to those of guardians in this State, must file his bond, with sureties, re- siding in this State or elsewhere, to the acceptance of the court, conditioned for the faithful administration of his guardianship.*- 1 62. Termination of guardianship ; settlement. — Whenever the probate judge shall be satisfied that an idiot, imbecile, or lunatic, or a person as to whom guardianship has been granted as such, is restored to reason, or that letters of .guardianship have been improperly issued, he must make an entry upon the journal that said guardianship terminate; and the guardianship thereupon ceases, and the accounts of the guardian must be settled by the court. 3 1 'Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to any property in the State of Ohio, may be admitted to record in the probate court of any county in this state, where any part of such property may be situated ; and s,uch authenticated copies, so recorded, shall have the same validity in law as wills made in this state, in conformity with the laws thereof, are declared to have: provided, that where an}- such will, or authenticated copy has been or shall hereafter be admitted to record, in the probate court of any county in this state, where any part of such property may be situated, a copj' of such recorded will, with the copy of the order to record the same, annexed thereto, certified by the probate judge, under the seal of his court, may be filed and recorded in the office of the probate judge of any other county in this state, where any part of such property is situated, and it will be as ef- fectual, in all cases, as the authenticated copy of said will would be if proved and admitted to record by the court." §5937. 2 I 6315. The " First " and " Second " are incomplete sentences, meaning what? Copied from the statutes. • I 6316. An appeal will lie from an order of a probate court overruling a motion of an imbecile ward t<> terminate the guardianship upon the grounds (1) that letters of Kuardianship were in the first instance improperly issued, and (2) that if he was an imbecile at the time such letters were issued he has since been fully restored t>> reason. Hiett v. Nebergall, 4-j O. 8. 7U2. " No more precise limit can be assigned to the authority of guardians over insane persons and spendthrifts, than that of the ward's necessities. When he becomes restored to reason or is otherwise fit to control his own person and estate, this guardansbip ceases; for Lne purposes of the tiust are felt no longer. But a period su difficult to fix should be judicially determined; for 244 LUNATICS, IDIOTS, ETC. [CHAP. 19, 63-65 63. Petition to discharge land of dower of insane person. — A person owning real property i:i this state, incumbered by the contingent or vested right of dower of an insane person, may apply, by petition, to the common pleas court of the county in which the real estate, or any part thereof, is situated, making defendants thereto such in- sane person, and also the husband or wife and guardian, if such person has either or both, for leave to sell all or any part thereof, discharged and unincumbered of such contingent or vested right of dower. This petition must set forth the insanity of the person, together with a description of the land proposed to be sold ; the court must thereupon appoint a committee of six competent men, of whom at least three are physicians, who shall, under oath, in- quire into the fact of the insanity of such person, and shall hear testimony to be produced by the husband, wife, or guardian, or, if there is no such guardian, by a guardian ad litem, 1 to be appointed by the court in the action ; and the committee must, at any term of such court, make a report, in writing, of the result of their in- vestigation, signed by the members thereof. 2 64. Inquest of lunacy. — If the committee report unanimously that such person is, in their opinion, pernanently insane, the court must appoint three judicious freeholders to appraise the real estate de- scribed in the petition, whether the same is in one or several coun- ties, who must report in waiting the value of each tract. 3 65. Proceedings on report of such facts to court. — Upon the filing of such report, the court may direct such petitioner to convey, by good and sufficient deed of conveyance, to the insane person, to be held by such person in fee, such proportion of the real estate de- scribed in the petition as shall seem just and proper to the court, or the court may assign to such insane person, to be held by such person during life, after the death of the husband or wife of such insane person, such proportion of the real estate de- scribed in the petition as shall to the court seem just and proper, for the support of such insane person; or the court may order the petitioner to invest an amount, to be fixed by which cause a formal discharge from guardianship is to be sought and ob- tained; and, meantime, the guardian's authority will continue." Schouler's Dom. Rel. 424 (citing; Dvce Sombre's case, 1 Phil. Ch. 437; Hovey v. Har- mon, 49 y\i-. 269; Wendell's case. 1 Johns. Ch. GUO; Kimball v. Fiske, 39 N. U. 110; Chase v. Hathaway. 14 Mass. 222). To similar effect, 3 Redf. on Will-. 458-9. 1 See chapter 23. 722, as am., 80 v. 186. 3 I 5723, as am., 86 v. 186. CHAP. 19, 66-67.] LUNATICS, IDIOTS, ETC. 245 it, ill the stock of a company, or stocks created by the laws of this state, as may be designated by the court, the profits and dividends arising from such investment to be applied to the support and main- tenance of such insane person after the death of the husband or wife of such insane person ; and the petitioner may, upon his compliance with the order of the court, sell all the real property the petitioner is possessed of, described in the petition, free and unincumbered of the contingent or vested right of dower of such insane person. 1 66. Dower of insane may be barred. — When the husband or wife of an insane person conveys any real estate in this state, in which such insane person has a contingent or vested right of dower, by virtue of such ownership of the husband or wife, or otherwise, and the insane person does not join the husband or wife in such convey- ance, the husband or wife may apply by petition to the common pleas court of the county in which the insane husband or wife re- sides, or, if the insane husband or wife resides out of the state, then in the county in which the real estate is situated, for leave to have any part or all of such real estate so conveyed released of the dower right therein. 2 67. This petition must set forth the insanity of the husband or wife, and a description of the land proposed to be affected ; to which petition the insane person, the guardian, if there is one, and all persons in interest, must be made defendants, and the petition must be proceeded in, in all respects, in the manner prescribed in the three preceding paragraphs, except that instead of ordering the petitioner to sell the real estate, or to convey or assign to such in- sane person any part thereof, the court must direct the petitioner to make such investment as is provided in the preceding paragraphs, 1 § 5724, as am., 86 v. 18(5. As to contingent, etc., dower, see pp. 2916-26, Giauqup's Rev. Stat, of Ohio. 2 §5725, as am.. 86 v. 187. § 5725a, passed April 24, 1890 (87 O. L. 281), provides that any real estate or interest therein, coming to any person by purchase after the husband or wife of such person is adjudged insane, and is an actual inmate of any asy- lum f.ir the insane provided by the state, may be conveyed by such person, at any time while such insane husband or wife remains an inmate of any such asylum, free and clear, from any dower, right or expectancy of such in- sane person, and dower shall not attach to any such real estate both so ac- quired and conveyed during said time as aforesaid in favor of such insane person, and the indorsement upon the instrument of conveyance, by the su- perintendent of any such asylum that such husband or wife is an insane in- mate of such asylum, stating when received therein, signed officially by him, shall be sufficient evidence of the fact that such husband or wife is such in- sane inmate and such indorsement shall be a part of such instrument of conveyance. 246 LUNATICS, IDIOTS, ETC. [CHAP. l'J, 68-71. or may require the petitioner to secure the amount to the use of the insane person by mortgage of unincumbered real estate of at least double the value thereof. 1 68. Upon compliance by the petitioner with the order of the court, the court must enter a judgment releasing and discharging the real estate from the incumbrance of such contingent or vested right of dower, and must adjudge the holder of the legal title, or other party liable, to pay to the petitioner any sum withheld or re- tained as indemnity against such dower right. 1 69. Apartments for lunatic*, etc., in county infirmary. — The com- missioners of every county in which there rinw is, or may hereafter be, established a county infirmary, must provide separate apart- ments, in or adjoining such infirmary, for the safe keeping and treatment of lunatics, idiots and epileptics, residents in such county, and who have not been and can not be received iuto either of the lunatic asylums, or who have been discharged therefrom. 2 70. Who admitted, and how provided for. — The directors of the county infirmary, as soon as apartments are provided, as mentioned above, must admit therein all lunatics, idiots, and epileptics who are or may become a charge upon their county, and provide for their safe keeping, support and treatment, in such manner as they now do for the poor under their care, and also must receive and provide for the safe-keeping, support, and treatment of such lunatics, idiots, and epileptics in their county, who, by their guardians or friends, may apply for admission, as pay patients, under such rules and regula- ti >ns as the directors prescribe. 3 71. Real estate of inmne and other paupers; how disposed of. — When a person is admitted into the infirmary as a pauper, whether insane or otherwise, and such person is possessed of, or is the owner of real estate, or has an interest in reversion, or is in any manner legally entitled to any gift, legacy, or bequest in real estate, the directors must take possession of all such property or other interest such pauper is entitled to, and when they deem advisable and to the best interest of such pauper, must proceed to sell the same; and they must file a petition for that purpose in the court of com- mon pleas, or probate court, in the county where such property is situated ; and the proceedings therefor, sale, confirmation of sale and execution of deed by said directors, must be conducted, in all ' See note 2, p. lit:.. » g 970, as am., 83 O. L. 196. s I 971, as am., 83 O. L. 196. CHAP. 19, 72-75.] LUNATICS, IDIOTS, ETC. 247 respects, in conformity to the practice and statutory provisions for the sale of real estate by guardians ; ' and the net proceeds arising from such sale must be applied, under the special direction of the directors, in such manner as they think best, to the maintenance of such person during his continuance as a pauper in the infirmary; but if the guardian, husband, wife, heirs, or persons who are en- titled to the residuary interest in the property of said pauper, give bond to the directors of the infirmary, to their satisfaction, and pay into the hands of the clerk of the board of directors, at such times as the directors require, an amount sufficient to support said pauper while he remains in the infirmary, the directors can not take charge of said property. 2 72. Certain duties of assessors as to guardians of insane, etc. — Each assessor, at the time of taking a list of property for taxation in the year 1882, and every fourth year thereafter, must take an enumeration of all deaf and dumb, blind, insane, and idiotic per- sons, whose usual place of residence is in any family, jail, or in- firmary in his township or precinct, on the day preceding the second Monday of April, together with their names in full, their age, and the duration of their muteness, blindness, insanity, or idiocy ; and he must make out a list of said deaf and dumb, blind, insane, and idiotic persons, designating those of each class, and the names of their parents or guardians, and post-office address; and he must return the same to the county auditor on or before the third Monday of May in the same year. 3 73. How boundary of land of idiot or insane person may be fixed by written instrument. — See paragraphs 3, 4, chapter 25. 74. Ward's real estate may be improved. — The guardian of an im- becile or insane person may use the moneys and personal estate of his ward in improving the real estate of said ward as follows: 4 75. Petition therefor; parties, and notice to. — The guardian pro- posing to make such improvement, must file in the probate court in which he was appointed such guardian, a petition describing the premises to lie improved, the amount of rent said premises yield at the time of filing such petition, in what way it is proposed to make such improvement ; how much it is proposed to expend in making same, and what rent said premises will probably yield when so improved, together with a statement of the value of said ward's personal estate, and such other facts as may be pertinent to the question whether said improvement should be made, and a prayer that he be authorized to use so much of said ward's moneys and personal estate as may be necessary to make such improve- ment; and, if the property to be improved is so situated that it can advantageously, and to the best interest of the estate of said 1 See chap. 6. 2 £ 972. 3 g 1526. * g [6316,-1], Giauque's Rev. Stat.; 86 v. 31, \ 1. 248 LUNATICS, IDIOTS, etc. [chap. 19, 76-81. ward, be improved in connection with the improvement of prop- erty, adjoining and adjacenl to said premises of said ward, said petition must contain a statement showing the same, and a prayer in accordance therewith. Said petition must also contain a state- ment of the character of the imbecility or the insanity of said ward — whether temporary or confirmed— and its duration; the names, aires, and residence of the family of the said ward, in- cluding the wife or husband of said ward, and of those who have the next estate of inheritance from said ward, all of whom, as well as said ward, must be made defendants, and be notified of the pendency and prayer of said petition in such way as said court shall direct. 1 76. Proceedings and form*. — Upon the filing of said petition, the same proceedings must he had as to pleadings and proof as are had on petition by a guardian to sell the real estate of a minor. 2 The forms in chapter 6 can readily be adapted for these proceedings. 77. Commissioners appointed. — The court must appoint three disin- terested and judicious freeholders of the county as commissioners, whose duty it shall be to examine the premises proposed to be im- proved and its surroundings, and to report to the court their opinion, whether the improvement proposed will be advantageous to the es- tate of said ward or not." 78. How much moneyto be so used. — Upon the final hearing, if the prayer of the petition be granted, the court must fix the amount of said ward's money and personal estate that may be used in mak- ing said improvment. 3 79. May unite with owners of adjacent property. — The court may authorize said guardian to unite with the owners of adjoining and adjacent property in improving the premises of said ward, and of said adjacent owners, aud for the proper management and repair of said property, when so improved, upon such equitable terms and conditions as shall be approved by said court.'' 80. Guardians report. — The amount of money and personal estate expended in making said improvement shall be by said guardian distinctly reported, under oath, to said court within forty days after said improvement shall have been completed. 4 81. Line of descent, in certain case. — The statute provides that in case of said ward's death without being restored to reason, if there are heirs of said ward who inherit real estate only from said ward, then said sum of money so expended by said guardian in im- proving said real estate of said ward, shall descend and pass the same as the other personal estate of said ward, and the same shall be a charge on said premises so improved in favor of said heirs of said deceased ward who inherit the personal estate. 4 1 \ [6316,-1], Giauque's Kev. Stat.; 86 v. 31, g 1. 2 g [6316,-2], Giauque's Rev. Stat.; 86 v. 32, g 2. 3 g [6310,-3], Giauque's Kev. Stat.; 86 v. 32, g 3. 4 g [6316,-4], Giauque's Rev. Stat.; 86 v. 32, g 4. CHAP. 20. 1-4.] GUARDIANSHIP OP DRUNKARDS. 249 CHAPTER 20. GUARDIANSHIP OF DRUNKARDS. Par Par. 1. When guardian to be appointed 5. No jury allowed, for drunkards. 6-7. Form of notice. 2. Will be guardian of drunkard's 8. How served. minor children, when. 9. Subsequent conveyance invalid. 3. What law applicable to. 10. When guardianship shall termi- ni. Notice to be served on party, etc. nate. 1. When guardian to be appointed for drunkard. — The probate court, upon satisfactory proof that any person resident of the county wherein the application may be made, is incapable of taking proper care of himself or herself, or of his or her property, by reason of intemperance or habitual drunkenness, must forthwith appoint a guardian of the person and property of such person, or either. 1 2. Will be guardian of drunkard's minor children, unless. — Such guardian will, by virtue of such appointment, be guardian also of the minor child or children of his ward, in case no other be ap- pointed. 1 3. What laws applicable to. — All laws relating to guardians for lunatics, idiots, and imbeciles, and their wards, and all laws point- ing out the qualifications, duties, rights, and liabilities of such guardians, and their sureties in force for the time being, are ap- plicable to the guardians contemplated by this chapter. 1 4. Notice to be served on party, etc. — At least five, but not more than ten, days before the time when the application for the appoint- ment of the guardian authorized by paragraph 1 , above, is made, a notice, in writing, setting forth the time and place of the hearing of the application, must be served upon the person for whom such appointment may be sought. 2 1 \ 6317, as am., 86 v. 195. See second paragraph of note 2. page 7. Only the guardian can be authorized to carry on ward's business; ward's wife may be employed. fRam. Dist. Ct.) See note. p. 251. For forms of application, appointment, etc., readily adapted to such cases, see preceding chapters. 2 ? 6318, as am., 86 v. 196. 17 250 GUARDIANSHIP OF DRUNKARDS. [CHAP. 20. 5-8. 5. No jury allowed. — The person for whose propertj' such ap- pointment is sought is not entitled to a jury trial on the hearing of such application. 1 6-7. Form of notice. — The following form of notice would be suf- ficient, changing " property" to " person," or " person and property," as the facts may require : To G. \Y. You are hereby notified that on (name the day of the week) the — day of a. d. 18 — , at — o'clock — . m., an application for the appointment of a guardian of your property will he for hearing in the probate court of county, Ohio, in its court- room, in said county, on the ground that, by reason of your in- temperance or habitual drunkenness, you are incapable of tak- ing care of or preserving your preperty. [Signed] A. B. 8. Sow served. — This notice may lie served in any way the probate judge may direct. 2 If served by any person other than the sheriff, or other officer in his official capacity, its service should be verified the same as the notice on page 107. 1 The defendant, in the case of Hageny v. Cohen, tried in the Hamilton county district court, made an application in the court below for the appointment of a guardian of Hageny, upon the allegation that he was a man, who, by reason of his habitual drunkenness, was incapable of taking care of his property. The guardian was appointed. At the hearing of the case the defendant below demanded a trial by jury, which was refused. The refusal to grant a jury was the ground of error. Judge Burnet decided the case. He remarked that the counsel for the plaintiff in error had cited the court to a statute existing during the terri- torial organization of Ohio, by which a jury was allowed, in inquests of lu- nacy, to determine the question whether the person who was alleged to be a lunatic, was a lunatic in fact. The first constitution contained the same clause that is now contained in the present constitution, that the right of trial by jury shall be held inviolate. Nevertheless, under the practice of the State of Ohio, during the time the first constitution existed, a trial by jury was not given in cases of the appointment of guardians, either for minors or lunatics. The appointment of a guardian to assume control of the property of inebriates was not known in Ohio until the recent statute of ]87i. But the right of a trial by jury was not recognized in the hearing of any application for the appointment of a guardian under either the fin t or the present constitution. The court has no doubt upon the question It 2 See par 37, chap. 6. CHAP. 20, 9-10.] GUARDIANSHIP OF DRUNKARDS. 251 9. Subsequent conveyance invalid. From the time of the serv ice of such notice until the hearing, or the day thereof, as to all persons having notice of such proceeding, no sale, gift, convey- ance, or incumbrance, of the property of such intemperate per- son or habitual drunkard, will be valid. 1 10. When guardianship shall terminate. The court, upon reas- onable notice to such guardian, and to the person or persons on was not a matter to which the article of the constitution referred to the plaintiff in error was applicable. But it was claimed that the court of common pleas had no jurisdiction under the constitution to appoint a guardian, but that this jurisdiction was conferred solely upon the probate court by article 4, section 8, and that it can not be conferred by the legislature on any other court. It was a rule of interpretation of the provisions of the constitution that they should be inter- preted with reference to the institution and laws that had previously existed. The only guardians known to the law of Ohio previous to the adoption of this constitution, were the guardians of infants and lunatics. Under the former law such guardians were invested with the control of both the person and estate of their wards. This article of the constitution must be prop- erly understood as applying to that portion of the judicial power which had existed in the state up to the time of the adoption of this constitution, and that it was intended to give to the probate court that jurisdiction which was recognized ordinarily as the probate jurisdiction of the courts of Ohio, and which previously existed in the common pleas courts. This law gives no control over the person of an inebriate, but simply gives to the guardian ap- pointed the right to control his property for his benefit. This court would hesitate to pronounce a law of the legislature unconstitutional, being itself a subordinate court, and, unless the case were very clear, would not feel au- thorized to render such a decision. In the present case the court thought that the better judgment was that the law was constitutional in this matter therefore the court below had not erred. It was claimed, however, that the judgment rendered and the findings were contrary to law. At the time the court appointed the guardian, the inebri- ate was engaged in business, and the court, in addition to appointing the guardian, found that it was for the inebriate's advantage that his business should be continued, and that his wife was a proper person to continue it, and that therefore she should continue it. In this the court erred. The guardian was the proper person under the statute to be invested with the control of the property, and that should have been the order of the court ; and if, in his judgment, it was desirable to continue the business, and the wife was the proper person to do it, he would have authority to em ploy her to conduct the business. 1 Bulletin, 104. Same case affirmed, 29 O. S. 82. 1 g 6318, as am., 86 v. 196. 252 GUARDIANSHIP OF DRUNKARDS. [CHA1\ 20. whose, application the appointment was made, and satisfactory proof that the necessity for such guardian no longer exists, must order that the relation of guardian and ward terminate, and that the ward be restored to the full control of his property, as be- fore the appointment. 1 CHAP. 21, 1.] TRUSTEES ACCOUNTS. 253 CHAPTER 21. TRUSTEES GENERALLY, AND THEIR ACCOUNTING. Par. 1. All trustees must render bien- nial accounts, same as execu- tors, etc. 2. Exceptions to above. 3-4. Manner of settling executors' and administrators' accounts. 6. Account of deceased, insane, etc., executor, administrator, or guardian. 6. Vouchers must be filed. 7-16. Form of trustees' account, etc. 17-18. Affidavit to partial or final account. 19-20. Notice of filing accounts to be published. 21. Costs of notice; how paid. 22-23. Form of notice. 24. Examinations of accountants under oath. 25. Probate court to determine as to execution of trust. 26. Court must require final ac- count. 27. How executor, etc., compelled to file account. 28-29. How return of inventory en- forced. Pak. 30. Effect of revoking letters. 31. If trustee imprisoned, how dis- charged. 32. Trustee may be attached, etc. 33. As to forms. 34-35. The form of application for writ of citation, and of writ. 36. Form of journal of entry of or- der of attachment. 37-38. Form of attachment against trustee. 39 Form of revocation of the let- ters of trustee. 40. Appeal from determination of probate court. 41. How appeal taken. 42. Force and effect of the deter- mination. 43. Allowance of compensation. 44. When the court may accept res- ignation of trustee, or remove him. 45. Form of resignation. 46. Form of journal entr}- of ac- ceptance of resignation. 47. Form of removal of trustee. 1. All trustees must render bienn'ud accounts, same as executors, etc. — Any trustee of any non-resident idiot, imbecile, or lunatic, appointed as in chap. 22, and any trustee heretofore or hereafter created hy any last will or deed, or appointed by any competent authority, to execute any trust created by any such last will or deed, must, as often as once each two years, render an account of the execution of his said trust to the probate court of the 254 trustees' accounts. [chap. 21, 2-16. count}' in which he was appointed, or in which such last will or deed may be recorded, in the manner provided by law for the settlement of the accounts of executors and administrators. 1 2. Exceptions to above. — The provisions in the preceding para- graph do not apply in any case in which the will or deed creat- ing such trust designates any other tribunal for the settlement of the trust, or in which any other tribunal shall have acquired jurisdiction. 1 3. Manner of settling executors 1 and administrators' accounts. — The onl} T provisions of law relating to the manner of settling such accounts are in effect as given in the next three paragraphs. 4. Every executor or administrator must, within eighteen months after his appointment, render his account of his adminis- tration upon oath, and he must, in like manner, render such fur- ther accounts of his administration, and every twelve months thereafter; and also at such other times as may be required by the court until the estate shall be wholly settled ; and he may be examined on oath upon any matter relating to his accounts, the payments therein mentioned, and also touching any property or effects of the deceased which have come to his hands. 2 When an account is rendered by two or more joint executors or adminis- trators, the court may, in its discretion, allow the account upon the oath of one of them. 3 5. When executor or a Motion for writ of citation. A. B., Trustee of C. D. ) H. B., one of the heirs at law [or, widow; or, creditor, etc.] of said C. D., respectfully represents that more than [state how long'] have elapsed since said trust of said A. B. has terminated, and that said A. B. has neglected to file an account of said trust, as by law he is required to do. The relator therefore moves the court for a writ of citation against the said A. B., and that such proceedings may be had to enforce the filing of such account as may be authorized by law. H. B. 35. Form of Citation. The State of Ohio, county, ss. To A. B., trustee of C. D. You are hereby required, on or before the day of , A. d. 18 — , to file an account of your trust of said C. D.'s estate, in the probate court of said county, according to law, or then and there to appear and show cause why an attachment should not issue against you for your default. Witness my signature and the seal of said probate court, at , this day of , a. d. 18 — . [l. s.] A. C, Probate Judge. i J? 6330, 6333; 6178. as am., 81 v. 1 38. 260 trustees' account. [chap. 21, 36-39. 36. Form of Journal Entry of Order of Attachment. The State of Ohio, on application of, etc,") vs. I Citation. A. B., Trustee of the estate of C. D. ) The writ of citation having been returned served, and said defendant having fiiiled to file an account of his trust of the es- tate of said C. D. within the time limited in that behalf, or to show cause why an attachment should not issue against him for his default, it is ordered that a writ of attachment issue to the sheriff of county, to bring the body of said A. B. into this court forthwith, to abide such order as the court may make con- cerning him in this behalf. 37-8. Form of Writ of Attachment against Trustee. The State of Ohio, county, ss. To the sheriff of said county, greeting : Whereas, A. B., trustee of the estate of C. D., was, by the order of the probate court of said county, required to file an account of his trust of said estate, on or before the day of , a. d. 18 — , or to show cause why an attachment should not issue against him for his default ; and the said A. B., having failed to comply with the order aforesaid, you are therefore commanded to take the said A. B., and have his bod} T forthwith before said court, to abide such order as may be made concerning him in this behalf. Hereof fail not ; and bring this writ with you. Witness my signature, and the seal of said probate court, at , this day of , a. d. 18 — . [l. s.] A. C, Probate Judge. 39. Form of Revocation of the Letters of Trustee. A. B., trustee of the estate of C. D., having failed to file an account of his trust of said estate, according to law [or, to give an additional bond; or, to execute a bond of indemnity to his sureties, etc., as the cause may be~\, although specially required to do so by this court, his letters of trusteeship are hereby re- voked and annulled, and he is divested of all power, authority and control over the estate of said C. D. chap. 21, 40-42.] trustees' account. 261 40. Appeal from deter mined ion of probate court. — The determination of the probate court of any settlement of a trustee's account, whether final or intermediate, may be appealed from in the man- ner provided for an appeal from said court on the settlement of the accounts of executors and administrators, and the like pro- ceedings must be had on such appeal, and the result of such pro- ceedings on appeal certified back to the probate court. 1 41. How appeal taken. — The mauner of taking such appeal is stated in chapter 24 of this volume. 42. Force and effect of the determination. — The determination of the probate court on any such settlement will have the same force and effect as the like determination as to the account of an administrator or executor; 2 and when an account is settled in 1 2 6331. 2 Where the administrators had filed partial accounts, which had been set- led by a competent court, and had thereafter made no further or final settle- ment with the court, but had settled all demands of creditors, and thereupon, at the request of the heirs, made a full and final settlement with the heirs in writing and under seal of all matters of administration, and thereupon sur- rendered to the heirs the remaining assets: Held, that as to all matters that would have been embraced in a final account by such administrators with the court, such settlement by the parties is final and conclusive, unless im- peached ; that as to all errors or mistakes in settling said partial accounts in court, which had been a matter of record for over twenty years, and must have been known to the heirs, such settlement is final and conclusive, unless impeached. Piatt v. Longworth's Devisees, 27 Ohio St. 159. That where the names of infants are signed to such final settlement, with- out lawful authority, they may, on coming of age, if not otherwise debarred, disaffirm the same, and compel the administrators to make final settlement in the proper court. Such infants have a plain, adequate, and complete remedy at law. as to all matters of account, and can not invoke the aid of a court of equity to correct errors or mistakes in such partial or final settle- ments until they have exhausted their legal remedj-. lb. In an agreement between executors and heirs in lieu of a final account in court, where specified pieces of property are turned over by the executors to the heirs, and claims mutually relinquished, and it is expressed that this is a "full and complete settlement" of aH matters that have been adminis- tered on, this language is not broad enough to cover a claim for a breach of trust, outside the line of the executors, and not then known to the heirs. lb. An account rendered by an executor or administrator, and settled by the probate court, is not final, so as to bar further inquiry in regard to the as- sets of the estate in the hands of the executor or administrator, not ac- counted for or passed on. McAfee v. Phillips, 25 Ohio St. 374. 262 trustees' account. [chap. 21. the absence of an} T person adversely interested, and without ac- tual notice to him, the account may be opened on his filing ex- ceptions to the account, at any time within eight months there- after ; and upon any settlement of an account by a trustee, all his former accounts may be so far opened as to correct an}* mis- take or error therein, excepting that any matter of dispute -be- tween two parties, which had been previously heard and deter- mined by the court, can not be again brought in question by either of the same parties without leave of the court. 1 The settlement of an account of an executor or administrator by the pro- bate court is conclusive, as against parties with actual notice of the settle- ment, of all matters set out and specified therein, and as to such matters the party rendering the account can not he required to account a second time, unless the same is impeached for fraud or mauifest error, lb. Where such an account has been rendered and settled, the probate court may, at any time within the time limited by the statute, compel the execu- tor or administrator to render a further account of any assets of the estate in his hands not settled in a former account. lb. Under section 169 of the administration act (1 S. & C. 599), the filing of exceptions to an account of an executor or administrator in the settlement of an estate, raises a matter of dispute between the exceptor and such ex- ecutor or administrator as to the items of said account excepted. Stayner's case, 33 Ohio St. 481. When such matter in dispute has been duly heard and determined by the court, it can not again be called in question by either of the same parties on the hearing of a subsequent account, without leave of the court. lb. Exceptions are filed to items of a partial account, which are heard and determined by the probate court. On appeal to the common pleas, the mat- ter in dispute is again fully heard and determined: Held, That the hearing and determination of the matters involved in the exceptions by the common pleas is final and conclusive in the probate court between the same parties, on the hearing of all subsequent accounts. In such case, the probate court has no power to open up or disregard the order, or judgment, of the court of common pleas in the settlement of the disputed items in the former ac- count, lb. The provision of said section 169, which authorizes the opening up of all former accounts for the correction of errors or mistakes therein, upon the filing of subsequent accounts, does not authorize the probate court to open up or vacate, at. the instance of either of the parties thereto, a former or' der by the court of common pleas on appeal, in the settlement of a former account. lb. 1 1 6332. chap. 21, 43-47.] trustees' account. 263 43. Allowance of compensation. — The probate court has powei to make such allowance as compensation to trustees for their services and expenses in executing their trusts, as the court may deem just and equitable, not exceeding the compensation al- lowed to guardians for like services j 1 and said judge is entitled to the same fees as in the settlements of administrators and ex- ecutors. 2 44. When the court may accept resignation of trustee, or remove him. — The probate court may accept the resignation of any trustee accounting therein, or who has been appointed thereby, or may remove any such trustee for any cause for which the guardian of a minor may be removed, or because the interest of the trust requires such removal; and when the minor for whom the trustee was appointed has, since the appointment, become a resident of the state and for whom a resident guardian has been appointed, the probate court must remove such trustee and require an im- mediate settlement of his account. Upon the resignation, re- moval, or death of any such trustee, the probate court may ap- point a successor, who must give bond in the same manner and with like conditions as required by law of guardians of minors. 3 45. Form of resignation. To the Hon., the Judge of the Probate Court of County, Ohio : The undersigned, trustee of [state what~\, hereby tenders his resignation of said trust, and prays that it may be accepted. A. B., Trustee. 46. Form of journal entry of acceptance of resignation. A. B., trustee of , having tendered his resignation of said trust, the same is, for a good cause, accepted. 47. Form of removal of trustee. — [See paragraph 39, this chap- ter.] i ^po par?. 27-34, chapter 6. 2 1 6333. » \ 6334, as am., 81 v. 134. See pars. 37-80, chapter 3, as to bond. 2£4 TRUSTEES FOR NON-RESIDENTS. [CHAP. 22, 1-2. CHAPTER 22. TRUSTEES FOR NON-RESIDENTS. Par. Par. 1. How trustees are appointed. 15. How long trustee to hold the 2. How appointment brought about. office. 3-6. Form of application, etc., for 16. When, and to whom trustee appointment. shall pay over moneys. 7. Journal entry of appointment. 17. How foreign guardian, etc., 8. Jurisdiction of court. may collect money. 9. Bond of trustee. 18-23. Form of application; peti- 10.-12. Form of trustee's bond. tion. 13. Duties of trustee. 24. Trustee may loan money in cer- 14. May lease, or sell real estate as tain cases, guardian of minor appointed in this state may. 1. How trustees are appointed for non-residents. — When any minor, idiot, lunatic, or imbecile, residing out of this state, has any real estate, goods, chattels, rights, credits, moneys, or effects in this state, the probate court of the county where such property or any part of it may be situate, has power, whenever it considers it necessary, to appoint a trustee of such minor, idiot, lunatic, or imbecile, to manage, collect, lease, and take care of such prop- erty. 1 2. How appointment brought about. — The probate court can make such appointment without waiting for any action on the part of any third person ; }~et the facts which make apparent the necessity of such action will generally be brought to the knowledge of the court by some friend or relative of such non- resident ; and in conformity to the usual practice in that court, the best way to proceed would be for such friend to see that some proper person, whether himself or some one else, make a written statement to the court, and an application for such appointment. 1 § 6320 CHAP. 22, 3-9.] TRUSTEES FOR NON-RESIDENTS. 265 3-6. Form of application, etc., for appointment. To the Honorable, the Judge of the probate court, of county, Ohio : Your petitioner represents that C. D. is a minor [or, idiot, etc.'], aged , residing at , in the state of ; that said C. D. is the owner of the following described property, situate in said county of Ohio [or if not all in one county, say in the state, and part thereof in this county], to-wit : 1. An 80-acre tract of land, in township, in this county, known as the " D Farm," probable value $6,000 00 2. Lot No. — , in the village of , county, improved, probable value 1,000 00 3. Farming utensils on said tract 150 00 [Etc., etc. See list on pages 41, 42. Your petitioner makes this, his application, to be appointed trustee of said C. D., and offers B. M. residing at , and F. N., residing at , freeholders, as sureties. Petitioner's postoffice address, His place of residence, His place of business, His attorneys, Their office, (Signed.) A. B. The State of Ohio, county, ss. A. B., being duly sworn, says that the foregoing statements are in all respects true and correct, to the best of his knowledge and belief. A. B. Sworn to and subscribed before me, this day of 18 — . A. C, Probate Judge, [etc]. 7. Journal entry of appointment — A proper journal entry of the appointment can readily be adapted from the form on page 43. 8. Jurisdiction of court. — The appointment of a trustee, first lawfully made, will extend to all the property and effects of the minor, idiot, lunatic, or imbecile in this state, and will exclude the jurisdiction of the propate court of any other county. 1 9. Bond of trustee. The trustee must give bond, payable to the 46321. 18 2GG TRUSTEES FOR NON-RESIDENTS. [CHAP. 22, 12-13. etate of Ohio, with such sureties and in such sura as shall be approved by the court, not less than double the value of all the property that will probably come into his hands. 1 10-12. Form of trustee's bond. Know all men by these presents, That we, A. B., residing at -, as principal, and E. M., residing at , and F. N., resid- ing a t , as sureties, are held and firmly bound unto the State of Ohio, in the just and full sum of dollars, for the pay- ment whereof well and truly to be made, we jointly and sev- erally bind ourselves, our heirs, executors and administrators, and each of them, firmly by these presents- Sealed with our seals, 2 and signed by us at Cincinnati, this day of -, A. D. eighteen hundred and . "Whereas, the Honorable the judge of the probate court of said count}*, on the day of a. d., 18—, appointed the said A. B., trustee of C. D., a minor [or, idiot, etc., as the case may be], aged years, and residing at , in the State of , but owning property in the State of Ohio. Now, therefore, The condition of the above obligation is such, that if tae said trustee shall well and truly do, perform and discharge with fidel- ity all and singular the duties, which he, as said trustee, ought to do, perform, and discharge, and act in all things as required by law, then the above obligation shall be void and of no effect, otherwise it shah remain in full force and virtue. A. B. [seal.] E. M. [seal.] F. K [seal.] 13. Duties of trustee. — Such trustee must take upon himself the care and management of the estate and propert}* of such minor, idiot, lunatic, or imbecile, situate in his state, and the col- lection of debts and other demands due such minor, idiot, luna- tic, or imbecile, from persons residing or being in this state, and must settle with the court, and be liable to suit or removal for neglect or misconduct in the performance of his duties, in like manner as is or may be provided by law in respect to guardians i ? 6322. 2 See note 1, p. 38. CHAP. 22, 14-16.] TRUSTEES FOR NON-RESIDENTS. 267 of minors, and as is, or may be provided by law for the settle- ment of the accounts of trustees. 1 14. May lease or sell real estate as guardian of minor appointed in this state. — The trustee may lease or sell the real estate of such minor, idiot, lunatic, or imbecile, under the same rules and lim- itations as are now, or may be provided by law, for the [lease and] sale of real estate by guardians of minors in this state. 2 15. How long trustee to hold Ins office. — The said trustee must, un- less removed by the court, hold his appointmentuntil such minor arrives at the age of majority, whether such minor be under twelve or fourteen years of age or not, at the time of such ap- pointment, or until the disability of such idiot, lunatic, or imbe- cile, shall be removed, or the minor, idiot, imbecile, or luna- tic die. 3 16. When and to whom trustee must pay over moneys. — All moneys due to such minor, idiot, lunatic, or imbecile, in the hands of such trustee, must, during the minority of such minor, or during the disability of such idiot, lunatic, or imbecile, be paid over to the foreign guardian of such minor, idiot, lunatic, or imbecile, so far as necessary or proper for his support and maintenance; or in case of the decease of such minor, or of such idiot, lunatic, or imbecile, to the administrator or other legal representative of such minor, idiot, lunatic, or imbecile : pro- vided, that the court which appointed such trustee must have satisfactory proof, as hereinafter provided, of the authority of such guardian, or administrator, or other legal representative, to receive the moneys or estates of such minor, idiot, lunatic, or 1 §6322. 2 1 6323. These words " lease and " are not in the statutes, but are so evidently nec- essary to its meaning, that they are here inserted in brackets. The original section, in vol. 72, page 162, is as follows : " The said trustee may sell the real estate of such minor, idiot, lunatic, or imbecile, under the same rules and limitations as are now or may be provided by law for the sale of real estate by guardians of minors in this state." It would seem that when the words "lease or" were inserted in fche first line of the paragraph, the insertion of their corresponding words in the third line was overlooked. This section should be amended. 8 §6324. 268 TRUSTEES FOR NON-RESIDENTS. [CHAP. 22, 17-22. imbecile, and that the security given by such guardian or admin- istrator, or other legal representative, is sufficient to protect the interest of such minor, idiot, lunatic, or imbecile, or his or her estate, and must, moreover, deem it best for the minor, idiot, lunatic, or imbecile, or his or her estate. 1 17. How foreign guardian, etc., may collect money. — When any foreign guardian, administrator, or oilier legal representative of such minor, idiot, lunatic, or imbecile, shall apply to have all or any of the moneys or property in the hands of such trustee paid or delivered over to him, he must file his petition, or motion, to that* effect, in the court by which such trustee was appointed, giving such trustee thirty days' notice of the time of hearing thereon ; and he must also produce an exemplification from under the seal of the office (if there be a seal) of the proper court of the state of his residence, containing. all the entries on record in relation to his appointment, giving bond, etc., and authenticated as required by the act of congress in such cases; and upon the hearing thereof, the court must make such order, as, under all the circumstances, it shall deem for the best interests of such minor, idiot, lunatic, or imbecile, orliis or her estate. 2 18-23. Form of application. — The application mentioned in the preceding paragraph may be in the following form : State of Ohio. county, ss., Probate Court, F. G., guardian [or, admin'r.,efc.,as- may'] be, of, etc.'], plaintiff, | Fetition to have property ' vaid over A. B., trustee of C. D.. C. D., [etc., nam- r ina all icho are adversly interested. Said F. G. represents that he is the guardian of said C. D. [or, administrator, etc., as may be], duly appointed by the [name it] court of county, in the State of ; that as such guardian [or, administrator, etc.,'] he has given sufficient and proper bond, and has in all other respects complied with the law, as will further appear from the duly authenticated transcripts of the records of said court, filed herewith, and from further evidence to be produced to this court, on the hearing hereof. Said F. G., as said foreign guardian, hereby makes application 1 § 6325. 6326. CHAP. 22, 23.] TRUSTEES FOR NON-RESIDENTS. 269 to this court for an order to said A. B., resident trustee of said C. D., directing him to pay and deliver over to said F. G., guar- dian, all the moneys and other property of the said C. D., now in the keeping and control of said A. B., trustee. F. G., Guardian [etc."]. State of , county of , SS. F. G., being duly sworn, says that he is the guardian [or other- wise, as may be~] mentioned in the foregoing petition, and that the various matters therein set forth are true, as he verily be- lieves. F. G. Sworn to before me, and signed in my presence, on this day of , a. d. 18—. Eichard Eoe, Notary public in and for said county. 24. Trustee may loan money in certain case. — When any money of such minor, idiot, lunatic, or imbecile ma}' be in the hands of such trustee, and not likely to be needed for the support and education of such minor, idiot, lunatic, or imbecile, said trustee must loan the same in the same manner as guardians by the laws of this state are required to loan the moneys of their wards l (see pages 66, 68). 1 §6^7 270 GUARDIANS AD LITEM. [chap. 23, 1. CHAPTER 23. GUARDIANS AD LITEM. Pae, Par. 1. DednitioH «4. 20. 2. Defense by ; w\hj appoints 3. When appointment must tie made. .21. 4. Effect of appointment «f made sooner. 22- 5. Who may be appointed. 24. 6. On whose application. 25. 7- •10. Form of application, for appointment of guardian &d 26. litem. 11. Notice to appointee and accepv ance by him necessary. 27. 12. How notice given and office ac cepted. 28. 13- 14. Form of acceptance. 29. 15. Form of journal entry appoint ing guardian ad litem. 30. 16. Guardian ad litem can not waive notice or service of sum- 31. mons. 32. 17. His answer irregular, if filed before service. 33. 18. Effect of his admissions, etc. 19. General duties of guardian ad litem. 34. In executor's, etc., sale of real estate. Good rule to appoint always. Answer of such guardian. -2S. Form of answer of guardian ad litem. Verification not needed. Decree under such answer im- peachable. In proceedings for vacating streets. Appropriation of property for public use; guardians therein. His expenses incurred should be paid. Should receive reasonable com- pensation. In suits before magistrates. Form of consent to be ap- pointed in such cases. Form of docket entry, on in- fant's application. Form of docket entry, on friend's application. In proceedings relating to luna- tics. 1. Definition of. — A guardian ad litem, or, expressed in English a guardian for the suit, is a person appointed by the court to take care of the interests of a minor in a civil action or proceeding. 1 1 No such guardian is appointed in a criminal suit against a minor, the court there acting as such. Reeve's Dom. Rel. 318; Ward's case, 3 Leigh (Va.), 743. CHAP. 23, 2-4.] GUARDIANS AD LITEM. 271 He is considered an officer of the court, rather than a party to the suit. 1 2. Defense by; who appoints. — Our statutes governing pro- cedure in common pleas, superior, and circuit courts on appeal, specially provide, that the defense 2 of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge; 3 and this provision is also made applicable to probate courts. 4 3. When appointment must be made. — The appointment of a guardian ad litem can not be made until after service of sum- mons, or publication. 3 4. Effect of appointment, if made sooner. — The appointment of such guardian for minor defendants, who have not been served with process or notice, as the law requires, does not effect an ap- pearance for them, nor give the court jurisdiction over them. 8 ^uckett v. Stackwell, 12 Mees. & Wels. R. 779; Sinclair v. Sinclair, 13 do. 640, 646; Brown v. Hull, 16 Vt. 673; Bryant v. Livermore, 20 Minn. 313, 342. 2 If an infant, conies of age pending the suit, he can assert his rights at once, for himself; and if he does not, he can not, generally, complain of the acts of his guardian ad litem. Mitchell v. Berry, 1 Mete. (Ky.) 602. 3 §5003. In bastardy proceedings, the death of the mother will not abate the prosecution, if the child is living, but a suggestion of the fact must- be made, and the name of the child substituted upon the record for that of the mother, and a guardian ad litem appointed, who will not be liable for costs. §5628. The power of courts to appoint guardians ad litem is wholly discretionary, and the acts of inferior courts in this regard will not be reversed. Smith v. Taylor, 34 Tex. 589. Tbe acts of such guardians, when not impeached for fraud, are binding on the infant. lb. Formerly unnecessary. 18 0.535. * See paragraphs 30, 31, chapter 6. See also note 2, p. 64. A probate court appoints a guardian ad litem for an infant solely because of his infancy, the law regarding him as incapable of taking care of himself. Fleming v. Johnson, "26 Ark. 421. 5 § 5004. See also, cases cited in next note. As to presumption of service, when guardian ad litem, appears and defends, see 15 (). 715; 7 O., pt. 2, 138. 6 Moore v. Starks, 1 O. S. 269 ; Linnville v. Darby, 57 Tenn. 306; Graham v. Sublet!., 6 J. J. Marsh. (Ky.) 44; Jones v. McGintv, 3 Dana (Ky.) 425; Stanton v. Pollard, 24 Miss. 154; Prewett v. Ladd, 36 lb. 495; Crippeh v. Crippen, 1 Head (Tenn.) 128. To the contrary, Banta v. Marsh, 2 A. K. Marsh. ( Ky.) 166. 272 GUARDIANS AD LITEM. [CHAP. 11, 5-6. 5. Who may be appointed — As to non-resident lunatics. — The general rule is that no person interested in the suit, in any way, should be appointed guardian ad litem} As to non-resident lu- natics, see note. 1 6. II on: appointed, on whose application. The appointment may be made upon the application of the infant, if. being of the age of fourteen years, lie apply within twenty days utter the return of the summons, or service by publication ; and in case of his being under said age. or of his neglect so to apply, the appoint- Ir was error, on a bill of revivor, to decree against infant defendants, un- til a guardian ad litem had been appointed. St. Clair v. Smith, 3 <). 355; Rucker v. Moore, 1 Heisk. (Tenn.) 726. Where a person is sued with certain minor defendants in chancer}', as their guardian, and he appears, answers and defends in that capacity, and procures a reversal of the decree against the minors, a second decree against the minors will be reversed, because the record shows no appointment of a guardian ad litem, or proof that such person was in fact guardian. Tuttle v. Garrett, 74 111. 444. Where an action is commenced against a minor, and judgment against him rendered without the appointment of a guardian ad litem, and without his appearance at the trial, and thereafter, on his becoming of age, upon his petition, the judgment is vaca;ed and set aside, and the ease set down for trial, it is error then to appoint a guardian ad litem, and permit such guardian to take charge of and control the delense; and judgment rendered on such trial against him by his next friend and guardian ad litem will be reversed. Patton v. Furthmier, 16 Kan. 29. 1 Parker v. Lincoln, 12 Mass. 16; Walker v. Crowder, 2 Ired. (N. C. ) Eq. 478; Walker v. Hallett, 1 Ala. 379: Grant v. Van Schoonhoven, 9 Paige (N. Y.i 255; Humes c. Shillington, 22 Md. 346; Elrod v. Lancaster, 2 Head (Tenn. I, 571. The plaintiff's husband, although father and gnardian of infant defend- ants, should not be appointed their guardian ad litem. Bicknell v. Bicknell, 111 Mass. 265. To some extent contra, sec McGuire v. McGowan, 4 Desau. (S. C.) t86. The irregularity of appointing one who wax himself not of full age, guardian ad litem, for an infant plaintiff, held, not to be waived by defend- ant's answering to the merits, where he had no knowledge, at the time of an- swering, of the guardian's nonage. Wolford r. Oaklev, ■!.". How (N Y ) Pr. 118. 8 Where a lunatic defendant is a non-resident of the state, and has been brought into court by publication, it is competent for the court to appoint a guardian ad litem to defend the ,-uit, although such guardian ad litem may not have been appointed the general guardian or committee of the lunatic. Sturgea v. Longworth, 1 0. S. 545. It is error for the court to decree against a lunatic without an answer from his guardian ad litem. lb. When a decree is taken, as on petition confessed, against a lunatic and his guardian ad litem, as in default For answer, plea, or demurrer, even if the court had heard evidence as to the complainant's claim, it would not have cured the error; such evidence would b • beard put of time. lb. CHAP. 23, 7-1 5.J GUARDIANS AD LITEM. 273 ment may be made on the application of the plaintiff, or a friend of the infant.' 7-10 Form of Application for appointment of Guardian ad litem. Give the title of the case, as for instance : The State of Ohio. county, ss., Probate Court. A. B., guardian of C. D., a minor, plaintiff, ") Application for ap- vs. > pointment of guard - Said C. D., defendant. ) ian ad litem. The said C. D., a minor over fourteen years of age [or, A. B., plaintiff, or, L. D , a relative, or, S. T., a friend of said C. D., etc. - ], hereby applies for the appointment of a guardian ad litem for the said C. D., in this cause, and suggests that R. H. be ap- pointed said guardian. (Signed) . , 18-. 11. Notice to appointee, and acceptance by him, necessary. — The guardian ad litem must have notice of his appointment, and must do something to signify his acceptance. 2 12. How notice given and office accepted. — The guardian may be notified in an}- way the court may direct or sanction ; but the rule, prevalent in many tribunals, that the guardian ad litem must appear in person in open court, and accept the office, is one wor- thy of universal adoption. An acceptance in writing, in sub- stantially the following form, should be handed to the court by the person accepting, and this should be approved by the judge, and entered on the record. The appointment of a guardian ad litem to an infant not a party to the suit, is a nullitjr; but where made after such infant became a party defend- ant, no matter how irregular it may have been, it is not void, but voidable merely; and not being reversed or set aside, the appointment of another is void. Bondurant v. Sibley, 1 Ala. Sel. Cas. 489 ; 37 Ala. 565. 2 Bwing v. Higby, 7 0. 1st pt. 203; St. Clair v. Smith, 3 0. 355, 364. The court will not appoint any person guardian ad litem without his writ- ten consent. McVicker v. Constable, Hupk. (N. Y.) 102. 274 GUARDIANS AD LITEM. [CHAP. 23, 13-16. 13-14. Form of Acceptance.. [Give title of case, as in pars. 7-10, on page 273, or otherwise, as the facts require, and then add'] : And now conies the said A. L., heretofore appointed guardian ad litem of said C. D., a minor defendant [or, if guardian ad litem of more than one, name them all], and in open court accepts said appointment. (Signed) A. L. 15. Form of Journal Entry Appointing Guardian ad litem. [Give the usual caption.] On application of A. B., [or other person, as may be], A. L. was this day appointed guardian ad litem for C. D., minor defendant to send petition ; and thereupon said A. L. appeared in open court, and accepted said appointment. 16. Guardian ad litem can not waive notice or service of summons. — Section 6144 provides that " no guardian ad litem shall have authority to waive notice or service of summons." x Though x To same effect, see Robbins v. Robbins, 2 Ind. 74; Gibson v. Chouteau, 39 Mo. 536. Previous to the act of March 23, 1840, there was no such provision of the statute law, and the practice of the courts as to the manner of service upon minors varied throughout the state, and acceptance of service by guardian ad litem for infant defendants in some cases, and his appearing and answer- ing for them in others, was held by the supreme court to be sufficient, es- pecially in view of the fact that to hold otherwise would disturb the title to millions of dollars worth of property, though such practice was admitted to be loose and irregular. (See 8 0. S. 617.) " The statute of 1840, for the first time, made the proof of proper notice to the defendants a condition precedent to any action of the court in such a case, and prohibited the waiver of notice by a guardian ad litem in behalf of his wards. The statute having been until that time silent on the subject, a previous practice to the contrary, in these particulars, would seem to have been thereby recognized and prohibited in the future. Personal service of process was thus made a condition indispensable to the exercise of jurisdiction, and the practice was made uniform throughout the state." (8 O. S. 618.) See Ewing v. Higbee, 7 0. pt. 1, 198; Ewing v. Hollister, same, pt. 2, 138; Robb v. Irwin, 15 O. 689; Lewis v. Lewis, same, 715; Snevely v. Lowe, 18 O. 378; Morgan v Burnett, do. 535; Moore o. Starks, 1 O. S. 369; Sheldon v. Newton, 3 O. 3. 494; Benson v. Cilley, 8 0. S. 604. The provision of the act of 1840, above alluded to, is nearly the same as CHAP. 23, 17-19.] GUARDIANS AD LITEM. 275 this section is in the chapter relating to executors and adminis- trators, and this section itself relates to sales of lands by such officers, yet its language is general as to such guardians, and no doubt applies to all casts. 17. His answer irregular if filed before service. — An answer by a guardian ad litem for infant defendants, when they have not b^en served with process or otherwise notified according to law, io irregular, as they are not before the court; ' and such answer will not make them parlies. 2 18. Effect of his admission*, etc. — A guardian ad litem can not bind his ward by his admissions against such ward ; 3 nor can he waive any of such ward's rights, even by his neglect or omis- sion. 4 No decree can be made against an infant upon the admis- sions of such guardian in his answer. 5 19. General duties of guardian ad litem. — In deciding the ably conducted and important case of Long v. Mulford, 6 White, J. used the following language : " The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant can not he prosecuted without such guardian ; and the object of § 6144, being in words as follows : " Sec. CXXVII. It shall not be necessary, unless the petition is contested, to appoint guardians ad litem for infant de- fendants ; and no such guardian shall have authority to waive notice or ser- vice of subpoena.' 1 See 38 0. L. 146 ; S. & C. 590 (125). 1 Steele v. Taylor, 4 Dana (Ky.), 445; Shropshire v. Reno, 5 Dana, 583: Ivejv. Ingram, 4 Caldw. (Tenn.), 129; see also note 1, above. 2 Ivey v. Ingram, 4 Caldw. (Tenn.), 129; see also note 1, above. 8 Walton v. Coulson, 1 McLean, 120; Cooper v. Mayhew, 40 Mich. 528; Turner v. Jenkins, 79 111. 228; Tucker v. Bean, 65 Me. 352; Fisher v. Fisher, 54 111. 231; Crabtree v. Niblett, 17 Humph. (Tenn.), 488; Reddick v. Bank, 27 111. 145; Hitt v. Ormsbee, 12 111. 166; Tuttle v. Garrett, 16 111. 354; Masterson v. Wiswould, 18 111. 48; Carr v. Fielden, do. 77; Taylor v. Parker, 1 Smith (Ind.), 225; Crain v. Parker, do. 374; Benson v. Wright, 4 Md. Ch. 278; Revely v. Skinner, 33 Mo. 98; Torrey v. Black, 65 Barb. (N. Y.), 417. 4 Cartwright v. Wise, 14 111. 417; Quigley v. Roberts, 44 111. 503; Pugh v. Pugh, 9 Ind. 132; Walker v. Ferrin, 4 Vt. 523; Isaacs v. Boyd, 5 Part. (Ala.), 388; Smith v. Redus, 9 Ala. 99; Lenox v. Notrebe, Hempst. (U. S.), 251 ; Chandler v. McKinney, 6 Mich. 217. 5 Jamf-s v. James, 4 Paige (N. Y.), 115; Thayer v. Lane, Walk. (Mich), 200; Eaton v. Ti!line required to give bond, but must be allowed the appeal by giving written notice to the court of his intention to appeal within the time limited for giving bond. 2 This is also the rule in appeals to the circuit court. 3 6. This is also the rule in appeals in matters relating to the appropriation of private property for public use ; 4 relating to laying out, vacating, etc., public roads. 5 ^G-tlO. 2 §6408. Executors or administrators, whether appointed in t'zus statf or elsewhere, who have not given bond in this state, with sureties, agreeably to law, and who were original parties to the action, are not authorized to pros- ecute an appeal without giving an appeal bond. Dennison v. Talmage, 29 0. S. 433; Roberts v. Wheeler, W. 697. [No doubt true of guardians also] Where the law requires the appellant to give such bond, the court from which the appeal is taken has no power, by its order or otherwise, to dis- pense with the execution of the bond, or to relieve the appellant from the obligation to give it, the court's power in that respect being limited to fixing the amount of the bond, and designating the party to whom it shall be pay- able. Dennison v. Talmage, 29 0. S. 433. Where the appellant, in a case where such appeal bond is required, neg- lects to give the same within the time limited for that purpose, the fact that the court below made an order to the effect that no bond was required, does not authorize the appellant to perfect his appeal by afterward giving such bond in the higher court. lb. See Emerick v. Armstrong, 1 0. 513; Work v. Massie, 6 0. 503. Such an undertaking, signed by sufficient sureties, is good without the signature of the appellant thereto; and where it is defective in omitting, by mistake, some of the conditions required, the court of common pleas has power to allow an amendment of the undertaking. Johnson v. Johnson's Ex'r., 31 0. S. 137, 3 1 5228, as amended, 82 0. L.|32. See note 2, this page. * I 2256. 5 § 4689. See par. 3, chap. 17. cnAP. 24, 7-10.] appeajls. 283 7. As to bond in error, by guardian. — The law provides for the giving of bond, among other things, in proceedings to reverse, vacate, or modify a decree in the probate, common pleas, or cir- cuit court ;' but it also provides, that guardians who have given bond in this state, with surety, according to law, need not give such bond. 2 8. Appeal from probate court; and from common pleas. Bilk of '.caption*. — "Appeals shall be allowed from any final order, judg- ment, or decree of the probate court to the common pleas court, by any person against whom any such order, judgment, or decree may be made, or who may be affected thereby, in the same manner as is provided for appeals from the probate court to the common pleas court in other cases ; appeals shall also be allowed from any order or judgment of the common pleas court in like manner, to the cir- cuit court, in proceedings under the sections herein relating to the enforcement of orders of distribution, by any person against whom any such judgment or order may be rendered, or who may be af- fected thereby, to the same extent and in the same manner, as is provided for appeals from the common pleas court in other cases; and bills of exceptions may be taken and allowed upon any de- cision of the probate court, common pleas court, or circuit court, in such proceedings as in other cases." 3 9. The foregoing paragraph is from the chapter of the Revised Statutes, relating to executors and administrators ; but its lan- guage is so general that it is believed to apply to guardians also ; the section preceding it in that chapter is so applicable by its ex- press terms. The section last mentioned is given as paragraph 34 of chapter 5. 10. Appeals to circuit court.— A guardian desiring to appeal his cause to the circuit court, must, at the term in which the judgment or order is rendered, enter on the records notice of such intention ; and within thirty days 4 after the rising of the x l 6718, as am., 82 0. L. 37. 3 \ 5228, as am. 82 0. L. 32. See note 2, page 282. 3 § 6203, as am. 83 0. L. 62. 4 As to construction of when this time begins and expires, see Steinberger v. Steinberger, 19 0. 106; Morgan v. Stittigan, 10 W. L. J. 74; Harris v. Gest, 4 0. S. 469; Hoagland v. Schnorr, 17 0. S. 30. 284 appeals. [chap. 24, 11-12. court, give an undertaking with sufficient surety, to be approved by the clerk of the court, or a judge thereof, 1 unless he has al- ready given bond, as specified above. 11. In such cases, the clerk, at the expiration of thirty days from the rising of the court, must, if not otherwise directed, make a transcript, which, together with the papers and pleadings filed in the cause, he must transmit to the clerk of the circuit court, as in other cases of appeal. 2 L2. Appeals from magistrate's courts. — Cases tried before a mayor or justice <>t' the. peace, and in which a guardian is a party, may, of course, be appealed as other eases in such counts; 3 and guard- ians would, no doubt, be liable for any loss occasioned to the ward because of his negligence in such appeals. 1 g 5227, as amended, 82 O. L. 32. One of several defendants can appeal the whole case as to those against whom judgment was rendered, by giving the required bond. Emerick v. Armstrong 1 O. 513. See 3 O. C. C. 446. Bond for appeal given after verdict and before judgment, the appeal will be dismissed. "Wilson v. Holeman, 2 O. 253. 2 # 5228, as amended, 82 O. L. 32. 3 §§1752, 6562, as amended, 85 O. L. 31 ; 6570, 6563, 6583-6591. CHAP. 25, 1.] MISCELLANEOUS MATTERS. 285 CHAPTER 25. MISCELLANEOUS MATTERS. Par. 1- 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13- 19. 20. 21. 22. 2. Foreign minors and guard- ians; rights of, in this state, etc. Owners may fix corner, or line, by written instrument. Record of such instrument, etc.; guardian's duties as to. Rights, etc., as to acts of State Board of Public Works. Adopted child; rights of,and as to. Justice of the peace; incompe- tent in certain cases. As to firemen's pension fund. Survival of actions; revivor of judgments. Certain sureties may require creditors to sue. How guardian may become lia- ble in such case. Not applicable to guardian's bond, etc. 18. Guardian's power in proceed- ings to sell entailed estates; de- tails as to. Privileged communications; ev- idence. When a party shall not testify. How guardian may assign dower. Legal guardian may consent to administrator's sale, etc. Par. 23. When guardian must select prop- erty at appraisement of dece- dent's effects. 24. Guardians and trustees may re- ceive certain effects in kind. 25. As to railroad stocks held by •iiiardiari. 26. Appropriation of ward's prop- erty by corporations. 27. When guardian need not give bond. 28. Guardian's power and liability under gaming laws. 29. Penalty for cruelty, etc., to ward. 30. Guardian may obtain peace war- rant in ward's behalf. 31. Embezzlement, etc., by guard- ian or trustee. ward's registered tj. s. bonds. 32—37. How guardian may collect interest of. 38. What considered satisfactory proof of guardianship. 39. Of guardian'> authority. 40-42. Form of affidavit as to that. 43. As to form of certificate. 44. How identity of ward shown. 45-48. Affidavit as to identity. 1. Foreign minors and guardians; their rights in this state, etc. — Minors living out of this state, and owning lands within the same, are entitled to the benefit of the laws relating to resi- dent wards ; and guardians of minors residing out of this state, who have been appointed according to the laws of the state or territory where they reside, have the right to bring and main- tain actions, and enforce the collection of judgments, rendered 286 MISCELLANEOUS MATTERS. [CHAP. 25, 2-5. in such cases in their favor, in the same manner and to the same extent that they could do if they had been appointed under the laws of this state, upon giving security for the costs which may accrue in such actions, in the same way other non-residents are obliged to do under the laws of this state. 1 2. As to sale of lands of such minors, see pages 135-7. 3. Adjoining owners may fix corner or line by written instru- ment.— When the owners of adjoining tracts of land, or of lots in a municipal corporation, agree upon or fix, in a written in- strument, the site of any corner or line, common to such tracts or lots, containing a pertinent description of such corner or line, either with or without a plat, executed, acknowledged, and re- corded, as is prescribed with respect to deeds, such corner or line will thenceforth be deemed fixed and established as between the parties to such agreement, and all persons subsequently deriving title from them. 2 4. Record of such instrument; guardians duties as to, etc. — Such agreement must be recorded by the recorder in the book in his office in which surveys are recorded; and the original agree- ment, after being so recorded, or a duly certified copy thereof from the record aforesaid, will be competent evidence in any court in this state against any party to such agreement or per- son in privity with him. No such agreement can be executed by any minor, idiot, lunatic, or insane person ; but the same may be made, executed, and delivered for record, on his behalf, by his guardian ; and when so made, executed, acknowledged, delivered for record and recorded, will be as effectual against such minor, idiot, lunatic, or insane person, as if he had been under no disability, and had performed said acts himself. 3 5. Rights, etc., of guardians and wards as to the acts of the State Board of Public Works.— The laws provide how the state Board of Public Works may purchase or appropriate private property for the use of the state. 4 As these are very extensive and impor- tant powers, the law carefully guards the rights of the property owners, and designates the mode of proceeding when guardians and wards, as well as others, are interested. But as the number 16290. 2 4127. 3 ? 4128. 4 g§ [9547]-[9563] of Giauque's Rev. Stat, of Ohio; see especially [9549]. CHAP. 25, 6-9.] MISCELLANEOUS MATTERS. 287 of guardians and wards whom these proceedings can concern are comparatively few, and to state these proceedings fully would occupy much space, it may be sufficient here to allude to them only, and to state that guardians have as full power to act for their wards in these matters, as their wards themselves would have, were they of full age, and capable of acting for them- selves. 1 6. Adopted child; rights of and as to. — The statutes provide, in effect, that when any child is adopted, or heir at law is desig- nated, such child or person becomes the child of the person so adopting him, to all legal intents and purposes, and as such, is the legal child and heir of the adopter, entitled to all the rights and privileges, and subject to all the obligations, of a child of . S. 23; ib. 211 ; ib. 305; 44 O. S. 596, 599; 3 (). ('. C. 508; 4 0. C. C. 1. CHAP. 25, 21-23.] MISCELLANEOUS MATTERS. 293 21,. How guardian may assign dower— When the lauds of a de- ceased person arc not incumbered by mortgage, or by judgment ob- tained against such decedent during life, the heir, or guardian of any heir, or other person having the next immediate estate of inherit- ance, may assign to the widow or widower dower therein, by writ- ing, under his hand, particularly describing the same, which, if ap- proved in writing on the deed of assignment by the probate judge of the county, and also by the probate judge of the county appointing such guardian, and accepted by the widow or widower, in writing thereon, will be a good assignment in law. 1 22. Legal guardians may content to administrator's sale, etc. — The law governing sales of land by administrators, etc., provides that service, either actual or constructive, shall be made in the same manner as in other civil actions ; but that if all persons in interest consent, in writing, to the sale, service of process may be dispensed with ; and that legal guardians may sign such consent for their wards, except guardians of the person only of minors. 2 23. When guardian must select property at appraisement of decedent's effects. — When any person dies, leaving a widow, or minor child, or children, under the age of fifteen years, the following property is not to be deemed assets or administered as such, but must be in- cluded and stated in the inventory of the estate, and signed by the appraisers, without appraising the same : First. One family sewing machine, to be retained by said widow absolutely as her own prop- erty, and all spinning wheels, weaving looms, and stoves set up and kept in use by the family. Second. The family bible, family pic- tures, and school books used by or in the family of the deceased, and books, not exceeding one hundred dollars in value, which were kept and used as part of the family library before the decease of such person. Third. One cow, or if there be no cow, household goods, to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding forty dollars in value, or if there be no household goods such as the widow or guardian or next friend may desire to select, then forty dollars in money ; all sheep to the number of twelve, their valuation not to be greater than seventy-five dollars, and the wool shorn from them, and the yarn and cloth manufactured by the i \ 5707, as am., 86 O. L. 184. 2 § 6143. 294 MISCELLANEOUS MATTERS. [CHAP. 25, 24-25. family; all flax in possession of the family intended for the^ use thereof, and yarn or thread cloth manufactured therefrom. Fourth. All the wearing apparel and ornaments of the family and of the deceased, all the beds, bedsteads, and bedding, cooking uten- sils, and table-ware necessary for the use of the family, one clock, one side-saddle, and any other articles of personal property not to exceed one hundred dollars in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or children, may select, to be valued by the appraisers. 1 24. Guardian or trustee may receive certain assets in kind. — An executor or administrator who has paid all the debts of an estate, and has in his possession notes, bonds, stocks, claims, or other rights in action belonging to the estate, may, with the approval of the probate court, entered on its journal (and with the assent and agreement of the persons entitled to the proceeds of such assets as distributees, including executors, trustees, and guardians), distrib- ute and pay over the same, in kind, to those of such distributees as will receive the same; and any such executor or administrator, when the debts are all paid, except claims in suit and contested, or liabilities not due and payable, or both, may provide for the pay- ment of such claims and liabilities, by setting apart to the satisfac- tion of the probate court, enough of the assets for that purpose, and having done so, he may, with the approval, assent, and agree- ment, aforesaid, distribute and pay over in cash, or in kind, all or any part of the assets in his hands, and not set apart, aforesaid, to such of said distributees, including executors, trustees, and guard- ians, as may be willing to receive the same. Such executors, trustees, and guardians will be liable to return such assets, or the proceeds thereof, should the same be necessary to pay the said claims or liabilities ; and each of the other distributees must give an indemnifying bond to the executor or administrator, to the sat- isfaction of the probate court for the same purpose. A distribu- tion, in kind, in either case, will have the same force and effect as the distribution of the proceeds of such assets. 2 25. Wlien railroad stock is held by guardian, etc. — When any por- tion of the stock or bonds of a railroad company is held by a guard- ian, or other such trustee, he may become a party to any agree- 1 I 6038. 2 ? 6189. CHAP. 25, 26-28.] MISCELLANEOUS MATTERS. 295 ment for the reorganization of .such company, and may control, ex- change, or manage such stock or bonds according to the terms of the agreement, and take and receive new stock or bonds, to be is- sued in lieu of the original stock or bonds, which will be held on the same terms, and subject to all liens, which attached to the orig- inal stock or bonds. 1 26. Appropriation of ivard's property by corporation.— Appropria- tions of private property by corporations can only be made when the corporation is unable to agree with the owner, or his guardian or trustee, as to the compensation to be paid for the property sought to be appropriated, or when the owner is incapable of contracting in person or by agent, and has no guardian or trustee, or is un- known, or his residence is beyond the state, or unknown. 2 27. When guardian need not give bond. — Guardians need not give bond on appeal, 3 nor in proceedings in error, or proceedings to re- verse, vacate, or modify a judgment or final order. 4 28. Guardian's power and liability under gaming laws. — The guardian or trustee of a minor, insane person,' or idiot, who per- mits any property under his charge to be used for gaming pur- poses, and the same becomes liable on account thereof, will be liable to his ward for the amount thereof; 5 and whenever prem- ises are occupied for gaming or lottery purposes, the lease or agreement under which they are so occupied will be absolutely void at the instance of the lessor, who may at any time obtain possession by civil action, or by action of forcible detainer before a justice of the peace; and if any person lease premises for gam- ing or lottery purposes, or knowingly permits them to be used and occupied for such purposes, and fail immediately to prose- i i 3408. 2 1 6415. For fuller details, see \\ 6414-5o. 3 See par. 5, chap. 24. * I 6721. 5 \ 4275. This section also provides that the property, both real and per- sonal, of a defendant, against whom a judgment is rendered under the chap- ter of the Revised Statute? relating to gaming [Chap. 5, Title V, Part Sec- ond], either for fines, costs, or to recover money, or other thing of value, lost or paid, shall be a lien therefor, without exemption, and that such judg- ment shall be a lien thereon until paid; that if the owner of the building in which the money was lost knowingly permits it to be used for gaming purposes, such building, and the real estate upon which it stands, shall be liable therefor in the same manner. This is the liability incurred by the guardian, referred to in paragraph 28, above. 296 MISCELLANEOUS MATTERS. [CHAP. 25, 29-32. cute, in good faith, an action or proceeding for the recovery of the premises, such lessor will be considered in all cases, civil and criminal, as a principal in carrying on che business of gaming, or a lottery, in such building. 1 29. Penalty for cruelty, etc., to ward. — Any guardiar rt f any child or children under sixteen years of age, who willfully abandons, or tortures, torments, cruelly or unlawfully punishes, or willfully, un- lawfully, and negligently deprives of necessary food, clothing, or shelter, such child or children, is liable to be fined not more than two hundred nor less than ten dollars, or imprisoned not more than six mouths, or boih. 2 30. Guardian may obtain peace warrant in ward's behalf. — A guard- ian may make complaint in writing upon oath, before a justice of the peace, mayor, or police judge, that he has just cause to tear, and does fear, that a certain designated person will commit an of- fense against the person or property of his ward ; and such magis- trate will then issue a proper warrant for the arrest of the person so accused, 3 who will be proceeded against as directed by law under such circumstances.' 31. Embezzlement or fraudulent conversion by guardian or trustee. — A guardian or trustee who embezzles or converts to his own use, or fraudulently takes or makes away with, or secretes with intent to embezzle or convert to his own use, any thing of value which comes into his possession by virtue of his appointment as such guardian, is guilty of embezzlement, and is punishable as for the larceny of the thing embezzled. ward's registered government bonds. 32. How guardian may collect interest of.— The First Comptroller in the Department of the Treasury of the United States has re- cently decided, as is shown in the four next succeeding paragraphs, concerning government bonds registered in the names of minors, that, i §4276. «§6984«. »g'7106. * §§ 7106-16. 5 \ G842, as am., 83 O. L. 23. It applies to other officers, etc., also. The larceny of any thing of the value of thirty-five dollars or more, is punishable by imprisonment in the penitentiary not less than one, nor more than seven years; of less value than that sum, by fine of $200 or less, or imprisonment for not more than thirty days, or both. \ 6856. CHAP. 25, 33-39.] MISCELLANEOUS MATTERS. 296tt 33. First. When government bonds are registered in the names of infants, interest-checks issued in payment of interest thereon will be delivered and paid only to the proper guardian of such in- fants when the secretary of the treasury has been notified of such infancy. 34. Second. Neither the father nor mother of an infant has the right, as a general rule, to indorse or collect such interest-checks. 3"). Tliird. The guardian of an infant, in order to indorse and collect interest-checks in favor of his ward, is required to file with the first auditor, evidence (1) of guardianship, (2) of his authority being in force, and (3) of the identity of his ward as the payee in the bonds. 36. Fourth. The government is not liable to refund to an infant, on his arriving at the age of majority, money paid to him on his indorsement of interest-checks during minority, when the secretary of the treasury had not been notified of the fact of infancy. ' 37. In explanation of the matter in paragraph 24 above, the First Comptroller of the Department mentioned states as follows : 2 38. Wfiat will be considered satisfactory proof of guardianship. — (1) A duly certified copy of the letters of guardianship will be evi- dence of guardianship. In those states in which no letters issue, a certified copy of the appointment by the proper court, showing that the guardian gave bond, and accepted the trust, will be sufficient. If the appointment does not show acceptance, this may by proved by the affidavit of the guardian or the certificate of the proper court. 39. Of guardian's authority being in force. — (2) It will be suffi- cient evidence that the authority of the guardian is in force if the proper court shall certify the age of the infant as shown in the rec- 1 Infant's Case, 2 Lawrence Comptroller's Decisions, 26. 2 An allusion to the foregoing decision having been seen before its publi- cation, a copy of it was, on request, promptly furnished for use in this book, then already in press, by the. Hon. William Lawrence, the comptroller men- tioned. It beins; also desired to furnish therewith such forms of proof as would be satisfactory to the treasury department, concerning the point* mentioned in paragraph 35, above, and as nobody except the proper officials of that department could assume to declare what proof would be so, another request was sent for such forms; and in answer to this request, the matter found in paragraphs 38-48, below, was very courteously supplied. These forms are, therefore, entirely reliable. 20 2966 MISCELLANEOUS MATTERS. [CHAI\ 25, 40-45. ord, and that the authority of the guardian is in force, with a ref- erence to the statute showing the duration of the office of a guard- ian ; or this may be shown by affidavit, as follows: 40-42. Form of affidavit, as to guardian's authority. State of Ohio, Logan county, ss. I, James Smith, being duly sworn, do on oatli say, that I am a resident citizen of said county and state ; that I am the identical person who is the duly appointed, qualified, and acting guardian of Leila L. Finley, who resides at No. 17 High street, in the city of Bellefontaine, in said county; that she was aged 15 years June 1, 1880, and that my authority as such guardian is in force. The duration of my office of guardian is prescrihed by sections 6257, 6258 of the Revised Statutes of Ohio. James Smith. Sworn to by said James Smith before me, and by him subscribed in my presence, this day, at my office in Bellefontaine aforesaid. And I certify that said James Smith is personally well known to me to be the identical person who is said guardian -above named, and that he is a credible person. In witness whereof, I hereto subscribe my name and affix my Notarial Seal, at my office in Bellefontaine aforesaid, April 20, 1881. [notarial seal.] John M. Lawrence, Notary Public in and for said county. 43. As to form of certificate. — The form of a certificate may readily be prepared by reference to the foregoing form of affidavit. 44. How identity of ward shown. — The identity of the ward as the payee in a bond may by shown by affidavit thus: 45-48. Form of Affidavit as to Identity. State of Ohio, Logan county, ss. Personally appeared before me, John M. Lawrence, a notary public in and for said county and state, at my office therein, James Smith, who being by me duly sworn according to law, deposes and says that he is the duly appointed, qualified, and acting guardian of Leila L. Finley, who resides at No. 17 High street, in the city of Bellefontaine, in said county; that his au- CHAP. 25, 45-48.] MISCELLANEOUS MATTERS. 296c thority as said guardian is in force, and that said Leila L. Finley is the identical person who is the owner of registered bond known as one of the consols of 1907 of the United States, No. 960, for $1,000, issued under the acts of Congress, of July 14, 1870, and January 20, 1871, registered in her name on the books of the register's office, in the department of the treasury of the United States, and that she is still the owner of said bond. James Smith. Sworn to by said James Smith, before me, and by him sub- scribed in my presence, this day, at my office, in Bellefontaine aforesaid. And I certify that said James Smith is personally well known to me to be the identical person who is said guardian above named, and that he is a credible person. In witness whereof, I hereto subscribe my name and affix my notarial seal, at my office, in Bellefontaine aforesaid, April 20, 1881. [notarial seal.] John M. Lawrence, Notary Public in and for said County. APPENDIX. (Written in 1881.) CAN A MARRIED WOMAN BE A GUARDIAN? ("See paragraphs 35, 36, chapter 3.) 1. As the question whether a married woman 1 can properly be ap pointed guardian in Ohio is an important one, undecided by the courts, and about which there is some difference of opinion, it is deemed best to examine it as briefly as possible with any degree of thoroughness, the intention being to give all authorities found, for and against the writer's opinion in the matter. CERTAIN GENERAL PRINCIPLES STATED. 2. It is perfectly well established that the common law of England, in so far as its principles are not inconsistent with the genius and Bpirit of our institutions, our circumstances, state of society, and form of government, not opposed to the settled habits, customs, and policy of the people of this State, is in full force in Ohio. 2 3. The principles of the common law which determine and prescribe the status of a married woman, are among those which have been adopted in Ohio, and by them her legal condition is fixed here now, except in so far as this condition has been expressly modified by our statutes. Where these statutes are silent in this respect, the common law governs. This idea so completely pervades our elementary and standai-d treatises of law, and our judicial decisions, is so generally accepted as a matter of course both in these and elsewhere, and is so thoroughly interwoven with the entire fabric of our jurisprudence, that it may be called an elementary principle of our theory of the legal structure of society. 8 It is not to establish this principle ; it is to (1) The unprofessional reader should remember that a widow has been, but is not, a married woman. (2) Lindsley v. Coats, 1 O. 243, 215; Kerwhacker v. R. R., 3 0. 172, 178; King v. Beck, 15 O. 559, 563; Bloom v. Richards, 2 0. S. 387; R. R. v. Keary, 3 0. S. 201, 205. (3) "We have few statutory provisions on the subject, but, for the most part, the law of husband and wife is common law, and you will find that it savors of its origin in all its leadings features." Walker's American Law, $ 101. "The legal effects of marriage are generally deducible from the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union." 2 Kent's Com. 129. See also: Chitty on Contracts, 11th Am. ed. 231, n. k; Wells on Sepaiate Property Mar. Worn. 83, and below, in note 1, next page; Reeve's Dom. Rel., subject "Baron and Feme. (297) 298 APPENDIX. determine the effect of departures from it by the legislature, that legal decisions have chiefly been necessary. 1 4. It is considered, at common law, that the legal existence of a mar- ried woman is suspended during coverture, or merged in that of her husband; 2 that she is under his control, and so presumably acting un- der his coercion; 3 and that therefore she is incapable of acting for her- self, and that her contracts, in general, are absolutely void.* 5. From these general principles alone, the inference would seem to be unavoidable and conclusive that if a married woman can not man- age her own separate property and business affairs, except as specially enabled to do so by statute, she certainly can not, unless likewise au- thorized, manage the affairs and control the property of those whose interests are so jealously guarded as are those of minor wards, and that, in view of the prevalence of these principles, the practice of the courts, referred to on page 30 is well founded. 6. But it may be said that, in equity, if not also at common law, both in England and in the United States, a married woman may be a trustee, and therefore a guardian, though there are no decisions to that effect in Ohio. 7. The following citations and extracts will show that, while a mar- ried woman's right to be a trustee, under important restrictions, is generally conceded, yet the weight of authority, to say nothing of the force of our statutes (see paragraphs 64-72, below), is clearly against her right to be a guardian, though this view is not without support, outside of this state. WHAT STANDARD LAW WRITERS SAT. 8. Perry, in his thorough and quite recent work on Trusts, §§ 49-51, says: "In equity, the absolute interest in the trust fund is (i; See, among others, Rice v. Railroad, 32 O. S. 380; Alexander v. Morgan, 31 O. S. 546; Levi v. Earl, 30 O. S. 147; Phillips v. Graves, 20 O. S. 371. Wells, in his lately issued treatise on "Separate Property of Married Women" (1878; says, p. 73: "The statutes we are now considering \i. e. statutes as to property, Ed. J do not intend to regulate, or modify, or restrain, the principles of the common law in this regard, but to supersede these to the precise scope and extent of the pro- visions therein enacted." (2) Swazy v. Antram, 24 O. S. 87; Needles v. do., 7 O. S. 432; Alexander v. Morgan, 31 O. S. 440, 448; Coke Litt. 112 a; Mete, on Cont. 82, 83; 2 Kent Com. 129, 132: 1 Black. Com. 442; 2 Story, Eq. Jur., §1376; Schouler's Dom. Rel. 10; Bell v. Bell, 36 Ala. 466; s. c. 37 Ala. 536; Burleigh v. Coffin, 28 N. H. 118; Davis v, Burnham, 27 Vt. 568; Cartwright v. Hollis, 5 Tex. 155: note 2, preceding page. (3) Reeve's Dom. Rel., 98 et seq.; Schouler's Dom. Rel. 52; 1 Bish. Mar. Women, $$35, 39; Bing. on Inf. and Cov. *182; Scarborough v. Watkins, 9 B. Mon. 545; Phelps v. Phelps, 20 Pick. 559. (4) 1 Parson's on Contracts, 345, 3 do. 413, and cases cited : Smith on Contracts. 307-9, and cases cited. See also, paragraphs 8, 10, 11, 16, 25, 31, 37, 38, below. WHAT STANDARD LAW WRITERS SAY. 299 vested in the cestui que trust, the trustee is a mere instrument, and any power or authority in the trustee must have the character of a power simply collateral; 1 therefore there is nothing, as respects legal capacity, to prevent a married woman i'tom administering a discre- tionary trust. 2 . . . "At the same time a husband must always have a large influence over a feme covert trustee ; indeed, as he would he answerable for her acts, and liable for her breaches of trust, he must, for his own protection, look to the manner in which she admin- isters the fund. And she must join her husband in suits in relation to the trust property. 3 . . . Another inconvenience arises in probate and other trusts, where trustees may be required to give bonds for the faithful administration of the trust. A court of equity may require the trustee to give security for the property, even though the trust arises by operation of law. 4 A married woman can enter into contracts only in relation to her sole and separate estate; and how far she can bind herself, or her estate, by a bond to execute a trust in property, the beneficial interests of which belong to another, would always he a perplexing question, although the sureties on such a bond might he liable. 9. " Subject to these inconveniences, a married woman can always be a trustee; and she may even be a trustee for her husband, 5 as well as her husband for her, 6 and the courts will find means to enforce the trusts; hut they will not a, omen, to such offices, nor will they ap- point t/um to be guardians of minors. 1 A woman, on the conti'ary, will be removed from the office, if she is appointed while sole and afterward marries." 8 10. Redfield's Law of Wills (3d vol. p. 569-70, published in 1877) contains matter of similar tenor, of which the following is the essen- tial part: " There seems to be no invincible obstacle against a feme covert being made a trustee ; 9 but, there being more inconvenience in (1) Citing Smith v. Smith, 21 Beav. 385; Drummond v. Tracy, 1 Johns. (N. Y.) 608; Kingham v. Lee, 15 Sim. 401; People v. Wehster, 10 Wend. (N. Y.) 551. (2) Same cases. (3) Still v. Ruby, 35 Penn. St. 373. (4) Clark v. Saxon, 1 Hill Ch. 69. (5) Livingston v. Livingston, 2 Johns. Ch. 541. (6) Bennett v. Davis, 2 P. Wms. 316; Shirley v. do, 9 Paige 363; Jamison v. Brady, 6 S. & R. 467 {fit al.) (7) Re Kaye, L. R. Ch. 387. (8) Lake v. De Lambert, 4 Ves. 595. The trustee in this case had married a foreigner, but Lord Chancellor Loughborough simply remarked that ' it was very inconven- ient for a married woman to be a trustee.' " (9) Citing, at close of paragraph, to same proposition, He Campbell's Trusts, 31 Beav. 176. 300 APPENDIX. callir,^ them to account before the proper tribunals, there will always be more or less objection against the selection of married women for the office of trustee. . . . And as the husband is, from the very necessity of the relation, always responsible for the acts of his wife, even for her breaches of trust, he will naturally exercise a considerable control over her acts; and indeed he must, for the protection of his own interests, constantly exercise a watchful care over her conduct of ili<- trust This will, of necessity, to a certain extent, combine the agency of another with that of the trustee, whenever the office is de- volved up. hi a married woman. (Citing Kingham v. Lee, 15 Sim. 396, 401 ; Smith ■. Smith, 21 Beav. 385; Drummond v. Tracy, Johns. Eng. Ch. 6<>s. ) In short, it seems to be settled, that whenever the wife holds the office of trustee, the husband must act jointly with her. The money or property, constituting the trust fund, can only properly be delivered upon the joint receipt of the trustee and her husband. 1 . . . Si. that we must conclude that although there is no positive incapacity in the case of a married woman for becoming trustee, there are, under the present economy of the law of trusts and its adminis- tration in the courts of equity, numerous inconveniences which induce the courts to prefer that the administration of trusts should not be embarrassed by any such needless hindrances." 11. Hill, in his treatise on Trustees, page 48, says : "Thus femes covert, infants, idiots, and lunatics, and other persons who are non sui juris, may become trustees, subject of course to their legal incapacity to deal with the estate vested in them; wherever that incapacity has not been relieved by the legislature for that purpose." 2 But on page 41 he says that he uses the word trustee, in that treatise, as excluding guardians and other fiduciary officers there mentioned. 12. Bishop, in his treatise on Marriage and Divorce, § 527, indefi- nitely says : " The father is, at common law, in some sense, the guardian of his minor children, though in precisely what sense the books do not seem to be agreed. 3 "When he dies the guardianship de- volves, not to its full extent, on the mother ;* but partly so, and what- (1) Drummond v. Tracy. Johns. Eng. Ch., 611. (2) Citing, Clarke v. Saxon, 1 Hill, ch. 69; Bradish v. Gibbs, 3 J. C. R. 523; Living- stone v. Livingstone. 2 J. C. R. 541; Dundas v. Biddle, 2 Barr, 160; Eyrick v. Hetrick, 1 Harris (Penn.), 494: or, one found an habitual drunkard, Webb v. Deitrich, 7 W. & S. 401. So a nun may be a trustee in Maryland, Smith v. Young, 5 Gill. 197. (3) Macpherson on Infants, 51-62; Miles v. Boyden, 3 Pick. 213; Kenningham v. McLaughlin, 3 T. B. Mon., 30; Forsyth v. Kreakbaum, 7 T. B. Mon. 93; Isaacs v. Boyd, 5 Port., 388; Wilson v. Wright, Dudley (Ga.), 102; Grifflng v. Hopkins, Walk (Mich.), 49; Jackson v. Combs, 7 Cow. 36. (4) Macpherson on Infants, 60-65; Eyre v. Shaftsbury, 2 P. Wms. 103, 116; Roach v. Garvan, 1 Ves. sen. 157, 158; Mendes v. Mendes, 3 Atk. 619,624, lVes. 91; Dedham v. X.itich, 16 Mass. 135, 140; Whipple v. Dow, 2 Mass. 415; Heyward v. Cuthbert, 4 WHAT STANDARD LAW WRITERS SAY. 3,jl evei guardianship is hers, it has been held, perhaps not justly, con- tinues in her, though she is married a second time. 1 Concerning the latter point, a difficulty arises from the fact, well settled in law, that the second husband is not under obligation to support the wife's child- ren by a former husband, while also he is entitled neither to their services nor their society. And indeed other authority recognizes the doctrine that the second marriage deprives, to some extent at least, the mother o* her right of custody over her children by the former marriage." " 13. Also, in vol. 2, § 527, Married Women: " ' On the marriage of a feme guardian, the court of chancery will refer it to a master to ap- point a guardian, not for the purpose of removing her, but to ascertain what ought to be done under the altered state of circumstances.' 3 In our own country, a statute sometimes provides that the guardianship shall end on the marriage, 4 but otherwise this does not terminate the guardianship ; 5 at least, not in all the States, perhaps it does in some."* 14. In McPherson on Infancy, 111, and Reeve's Domestic Relations, 121, both works now quite old, it is stated that a married woman may be guardian ; each of these writers citing only Wallis v. Campbell, 13 Ves., 517. But an examination of this case (see pars. 27-30) will show that it is an exceptional one, the ward being an illegitimate child ; T and that for other reasons it is not a sufficient basis for so general and im- portant a principle as that derived from it ; and this is especially so in view of the opposing decision and general practice given in para- graph 23. 15. In 4 Bacon's Abridgment, 548, it is stated that " Fixed habits of intemperance constitute a sufficient reason for the removal of a guar- dian." Also, that it " is improper that the wife of a man addicted to such habits should be guardian, she being subject to his control." (Citing no authorities of any kind.) 16. Tyler on Infancy and Coverture, 257, states that " On the mar- riage of the mother or other female who has been appointed guardian Des. 445; Tilton v. Russell, 11 Ala. 497; Jones v. Tevis, 4 Litt. 25; Osborn v. Allen, 2 Dutcher, 388; Curtis v. Curtis, 5 Gray, 535. (1) Citing Villareal v. Mellish, 2 Swanst. 533; Mellish v. De Costa, 2 Atk. 14; Arm- strong v. Stone, 9 Grat. 102; State v. Scott, 10 Fost. (N. H.), 274. (2) Citing State v. Scott, 10 Fost. (N. H.), 274. (3) 1 Bright Hus. & W. 17, referring to Jones v. Powell, 9 Beav. 345; In re Gornall, 1 Beav. 347. (4) Field v. Torrey, 7 Vt. 372. (5) Martin v. Foster, 38 Ala. 368. (6) See 2 Kent Com. 225, 226, and notes. (7) Illegitimate children are not the subjects of tutelage at common law. 2 Stephen's Com. 320. 302 APPENDIX to an infant, it is a matter of course to appoint a new guardian, for she is no longer sui juris, and has become liable to be controlled by her husband; but she is at liberty to go before the court and propose her- self as guardian." (Citing Anonymous, 8 Sim. R. 346; Lee v. Govvalt, 1 Bra. R. 347.') 17. Kent's Commentaries, vol. 2, p. 226, contains only the following note on this question: "When & feme sole, appointed guardian to her infant, married, the court directed an inquiry whether she had not thereby deprived herself of the guardianship, as she was no longer sui juris ; though it seems she might be reappointed under new sure- ties." Re Gornall, 1 Beav. 347." (See pars. 24-26.) 18. See also note 1, page 24, ante. 19. Schouler's standard and quite recent work on " Domestic Rela- tions," (1st Ed., 1S70; 2d Ed., 1874) contains the following as to this question : 20. " As concerns the right of a married woman to be appointed guardian there is doubt and uncertainty. The dicta are apt to go one way and the decision another; doubtless out of judicial deference to the sex. Some hold that married women are at common law capable of becoming guardians; but they draw their conclusions rather from the analogies of administration than from positive authority in their favor. When it is considered that chancery and probate guardians are a modern creation, the ancient cases, from such species of guar- dianship as are now extinct, are hardly worth looking after. It is true there are several cases which sustain the acts of married women while acting as guardians, or rather quasi guardians; at the same time clear precedents for their actual appointment are wanting. 2 It is lately held in the English Chancery Court, that, while a woman may be co- guardian with a man, her sole appointment is improper. 3 In spite of the liberal tendency of the age, we conclude that while such guar- dianship would not be deemed absolutely void, and is in fact some- times sanctioned without investigation, public policy is decidedly against the appointment. Not the least important objection is the (1) This case of Lee v. Gowalt was diligently searched for in every series of reports, English and American, but could not be found. This citation is believed to be a typographical error for " In re Gornall, 1 Bea. (Beavan) 347." See par. 24-26; For 8 Sim. R. 346, see par. 23— Ed. (2) (Wallis v. Campbell, 13 Ves. 517. This was the case of an illegitimate child. As cited in Macphers. Inf. Ill, it might be considered authority for the appointment of married women as guardians.) (3) (In Re Kaye, L. R. 1 Ch. 3S7. [Macphers. Inf. Ill; Anon., 8 Sim. 346; Gornall's case, 1 Beav. 347; Jarrett v. State, 5 Gill & Johns. 27 ; Palmer v. Oakley, 2 Doug. 433 ; Farrer v. ClarKe, 29 Miss. 195 ; Holley v. Chamberlain, 1 Redf. 333 ; Kettletas v. Gardner, 1 Paige, 4S8 ; Ex parte Maxwell, 19 Ind. 88, are also referred to. See these cases below.— Ed.] CASES EXAMINED. P,Q3 inability of married women to furnish proper recognizance, and to manage trust property without constantly encountering legal obstacles, all the more troublesome from the present uncertainty of the law of husband and wife. Hence the English rule has been, on the marriage of a female guardian, to choose another in her stead, on the ground that she is no longer sui juris, and lias become liable to the control of her husband; while she is said to be still at liberty to go before the master to propose herself as her own successor." (Citations not given.) CASES EXAMINED. 21. References to the following English and American cases, bearing directly on the matter under consideration, have been found, and an examination of them will show, among other things, (1.) That the dis- inclination of the courts to deprive a mother of the custody of her child is a strong inducement in the minds of the judges to make them construe the law, when possible, in favor of the mother. (2.) That the statutes, in some states, either directly authorize 1 the appointment of a married woman as guardian, or do not, either by implication or other- wise, forbid it; but (3.) That even in these states generally, and by the chancery laws of England, if she can act in that capacity at all. her husband must be joined with her, if a fit person, thereby virtually making him the guardian; and that if he is not a fit person to so act, she, can not be appointed. (4.) That such appointments, even in most cases where permitted, are generally rather excused than sanctioned as proper, and that they are voidable, rather than void. (5.) That generally they are contrary to the policy of the law, and should not be made. 22. If we consider these points with reference to Ohio, we may say (1.) That the custody of the person and the control of the education of a child can not be taken from its mother, if she be a suitable person and the father be dead; 2 and that, therefore, in view of the further fact that there may here be one guardian for the estate only, and a different one for the person, 3 4he inducement mentioned above does not exist here; (2.) That, since the husband would really be the guardian, he might very well, if a suitable person, be appointed directly, instead of indirectly. (3.) That our statutes not only do not authorize, but by implication forbid, a married woman's appointment to that trust. ' (1) See paragraph 05, and references there found. (2) See paragraph 2, chapter 5. (3) See paragraphs 17-18, chapter 3. It should be borne in mind that this is not the case in all states, and that gene- i ally the guardian's office entitles him to the control of both the person and the estate of the ward, to the exclusion of all other persons. (4) See paragraph 04, below, ttseq. 304 APPENDIX. It must also be borne in mind that the entire system of chancery guardianship in England has sprung up and been matured there by the courts since the founding of the colonies, through which we have inherited the common law, and largely so since the independence of these colonies was declared; and that, therefore, it is a matter of some doubt to what extent the rules of English chancery guardianship would apply to Ohio, even if our statutes cast no light on the question under consideration. 1 23. In Wickley v. Whaley (reported in 8 Simmons, 346, as anon- ymous), the vice-chancellor held that it was quite of course, where a lady who had been appointed a guardian married, to appoint a new guardian. 24. In Be Gornall, 1 Beavan, 347. In 1830, Elizabeth Gornall, an un- married woman, was appointed guardian of her minor child during his minority, or till further order of court. In 1832, the mother married, and a petition was presented in behalf of the infant, then twelve years old, praying for a reference to a master to approve of a proper person to be his guardian, and a proper amount of maintenance. 25. As against the petition, it was argued that the reference was unnecessary, the mother being already guardian ; that a mother has a right to the custody of the person of her children, 2 of which she should not be deprived; that the recognizances were still subsisting, and that it would save expense not to disturb them. Held, " I con- ceive that it is the usual practice to make such a reference on the marriage of a female guardian ; it is not, as has been suggested in ar- gument, that this lady, by reason of her marriage, is to be deprived of her child. If the order was to that effect, I should here take a long time before I should make it. Here is an unmarried lady appointed by the court to be the guardian of her child: she is made so under the circumstances under which she is then placed — being a person sui juris, acting for herself in every way according to her own judgment and discretion. In that state of things she marries, and thereby loses that independent judgment and discretion, and becomes liable to be controlled by her husband. Is it not fit that the matter should be in- vestigated and inquired into? I think the usual form of doing it is by referring it to a master to approve of a guardian : under the order the mother will be at liberty to propose herself, and it is to be hoped that her application will be successful ; it may happen that she and her husband will be found to be the most proper persons to have the (1) See Schouler's Dom. Rel. 39-3-300. As to statutes, see pars. 64-71, below. " But the proceeding now under consideration [i.e. an administrator's sale of land to pay debts— Ed.] is uot a chancery proceeding. It is a proceeding in a court of probate, under the statute law of the state. . . ." Robb v. Irwin, 15 O. 689, 700. (2) Citing Villareal v. Mellisb,, 2 Swanst. 53G. CASES IN ENGLISH CHANCERY. 305 care and custody of the infant, and that she may be appointed guar- dian. I can not, however, interfere in that, as it will be a matter for the consideration of the master. I believe this to be the usual order; and I take it to be according to the ordinary rules of practice of this court, under the circumstances which have occurred here, to make such a reference. A n inquiry is necessary, for the purpose of ascertain- ing whether, by the act of marriage, the guardian has not placed her- self in circumstances which may not permit her to exercise that proper discretion which ought to be exercised for the benefit of the child The next friend of the child has performed an act of duty to this court in informing it of the guardian's marriage. 26. " As to the recognizances, I can make no other order than that which I understand to be the ordinary and usual order to be made in such cases. It does not follow that the persons who have entered into the recognizances for the mother of the infant would be willing to be sureties for the husband." 27. Wallis v. Campbell, 13 Vesey, 517 (Apr. 16, 1807). This entire case as reported, including syllabus, statement of facts, chancellor's decisions, and all, is as follows: 28. [Syllabus] "A married woman appointed guardian of an illegiti- mate child ; and payment ordered to her upon her separate receipt." 29. [Statement of facts] "A married woman being under the Mas- ter's Report, appointed the guardian of an illegitimate child; a diffi- culty arose in the Register's office as to drawing up an order for payment of money to her, without joining her husband. It was therefore mentioned to the Court by Mr. Bell." 30. [Decision] " The Lord Chancellor [Eldon] made an order for pay- ment to her, upon her separate receipt, for the purposes of the order." 1 31. Kettletas v. Gardner, 1 Paige (N. Y. 1829) 488. In January 1818, James and C. G., his wife, were appointed guardians of M. and John G., two minors. J. G. was removed on account of his intemperance, on complaint being made against him. The other pertinent facts sufficiently appear in the decision of the Chancellor who says: "The opinion of the master, that the guardian who has become so intemperate as to be occasionally insane, is unfit for a guardian without evidence of a thorough reformation of his hab- its, is perfectly correct. ... He was himself a proper subject for guardianship, and continues so, unless he abandoned those habits. The court has no assurance that there is in him any permanent refor- mation. He has therefore forfeited the guardianship, and must be removed. If it is improper for him to have the management of the estate, it is equally improper for his wife, who is subject to his eontroL (1) See par. 14, p. 301. 30G APPENDIX. The guardianship of the person of one of the infants belongs to the husband, and Mrs. G, is not a proper guardian of the person of the other. The whole guardianship must therefore be changed." 32. Halley v. Chamberlain, 1 Eedf. (N. Y. I860) 333. The second and last paragraph of the syllabus in this case is that " The policy of the law is against the appointment of married women as guardians of the estates of minors. And where the mother of the minor is living with a second husband, though otherwise competent, she will not be ap- pointed guardian of his estate." 1 33. In deciding this case, the surrogate holds that, as the statute (3 N. Y. Rev. Stat. 159, § 32) forbids the granting of letters of administra- tion to a married woman, the same reasoning would forbid appointing her guardian of the estate of a minor. Also, that as the law gives the Surrogate the power to revoke the letters 2 of a woman who marries, it means that, in connection with other provisions, although she is not incompetent for other reason, yet marriage is of itself a reason for removal. . . . He also says : "Almost all cases reported are where there was a contest for the guardianship of the person of the child. The question is but little discussed as to the guardianship of the estate." 34. People v. Webster, 10 Wend. 554. Under a general provision of the N. Y. Rev. Stat. 600, §§ 9, 10, declaring that the directors or mana- gers of any corporation whose charter expires or is dissolved, shall become trustees of the creditors and stockholders of said corporation. An incorporated society for the relief of indigent women and children expired. Some of its directors, at this time, were married women. It was held that such trustees can not be admitted to defend an action of ejectment in the place of a tenant, without their husbands being joined 35. Delamater v. Walmsley, 15 Abb. Pr. (N. Y. ; O. S.) 323. "Section 9 of chapter 157 of Laws of 18G0 (repealed by the Laws of 1862 ch. 172), which constituted every married woman joint guardian of her children with her husband, related to married women oidy ; and they became, not the sole guardians, but only jointly with their hus- bands. To such as had no husbands the act did not apply." 36. Swortwont v. Swortwont, 2 Redfield (N. Y. 1871), 52. The sur- rogate's decision is almost all quoted, because, from it the pertinent facts and statutes can be sufficiently learned. 37. "At common law, an unmarried female, otherwise competent, may make as valid contract as a male, and could in like manner be (1) When it is remembered that in N. Y. in the absence of appointment by the surrogate, a mother was, at that time, entitled to manage the estate of her c hild ai guardian in socage, a right she does not have in Ohio, the reasons for holding that, in this state, a married woman can not be guardian of the estate of a minor, are much stronger than in N. Y. (2) But compare paragraph 70, below, with this. CASES IN ENGLISH CHANCERY. o(J7 guardian of minors, because she was free to act as a male, but upon hei marriage she ceased to be the free agent she was before; and she in law could make no contract whatever, without the consent or sanction of her husband — she was under his control. This rule was in time somewhat modified, so that, after marriage, with the consent of her husband, she might be appointed administratrix, and her husband was liable for her acts; but this rule was never made applicable to guar- dians. (Woodruff v. Cox, 2 Bradf. 153 ; Bunce v. Vander Grift, 8 Paige, 37. ) 38. "Therefore, when even a mother was guardian of her children, and re-married, her guardianship ceased, because she was no longer competent to make a contract, and was under the influence of her new husband, and perhaps another reason may be added — that of the probability of other children, and the partiality that might be shown by the stepfather. There are other reasons, no doubt, within the ob- servation of all, why the guardian in such new relation should be removed. (Lee v. Gowatt, 1 Bradf. 346 j 1 2 Bradf. 155; Xewhouse v. Gale, 1 Redfield, 217.) 39. " Whatever may have been formerly the power of this Court to remove for this cause (marriage), the statute of 1837 invested it with such power (Laws of 1837, p. 530, §34). 40. " There is no application before me for the appointment of a new guardian in this matter, but it is strenuously insisted by counsel for the guardian, that the laws of 1807 authorize her to be continued as guardian, or rather does continue her such guardian. 41. "I do not agree with the counsel. The statute authorizes the surrogate to appoint a married woman executrix, administratrix, and guardian, and married women are declared therein to be capable to act as such, as though they were single women, and their bonds given on the granting of such letters are to have the same force and effect as though they were not married (2 Laws 1867. p. 783, § 2). 42. "This act is one simply permissive; it makes a married woman competent. It removes her common law disability, and declares her capable to act. She may give a bond the same as if she were sole, which shall be legal and valid as if single"; but the statute does not continue the trustee, and the question involved in this matter is un- touched. . . . 43. "Let an order be entered removing II. E. S., formerly S., as guardian of her children, by H. B. S., deceased, upon the appointment of a new guardian for said children, and let her account to such new guardian." (Order accordingly.) 44. Newhouse v. Gale, 1 Redfield (N. Y., 1853), 217. (Part of sylla- bus.) " The policy of the statute is against the appointment of married (1) See note 1, par. 16. 308 APPENDIX. women as administratrices or guardians, and of their continuation in office after their marriage subsequent to the issuing of the letters." 45. Field v. Torrey, 7 Vt, 372. This case discusses at considerable length the common doctrines and the Vermont statutes relating to the question; but it is only necessary to say that a part of its brief syllabus is to the effect that when an unmarried woman guardian marries, such marriage extinguishes her right under such appointment. 4C>. Ex parte Maxwell, 19 hid. 88. A married woman applied to the lower court to be appointed guardian of her two minor children by a former marriage, but that court refused to appoint her. 47. On appeal to the supreme court, Perkins, J., held that "by the common law, as administered by the chancery and ecclesiastical courts, a married woman is not disabled to be an executrix, adminis- tratrix, or guardian. 1 . . . Our statute touching the capacity of a married woman to act as executrix is simply declaratory of the com- mon law. 2 Touching guardianship, our statute specifies no disabilities. Does it not. then, by the ordinary rules of construction, leave the question of competency to the common law ? That law requires, in the judgment of the court, a suitable person. It will occasionally hap- pen, as in this case, that the mother, a married woman, will not only be a suitable, but will, in fact, be peculiarly a proper person to be the guardian of her own children. But she should not be appointed, unless her husband is also a suitable person to act as guardian; because he may be expected to control, in a great measure, the action of hi? wife. . . ." (See last two paragraphs of note 1, this page.) 48. In Hardin v. Helton, 50 Ind. 319, this being a suit on a promis- sory note, it was incidentally held, citing the case last above, thai upon the marriage of a female guardian, it is not necessary that he; husband should file in court his written consent to her continuing sucl guardian, as in the case of the marriage of an executrix or adminis tratrix. . . ." (1) Citing, to sustain this, 2 Story's Eq., $51337-9; 2 Shars.-Black Com. 503, and note 15; Reeve's Dom. Rel. 122; New Am. Encyclopedia, art. Guardian; 1 Williams on Ex. 360. But an examination of these citations shows that none of them sustain this propo- sition as to guardians, except Reeve's Dom. Rel.. p. 121 (concerning which, see para- graph 14 of this appendix), and the Encyclopedia, which is not a legal authority, and which does not pretend to sustain its position by any citations whatever. What weight, outside of its own state, should be given to this decision, resting on such a foundation, each reader may estimate for himself. It might also be remarked, that chancery and ecclesiastical courts do not administer common law. (2) This statute is to the effect that no married woman shall be entitled to letters testamentary, unless her husband file his consent thereto in writing with the proper clerk, which consent shall make him, jointly with her, responsible for her arts in the premises. 2 R. S. 1876, 491, $2. AMERICAN CASES. 30U 49. Parmer v. Oakley, 2 Doug. (Mich.) 433. This case was ably pre sented to the court, and was fully considered. Though it involved mat- ters not pertinent to the question here under consideration, the follow ing paragraphs of its syllabus are pertinent. 50. " It is not necessary that the guardianship bond, required by R. S., 1827, p. 59, §5, should be executed by the guardian; it is sufficient if a bond, with sufficient securities, be given. 51. " It seems that where a married woman, appointed guardian unites with her sureties in the guardianship bond, the bond will be good, not- withstanding her incompetency to execute it. 52. " It seems that the decree of a probate court, appointing a feme covert guardian, who was incompetent to execute the trust on account of coverture, would bind until reversed; and the acts of such a guard- ian would be valid. 53. " Both at the common law, and under the statute of 1827 (R. S. 1827, p. 57), a married woman is competent to be a guardian, with the assent of her husband ; but not without such assent. 54. "It seems that letters of guardianship granted to a wife, without the husband's assent, would be voidable merely, not void. 55. " The husband's assent may be presumed from his joining his wife in the bond which R. S. 1827, p. 88, §2 requires a guardian to give before sale of the ward's real estate." 56. Jarrett v. State, 5 Gill and Johnson (Md.), 27. This case was also ably presented and considered. It appears from its examination that ihe Maryland statute imposed upon natural guardians duties similar to the usual duties of other guardians, and the necessity of giving bond. A mother, while unmarried, refused to act as the natural guardian of her child, and another person was appointed. Afterward the mother married, and the guardian died. She was then appointed " natural guardian," accepted, and gave bond. Suit was afterward brought on this bond, she not being made a party defendant. The statute was silent as to whether a married woman could be so ap- pointed, and the validity of her appointment, and consequently of the bond, was attacked. The court decided that the sureties on the bond were liable, and her appointment lawful. 57. Farrar v. Clark, 29 Miss. 195. This case occupies only about one page in the report, and contains almost no citations or authorities of any kind. In it, the court held that, as the statute of Mississippi di- rects that preference shall be given in all cases to the natural guardian or next of kin, unless such person is manifestly unsuitable, Mrs. F. (a married woman) being next of kin and not unsuitable, coverture was not an impediment, and that she was entitled to the guardianship. 58. Spaun v. Collins, 18 Miss. 624, and Wood v. Stafford, 50 Miss. 370 21 310 APPENDIX. The husband of a guardian, by virtue of his wife's appointment, may exercise the powers of a guardian. 59. Cook v. Bybee, 24 Tex. 278. " Under the Texas statutes, a mother may be the guardian of her child." (Syllabus.) An examination of this case shows it to have been a contest between a person claiming to have been appointed testamentary guardian, and the mother, who claimed her right under the statute which (quoting from the decision) provides that " the mother, ilnder certain circum- stances, ' shall be entitled to the guardianship of her minor children, and shall have the custody of their persons, education and estates." 60. Carlisle v. Tuttle, 30* Ala. 613, 624; Martin v. Foster, 38 Ala. 688. The marriage of a female guardian has the effect of joining the hus- band in the guardianship. 61. Keene v. Guier, 27 La. Ann. 332. In Louisiana, 1 where the mother being the natural tutrix of her minor children, contracts a second marriage, she is required, previous to the marriage, to cause a family meeting to be convened for the purpose of determining whether she shall remain tutrix after the marriage. If she fails in this duty, she loses the tutorship ipso facto. 62. He Dagget, 3 Pick. 280. This case is sometimes cited, though erroneously, to sustain the right of a married woman to be guardian. It was an application, by next friend, to sell real estate of an infant feme covert ; but it does not appear whether the next friend was married or single. 63. Graham's Appeal, 1 Dallas (Pa. 17S5) decides that the court may appoint as guardian whomever it pleases, subject to its legal dis- cretion, which confines it to persons of the same religious persuasion, of good repute, and approved by the orphan. But there is nothing in- dicating that the judges had in mind the appointment of a married woman, or any other person not sui juris. IN THE LIGHT OP THE STATUTES. 64. It is of course to be borne in mind that, in such matters, the statutes of the state enacting them are supreme throughout its limits, and that before them all principles of common law and equity must fully give way, no matter how well established in other states or coun- tries. 65. Some states, by statute, expressly empower married women to act as guardians. For instance, in Massachusetts, it is provided that a married woman may be an executrix, administratrix, guardian, or trustee, and bind herself and the estate she represents, without her husband joining in any conveyance or instrument whatever, and be (1) In which the civil law prevails; see chap. 1. par. 18. IX THE LIGHT OF THE STATUTES. 311 bound in the same manner and with the same effect in all respects a a if she was sole. Stat. 1874, chap. 184; see also Stat. chap. 409. Acfa of 1869. And, as may be seen from some of the preceding paragraphs, 1 the laws of several of the other states favor, in greater or less degree, the same policy. We should therefore expect the decisions of these states, during the time such laws are in force, to be of course favorable to a married woman's right to be a guardian. 66. But the statutes of Ohio provide as follows: '' Sec. 6292. When any unmarried woman, who has been or may be appointed guardian of any minor, shall marry, such marriage shall of itself determine the guardianship of such woman; and the probate court of the proper county shall ap- point another guardian for such minor, to which last-named guardian all the estate of such minor shall, on demand, be delivered up by such former guardian; and she shall forthwith render her guardianship ac- count for final settlement." 2 67. "Sec. 6303. When any person having a wife shall be declared to be an idiot, imbecile, or lunatic, it shall be lawful for the probate judge to appoint the wife of such person his guardian, if it be made to appear, to the satisfaction of the judge, that she is competent to dis- charge the duties of such appointment; and any married woman, ap- pointed such guardian shall, in her said capacity, have power to enter into official bonds, and she and her sureties thereon shall be liable in the same manner, and to the same extent, as though said bond was ex- ecuted by a feme sole." 68. The inference, from these sections of the statutes, that the law does not allow a married woman to be a guardian, unless expressly au- thorized, seems to be irresistible and conclusive. 69. But it has been said that the law thus provides for the termina- tion of guaidianship by marriage, because the woman's relations are altered by marriage, but that had she been originally appointed after such marriage, as might have been lawfully done, the court and her sureties would have fully understood her situation and relations, and her removal would not have been necessary. 70. Had that been the view of the law, how easily it could have pro- vided that, in case of such marriage, such guardian must give new, or additional bond, or must take out new letters ? But it gives no such (1) See paragraphs 41, 42, 47 and notes thereto, 53, 56, 57, 59. (2) There is a similar provision as to an unmarried woman appointed executrix or administratrix, who afterward marries, the law being so explicit as to provide that marriage shall have the same effect as her death would have had. $ 6022. Compare with paragraphs 32, 33, above. It has been held in England that a, feme covert might be an administratrix, Hut that was before 22 and 23 Car. II., which required administrators to give bou. as to how private sale was made, 131. should be attached to report of sale, 131. of appraisers, 116, 142, 143a, 1436. to account of guardian, etc., 109. as to guardian's right to collect interest on U. S. bonds, 29i>. AGE— when male person is of full, 1, 2. when female person is of, 1, 2. wardship ceases at full, 2, 3, 25, 267. age of fourteen years, effect of, 25, 53, 103. age of twelve years, effect of, 25, 58. of ward may be controverted, why, 58. at what, ward may select guardian, 58. t at what, ward may marry without guardian's consent, 70. of ward must be stated in petition for sale of ward's land, 98. why so, 104. ward may avoid lease at, how, and effect of, 143, conveyance made on day of arriving at, llii! n. children of what, must attend school, 205-207/. within which, ward may be bound to apprenticeship, 208. must be stated in indentures of apprenticeship, effect of, 209. ward or minor sent to penal, etc., institutions at what, till what, 214, 215. AGENT— guardian responsible for acts of, except, 60 n., 76. can not buy ward's land, when, 126 n. duty of, as to paying taxes, 145. _may not testify when, 291-2. AGREEMENT— joint bond is in nature of an, 178. guardian must give what, as to insane widow's dower, 235. guardian may fix boundary of ward's land by, how, 286. ALLEYS— certain rights, duties, etc., of guardian and ward as to, 203, 201-204. ALLOWANCE— of fixed sum for ward's maintenance, 85, 162 n. ANCESTRAL PROPERTY— as to funds from sale of, 138. ANSWER— of widow or widower waiving dower, 111, 112, 234. of idiot, insane person, etc., must contain what, etc., 233. who must make, 233. of guardian ad litem, must be filed when, 275. form and effect of, 275, 277, 277 n. must contain what, in suits brought at surety's written request, 288 n. APPEAL— from probate court to court of common picas. no, if probate judge refuses to settle certain account, 162 n. 316 INDEX. APPEAL— Continued. may be had as to settlement of accounts, 165, 280. and in road matters affecting ward, 202. and from final order, judgment, or decree, 283. guardian can take, without giving bond, how, 202, 282, 295. so may minors, idiots, insane persons, 202, 295. as to trustee's settlement, may be had, 261, 280. as to proceedings for sale of real estate to pay debts, 280. as to proceedings for completion of real estate contracts, 280. as to proceedings for appointment of guardians and trustees, 280. how cases appealed must be tried, etc., 280-1. appeal bond generally required. 281. when to be filed, its conditions, etc., 281. what transcript must also be filed, when, where, etc., 281. when appeal considered perfected, 281. what proceedings are had in common pleas court, 281-2. as to right to jury in such cases, 281 n. . as to orders of distribution, 283. from superior court. error cases from, 283. from common pleas to district court. may be had when, how, etc., 283. duty of clerk of court in such cases, 284. as to guardian's giving bond in such case, 282, 284. from district court. error cases from, 283. from magistrates courts. rights, duties, liabilities, etc., of guardians as to, 284. APPEARANCE— of minor defendant can not be affected by guardian ad litem, 271. APPLICANT FOR APPOINTMENT. See Guardian; Probate Court; Bond. must file a statement of ward's estate, 30. must give bond- 30, 31. requisites of bond, 30, 31. v its condition, 31. See Bond may give mortgage, instead of bond, 31. must then furnish abstract of title, 31. must make oath to faithfully discharge duties, etc., 31. may give mortgage, instead of freehold sureties, 31. how to proceed in such case, 39. should be appointed if, 42. when appointment of complete, 46. APPLICATION. See Applicant; Petition. for appointment as guardian, 30 31. for removal of home guardian, in favor of foreign guardian, 52. will not be granted, unless, 52. for sale of real estate by guardian, 97-102. for lease of real estate by guardian, 140, 141, 143a, 1436, 236. for appointment of guardian of drunkard, 249. firm of, how served, etc., 250-251. of money paid, etc., to guardian, 83, 83 n, 94 n, 96 n, 138 n. INDEX. 317 APPOINTMENT OF GUARDIAN. See Guardian; Probate Court; Residence. must be made in what county, 7, 8, 17, 21, 22, 23. may he made by will, 5, 287. but not by deed. 5. powers of probate courts as to, 5, 7, 8, 8-10 n., 20, 21-23. of chancery courts, 5, 6 n. of common pleas courts, 7 n., 8-10 n., 12, 20, 21-23. application for, 31, H2. bond, mortgage, oath, abstract of title, etc., required, 31, 32, should be made when, 42, 50, 57, 177, 311. must be noted on the journal, 10, 42. what journal entry of should show, and why, 45. what is effective part of, 17 n., 45, 46 n. is complete when, 46. of guardian ad litem. when to be made, 110, 111, 233, 244, 271, 272. is not mere form, 276. APPRAISERS— appointment of, in sale of ward's land, 113-115. are usually suggested to court by guardian, 114. qualifications of, 113. must be sworn, and oath of endorsed where, 116. must appraise ward's land, 113, 114. must divide land into town lots, when, 113, 114. if one or more fail to act, what to do, 115. should be consulted before appointed, why, 115. certificate of appointment of, 115. must proceed how, 116. must assign dower, how, 116, 117. must report to court, when, 116, 117. can not buy land appraised by them, 126, 127, and notes, appointment, duties, etc., of, in leasing, etc., ward's real estate. 143a. 1436, 237-8, 248. APPRAISEMENT. See Appraisers. when will be set aside, 129. of dower and of lite estate, in partition proceedings, 194. APPRENTICESHIP— ward may be bound out to, when, how, etc, 208-213, 215, 216, 218. duties of various persons in such case, 208-210, 215-218. APPROPRIATION OF PRIVATE PROPERTY FOR PUBLIC USE. guardian's duties as to, 201-204, 286-7. appeals in such eases, 204, 282. ASSAULT. ASSAULT AND BATTERY. as to suits for, 287-8. ASSESSOR— must furnish guardian what blanks for tax purposes, 147. must enumerate what lunatics, idiots, etc., 247-8. ASSETS. See Property; Estate. received by guardian from administrator or executor, must be adjusted etc., 67. and if court approves, may be retained, 67. guardian must select, when 293. 318 INDEX. ATTORNEY— when guardian responsible for acts of, 60 n. when not, 76. guardian exonerated, if he follows advice of his, 76. guardian can not, directly, or by attorney, derive profit from use of trust fund, 77 n. reasonable fees of, are proper items allowed guardian, etc., 86. can not buy lands of ward, when, 126 n. duty of, as to paying taxes, compared with guardian's, 145. guardian may act as, of ward, when, 153-154 n. may be heard at hearing of exceptions to bond, 171. employment of, in partition matters, 186, 187. how insanity of part} 7 determined, «hen disputed by, 233. maj r be employed by guardian ad litem, 278. as to emplo} : ment of, in certain actions, 288. AUDITOR— of county. duties of, as to taxes on ward's property, 144-148. AUTHENTICATED COPY OF RECORD, ETC. must be filed hy foreign guardian, etc., when, 52, 243, 268. must be filed in cases of appeal, 281. AWARDS— must be docketed, 10. BALANCE— of cash, etc., on hand, account of how carried forward, 158. must be paid to whom, 165. BANK— as to money guardian or trustee deposits in, 60 n., 74, 75 n. BANK BOOK— of guardian, how entries in should be made, 74, 75. BANKRUPTCY— of guardian, does not affect his liability on his bond, 182. BANS— of ward's marriage necessary when, 71. BENEFICIARY. See Ward; Trustee; Minor; BINDING OUT— ward or other minor to service or apprenticeship, 208-213, 215, 216, 218, 220. BIRTH— full age attained how soon after, 2. BLANKS— in bonds, may be filled when, 36. how signers affected by, 36. BLANK BOOK— guardian should get, and keep accurate accounts in, 47, 152. INDEX. 319 BOARD OF EDUCATION— duties, etc., of, as to the ward's attending public school, 205-207e. BOARD OF PUBLIC WORKS— rights, duties, etc., of, as anecing ward's land, 286-7. BOARDING. See Maintenance; Ward. services of ward, set off against claim for, 84, 85. must be charged in guardian's account, 153. BOOKS— that probate court must keep, 9-11. that guardian should keep, and how, 47. school, how supplied, if necessary, 206. BOND— amount, etc., of, must be entered in docket, 10. must be given before guardian can act, 17 n., 30, 45-46 n. of testamentary guardian, 27, 31, 32. one bond for two or more wards may be given, 32. fees in such cases, 32. not invalid for informality, 36. nor for illegality or informality of guardian's appointment, 36. renders signers of, liable for what, 32 n., 178-184. for how long, 34 n. court can not enlarge the scope of, 32 n. rule as to sureties on, in Hamilton county, 32 n. may be signed in blank, 36. when blanks in, must be filled, 36. presence or consent of signers not necessary, 36. should be carefully prepared, why, 36. difference between form and substance of bond, 36. should be signed in court; why, 37. why signing outside is bad practice, 37. * form of, if freehold surety is given, 34. form of, if mortgage security is given, 35. oath of office may be indorsed on, or annexed to bond, 45. suit on, must be brought within what time, 180. suit on, may be brought if guardian misuse trust fund, 79, 81. additional, must be filed by guardian, if he sell land, 118, i 19, 234, 238. if such bond not given, what to do, 137. if given, whr.t, 137. if not required by court, what, 137. additional, must be filed by guardian, when else, 171-2, 172 n., 173. form of, when additional required, 119. form of, when additional by foreign guardian. 136, 137. exceptions to may be filed, by whom ; when, 169. form of, 169. proceedings as to, 169-174. journal entries, dismissing; sustaining; 172, 173. liability of sureties on, 32 n., 33 n., 172 n., 177, 178-9 n., 180. as to joint, 178. suits on; by whom brought, etc., 178. guardian's liability does not depend on, 179-80. when it recites appointment, signors estopped as to what, 179 n. validity of, can not be questioned when, 179 n., 230. 320 INDEX. BOND— Continued. not affected by guardian's bankruptcy, 182. married woman may give, when, 230, 311. perhaps not, when, 30, 297-307. foreign guardian, conservator, etc , must give, 243. who may give to infirmary directors, to prevent sale of pauper's land, 247. trustee of non-resident idiot, lunatic, minor, etc., must give, 264. form of, 265. for appeal, generally required, 281. but not from guardian and others, when, 202, 282, 283, 295- its conditions, time for filing, etc., 280-1. as to bond in error, guardian, etc., need not give, 283, 295. certain provisions for surety's benefit, not applicable to, 289. BONDS— guardian, must invest in what kind of, 66, 68, 290. guardian must charge himself with, of ward, 152. proceeds of sale of entailed, etc., estate must be invested in, or, 290. concerning ward's registered government, 296-296c. as to, of railroad, lipid by guardian, 295. BOUNDARY— of ward's land fixed by guardian's agreement, 286. BROTHER— rights of, as to attendance at school, 205. BUILDING ASSOCIATIONS T guardian's rights as to ward's stock in, 69. directors of, may do what as to minor's stock in, 69. BUSINESS— can not be carried on with trust fund, 77-79. penalty and liability of trustee and guardian who does this, 78, 79. of drunkard, may be carried on by guardian, how ? 251 n. CAPITAL- of ward's estate should be used only when, 79, 80. CARE. See Custody. degree of required of guardian, 60-61 n., 66 n., 74, 75, 74-76 n., 86. 139 n., 155 n.. 158 n., 36. compensation of guardian for, of property, etc., 160. CASES EXAMINED— with a view to married woman's right to be appointed guardian, 303-310. CERTIFICATE— of supervisor, ^tc, as to road material taken, etc., 204. of attendance at school; necessary what for, etc., 206. of probate court's approval of binding out ward, 208. form of such certificate, 213. CERTIFIED COPY— of bond, may be sued on, 178. who must furnish such copy of bond; when, ITS. CESTUI QUE TRUST. See Ward; Insane Person; Imbecile; Idiot; Drunkard. CHARGE AGAINST GUARDIAN. See Complaint; Guardian, re- moval of. INDEX. 321 CHILD. See Minor; Infant; Ward. illegitimate. See Illegitimate Child. removed from father's control, for what, 6 n., 8-9 n. on whose application, 6 n. of divorced parents, guardians for, 8 n. residence of, how determined, and why important, 17-23. must attend public school when, 205. unlawful to employ, who has not attended school, 206. may be bound to apprenticeship, how, etc., 208-213. of insane person, imbecile, etc., how consulted, 234. adopted, rights of, and as to, 287. , parents can not be deprived of custody and education of, unless, 20, 23, 24 n., 61, 69, 70, 303. CHILDREN'S HOME— when and how ward or other minor may be sent to, 207rf, 216-218. CITATION— court will issue, when, and for what, 55, 182, 256. form of, 55, 56, 259. how served, 56. journal entry as to 57 CITY— guardian may invest in bonds of what, 66. as to children's homes, etc, in, 217,218. CIVIL ACTION. See Suit; Sale. final settlement may be reviewed by, when and where, 166. between guardian and ward not maintainable, when, 166 n. to get directions from court, 72, 73. CIVIL LAW— guardianship under, 6. affects our laws how, 6. CLAIM— of ward against guardian barred, when, 165, 166 n. of ward against guardian ; how collected, 182. CLAIMANT. See Occupying Claimant; Adverse Claimant. CLERK. See Deputy. of board of education, duties of, as to children at school, 206, 207. of township, as to child bound out, 209, as to sale of liquors, 223. of corporation, as to child bound out, 209, as to sale of liquors, 223. CLOTHING— must be charged in account, 153. COAL LANDS— of ward, lease of, etc., 143-143a. COLONIES, AMERICAN— Kn»;ish guardianship since founding of, 5, 204. COMMITTEE— to examine as to sanity of dower owner, 244. 322 INDEX. COMMON LAW— age of majority at, 1 n. guardianship under, 3-5, 298-309. is in force in Ohio to what extent, 297-8. COMMON PLEAS COURT. See Court. COMMON SCHOOL- what children must attend, when, etc., 205-207, 209. duties, etc., of guardian as to ward's attending, 205-207, 209. COMPENSATION. See Fees. of guardian. none allowed to. in England, 83. reasonable pay allowed to here, for time, trouble, and services, 83, 159-161. none allowed for maintaining ward, when, 85. amount of, arrived at how, generally, 159. for taxes paid, and for time and trouble connected with, 146. none allowed, when, 161. maj T charge for attorney's fees, when, 153, 154 n. of guardian ad litem. fixed by court, and taxed as costs in case, 233, 278. of certain trustees for the suit, 233. to ward. as to roads, streets, etc., affecting real estate of, 201-204. of witnesses, officers, etc. for services in probate court, 13. COMPLAINT— probate judge should not wait for, 13, 53-4. who may make, 54. hearing of, 54, 56, 57. form of, 54, 55. why sometimes necessarj r , 55. affidavit to complaint, when required, 55. form and effect of affidavit, 55. should be filed among papers of the case, 55 COMPROMISE— guardian may make, as to insane widow's dower, 235. CONDUCT— of ward, may justify guardian in sending him to reform school, 214. or to house of refuge, 218. CONFIRMATION OF SALE OR LEASE— asked for when, 116, 143a, 1436. must be granted when, 131, 143a, 1436. order of, 132, 1436. CONSERVATOR— of estate of idiot, imbecile, etc., powers of, etc., 242. CONSTABLE— must serve in probate court, 13. fees of, in such cases, 13. im.ex. 323 CONSTITUTIONAL PROVISIONS. See Jurisdiction. as to jurisdiction of probate court, 7. CONSTRUCTIVE RESIDENCE— is where guardian of" minor must be appointed, 17, 18 n., 22, 23. CONTRACTS. See Sale. between guardian and ward, how treated, 82. for sale of real estate, when one part; dies, what to do about, 226-8. for same, by idiot, imbecile, or lunatic, 238-9. appeal as to real, may be had, 280. CONVEYANCE. See Sale; Property; Estate; Real Estate. CORNER— of ward's land fixed how, by guardian, 286. CORONERS— must serve writs, etc., in probate court, 13. fees of, in such cases, 13. COSTS— judgment for, in decree, 58. of litigation, fairly incurred, allowed to guardian, 86. when not, 86 n. not recoverable in taxable matter, when, 148. of notice of filing accounts, how paid, 161. when guardian must pay, 173, 86 n. • when not, 173, 86. COUNTY. See Residence. guardian may invest in bonds, of what, 66 guardian may be sued, in what, 181. summons, will issue to what, 181. as to partition of lands in, 189. auditor of. duties of, as to taxes on ward's property, 145-149. treasurer of. must collect ward's taxes how, if necessary, 147. duties of, as to redeeming land sold for taxes, 149. clerk of, duties of, as to ward's taxes, 147-8. infirmary of, lunatic or idiot may be confined in, when, 246. commissioners of. must pay for read material taken from ward's land, 204. COURT. See Probate Court. as to appointment, etc., of guardian ad litem by, 110, 233, 244, 270-9. of chancery. controls guardian by nature, in England, 3. appoints and controls chancery guardians, in Englaud, 5, 6 n. whom it prefers as guardian, 30. remedies obtainable in, generally. See Guardian; Trustee. directions formerly given by, now given to guardian, etc., by court of common pleas, 72-3. will treat trustee's, etc., purchase of ward's property how, 80-81 n. generally allows fixed sum for maintenance of ward, 85. 324 INDEX COURT— Continued. will not enforce decree against ward, when, 99 n. as to guardian's appearance for wards, how treated, 102-3 n. of common pleas- jurisdiction of, as affected by probate statute, 7 n., 8 n., 8-10 n., 96 n. duties of, if probate judge is heir, legatee, attorney, etc., in matters in his court. 12, 13.' formerly appointed guardians, 8 n., 16 n., 20-23. suits to' get directions of, may be brought in, by guardian, creditor, legatee, distributee, executor, etc.. 72, 73. has jurisdiction over guardians' sales of land, 97. code practice in, to govern probate court when, 103. must enforce payment ot ward's taxes, how, 148. appeal to, from probate court, may be taken, when, 165, 202, 261, 280-3. suits in, as to final settlements of guardian, 165, 166. partition proceedings must be in, 187, 188. may send ward to reform school, 214. may release ward from house of refuge, etc., 220. duties of, as to dower of insane woman, 244-5. may authorize wife of idiot, lunatic, etc., to convey her lands, how, 246. district court. error cases from, 283. magistrates' courts. See Justice ; Mayor; Police Judge. as to duties, etc., of guardian, in appeals from, 284. COURTS— view ward's labor and services how, 84-5. decisions of, in other states followed here to what extent, 73, 74. CREDITOR— may get directions of count on certain matters, how, 72-3. must bring suit on note, etc., if surety on requires it, 288. guardian's duty, liability, etc., in such case, 289. CRIMINAL ACTS— of guardian or trustee. See page 295. of agent, guardian and trustee responsible for, 76, 60 n. of stranger, guardian and trustee not responsible for, 7f>. CRUELTY— guardian and parents must protect bound ward from, 209, 296. duties of justice of the peace, jury, and others, in such case, 210) CURATOR— ^" % under civil law, had care of estate, 6. CURTESY— estate by, can not be sold how, 289. CUSTODY— of minor. guardian has, when, 60, 68, 69, 70. father has, when, 6 n., 20, 23, 24 n., 61, 69, 70, 303. mother has, when, 8-9 n., 20, 61, 69, 70, 303. step-father has, when, 18. DAMAGES— guardian liable for, when, 60-61 n., 145. as to wrongful issuing of marriage license, 71 n. index. 325 DAMAGES— Continued. in cases of contested ownership of land, 198. caused by intoxicating liquors, to guardian, ward, etc., 221-225. must be paid by whom, 221, 224. to whom, 221, 223, 225. how collected, 224. DAY— of attaining full age, 2 DEATH- of guardian. does not end surety's liability, 33 n., except, 178. new guardian must be appointed, on, 232. of ward. terminates guardianship, 51, 88. and certain trustee's authority, 267. terminates lease, 140, 235. other effects of, 51, 88, 267. of trustee. effect of, 257. of party to suit. effect of, 287-8. DEBTOR— must be sued when, if surety on a note requires it, 288. DEBTS. See Debts: Settlement. of surety. questions as to, by judge, 33, 34. due ward. guardian can not release. 61 n., 86. but may compound, 64. bad, how to enter in account, why, 154, 159. should sometimes be reduced to judgment, 154, 155. trustee must collect 266. of minor wai'd. property of, must be sold to pay, when, 95, 233. must be accounted for, 153, 154. to guardian, must be settled how, 162, 166 n. of insane, etc. , ward. property of, must be sold to pay, when, how, etc., 233-235. DECREE. See Judgment ; Journal Entry. DEMURRER. See Pleadings. DECISIONS— of courts of other states, force and effect of, here, 51. principles derived from, stated, 73, 74, 73-90. concerning married women's rights, 298. DEED— of ward's lands sold, ordered by court, 131. form of guardian's, 132. guardian must give, when, 235. must be given by sheriff', for land sold in partition, 192, 194. 22 326 INDEX. DEED— Con tinned. must he executed, in case of decedent's real contracts, when, 226. must be executed, in case of idiot's, lunatic's, etc., real contract, 238. must be executed, in case of insane woman's dower, 244. trustee appointed by, 258. guardian can not be appointed by, 5. DEFENDANTS— who must be, in suit to sell ward's land, 99, 102. who must be, in partition matters, 188. how notified, 102, 107-110. affidavit required as to residence of, as to notice by publication, etc., 107, 108. entitled to a day in court, 110. not bound by court's action, 110. rights of one saved, saves rights of other, 181 n. who must be, in proceedings to lease ward's land, 140, 236. who must be, in proceedings as to insane woman's dower, 244, 245. DEFENSE— of infant must be by guardian ad litem, 110, 111, 271. DELINQUENCY— judgment for one, does not bar suit for another, 179. DEPOSIT— of money in bank, 74. See Money ; Guardian. DEPOSITIONS— may be used in probate court, 13. DEPUTY— of probate judge. may administer oaths, 10. can not prepare papers, etc., for guardian, 11. DEVISEE— when a necessary party to sale of ward's land, what to do, 108. as to restricting testimony by, or against, in certain cases, 291-2. DILIGENCE— rule as to proper, 60-61 n., 66 n., 67 n., 74, 75, 74-76 n., 76, 86, 139 n., 155 n., 158 n. must be exercised for benefit of ward, 77. must be used to find defendant's residence, 107. DIRECTORS— of building association, duties, etc., of, as to ward's shares, 69. of public school, duties of, as to ward's attending school, 205-207. of county infirmary, duties of, as to lunatic or idiot, 246-7. OF HOUSE OF REFUGE, ETC— duties of, etc., as to minors, 215-220. DISCHARGE— of ward or minor from industrial or children's homes, etc., 215, 216, 217, 218. DISCRETION— judge should exercise, as to removing guardian, 57, 53 n. guardian should exercise, as to ward's expenses, etc., 65 n., 69 n. directors of building association, may exercise, as to ward's stock, 69. judge uses his, as to private sale of ward's land, 123. INDEX. 327 DOCKETS— that probate court must keep, and how, 10. return of order of sale noted on what, 128. DOMICILE. See Residence. DOWER— jurisdiction of probate court as to, 97, 103, 111, 234, 293. must be set out in petition for sale of ward's land, 99, 234. if previously assigned, what to state in such petition, 99. may be assigned in such cases, 103, 111. money in lieu of, 111, 141, 234. collusive assignment of, will net prejudice minor heir, 112. assignment of, in guardian's sale, 97, 103, 111, 111'. assignment of, in partition proceedings, 194. assignment of, in sale ol insane, idiotic, etc., person's land, 234, 235. sold how, in such case, 234-5. order to assign: if none to assign, what to do, 115, 116, 119. how assigned, 103, 116, 117, 140,298. as to, in case of long lease of ward's land, 140, 141. as to, in case of sale of lands of lunatic, idiot, imbecile, etc., 234. if widow is insane, etc., 234-5, 244-5. how insane person's right of, may be divested, paid for, etc., 244-5, 293. mortgage, stocks, etc., to insane person, in lieu of, 244, 245. estate by, can not be sold, how, 289. DRUNKARD. See Intoxicating Liquors. guardian of denned, 2. law as to appointing guardian for, constitutional, 7, 8 n., 250-1 n. may be removed from guardianship, 53. what to do with child of, sometimes, 219. guardian for may be appointed; when, how, etc., 249-252, 305. appeal may be had from such appointment, 280. effect of such appointment on power to convey property, 251. powers, duties, etc., of such guardian, 249-252. conve\ T ance of, invalid when, 251. restored to control of his property, when, 252. DRUNKENNESS- guardian may be removed for, 53. is reason for appointing guardian of person afflicted with, 249. DUTY. See Guardian ; Probate Judge ; Guardian ad Litem, Etc. neglect of, cause for removing guardian, 53. guardian's, how enforced by court, 53, 178-185. EDUCATION— of ward. guardian controls, when, 60, 64, 65 n., 66 n. father controls, when, 61. mother controls, when, 61. guardian must furnish to ward, to what extent, 64, 65 n., 69, 79-80, 83 n., 85, 89-90, 207, 209. capital of ward may be used for his, when, 80. yearly allowance for, sometimes fixed, how, 85-6. includes what, 89, 90. property may be sold to provide, 95. property may be leased to provide, 140, 143. 328 index. EDUCATION— Continued. ward must attend public school, when, 205-207/, 209. books to, free ui' cost, when, 206. duties, etc., of, board of, as to school attendance, 205-207/. EMBEZZLEMENT— by guardian or trustee, 296. ENGLAND— guardianship in, 2-5. as to gifts to guardian in, 83. rule in, as to attorney's fees, in certain cases, 154 n. married woman's capacity to act as guardian in, 298-305. ENTAILED, CONDITIONAL, DETERMINABLE, ETC., ESTATES— may be sold how etc., 289-291. guardian's duties, etc., in such matters, 290-1. trustees appointment, duties, etc., in such matters, 290-1. proceeds of, how invested, etc., 290. security for, 290. who to receive income, pay taxes, etc., 291. may be leased, how, etc., 291. ENTRIES— must be made, 11. how paid for, in certain cases, 11. showing balances in guardian's hand, must be carried into next ac- count, how, 158. EQUITY— married woman may be trustee in, 298, 299, 312. ESTATE. See Entailed, etc., Estate. of minor child, not controlled by parent, 2, 3. all orders concerning, must be entered on guardian's docket, 10. duty of court as to protecting, etc., 53, 54. must be managed by guardian, 62, 68-9, 84 n. what must be paid out of, 69. See Guardian. how foreign guardian can get, of non-resident ward, 72. court will direct as to doubtful matters concerning, when, 72-3. relative amount of, decides who must maintain ward, when, 87. of deceased guardian, liable for his acts, when, 178, 33 n. of ward affected by partition, 186, 187. of idiot, imbecile, or lunatic, how settled, if insolvent, 242. of same, rights of foreign guardian, etc., as to, 242. entailed, conditional, determinable, etc., may be sold, how, etc, 289-291. EVIDENCE— what is priviledged communication, etc.. 291-2. when a party may not testify, 291-2. certified copies of letters of guardianship are, for collecting interest, 293. what is, of guardian's authority being in force, 294. EVICTION— of tenant on land sold at guardian's sale, 138. EXAMINATION. See Account ; Probate Judge. of accountant under oath, 257. EXCEPTIONS— to bond. where considered, 41, 57. INDEX. 329 EXCEPTIONS— Continued. may be filed by whom, etc., 169, 173. notice of, 109. to accounts. who may file, 161, 174. guardian and trustee must be notified of, 169, 174, 256. hearing of, 161-2, 174, 256-7. judge may grant further time for filing, 161, 257. final hearing of, testimony and arguments at, 171-2. decision of court as to, 171-3. EXECUTION— Jor costs. form of, 58. EXECUTOR— can not be guardian, when, 28. can not act for dead guardian, 51. but must render an account for guardian, 51. compensation of, in such case, 161. duty of, as to taxes, compared with guardian's, 145. compensation of, 159-160. how guardian may receive assets in kind from, 67. land sold by, sometimes recoverable, how, etc., 197, 196-199. of idiot, lunatic, etc., certain duties of, 232. filing of accounts of, and of trustee, hosv enforced, 257-8. EXPENSES— guardian allowed all, reasonably incurred, 86, 159, 160. of child sent to house of refuge, who must pay, etc., 219. of guardian ad litem allowed, 278. FAILURE— * of bank, effect on guardian and trustee, 60-61 n., 67 n., 74, 75, 74-76 n. FATHER— is guardian by nature, 3. rights, duties, etc., of, as sucn guardian, 3, 293. control of his children taken from him for what, 6 n., 23, 24 n., 69, 70. when residence of, is residence of ward, 8-10 n., 17, 18, 22. may appoint guardian, by will, 5, 26. should be appointed guardian, when, 29. is entitled to custody and control of education of his child, when. 61, 69, 70, 87. if he fails to educate his child, what, 64, 65 n., 61, 69, 70. consent of, to get married, necessary when, 70. damages to, for wrongful issuing of marriage license, 71 n. must maintain and educate his child, generally, 87. but not always, if child's estate is the larger, 87. must be served with notice or summons for minor, when, 104. must list child's property for taxation, 146. duties, etc., of, as to sending child to school, 205-207. fine for neglecting, 206. duties, etc.. of, as to binding out child to apprenticeship, 209-213. duties, etc., of, as to committing child to reform school, 214. and to industrial home, 215. and to children's home, 216-218. and to house of refuge, 218-220. 330 INDEX. -FATHER- Continued. should not be appointed guardian ad Mem, when, 111 n can not collect interest on child's government bonds, 293. FEES—. See Compensation ; Guardian, Compensation of. of witnesses, officers, etc., in probate courts, 13. in case of filing certain bond, 32. how charged in guardian's account, 153. attorney's fees, when allowed to guardian, 153, 154 n. for certified copy of bond, must be paid when, 178. FEMALE PERSON. See Widow; Wife; Married Woman ; Dower when of full age, 1, 2. FINAL ACCOUNT— must be filed and settled when, 26. FINAL SETTLEMENT. See Settlement; Account. FINE- guardian, parent, etc., for not sending child to school, 200, 207c, 207/. also, for sale of intoxicating liquors on ward's premises, 224. no exemptions, except in such cases, 224. for cruelty, etc., to ward, 296. FIREMEN'S PENSION FUND— guardian's rights and duties as to, 287. FORCIBLE ENTRY AND DETAINER— applicable to lands purchased at guardian's sale, etc., 138, 295. FOREIGN GUARDIAN— appointment of, will cause removal of guardian here, when, 52. proceedings and proof in such case, 52. will receive all ward's property, when, 52. • notice to, may be served by publication, 181. FORMS— acceptance. of guardianship ad litem, 274. account. of guardian of ward's estate, 156-7. oath to, 159. confirmation of, 164-5. of trustee, of beneficiary's estate, 254-6. acknoivledgment. to mortgage, 38, 135. to guardian's deed, 134. adjournment. journal entry as to, 171. affidavit. of proposed surety to guardian's bond, 34. as to value of land to be mortgaged as security on bond, 40. as to statement of ward's estate, 42. to complaint against guardian, etc., 55. to service of notice of summons, etc., 107. to obtain service of notice by publication, 108. in proof of same, 109. to guardian's inventory, 47. INDEX. 331 FORMS— Continued. verifying widow's answer, 112, to application to sell ward's land at private sale, 123. showing expediency of private sale, 124. in proof of notice of sale, 128. sis to how private sale was made, 131. to guardian's account, 159. to notice of filing exceptions to bond, 171. to notice of surety's application for release from bond, 175. to trustee's account, 256. as to guardian's right to collect interest on IT. S. bonds, 294 as to ward's identity for same purpose, 295. agreement. concerning the binding-out of ward, 21 L answer. of widow, waiving dower and asking money value of, 112. of guardian ad litem, 277. application. See Petition; Motion for leave to sell ward's land at private sale, 123. for leave to lease ward's land, 140, 141, 236-7. to be released from bond, 175. journal entry as to, 176. for citation to compel trustee to file account, 259. for appointment as trustee of non-resident minor, idiot, etc., 265. oatb to, 265. journal entry as to, 265. for payment of ward's money to foreign guardian, adm'r, etc., 268. for appointment as guardian ad litem, 273, 279. appointment. of appraisers, 115 of guardian, 43-45. of trustee of non-resident minor, etc., 265. of guardian ad litem, 274, 27;t. appraisement. of ward's land to be sold, 117. approval of, 118. assignment. of widow's dower, 117, 118. approval of, 118. attachment. citation for, 259. journal entry as to, 260. writ of, 260, bond. when freehold surety is given, 34. when mortgage security is given, 35. when additional is given, in case of sale of land, 119, 136-7. exceptions to, etc., 169-178. additional, when guardian completes real contract, 241. of trustee of non-resident minor, idiot, etc., 266. certificate. of guardian's consent to ward's marriage, 71. of appraiser's appointment, 115. of judge's approval of binding out ward, 213. 332 INDEX. FORMS— Continued, citation. to guardian to appear, pay money, etc., 55, 184. another form, 56. journal entry as to, 57. to trustee to file account, 259. complaint. against guardian, etc., 54, 55. affidavit to, when required, 55. consent- to be appointed guardian ad litem, 279, 274. confirmation. of sale, order of, 1MJ. decree. See Journal Entry ; Order. for sale of ward's land, 121. for private sale, 122. deed. form of guardian's, 132-134, 281-2. exceptions. to bond, 169. entry, if dismissed. 172. entry, if sustained, 172-3. indenture, to bind out ward, 211. inventory, of ward's estate, 47. journal entry. appointing guardian, when court selects, 43. appointing guardian, when minor selects, 43, 44. appointing guardian, when minor notified and fails to select, 44, appointing guardian, of person only, 44. of resignation of guardian, 49. sustaining citation to remove guardian, 57. when complaint is not sustained, 58. for costs. 58. of notice to defendants, sale of ward's land 105 approving appraisement, plat and surve} - , 118. also, widow's dower, 118. and ordering additional bond, 118. for order of sale, 124. of filing guardian's account. 159. of confirmation of guardian's account, 164. same, when exceptions filed and overruled, 164. same, when exceptions filed and sustained, 165. of adjournment of hearing exceptions, 171. sustaining exceptions to bond, 172. 17.'). dismissing exceptions to bond, 172. of filing of request to be released from bond, 176, requiring a new bond, 176. approving new bond. 176. new bond not given, or not approved, 177. approving the binding out ot ward, 211. ordering guardian of idiot, etc., to make deed, 240. of order of attachment anainst truste< , 260. of removal ot trustee, 260. of resignation ot' trustee, 263. index. 333 FORMS— Continued. of appointment of trustee for non-resident idiot, lunatic etc., 265. of guardian ad litem's acceptance, 274. of appointment of guardian ad litem, 274. of ordering notice of suit for sale of lands, 103. of setting time of suit for sale of lands, 103. letters. of guardianship. motion. See Application; Petition-. to open up guardian's settlement, 231. notice of same, 231. to compel trustee to file account, 259. for payment of ward's money, etc., to foreign guardian, etc., 268. mortgage. when freehold sureties are not given in bond, 37. to secure balance of purchase money, 134-5. 'notice. to defendants, as to sale of ward's lands, 106. affidavit to, L08, 184. by publication, form of, 10'.), 184. proof of same, 109. of sale of ward's lands, 125. of exceptions to bond, 170. of surety's application to be released from bond, 175 to foreign guardian to pay money, 184. of motion to open up guardian's settlement, 231. when made by publication, 232. of application to appoint guardian for drunkard, 250. of filing of trustee's account for settlement, 257. oath. See Affidavit. of proposed surety, for oral examination, 33. of guardian, on appointment, 45. another form of same, 46. verifying petition to sell ward's real estate, 102. verifying service of notice, 107. verifying same, when made by publication, 108. to obtain service by publication, 108. of appraisers, 116. to application to sell land at private sale, 123. to guardian's account, 159. order. See Journal Entry. of appraisement, 113, 114. of sale, 121, 122. of reappraisement, 130. to sell at fixed price, 131. of confirmation of sale, 132. to give notice of suit for sale of lands, 103. fixing time of suit for sale of lands, 103. petition. of guardian, for sale of ward's real estate, 99-102. verification of, 102. of guardian, to lease ward's real estate, 140, 141, 2:;G-7. verification of, 142, 237. to compel guardian to pay money due on settlement, 182-4. to compel conveyance to ward of land contracted for by ancestor, 227. as to completion of real estate contract of idiot, lunatic, etc., 239. 334 INDEX. FORMS — Continued. to transfer effects of ward to non-resident guardian, administrator, etc., 268. precipe, for order of sale, 124. release. of ward to guardian, 167. of surety from bond, 176. request for, 175. removal. of guardian, 57, 58. of trustee, 260. request. to be released from bond, 175. resignation. of guardian. 49 of trustee, 26;!. return. to summons or other legal notice, 107. to order of sale, when sale has been made, 128. report. when sale is made, 125. when no sale is made, 130. of private sale, 131. affidavit in such case, 131. revocation of guardian's appointment, 57. of trustee's appointment, 260. sale. decree for, 121, 122. statement. of ward's estate, 41 verification. See Affidavit. to applicant's statement of ward's estate, 42. to widow's answer, waiving dower, etc, 112. to guardian's petition for leave to sell ward's real estate, 102. to guardian's petition for leave to lease ward's real estate, 142, 237, to petition to compel guardian to pay money, 183, 184. to petition as to real contract of ward's ancestor, etc., 228, 240. to petition as to transfer of ward's money, etc., 268 FRAUD— .,;.-■,.- final settlement will be opened on account of, 160-166. guardian liable on bond for, 179. rights of claimants to land, nol guilty of, 196. decree obtained under answer of guardian ad litem impeachable for. '1 1 K. FRAUDULENT CONDUCT— guardian may be removed for, 53. presumed, if guardian or trustee purchese trust property, in assigning dower, remedy of minor heir, 112. FREEHOLDERS— sureties on bond must be, 30, 32. appointed appraisers of real estate to be sold, 113, 244. appointed to report as to leasing, etc., ward's real estate, 142, 143a, 248. appointed as commissioners for partition, 188. 80-81 n. INDEX. 335 FUNDS. See Money. of ward may be invested, how, 64-68, 83 n., 153, 248, 269, 290. GAMBLING— effect of, in ward's premises, 143, 295. GENERAL PRINCIPLES— some governing guardians and trustees, summarized, 73-90. references to, are made where, 74. are binding in Ohio, generally, 73. as affecting married women's right to be guardian 297-312. GIFT— from ward to guardian how treated, 82, 83. of real estate, by drunkard, invalid when, 251. GIRL. See Minor; "Ward; Child. may be sent to industrial home, etc., when, 207e, 215, 217. GOVERNMENT BONDS— when ward's money must, or may, be invested in, 66, 68, 269. as to registered, of ward, 296-296c. GUARDIAN — of minors — and generally. See other kinds, below, definition of, 2. different kind of, 2-6. stands in place of parent, to some extent, 2, 84, 89, 90 n,, 217. derives his power from what, 17 n. non-resident can not be, 23, 28,29, 51. nor minor, 29. nor idiot, 29. nor lunatic, etc., 29. nor person adversely interested, 24-25 n. can married woman be, 25 n., 30, 50, 297. provisions as to this, in Ohio, 30, 230, 311. outside of Ohio, 301-310. if guardian becomes such, removal of. 29, 50, 301, 302, 311. must file statement of ward's estate, 41. form of statement, 41. continues in office, how long, 48, 50, 61 n. See Removal of, below, effect of removing from state, 51-52. from county, 23, 53. » various ways of terminating powers of, 25, 26, 48, 49, 50, 52, 61 n. right of minor to select, 25, 26, 249. notice to, before removal. See Removal of, below, is ward's mere agent, 61 n. can be released only how. 61 n. using ward's money, not breach of bond, when, 66 n. is the judge of what are necessaries for ward, 69 n. building association stock may be paid to, 69. as to control of, over ward's marriage, 70-72. form ot consent, in such case, 71. court of common pleas will direct, in doubtful matters, how, 72. is a trustee, 73 n. is subject to what general principles, decisions, etc., 73, 74. rule as to proper care and diligence, 74, 75, 76, 60-61 n., 66 n., 67 n. not presumed to know the law, if advice of counsel followed, 76. is responsible for acts of attorney or agent, when, 60 n., 76. is responsible for money in bank, when, 74, 75, 76, 60-61 n., 66 n., 67 n. is responsible for money paid by mistake to wrong person, 76, 77. 336 INDEX. TrUARDIAN— Continued. not permitted to make profit from nor speculate with trust fund, 77, 78. remedy of ward against, in such case, 77, 78. when capital may be infringed on to maintain ward, 79. contracts between, and ward, how treated, 82. gifts from, ward to, how treated, 82, 83. wrongful conveyances by, to third person, 83, 84. purchase of property with ward's money. 81, 84. chargeable with interest, when, and how much, 66-67 n., 79, 81, 84. costs of proper litigation allowed to, 86. including attorney's fees, 86. when such expenses not allowed, 86 n. death, removal, etc., of one of two or more, does not affect survivors, 89. as to service upon, or by, for ward, of notice of sale, etc., 103, 105. is ward's antagonist in theory, when, 104. of insane widow, may act for her, 111. as to sale of ward's land by. See Sale. does not warrant title conveyed, 138. if he does, he binds himself, not his ward, 138. penalty^, for not listing property for taxation, etc., 145. rule as to his acting as ward's attorney, 153-154 n. account of, its form, 156-9. is liable for debts due ward, unless, 152 n., 158 n., 179, 182, final account of, must show what, 158. notice of filing account of, must, be published, 161. examination of, as to accounts filed, 162. settlement of, with ward, 163-6. is liable for fraud or neglect, 179. and for unjust judgment against ward, when, 179. and for waste, when. 179. liability of, does not depend on bond, 179-180. suits against, brought when and where, 179, 180, 181, 182. pleadings of, must show what, 182 bankruptcy of, does not affect liability of, on bond, 182. special proceedings to compel payment of money by, 182. trustees of penal, reformatory, etc., institutions are, when. 216, 217, 218. liabilities, duties, etc., of, as to sale of intoxicating liquors, 221-225. liabilities, duties, etc., of. under "imim' laws, 91, 143. liabilities, duties, etc., of, as to militia fines, 287. who can not testify against, etc , 291-2. as to restricting testimony of, or auainst, generally, 291-2. as to right of married woman to be, in this, and other states, 30, 297- 312. appointment oj. may be by will, 5, 287. See Testamentary, below. but not by deed. 5. must be made in what county, 7, 8, 17, 21, 22, 23. is by probate court, 5, 7, 8, 16, 17, 25, 42, 50, 230. and usually only when child has property, 5-6, 90 n. who can not. be appointed, 28-30, 50, 297-312. who should be appointed, 24 n. powers of probate courts as to, 5, 7, 8-10 n., 20, 21-23. of chancery courts, 5, 6 n., 300-310. of common pleas courts, 7 n., 8-10 n., 12, 20, 21-23. application for, 31, 32. bond, mortgage, oath, abstract of title, etc., required, 31-2. record of, 10, 11, 42,45. INDEX. 337 GUARDIAN— Continued. what is effective part of, 17 n., 45, 46 n. letters of, not essential, 17 n., 46 n. complete, when, 46. void, when, 17, 21. should be made, when, 42, 50, 57, 177. journal entries as to, 43-45. first thing to do after, 47. is in force till when, 48, 49, 50, 51, 52. of idiot, lunatic, imbecile, etc., 230. appeals as to, may be taken, 280. account of. See Account, Final and Other. probate court has jurisdiction over, 7. must be settled in common pleas court, if probate judge is interested in, 12. superceded guardian must settle, 26. when female guardian marries, she must settle, 50. all guardians of person and estate must render full, when, 63, 150. all guardians of person only, must render full, when, 69, 150. if ward dies, guardian must settle, 88. settlement of between guardian and ward, 163, 167. guardian must exercise good faith as to, 163 n. guardian of idiot, lunatic, imbecile, etc., must settle, 243. manner of keeping, 151-160. should be clear and easily understood, 152. blank book for, 152. must be recorded, 11, 152, 161, judge or clerk can not prepare, for guardian, 11, 12. when guardian dies, who must render, 51. court must enforce filing of, 53, 63, 161, 256-8. who may compel rendering of, how, 63, 256-7. guardian must pay costs of suit to compel filing of, 86 v n. of money in bank, etc., how to keep account of, 74-75. object of account, and how made. 151, 152, 153 n., 154-159. of each ward should be separate, 152. form of, 156-7, 254-6. what final account must show, 158, 163. must be presented to court, when, how, etc., 163. must be sworn to, how, etc., 159, 254, 256, 257. notice of filing of, must be published. See Notice, 161, 256. cost of notice, how apportioned, 161. exceptions to may be filed, by whom, etc., 161, 162, 255-6. hearing of exceptions, 161-2, 255-6. is only an ex parte statement, when, 164 n. settlement of, is final when, 165, 166 n. is a settlement within meaning of the law, when, 165 n. appeal from settlement of, may be had, when, 280. journal entry as to filing of, 157. maybe reviewed when, 165-6. journal entries confirming or rejecting, 164-5. as to testimony concerning, in certain cases, 291-2. bond of. See Bond. must give bond before he can act, 17 n., 30-32, 45-46 n. may give mortgage security, instead of freehold sureties, 31. See Mortgage ; Bond. may be required from testamentary guardian, 27, 31, 32. 338 INDEX. GUARDIAN- Continued. joint bond for two or more wards may be given, 32. fees, etc., in such cases. 32. what informalities will not render it invalid, 36. signers of, liable for what, 32 n., 178-184. for how long, 84. application of, can not be enlarged by court, 32 n. may be signed in blank, 36. when blanks in must be filled, 36. presence or consent of signers not necessary to this, 36. why should be prepared with care, 36. should be signed in court, why, 87. form of, if with sureties, 34. form of, if with mortgage security. 35. suit on, may be brought, if guardian misuses trust fund, 79, 81. must be brought within what time, 180. may be required to be changed, if one joint guardian dies, etc., 89. additional, when land is to be sold, 118, 119, 234, 238. form of such bond, 119. form of such, 186. if required and not given, what, 137. if not required, what, 137. additional, as to real estate contracts, 238. exceptions to, proceedings on, etc., 169-178. what about joint, 178. liability of sureties on. See Sureties. suits on, by whom brought, 178. additional by foreign guardian who sells land, 136. additional required when else, 171, 172, 172 n. liability of sureties on, 82 n., 83 n., 172 n., 177, 178, 179, 180. guardian's liability does not depend on 179-180. signors of estopped by what recitals. 179 n. validity of not questionable, when, 179 n,, 280. bankruptcy of guardian does not affect. 182. married woman may give, when, 230, 311. her power to give, generall}', 30, 297-312, 311. guardian need not give appeal bond, when, 281-283. exceptions to, and proceedings in such case, 169-174. compensation oj. for money advanced to pay taxes, 146. for trouble and time in paying taxes, 146. amount of, generally, 159-161. none allowed, when, L61. when the court fixes amount of, 163. of guardian ad litem, 233. of certain trustees, 233. death of. has what effect, 48, 51, 178, 232. oath of. See Oath; Affidavit. faithfully to discharge duties of, 31, 45, 46. form of, 45, 46. to accounts, must be made, 63, 157, 159, 161, 162. form of, 157. examination under, as to accounts, filed, 162. to inventory 62. to statement of ward's estate, 42. INDEX. 339 GUARDIAN— Continued. to petition for leave to sell real estate, 102. to petition for leave to lease real estate, 142, 237. to petition as to real contract of ward's ancestor, 228, 24C. to petition as to transfer of ward's money to non-resident, 268. as to right to collect interest on ward's bonds, 294. powers, rights, and duties of. powers continue how long, 2, 3, 25, 26, 48, 50. as to sale of land, under old law, 25 n.. generally, under present law. See Sale. rights of, in proceedings for removal of, 57. of guardian of person and estate, 60-68. rule as to proper diligence and care by, 60-62 n., 66 n., 67 n., 74, 75, 76, 86, 90 n., 74-76 n. is liable only for property accessible to himself, 61 n. is ward's mere agent, 61 n. duty of, as to pensions, 61 n. effect of his encumbering ward's land, 62 n. as to his converting land scrip, 62 n. will be held responsible for loss of ward's money, when, 66 n., 67, 79. rights of, to ward's custody, education, estate, etc., summarized and compared, 70. consent of, to ward's marriage necessary when, 70. rights of foreign guardian. See Foreign, below, entitled to directions of court, when in doubt, 72-3. as to purchase of ward's property by, 80, 81. as to purchase of property by, with ward's money, 81. as to ward's labor and services, 84-85. parent's and guardian's respective obligations to maintain and educate ward discussed, 87, 88 if one or two or more dies, is removed, ere, survivors not affected, 89. as to ward's character, training, etc., 89, 90 n. sale of ward's real estate by, 95-138. See As to Sale of Ward's Property, below generally suggests appraisers' names to court, 114. as to plat for town lots, 121. guardian must sell the land, in person or by auctioneer, 126. as to final settlement of, with ward, 163, 165. as to partition of lands, 186-195. as to lands adversely held by ward, 196-200. as to lands claimed from ward, 196-200. as to roads,' streets, etc., affecting ward's land or lots, 201-204. as to schools and school laws, as affecting ward, 205, 207. guardian fined for neglecting duties as to, 206, 207. as to binding out, or apprenticeship, , of ward, 208-213. as to sending ward to reform school, 214. or to industrial home, 215. or to children's home, 216-218. or to house of refuge, 218-220. may apply for release of ward from such place, 220. as to sale of intoxicating liquors on ward's premises, 224, 221-225. as to real contracts of ward's ancestor, etc., 226-8, 238-242. of idiot, insane person, etc., is guardian of ward's children also, 230. as to lease of ward's property, 139-142, 235-8. as to appeals, 280-284. as to fixing corner or line of ward's real estate, 286. 340 INDEX. GUARDIAN— Continued, as to taking ward's real estate for public use, 201-4, 286-7. as to adopted child, 287. as to sale of entailed estates, 289-291. as to testifying in certain cases, as to certain matters, 291-2. as to collecting interest of registered government bonds, 296- can change residence of ward when, 18. can accept deed for ward, 61 n. can be released after accepting office, only how. 61 n. can set off ward's labor and services against what claims. 84, 85. can do nothing about partitioning deceased ward's land, 88, 89. can receive only money for land sold, 96 n. can be sued where, 181. can act for ward, as to taking property for public use, 201-4, 286-7. can not release debt due ward, 61 n. but can compound it, 64. can not delegate his authority, except, 60 n. can not lend money to co-trustee, 66 n. nor on personal security, 66 n. can not derive' profit from use of trust fund, 77, 78. can not speculate with, nor use trust fund in business, 77, 78. but see 251 n. can not purchase ward's property, except, 80, 81. when such purchase sustained, 80-81 n. can not contract with ward, generally, 82. such contracts regarded how, 82. can not use his influence over ward to latter's injury, 82. can not receive ward's labor and services, unless, 84, 85. nor proceeds of, without accounting for, 84. can not receive his own note for land sold. 96 n. sale may be set aside, if he does, 96 n. can not bind ward by warranty of title of land, 120 n. can not sue ward, nor be sued by, until, 162. can not try suit as justice of the peace, when, 287. may be removed for what. See Removal of. below. may have custody and tuition of ward, when, 60. and management of estate, 60. may act by attorney or agent when, at what risk, etc., 60 n. may loan money on first mortgage security, when, 65, 66. may buy what bonds 66, 68. may buy real estate, when, 66. may sell real estate, when, 66. may select school or university for ward to attend, 66 n. may invest trust funds, how, generally, 66-68. may bring action, to get instructions of court, 72-3. may deposit money in bank, how, 74, 75, 60 n. may infringe on ward's capital, when, 79, 80. may buy ward's property, when, 80-81 n. may compel ward to labor, when, 84. may drive from premises improper associates of ward, 90 n. may sell ward's property, for what, etc., 95-97. may act jointly with other guardian, in such sales, 97. mav make proof of publication ; form of, 110, 129. may lease ward's land, when, 139-1436, 235-8. may sell ward's land at private sale, when, 121. See Sale. may sell ward's land in parcels, but, 121 n., 125, 126, 234. mav convert to administrator's sale, 293. may assign dower, how, 293. may do what, as to railroad stock, 294. INDEX. 341 GU ARDI A N— Continued, may obtain peace warrant in ward's behalf, 296. may be required to give additional security, when, 118, 136, 234. may soil lands of ward to pay taxes, 146. may act as ward's attorney, when, 153-154 n. may be examined under oath, as to accounts, 162. may be sued, where, 181, 182. may sue in his own name, 182. may be compelled to pay money due, how, 182-184. may bind ward out to service, when, how, etc., 208-213. may send ward to reform school, when, 211. may sell propert}' of insane, idiot, etc., when, how, etc., 233-235, at private sale, when only, 234. may be authorized to cany on business, 251 n. may fix corner or line of ward's real estate, how, 286. must settle his accounts, when, 26, 49. 52. must get notice of intended removal of, 53, 54, 58. must collect debts, securities, etc., when, 60-61 n., 64, 158 n, must not invest money on personal security, 61 n. must collect debt, etc., by suit, when, 61 n. must file inventory of ward's estate, 53, 62. and of yearly rents, 41, 62. penalty for not doing so, 62. must manage ward's estate, how, 62. must render accounts of receipts and expenditures, when and how, 50, 53, 63, 87, 150-159. penalty for not doing so, 63. presumptions against him, if he does not, 63 n. must settle fully, and pay over to proper person, 64, 87, 150-1. must pay ward's debts, or compound them, 64. See, also, 86. must appear for and defend ward in all suits, 64, 64 n. must educate ward, when, 60, 64, 65 n., 69, 70, 85, 86, 89, 90 n. must invest ward's money, how, and how soon, 64-68- must pay interest on ward's money, when, 66-7 n., 68 n., 79, 81, 84. how calculated, 67. must adjust and settle assets received from ex'r or adm'r, 67. such adjustment must be approved by court, 67. with such approval, may hold such assets, 67. must obey and perform all orders of court, 67. must give consent, before ward can marry, when and how, 70-72. form of, etc., in such case, 71. must deposit money in bank, how, if at all, 74. must account to ward for all profits, if any, made out of trust fund, 77-79. must pay interest on trust fund, when, and how much, 6, 79. must pay costs of suits, when, 86 n., 173, 174. must be allowed such costs, when, 86, 173, 174. must not allow ward to manage or dispose of his estate, 89. must see to repairs of ward's property, 90. must always regard ward's best interests, 90 n. must make oath to his petition for sale of ward's land, 102. must give notice toward of filing of such petition, 102. must be served with notice for ward, when, 104. must have guardian ad litem appointed, when, 110. See 64 n. must give additional bond, before selling land, US. must issue precipe for order of sale, 124. must sell the land, in person or by auctioneer, 12(1. must make report of sale, 127. must make affidavit as to manner of private sale, 131. 23 342 INDEX. GUARDIAN— Continued. must pay taxes on ward's land. 144. must list ward's lands for taxation, when, where, how, 144, 145, 147. and personal property, 146. must pay taxes out of his own funds, if necessary, 145-6. must charge himself with what, in his account, 152-153. must account how, generally, 152-161. must make every reasonable effort to collect debts, 155. must make out his account, how, etc., 150-159. must do what, as to bad debts, 154-5, 159. must pay loss, personally, when, 125. must make affidavit to account, 159. must pay costs of notice of filing accounts, 161. must settle debts due from ward to him, how, 162. must make full disclosures, and act in good faith, 163 n. must pay balance due on settlement, to whom, when. 103, 165. must present final account to court, when and how, 163. must be notified of exceptions to bond, 169, 174. must appear before court, when, in such case, 169-70, 174. must be notified of surety's application to be released from bond, 174-5. must be notified as to proceedings concerning roads affecting ward, 201. must do what, as to such roads, streets, etc., 201-21) 1. must send ward to public school, when, 205-207/. must do what as to binding out ward, 208-213, 209. must do what, as to sale of liquors on ward's premises, 221-225,223. must do what as to real contracts, etc., 226-8, 238, 242. must defend suits, etc., of ward, 232-3. must collect fireman's pension fund, when, 287. must select articles at appraisement of decedent's effects, 293. must not testify as to what, etc., 291-2. should use only income of ward's estate, unless, 79. should be allowed costs of litigation, 86. including attorney fees, when, 86. should not be allowed, when, 86 n. should have ward learn a trade, profession or business, 90. should see after ward's character, morals, etc., 89, 90. should have service of legal notice made on ward, how, 104, 107-110. should keep his accounts, how, 152. should charge himself with what, 152, 153. should credit himself with what, 153. should take receipts tor all payments, 155. should settle with ward, when, 163. should take ward's receipt, when, 163, 165. should make written report as to insane widow's dower, 235. should not be appointed guardian ad litem, when, 272 n. removal of. probate court removes, 8, 48, 49, 52. 54, 57. may be removed, for what, 49, 54, 57, 62, 84, 177, 299. removing from state of itself removes, 51. so does marriage of female guardian, 50, 301, 302. so does marriage of female ward, 50. removal from county is good cause for, 23, 53. so is drunkenness, 53, 103. and neglect of duty, 53, 54, 84. and not reasonably educating ward, 85. and incompetency, 53. index. 343 GUARDIA X— Continued. and fraudulent conduct, 53. and not filing inventory or account, 53, 62. or bond, 177. when removal ward from state will lead to, 52. if removed, letters of, must be expressly revoked, 48 n. what notice must, first be given, 53, 54, 57. form of, and how served, 56, 57. proceedings for removal, 56-58, 169-178. when he should not be removed, 57, 177. resignation of. may be accepted by court, vhen, 49. should not be accepted till full account is filed, 49. form of resignation, 49. form of journal entry, accepting, 49-50.. sale of icard's property by. See Sale. personal wrongful, ward's remedies, etc., 83, 84. ward can not make, 89. as to laud warrant. See Land Warrant. real estate. See Real Estate ; Probate Court. can not be had, without court's approval, 66, 95. guardian or trustee can not buy, 80, 81. some exceptions to this, 81-82 n. presumptions in such cases against guardian, 81 n. purchase of, with ward's money, 81, 82. as to wrongful, 83, 84. ward can not make, 89. must be sold, when and what for, 95-97. joint application for, valid when, 96-97. invalid, 96 n. formerly, was by authority of common pleas court only, 96 n. ma} r be set aside, if what pay is received/ 96 n. sale void, if law not strictly complied with, 96 n. jurisdiction of courts, as to, 97. duties of, generally, as to, 92-138. guardian generally suggests appraisers, 114. sold by guardian, sometimes recoverable, when, how, etc., 197, 196-199. of insane, idiot, etc., when, why, how, etc, 233-235. by foreign guardian. application for, where made, 135, 136. proceedings in such case, 136. additional security required, when, 136. lease of ward's property by. may lease for three years or less, without applying to court, 139. may get leave of court to lease tor what, 139-1436. two or more may unite in one application, 140. how to proceed in case of long lease, 140-143. may make what improvements, in such cases, 140-143. liability for leasing for sale of intoxicating liquors, 224. ad litem. definition of, 270. is an officer of court, not party to suit, 271. defense of minor must be by, 110, 271, 276, 278. who can not be appointed, 272. when to be appointed on minor's application, 272, 279. when, on plaintiff's or friend's application, 272-3, 279. 344 INDEX. GUARDIAN— Continued. form of application for appointment, 273. how appointed, 110, 233, 271. at what stage of trial, 271. effect of appointing too soon, 27L effect of not appointing at all, 272 n._ appointment of. to minor not a party, is void, 273 n. irregular appointment of, voidable, not void, 273 n. appointment of, not a more form, 276. must be notified of appointment, and accept how, 273. proper rule as to manner of appointing and accepting, 273. court will not appoint, without written consent of appointee, 273 n. when regular guardian may act as, 64 n., 277 n. form of acceptance, 274, 279. form of entry of appointment, 274, 270. none appointed in criminal matters, 270 n. court acts as, in such cases, 270 n. effect on, of minor's coming of age, 271 n. as to, in bastardy proceedings, 271 n. powers of courts to appoint discretionary, 271 n. acts as to, by lower courts, will not be reversed, 271 n. acts of, iree from fraud, bind infant, 271 n. why probate court appoints, 271 n. is appointment of necessary, in sale of ward's lands, 110. "is good practice to do so, 111, 110 n. > ,-,,„»«» as to appointment of, in executor's or administrator s sale ot land, 27b-7. duties of, as to insane owner of dower, 244. duties of, generally, 233, 275-9. can not waive service of summons or notice, 274. previous law as to this^etc, 274 n. when he should answer, 275. effect of his admissions, 275, 276. can not waive any of ward's rights, 275. form of his answer, 277. no verification of, needed, 277. what is equivalent in its effect, in answer, to general denial, 277 n. decree under answer, impeachable for fraud, 278. expenses of should be paid, 278. compensation of, 278. as to, in suits before magistrates, 278-9. of drunkards. must be appointed when, 249. how, 249, 250. . Q will also be guardian of drunkard s minor children, unless, 249. power to appoint, is constitutional, 250 n. what laws applicable to, 249. notice of application for appointment of, 249. form of notice, 250. how served, 250. authority of, terminates when, 251. foreign. resident guardian removing to other state, 61. determines his guardianship, 51. _ . when ward's removing to other state gives foreign guardian right to ward's estate, 51. foreign guardian must do what, in such case, 51. INDEX. 345 GUARDIAN— Continued. has no right to, unless, 51. may obtain effects of non-resident ward from resident executor, ad- ministrator, etc., when and how, 72. proceedings of, to sell ward's real estate, 135-137. may be served with notice by publication, 181, 184. how compelled to pay money due on settlement, 182-4. powers of, as to partition of ward's estate, 187, 188. may receive money and effects of ward from resident trustee, 267. rights of, generally, 285-6. must give bond, in certain cases, 243. of the estate. compared to curator, under civil law, 6. of child of divorced parent, 9-10 n. appointment of, 23, 24. chosen by minor 25. executor or administrator can not be, 28. statutory duties of, 68-9. must pay ward's bills, on order of guardian of person, 69. has nothing to do with custod}- or education of ward, 70. may often allow fixed sum for year's maintenance of ward, 85-6. may lease ward's lauds, how, 139, 140. as to liability of, for badly leasing, 139 n. as to power of married woman to be, 30, 50, 303, 306, 297-312. of the person. compared to tutor under civil law, 6. appointment of, 23, 24. chosen by minor, 25. executor or administrator may he, 28. form of journal entry appointing, 41. remarks concerning requisites of, 45. statutory duties of, 69. must be paid for what, by guardian of estate, 69. must protect and control person of ward, 69, 70. and maintain ward, when, 69, 70. and educate ward, when, 69, 70. See Education; Ward. and obey all orders of court touching guardianship, 69. has custody of ward, when, 69, 70. as to married woman's right to be, 30, 50, 303, 306, 297-312. of person and estate. powers of, 24, 60-68. must file inventory, 62. penalty for not, 62. must manage estate, 62. and render accounts; penalty for not rendering, 63, 64. and fully settle, 64 and pay debts, defend suits, etc., 64. and educate wards, when, 64. See Education; Ward. and lend money, change investments, etc., how, penalty, 64-67. has custody of ward, when, 60, 70. may lease ward's lands for how long, etc., 139, 140. liability of, for leasing too low, 139 n. of lunatic, idiot, imbecile etc. powers of, to act for ward in partition matters, 187. notice to, as to road, street, etc., proceedings affecting ward's land, 201. must do what, etc., as to such roads, streets, etc., 201-204. must be appointed, 230. 346 INDEX. GUARDIAN— Continued. such guardian will be guardian of ward's children, also, 230. wife of, may be appointed, 230. liabilities of herself and sureties, 230. what laws are applicable to such. 231. what vouchers can not be received, in settlement, 231. settlement of, may be reopened, wh>-n, how, etc., 231, 232. notice as to such reopening, 231. motion for, 231. how served, 232. what laws are applicable to, 231. suits by, and against, and survivor of same, 232-3. must defend for insane person, unless, 2:'.:). must deny what, in answer for ward. 233. may sell ward's real estate, why, how. etc., 233-235. may sell dower of insane widow, how, 2'M 5. may lease or improve ward's land, when, how, etc., 235-238, 247-8. his duty, powers, etc., as to ward's real estate contracts, 238-9. must give additional bond as to, when, 238. forms as to, 239-242. powers of, cease when, 213. must settle his accounts, when, 243. duties of, in proceedings to divest insane woman of dower, 244-5. duties of, when insane man's wife seeks to sell or mortgage her land, 246. duties of, as to confining ward in county infirmary, 247. name and address of, must be reported by assessor, 247-8. non-resident entitled to ward's money, etc., when, 267-8. under civil law. described. 6. compared with, under our statutes, 6. in chivalry. never existed here, 4. by nature. who is, 3. extent and duration of. '■'>. has no control of ward's propertj", 3. controlled by chancery, in England, 3. included in guardianship of person, 4. rights of, 2-7. by nurture. described, 4. never existed here, 4. included in guardianship of person, 4. in socage. described, 4. as to its existence here, 4, 5. testamentary. See Will. under common law, 5. appointed by whom, by will, in Ohio, 26, 27 n. but are really only nominated by will, not appointed, 5. who can not so appoint, 27 n. have preference over all others, 27. duties, powers, etc., of, 27. as to bond of such guardian, 27, 28, 31. INDEX. 347 GUARDIANSHIP. See Guardian; SVxro. of minors. compared with relationship of parent, 2. takes place, when, 2. ses, when, 2, 25, 51-2. origin of law of, 2, '.'>. brief view of various kinds of, 2-6. what terminates, 48, 50. accounts to be rendered at termination of, 50, 51, 63. orders, etc , concerning:, must be obe}*ed by guardian, 67, 69. married woman's rights as to acting as, discussed, 297-312. of idiots, lunatics, imbeciles. See Guardian*, of Idiot, Etc. ceases when, 243. HABEAS CORPUS— when custody of child not changeable by, 8-9 n. HEARING— of exceptions to accounts, 161-2. HEIR— when a necessarj* party to sale of ward's land, what to do, 108. collusive assignment of dower, will not injure, 112. made a party to suit for enforcing decedent's real contract, 226. deed in behalf of, executed when and how, 226, 227. of lunatic or idiot pauper, may prevent sale of pauper's land, how, 247 adopted, rights of, and as to, 287. rights of, in sales of entailed, conditional, etc., estate, 289-291. as to restricting testimony by, or against, in certain cases, 291-2, HOUSE OF REFUGE— when, how, why, etc., ward or minor may be sent to, 218-220. HUSBAND— dower of, how released, etc., 103. is party to suit to sell ward's land, when, 51, 99, 102. may do what as to insane wife's dower, 244-5. wife of insane, may sell her real estate, how, 246. his interest in, barred in such case, 246. of lunatic, etc., pauper may prevent sale of land of, how, 247. IDENTITY— of ward. how proven, for purpose of collecting certain interest, 296. IDIOT— guardian of defined, 2. inquest respecting by probate court, 9. can not be guardian, 29. listing property of, for taxation. 146. redeeming land of. sold for taxes, 148, 149, as to partition of land of, I s ". as to roads, streets, etc., affecting land of. 201-204. as to sale of liquors in premises of, guardian's liability, 224. guardian for, must be appointed, 230. appeal as to this, 280. powers, duties, etc., of such guardian, 230-248. can not sign receipt or voucher, 231. settlement of estate of, can be opened up when, 231. must be made when, 243. 348 INDEX. IDIOT— Continued. suits by, and by guardian of, 232, 233. real estate of, may be sold, why. how. etc., 233-235. real estate of, may be leased or improved, how, etc., 235-238. real contracts of, how completed. 238-242. estate of, how settled, if insolvent, 242. when, etc., foreign guardian, trustee, etc., of, may sell effects of, 242. guardianship over, ceases when, 243. mav be confined in county infirmary when, 246. " sale of real estate of, for his support, in such case, 246-7. powers, duties, etc., of trustee of. 242, 253-269. See Trustee. how guardian of, may fix corner or line of' land of, 286. and may improve real estate of, 247-S. ILLEGALITY— of guardian's appointment does not vitiate his bond, 36. ILLEGITIMATE CHILD— mother is natural guardian of, 3 n. residence of, how determined, 19 n. appointment of guardian ad litem, in proceedings as to, 271 n^ appointment ol its mother as guardian of, for some purposes, 301. IMBECILE — See Guardian, of Idiot, Imbecile, etc. defined, 230. can not be guardian, 20. guardian for, must be appointed, when, 230. appeal as to this, 280. powers, duties, etc.. of such guardian, 230-24S. wife of, may be such guardian. 230. can not sign receipt or voucher, 231. settlement of estate of, may be opened up when, 231. suits by and against, how conducted, etc., 232-3. and by and against guardian of 232-:!. real estate of, may be sold, why, how, etc., 233-235. or leased or improved, 235-238, 247—8. real estate contracts of, how completed, 238-242. estate of, how settled, if insolvent, 242. when, etc.. foreign guardian of, may dispose of effects of, 242. powers, duties, etc., of trustees of, 242. 253-269. See Trustee. corner or line of real estate of, how may be fixed, 286. IMPROVEMENTS— may be made on ward's land, how and why, 140, 143. 247-8. must be paid for by person claiming to own land, when, 196-199 INCAPACITY. See Infants; Idiots; Lunatics; Drunkards. to manage affairs, how imposed, 2. INCOME— only, of ward's estate, should be used, unless, 79, 80. INCOMPETENCY— guardian may be removed for, 53. INCUMBRANCE. See Mortgage; Lien. drunkard can not put, on his real estate, when, 251. INDEX. 349 INDENTURE - of binding out ward to apprenticeship, 208, 209, 211. must be executed by whom, 20'J. must state minor's age, 209. must contain what covenant, 209. must be recorded, etc., 20'J. INDUSTRIAL HOME OR SCHOOL— as to committing girl to, etc., 207e, 216-7. INFANTS. See Minors; Ward; Guardian. • who are, in evis of Jaw. 1 non-resident land owner, guardian for, 17. INFIRMARY— ward, lunatic, or idiot may be sent to, when, 207d, 246-7. INFLUENCE. UNDUE— effect of, as to guardian's dealings with ward, 163 n. INFORMALITY— of bond, or guardian's appointment, does not invalidate bond, 36. INFORMATION— how conveyed to probate court, sometimes, 55. INJURY— guardian liable for, to ward's estate, when, 224. IN LOCO PARENTIS— who is, to some extent, as to ward or minor, 2, 84, 89, 90 n., 217. INSANE PERSON. See Lunatic. guardian of, defined, 2. inquest respecting, in probate court, 9. can not be guardian, 2'.'. guardian of insane person may act for ward, 103, 111. may bring suit against guardian, when, 180. as to partition of land of, 187. 188-195. as to roads, streets, etc., affecting hunts of, 201-4. as to sale of liquors on premises of; guardian's liability, 224. can not sign receipt or voucher, 231. settlement of estate of, can be opened up, when, 231. suits by, and by guardian of, and survivor of same, 232, 233. must be made party to suit, how, if necessary, 232 n. real contracts of, how completed. 238-242. defense of, made how, 233. real estate of, may be sold, how, why, etc., Ill, 233-235, 247. or leased, or improved, how, etc., 235-238, 247-8. how estate of settled, if insolvent, 242. when, etc., foreign guardian may dispose of effects of, 242. how land may be divested of dower of, 244-5. how proceeds of dower invested for support of, 235. appeal, from appointment of guardian or trustee for, 280. how guardian of may fix boundary of real estate of, 286. as to listing property of, for taxation. 146. redeeming property of, sold for taxes, 148. 149 guardian for, must be appointed, when, 230. wife of, may be such guardian, 230, 311. 350 INDEX. INSANE PERSON— Continued. may be confined in county infirmary, when, 246-7. as to sale of real estate of, in such case, 246. powers, duties, etc., of trustee of, 242, 253-2C9. See Trustee. INSANITY— of party to action, how determined, 2:)?,, 244. INSOLVENCY— how insolvent estate of idiot, lunatic, etc., settled, 242. INSTRUMENT FOR PAYMENT OP MONEY— how surety may be released from, etc., 288-9. guardian's duty as to, in such cases, 289. INSURANCE— charged in guardian's account, how, 153. INTEMPERANCE. See Druxkexnkss. INTEMPERATE PERSON. See Drunkard. INTEREST— when guardian chargeable with, 67, 66-67 n., 68 n., 79, 81, 84, loo. deferred payments on ward's land sold, must bear what, 120, 121. on taxes not paid, 145. lien on property for, 148-9. how accounted for, 153. on ward's registered government bonds, how collected, 292-5. INTERESTS— of minor, must always be considered and protected, 13, 14, 23, 24, 25, 235. of person, if adverse to minor's, disqualifies for guardianship, 25 n. INTERESTED PERSON— can not be guardian, when, 24-25 n., 28. INTOXICATION— INTOXICATING LIQUORS— guardian's, etc., rights as to damages caused by, 221. fixed habits of, by guardian, ground for removal, 301. INVENTORY— must be filed by guardian, when, 53, 62. failure to file, is cause for removal of guardian, 47, 53, 62. must be verified on oath, 62. form of, 47. INVESTMENT— of ward's estate may be changed, when, etc., 95. by guardian, of ward's money, 64, 65, 66, 68, 83 n., 153, 289-291. by trustee, of beneficiary's money, 269, 289-291. ISSUES— dower assigned in rents, issues and profits, when, 11/. JOURNAL— must be kept by probate court, and how, 10. JOURNAL ENTRIES See Forms. of appoiutmeut should show what, and why, 45. INDKX. 351 JUDGMENT if guardian or trustee acts according to best of his, 74, 75, G0-C>1 n. must use for benefit of ward, not of Belf, 77. affidavits of men of, for private sale of ward's land, 123. JUDGMENTS— must be docketed, 10, 53. to enforce faithful performance of duty, 53, 178. for costs, form of, guardian must obey all, touching guardianship, 67, 69. what, must be set out in petition for sal'' id' ward a land, 99. ward not bound by, if not a party to the suit. W n. can not be collaterally impeached, unless, 21, Id:; d. rule as to taxes, to have same force as, 1 18. when final settlement has same effect as, 165 effect of generally, against guardian, etc., 179, 180, 181. sureties maybe mad" parties to, when, 181. in case of apprenticed minor, 210. releasing bind from insane woman's right of dower, 245. against infant will be reversed, in certain ease, 27'J n. as to revivor, etc., of, 287-8. JURISDICTION— oj probate court or judge, 5. 7, 8—1 1. can not lie interfered with by habeas corpus, 8-11 n. exclusive, 8-10, 265. concurrent, 10. to administer oaths, etc., 10. once vested, excludes that of all others, 10, 17 n. how determined, 1 7. of appointing guardian is open to inquiry, 17 n., 21. minor must be resident of county, or court can not appoint guardian, 17,21,22. if court has no, its action absolutely void, 21. some discussion of, 8 n. is concurrent in guardian's sale of land, 97. once acquired, is exclusive, 'J~ . 265. certain sales void, for want of, '.'7 n., 103 n., 131 n. to appoint guardian of drunkard, is constitutional, 7-8 n., 250-1 n. as to trustees of non-resident idiot, minor, etc., 264. JURY— duties of, etc., in case of contested ownership of land, 148. duties, etc., as to apprenticed minor, 210. to inquire into insanity of owner of dower, 244. not allowed, in proceedings to appoint guardian for drunkard, 250. JUSTICE OF THE PEACE. See Magistrate. may administer oaths required, 40. duties of, as to wards, 70-72, 207/, 295, duties of, as to apprenticed minors, 210. duties of. as to committing ward or minor to house of refuge, 218-220. can not try case, if related to either party as guardian or ward, 287. as to survival of suit against, 287-8. LABOR AND SERVICES— of ward. guardian's duty, etc., as to, 84, 85. 352 INDEX. LAND. See Real Estate; Property; Guardian; Sale; Lease. LAND SCRIP— LAND WARRANT— conversion of, by guardian, 62 n., 78 n., 95 n. sale of, by guardian, invalid, when, 95 n. LAPSE OF TIME— makes title good when, 149. LAWS— as to guardians of minors, govern guardians of idiots, insane persons, etc.', 231. and trustees, in some respects, 266-7, 269. as to guardians of idiots, etc., govern guardians of drunkards, 249. us to executors, etc., govern accounts of trustees, 258-4, 257-9. as 10 own child, govern adopted child, 287. as to guardian of person and estate, govern guardian of estate, 69. LEASE OF WARD'S REAL ESTATE— guardian may make, for how long, etc., 139, 140-1436, 235, 295. guardian's responsibility for leasing too low, 139 n. what application for leave guardian must make, 140, 143a, 1436, 236. who may join in application, 140. what such application must show, 140, 235, 236. rules as to parties, and notice in such matter, 140. as to dower in such case, 140. form of application or petition for leave to make, 141, 142, 236. verification of, 142, 237. proceeding on hearing of, 142, 237. freeholders must be appointed, what for; report of, 142, 143a, 237. how freeholders appointed, forms for, etc., 142, 143a, 237. when court will authorize such lease, 142, 143, 238. when such lease will determine at ward's majority or death, 143, 235. lessee's rights in such case, 143, 235. renewal of lease, in such oase, by whom, 143, 235. guardian's liability if rented for sale of liquors, etc., 221-5, 295. lease void, in such case, 224-5. trustee of non-resident mii}or, idiot, etc., may lease, 264-267. of entailed, conditional, etc., estate, 291. LEGAL SETTLEMENT. See Settlement; Residence. LEGAL REPRESENTATIVE. See Administrator; Executor. entitled to money and other effects of ward, when, 267, 268, 165. LEGATEE— _ as to restricting evidence by, or against, 291-2. LESSOR. See Lease. position of, who lets premises for sale of intoxicating liquors, 224. LESSEE— rights of, when ward arrives of age, 143. rights, liabilities, etc., of, as to sale of intoxicating liquors, 221-225, "224. LETTER— certain communication to probate court may be by, 55. INDEX. 353 LETTERS OF GUARDIANSHIP. See Guardian, Appointment of. force and effect of, 17 n., 46 n. how issued, etc., when more wards than one, 32. fees in such cases, 32. issued before bond given, are void, 45 n. if improperly issued, what to "do, in certain case, 243. certified copy of, must be sent to Washington, to enable guardian to collect interest on registered U. S. bonds, 2!):!. LIABILITY. See Negligence ; Loss; Damage; Guardian. of sureties. See Sureties; Bond. of guardian. See GUARDIAN. of sheriff and bis sureties, in partition proceedings, 193. of guardian, parent, etc, as to apprenticed ward, 211. of guardian, etc, as to traffic in intoxicating liquors, 221-225. under gaming laws, 295. LICENSE— must be obtained, in case of ward's marriage, 71. damages for wrongful issuing of, 71 n. LIENS— on ward's real estate, paid how, if necessary 95, 148. must be described in petition for sale of ward's land, 98, 99. must be paid out of proceeds of sale, 132. may sometimes be paid by long lease 140. as to adjusting, in proceedings to lease ward's real estate, 140. tenant has, for improvements on ward's leased land, 143. guardian has, for taxes paid on ward's property, 140. tax title little better than, 148-9. fines, etc., for sale of liquors on ward's premises, etc., are, on premises, 224. bj' drunkard on his land, invalid when, 251 LIBEL— as to suits for, 287-8. LINE- of ward's real estate fixed by guardian, how, 286. LIQUORS. See Intoxicating Liquors. LITIGATION. See Suits. costs of, who must pay. See Costs. LISTING— ward's property for taxation, 145-147. LOSS. See Negligence; Damages; Liability. as to guardian's and trustees liability for 76, 74, 75, 60-61 n., 66 n., 67 n.; 74-76 n., 78. LOTS, TOWN. See Real Estate. ward's land may be divided into, for sale, when, 98. as to description of in petition, 98 n. guardian must pay taxes on ward's, 144, 145. sold for taxes, may be redeemed, when, 148, 149. land divided into what, in partition matters, 190. corner or line of, may be fixed, how, 286. LOTTERY— on ward's premises, 295-6. 354 INDEX. LUNATIC. See Insane Person. guardian of, defined, etc., 2. inquest respecting, in probate court, 9. who must list property of, for taxation, 146. redeeming property of, sold for taxes, 148, 149. guardian for, must be appointed, when, 230. wife of, may be such guardian, 230. powers, duties, etc., of such guardian, 230, 311. powers, duties, etc., of trustee of, 242, 253-269. See Trustee. real estate contracts of, how completed, etc., 238-242. how wife of, may convey her lands, 246. may be confined in county infirmary, when, 246. sale of real estate of, for his support in such case, 246. guardian, parent, etc., of, may prevent sale how, 247. real estate of, may he improved, 247-8. MAGISTRATE. See Justice of the Peace; Mayor; Police Judge. may evict tenant of ward's land sold, 138. as to appeals from court of, 284. as to guardians ad litem in suits before, 278-9. MAINTENANCE. See Ojardiax; Father; Mother; Ward. of minor. ' guardian of, should furnish, when, 69, 87, 89, 90. father of, should furnish, when, 69, 87, 90 n. mother of, should furnish, when, 69, 88. stepfather of, should furnish, when, 88. ward must contribute toward, by labor, when, 84. as to allowance of fixed sum for, 85. who must furnish, and how decided, 87, 88. style of, how determined, 87, 90, n. how order for granted, 87, 89, 162 n. MAJORITY— age of, when attained. 1. wardship ceases at, 2, 3. MALE PERSON— when of full age, 1, 2. if ward, effect of marriage on*guardianship, 50, 51. commitment of, to reform school, etc., 214-220. MALICIOUS PROSECUTION— as to actions for, 287-8. MANDAMUS— must be resorted to, when, 162 n. MANUFACTURER— can not employ child who has not attended school, when, 206. MARRIAGE— ends guardianship, when, 50, 301-307, 308. 311. guardian's consent to, necessary, when, 70. is void, when, 70, 71 ft. when court will declare it a nullity, 70 n., 71 n. promises of, constitute, when, and when not, 70-71 n. between what degrees of kinship forbidden by law. 70. as to, of ward, 70, 71. INDEX. 355 as to marriage ban?, etc., 71. effect of ward's, 50. makes guardian's final settlement necessary, when, 50, 312. MARRIED WOMAN- IS party in suit to sell real estate, 51, 99, 102. as to dower of, 103, 111. can be guardian when, etc., 30, 50. 297-312. exceptions to this, 290. 301, 307-310, 311. her legal status discussed, 297-8. if unmarried female guardian becomes, what must be done, 50, 299, 310. formerly managed her own property to what extent, 298. MASTER— MISTRESS— duties, rights, etc., of, as to child bound out to, 209-211. character of, 213. MAYOR— duties, etc., of, as to marrying ward, 71. may commit ward to house of refuge, children's home, etc., 207/, 218. MILITIA FINES— guardian must pay, when, 287. as to, generally, as affecting guardian, 287. MINISTER — duties of, as to ward's marriage, 71, 72. MINOR. See Ward. who is a, 1. is a ward, when, 2. parent of, has no control over property of, 2. how residence of, determined, 17-23. rights of non-resident. 17. can not change his residence, 18. best interests of, always consulted, 6 n., 23, 24, 25, 53, 62. also, state of its affections, attachments, etc!, 24 n. See, also, 25. rights of, to choose guardian, 25, 26, 249. if he fails to select, court may select, 25. can not choose separate guardian of person and estate, unless, 25. should be notified to come and select guardian, 26. when guardian of parent of, is guardian of, also, 249. can not be guardian, 29. when parent of, should be appointed guardian, 24 n., 29. dangers to, if bond of guardian is not required in court, 37. effect of removal of, from this state, 52. when parents entitled to custody and control of, 61. rights of, as to education, 61. guardian must act for, generally, 63 n. can not marry without guardian's or parent's consent, when, 70. of what degree of kindred may marry with such consent, 70. what promises, etc., of, will constitute marriage, 70-71 n. guardian's, etc., consent must be witnessed and certified, how, 71. rights of non-resident. See Guardian, Foreign. how served with notice or process, 101, 105. 356 INDEX. MINOR— Continued. defense of, must be by guardian ad litem, 110, 111, 271. regular guardian may act as, when, 64 n. right of, to a day in court, 110. can not be prejudiced by collusive assignment of dower, 112. as to paying taxes on property of, etc., 144-148. such property, redeemable when, if sold for taxes, 148, 149. may bring suit on guardian's bond, when, 180. how affected by partition proceedings, 187-194. how affected as to roads, streets, etc., 201-204. must attend school, duty of guardian as to, 205-207/, 20'). may be bound out to apprenticeship or service, when, how, etc., 208- 213, 215, 216, 218, 220. rights of minor so bound, 209. must get schooling, bible, clothes, etc, when, 209. must be sent to reform school, how, why, how long, etc., 214. and to industrial home, why, how long, etc., 215, 216. and to industrial school, why, how long, etc., 216, 218. and to children's home, why, how long, etc., 216-218. and to house of refuge, why, how long, etc., 218-220. how trial held, in such case, 219. how expenses of maintenance, etc., paid, 219. rights of, as to damages, etc., caused by intoxicating liquors, 221-5. trustee for non-resident, may be .appointed, how, etc., 264. duties of, etc., 264-269. non-resident, rights of, 285-286. how affected by acts of guardian ad litem, 271, 272-9. can not act as guardian, ad litem, 272 n. rights of, etc., as to sale of entailed, conditional, etc., estates, 289-291. as to registered -government bonds of, 292-5. MINORITY— lasts how long, 1, 2. MISCONDUCT— when guardian forfeits bond by, who may sue, 178. See Suit. MISTAKE— final settlement will be opened on account of, 165-6. MISTRESS. See Master. MONEY. See Property; Estate. how foreign guardian can get, of non-resident ward, 72. guardian's liability for, deposited in bank. 74, 75, 60 n. must see that it is paid to right person, 76-7. right of ward to his, in cases of wrongful sale of property, 80, 81. guardian must invest ward's, how, 64, 68, 83 n., 153. guardian can not invest ward's, on personal security, 66 n. guardian must use his own, to pay ward's taxes, when, 146. refunder of, in such cases, 146. guardian must pay interest on ward's, when, 67, 79, 81, 84, 153. guardian must be allowed interest on his, when, 153-4. final account must show payment of, to ward, 158. paj^ment of, in partition proceedings, 193. collected as fine, paid to whom, 207. secured to child bound out, how, etc., 209. widow may receive in, in Jieu of dower, 111, 141, 234. index. 357 MONEY— Continued. bond for, when guardian receives by reason of real contract, 238. management, etc., of, belonging to non-resident minor, idiot, etc. 264 trust*** must loan, when, 269. as to, arising from sale of entailed, conditional, etc., estate, 289-291. MORTGAGE- raay be given in lieu of freehold sureties, 31. requisites of, 31. must be recorded, where, 31. and be filed with court, 31, 39. affidavits as to, 31. form of, as security to bond, 37. of acknowledgment to, 38. should be filed with bond, 39. how to proceed, when it is proposed to give mortgage, 39. must be taken when ward's money is loaned on land,' 65, 66. are considered proper investment, when, 65-66 n., 67 n. ward's land may be sold to satisfy, when, 95. must be described in petition for sale of ward's land, 99. remains in full force, if mortgagee is not a party to suit to sell land, 99 a deferred payments, in sale of ward's land, secured by, 120, 131. given to whom, 134. form of, to secure balance of purchase money, 134-5. note and, should correspond, 134. must be accounted for, how, 152, 153-4. as to, to secure insane woman's proceeds of dower, 245. when insane man's wife may mortgage her real estate, 246. by drunkard invalid, when, 251. MOTION— to compel guardian to render an account, 63. to open guardian's settlement, 231. notice of same, 231. to compel trustee to file account, 259. for payment of ward's money to foreign guardian, etc., 268. MOTHER- IS guardian by nature, when, 3. See Guardian. rights, duties, etc., of, as such guardian, 3, 293. See Guardian. when residence of is residence of ward, 8-10 n., 18, 21-23. custody of child may be taken from, why, 23, 24 n. should be appointed guardian of her child, when, 24 n. can not be, when, 24 n., 25 n. may appoint guardian by will, when, 26. when entitled to custody and control of child, 9 n., 61, 70. consent of, to get married necessary, when, 70. fixed sum for maintenance of ward often. allowed to, 85-6. generally entitled to maintenance of ward out of its estate, 87. but must maintain and educate ward, when, 69, 88 n. must be served with notice for minor, when, 104. must list child's property for taxation, when, 146. must send child to school, when, 205-206. penalty for neglecting to, 206, 207. duty, etc., of, as to binding out child, 209. can not collect interest on her child's government bonds, 293. MUNICIPAL CORPORATIONS— as to streets in, affecting ward's property, 201---.G4, 278. _4 358 INDEX. NAMES— of certain guardians must be reported by assessor, 248. NEGLECT— . parent and guardian must protect bound minor from, 209. NEGLIGENCE— . guardian liable for, when, 60-61 n., 66 n., 158 n., 178, 289. who may sue for guardians, 178. NEWSPAPER. See Notice. notice must be published in, how long, etc., 107, 108, 125, 161, 181, 201, 256. copies of, containing notice, must be mailed to defendants, 107. affidavits' as to publication in, 109, 129. if none published in the county, what to do, 129. NON-RESIDENT. See Residence; Ward; Trustee. minor land-owner, rights of, 17, 285. rules for determining who is, 19. can not be guardian, 23, 28. 29, 51. nor sureties on his bond, 30. may be served with notice by publication, 181, 107-110, 201. NON-RESIDENT GUARDIAN, TRUSTEE, ETC. See Foreign Guar- dian, Trustee, Etc. NOTARY PUBLIC- may administer oaths required in probate matters, 10, 4_. NOTE— , „ , , -, • , ion for balance purchase money for ward s land, how received, liU. to whom given, 134. how accounted for by guardian, 152. his liability on, in certain case, 67, 152 n. sureties on, may require creditor to do what, 288. sureties on, how released, etc., 288-9. guardian's duty, etc., as to this, 289. NOTICE— . of proposed removal of guardian, must be given him, 53, 54. forms of, 55, 56. of proposed selection of guardian by ward, 58. of petition to sell ward's land, must be given, how, 102, 104, 10o, how served, 102 n., 102-5, 106. if record shows that " due notice was served, effect ot, 103 n. want of, makes sale void, 103 n. but, merely defective notice will not, 103 n. how must be served upon minors. 104, 105. how served, generally, in probate court, when law is silent, 105. form of journal entry as to, 105. form of notice, 106, of return to, 106. form of affidavit as to service of, 107. service of, by publication, 107-110, 181, 184. affidavit to authorize service of, by publication, 107, 108. of sale of ward's land, 125. proof of publication of, as td sale of ward s lands, 128, 1Z9. index. 359 NOTICE— Continued, copy of notice must be attached to the order of sale, and returned with it, 12*, 184. in the matter of leasing ward's real estate for long term, 140. of filing ol guardian's accounts, must he given how, etc., 161-2, 174. of filing exceptions to bond, or sun tics, must be given to whom, 169. 170. form of, 170. when served, by whom, and how service proved, 170-1. of surety's application for release from bond: service and proof of, etc., 174, 17.-). if not served, release void, 175 n. to occupying claimant of real estate. 196, 197. must be given to guardian, and to others, concerning proceedings as to what roads, etc., 201, 202. must be given to drunkard, of proceedings to appoint guardian for, 249. concerning sale of intoxicating liquors, affects guardian, bow. 221 223. such notice given when and how, 223. effect of, 22::. 221. service of, in suits for enforcing decedent's real contract, how made 226. of motion to reopen settlement of guardian of lunatic, etc., 231. how served, 232. how service of proved, 232. as to appointment of guardian of idiot, drunkard, etc., 230, 249 form of, 250. how served. 250. how service of proved, 250. of filing and hearing of trustee's accounts must be given, 256. costs ot notice, how paid. 257. form of, 257. of petition to pay ward's money to foreign guardian, administrator, etc., 268. to guardian ad litem of his appointment, how given, etc., 272. can not be waived by guardian ad Ulna. 274. surety may give to creditor, to sue principal debtor, 288. such notice to be given how, 288. 289 n. effect of, etc., 288, 289. NUISANCE— as to suit for, 287-8. OATH. See Affidavit ; Guardiax, Oath of. who may administer, 10, 102. applicant for appointment must make what, 31. examination of surety under, 33, 34. form of oath in such case, 33. form of oath at time of appointment, 45, 46. may be indorsed on bond, 45. or annexed to bond ; but need not be, 45. to inventory, must be made, 62. to accounts, must be made, 63, 159, 157, 161, 162. to verify pleadings, 102, 112. to verify service of notice, etc., 107, 108, 109, 110. of appraisers, 1 16. must be indorsed on certificate of appointment, 116. of freeholders to investigate as to long lease of ward's land 142. 3bU INDEX. OATH—Cbntinti'dL commissioners in partition must make, 190. committe to inquire into sanity of dower owner must make, 244. to trustee's accounts, 254. OCCUPYING CLAIMANT. See Tenant; Adverse Claimant. ward may be, or may be adverse claimant, 1%. must be fully paid for what, if evicted, 196. proceeding to oust, from possession, 1 96— 11»9. how damages, value of improvements, etc., determined, 198. rights and obligations of, generally, 197-200. may have an action to quiet title, 199-200. ORDERS— of court. must be docketed in probate court, 10. and recorded, 11. for enforcing guardian's duty, 53. guardian must obey all, touching guardianship, 67, 69. should be obtained, before infringing on ward's capital, 79, 80. ORDER— to appraisers, 115, 116. of sale of ward's land, 120. its requirements, 120-121. committing boy to reform school, 214. committing girl to industrial home, 215. as to sale of liquors, 225. PAPER— filing each, must be docketed, 10. PARCELS— when land may be sold in, 234. PARTIES TO ACTIONS. See Sale; Lease; Suit. who are, in proceedings to, 99, 100, 140, 141, 234, 236, 244, 245, 246. effect of guardian's being plaintiff against ward, 104. how served with notice, 53, 54, 58, 103-105, 106, 107-110, 140. See Notice. in proceedings to reclaim land sold for taxes, 149. in proceedings as to unexecuted real contracts, 226-8. when insane person, idiot, etc., is, 232, 233. how insanity of determined, 233. guardian ad litem is not a, 271. effect of death of either of the, 287-8. can not testify, when, 291-2. PARTNERS— may not testify, when, 292. PARENT. See Father; Mother. compared to guardian, 2, 84. has no control over child's property, 2. guardianship during life of, 2. may appoint guardian by will, 5. divorced, as to guardian for children of, 8 n. residence of is residence of ward, 8-10 n., 17, 18, 22, 23. [NDEX. 361 PARENT— Continued. deprived of custody of child, when, 6 n., 23 24 n 61 69 70 W ?an, S 24 f „ deCeaSed ' ^"^ t0 Weight with C0Urt ^pointing guard- consent of, to marriage necessary, when 70. must support minor ward, when, 87, 88. ' wishes of, as to ward, consulted when, 90 n. as to service of legal notice upon, for'mino'r child 103-105 •bound to scrupulous good faith to child, when 163 n court will do what, in such case 163 n rights, duties etc., of, as to child's attending public school, 205-207* may send child to reform school, when, 214. o , uo _u, t . dutms, etc of, as to sending girl to industrial home 215 end may be sent to children's home, etc., if not provided for by 216 child may be sent to house of refuge, why 218-220 may apply for release of child fronrsuch place how etc ?'?0 rights, duties, etc., of, as to damages caused by intoxicating liquors 221 same, as to adopted child, 287. «i""i», ***■. PARTITION— of deceased ward's land, 88. of ward's lands sold by guardian, 99. laws governing, given why, 186. guardian may fully act for ward, in, 187. notes of decisions concerning, 187-191. reversioners and remaindermen not entitled to 188 n who maybe compelled to make or suffer 188* what property is subject to, 189. who may file petition for; what to set forth 189 the order of, 189. commissioners to make, duties of, 189, 190, 194. writ of, to whom directed, etc., 189, 190. proceedings for, must be in common r^eas court 187 189 amicable partition may be had, when 190 effect of, 190. land must be appraised and sold, if not capable of division 190 how-to proceed in such case, 190, 191. terms of payment, if land sold, 191, 192. land sold at auction, when, 192. confirmation of sale, 192. deed for land, delivered to purchaser, 192. distribution of proceeds, 193. what to do if land offered and not sold, 193. who will have no privileges, etc., over others, in, 195. PAYMENT. See Guardian; Account. of certain stock, may be made to whom, 69. deferred, in sale of ward's land, secured how, 120. of guardian's professional services as attorney, 153-154 n- of guardian's services generally, 159-161. LMiardian may make all, in partition matters, 187 how made in partition, 191, 192. on real contracts of ward's ancestor, etc., 226-7. of laud of insane person, idiot, etc., 234. PAY PATIE NT- idiot or lunatic may be, in county infirmary, 246. PEACE WARR A NT- iii ward's behalf, 296. 362 INDEX. PENALTY. See Guardian, Removal of. for not filing inventory, 62 for not paying taxes, 145. for not listing property for taxation 14o 147. that must be paid, in redeeming land sold tor taxes, 148, 149. for not sending ward or child to school, 206, '201c, 207/. for permitting ward's premises to be used for sale of liquors, 224. cruelty, etc., to ward, 296. PENSION— guardian's duty as to, 61 n., 80 n. PERCENTAGES. See Compensation. allowed to guardian, how computed, 160. PERSON— when of age, 1, 2. if unsuitable to have custody of child, what to do, 6 n., 23, 24 n. adversely interested, can not be guardian, 24-25 n. if suitable, and ward selects, must be appointed guardian, 25. interested, may compel rendering of accounts, 63. PERSONAL PROPERTY OF WARD. See Property; Investment: Estate; Money. must be, or may, be sold, when, 94. who must see to taxes on, when, etc., 144-148. PERSONAL SECURITY— guardian and trustee can not lend money on, 66 n. PHYSICIANS- . . must be appointed to inquire into sanity ot dower owner, when, 244. PIKES. See Roads. duties, rights, etc., of guardian ar.d ward as to, 202. PETITION. See Application ; Motion; Pleadings. for sale of ward's land, must contain what, 97-99, 234. form of, 99-102. probate court has concurrent jurisdiction on, for such sale, 97. hearing of, 113, 234. in proceedings to lease ward's real estate, 140, 141, 143a, 1436. must contain what, 140, 14oa, 1436. form of, 141. 142. hearing of, 142, 143a, 1436. to compel guardian to pay money due on settlement, 182-4. as to streets, roads, etc., affecting ward's land, 201, 203, 204. as to real estate contracts of ward's ancestor, etc. 226-8. as to sale of real estate of idiot, lunatic, etc., 234. as to lease of real estate of idiot, etc., 236-7. to release land from dower of insane person, 244, 245. must contain what, 244, 245. to permit insane person's dower to be barred. 245. to improve real estate of lunatic, idiot, etc., 247. PLAINTIFF. See Parties to Action; Suit; Sale. PLAT— of town lots to be sold by guardian, 113, 121. index. ;5G3 PLEADINGS. See Petition; Answer; Motion; Verification; Suit; Sale. must show what, 182. must be recorded, where, 10, ii.">. verification of. See Verification. POLICE JUDGE— m.'iy send ward to reform school, when, 214. POSSESSION— of lands sold by guardian, how obtained, if necessary, 138. POST OFFICE ADDRESS— of certain guardians must be reported by assessor, 248. PRECIPE— for order of sale, 124. PREMISES— penalties, etc., for selling liquors on ward's, 224, 221-225. PRIVILEGED COMMUNICATIONS— what are, etc., 291, 292. PROBATE COURT— PROBATE JUDGE— generally. is a court of record, 7 n. power of, to appoint guardian of drunkard is constitutional, 7 n, 250-1 n. may administer oaths, 10, 12. must keep what books, affecting guardianship, 10, 11. must make therein what omitted entries, indexes, etc., 11. how paid for these, 11. can not prepare papers, etc., for guardian, except, 11, 12. probate judge can not he guardian, 12, 28. if interested as heir, legatee, etc., what to do. 12. . questions arising in, how determined, 13. depositions can be used in. 13 fees of witnesses, jurors, officers", He, in, 13. what to do if female guardian marries, 50 what to do if foreign guardian is appointed, 52. must enforce guardian's duties, 53-58, 62, 63, 69, 150-1. should not wait for complaint, in such eases. 53. why such complaint should be filed, 55. duties of, as to investment of ward's funds, 64-69. will do what, as to non-resident's property, 72, are governed by what general principles, etc., 73, 74, 103. follow analogies of what statutes, if no provision made, 74. will authorize capital of ward's estate to be used when, 79, 80. will uphold guardian's, etc., purchase of ward's property, when, 80-81 n. may allow fixed sum for ward's maintenance, 85-6. must allow costs ot litigation, unless, 86. and reasonable attorney's fees, 86. should direct what to do, as to what uncertain claims, 86. duties of, if one of two or more guardians dies, resigns, is removed, etc., 89. governed b} r law for common pleas court, when, 103, 104 n. how legal notice 9. should be signed in court, why. 37. duties of court as to, 169-174, 242- as to removal, death, resignation, etc., oj guardian. See Guardian. must, or should, remove guardian for what causes, 6 n., 29, 52, 53, 54, 62, 63, 311. resignation should not be accepted till full settlement made, 49. should exercise discretion, as to removing guardian, 57. of one of two or more, does not affect powers, etc., of survivors, 89. but might necessitate new bond, etc., 89. of guardian of insane, idiot, etc., 232, 243. of guardians ad litem, 233. same, as to trustee, 258-263, 266, 267. as to account and settlement of guardian and trustee in. See Guard- ian; Account. must be had in, when, 26, 50, 150, 151, 243, 253. failure to make, when court orders it, is breach of bond, 151. object of, 151. is final between guardian and ward, unless, 151 n. how made, 151-159, 254- li. guardian should get blank book for, 152. guardian should charge and credit himself with what, in, 152-3, 155. judge must publish notice of filing of, 161, 256. costs of notice, how paid, 161, 257. judge may allow further time for filing exceptions to, 161, 257. hearing of exceptions, 161-2, 256-257. judge must examine accounts. 161-2. 366 INDEX. PROBATE COURT— PROBATE JUDGE— Continued. may examine guardian or trustee filing accounts under oath, 162, 257. may reduce answers to writing, and file them, 162, 257. duty of, as to debt due from ward to guardian, 162 n. of guardian of idiot, lunatic, imbecile, 243, 253-269. must require a final accounl, 257. how filing of enforced, 257-260. appeal from decision as to, 261. -effect of court's determination as to. 261. may be reopened, how, when, etc., 261-2. as to lease of ward s property. See Lease. as to sale of ward's property. See also Sale ; Guardian. of personal property. 94. of real estate. can not be sold without approval of. 66, 95, 234. may order sale of, on guardian's application, 95-97, 234. petition for, must contain what. 97-99, 234. form of petition for, 99, 202. must order guardian to give notice to ward, 102, 103. sale void for want of notice, 103 n. hearing of petition, for, 113, 234. appointing appraisers. 113. laying off town lots. 113. must authorize platting of ground, etc., 113. order of appraisement, etc., 113, 114. guardian must file additional bond, 118, 136, 234. form of, 136-7. may direct where sale must be held, 125. may set sale aside, when, 126. must confirm sale, when, 127. and order guardian to make deed, when, 127. by foreign guardian, 135-137. application for, made in what court, 135. may require additional security, 136-238. form of order for, in such case, 136. 240. form of bond, in such case, 136-7, 241. by guardian of idiot, insane person, etc. may be made, why, how, etc., 233-235, 238. as to marriage of guardian or ward. See Marriage; Ward; Gcardiax. if female guardian marries, what to do, 30, 50, 311. consent of guardian as to ward's marriage must be given before court, or certified how, 71. judge may administer what oath to witnesses, in such case, 71. what license must be issued, and how, 71. jurisdiction of. in guardianship matters, etc., 7, 8-10, 8-9 u., 17, 21, 250. is exclusive, as to what, 8-10. is concurrent, 10, 97. is constitutional as to guardianship of drunkard, 7 n., 250 n. minor's residence determines, 17, 21, 17-19 n., 22. is open to inquirj-, 17 n. may be impeached when, 21. is concurrent in guardian's sale of land, 97. once acquired, is exclusive, 97, 265. sale held void for want of, 97 n., 103 n. INDEX. 367 PROBATE COURT— PROBATE JUDGE— Continued. as to committing minora to charitable, reformatory, or punitive institu- tion, 214. as to trustee of non-resident minor, idiot, etc., 265. not given over minors, by acts of guardian ad litem, 271. lease of ward's land. guardian may lease for what, how long, etc., 139-143. how authority for, granted by court 1 in. application for power to make long lease must contain what, 140. who may unite in such application, 1 10. must contain what, 140. as to widow's dower in such case, 140. PROCEEDINGS. See Court; Probate Court; Guardian. of court must be recorded, etc., 11. when may be impeached collaterally, when, 21. when not, 22. as to sale of ward's land examined and confirmed by court, 131-2. as to sale of ward's laud by foreign guardian, 135-137. PROCEEDS— from sales, how accounted for, 15:;. PROFITS— dower assigned in rents, issues and profits, when, 117. PROMISSORY NOTE. See Note; Instrument for Payment, Etc. PROOF. See Affidavit. of guardian's expenditures, how made, 63, 161. PROPERTY— of minor can not be controlled by parent, 2. descends to all the children, 4. sale of, by guardian, 7, '.) t. guardian controls, '2:'>, 24. place of, helps to determine residence, 18 n. which sureties must have, 32. of minors is peculiarly under probate judges protection, 13, 55. guardian is responsible for what, 61 n. See Guardian. inventory of, must be made, 62. of non-resident ward, how guardian of can get, 72. of ward, can not be used to benefit guardian or trustee, 77-79. of ward, can not be purchased by guardian, 80, 81. nor by appraiser. such sales upheld, when, 80-81 n. remedy of ward, in such cases. 81. can not be purchased by guardian or trustee, 80, 81. but such purchase sometimes sustained, 80-8,1 n. presumptions all against such purchaser, 80-81 n. purchased with ward's money, what about, 81, 84. ward's remedy in such case, 81, 82. ward's labor and services are, 84. change in value of, should modify allowance for maintenance, 86. guardian may sell personal, when, 94. decree concerning, does not bind ward, when, 99 n. appraised, how, 113-118. purchaser's remedy, if guardian's sale of invalid, 137-8. 368 INDEX. PROPERT Y— Continued. rights of guardian and ward as to injury to, caused by liquors, 221-225. guardian for, of drunkard, may be appointed, 249. control of, may be restored to drunkard, when, 252. management, etc., of non-resident by trustee, 264, 266-8. as to survival of suits for injury to, 287-8. of ward, if used for gaming purposes, 295. PUBLICATION. See Notice; Newspapers. service of notice or summons by. 107-110, 232, 256. appointment of guardian ad litem must be after, 271. PUPIL OF PUBLIC SCHOOL— rights, duties, etc., of ward as, 205-207/. PUNISHMENT. See Fine; Penalty' PURCHASE. See Property; Guardian; Trustee. PURCHASER— from guardian has a right to presume, what, 83 n. is not bound to inquire into the state of the trust, 83 n. is responsible for application of money, when, 8o, 96 n., 138 n. but otherwise, if he lias notice of trust, when, 83 n., 13^ n. action against, in certain case, 96 n. how widow's answer waiving dower affects, 111. must give mortgage for deferred payments, 120, 134. remedy of, if sale invalid, 137, 138. acquires what kind of title at guardian's sale, 120 n., 138. QUESTIONS— judge should ask proposed surety, 33, 34. QUIT-CLAIM— guardian's sale conveys substantially only, 120 n., 138. REAL ESTATE CONTRACTS— of ward's ancestor, etc. ward's rights and obligations under, 226-8. guardian's ditto, 226t8. of idiot, imbecile, or lunatic. guardian's duties, powers, etc., as to, 238-9. when additional bond will be required, 138. REAL ESTATE— of non-resident infant, what about it, 17. of minor, parents have no control over, 2. descent of, 4. mortgage on, in lieu of freehold surety, may be given, 31. effect of guardian's encumbering. 62 n. land scrip, acts of guardian as to, 62 n. guardian may invest in. when. 66. or loan money on, as security, 65. great diligence and care must be used in ascertaining value, etc, of real estate security, 66 n. purchased by guardian or trustee, with trust funds, who owns, etc., 81, 84. descent of, at ward's death, 88. liens on, must be paid, how, 95. how improvements on. may be secured, 140, 143. INDEX. 369 REAL ESTATE— Continued. proceed.* from sale of, how accounted for, 153. how rights of adverse claimants to, decided, etc., 196-199. sale of. See Sale. when guardian or trustee may sell, how and why, 66, 95-97, 233-235, 21 >7. petition for, must contain what, 97-99. form of petition, 09-102. may be sold free of insane person's dower, when, 111, 245. for support of lunatic or idiot owner, 246. conveyance or encumbrance of. by drunkard, invalid when. 251. sold for taxes, redeemable when, 148, I 19. 197. (management of, by trustee. 264, 267. appeal from sal<- of, may be had, 280. boundaries of ward's, how fixed by guardian, 286. how may be appropriated tor public use, 201-4, 286-7. dower in. See Dower. lease of. See Lease. taxes on Se< Taxes. partition of. See Partition. what is subject to, 188. contracts as to, by ward's ancestor, rights under, etc., 226-228. RECEIPT— guardian should take, from ward, when, 163, H>5. effect of, in such eases, Hi: 1 .. 1(1 1 n.. 166 n. "in full of all demands,'' from ward to guardian, not conclusive, 164 n. for payments made in partition matters, 1!)::. concerning estate of lunatic, idiot, etc., deemed void, when, 231. RECORD— final must be kept by probate court, and how, 10. of accounts must be kept by probate court, and how, 11. of bonds, do., 11. effect of recitals in, 22. of mortgage security must be made, 31. authenticated copy of, required when, 52. showing that due notice was served, effect of, 103 n. of indenture of child's apprenticeship, must be made, 209. failure to, releases child, 209. of guardian ad litem's acceptance should be made, 273. REDEMPTION- of land sold for taxes, etc., 147-149. REFORM SCHOOL— ward may be sent to, when, 20~d, 214. REGISTERED GOVERNMENT BONDS— how interest of ward's collected, 296-296c. RELATIVE— should be appointed guardian, when, 24 n., 30. wishes of, as to ward, when to be consulted, 90 n. 370 INDEX. RELEASE— See Dower. from ward to guardian, effects of, etc., 167. form of, 167. REMEDY— on joint bond, 178. REMOVAL OF GUARDIAN. See Guardian; Probate Court. REMOVAL FROM STATE OR COUNTY- effect ut' ward's, 52. effect of guardian's, 5P>. RENTS— value of, must be in statement to court, 41. and iu inventory, 62. penalty for not filing, 62. must also be stated in petition for sale of ward's land, 98. dower assigned in, when, 117. appraisers' duty, in such cases, 117, 237, 238. when long lease will increase, what to do, 140, 143. improvement may be made out of, when, 143. how accounted for, 152. as to, when land recovered from occupying claimant, 198. as to] when land of insane, idiot, etc., is rented, 237, 238. RENTING WARDS PREMISES FOR SALE OF LIQUORS- guardian's liability, etc, 221-225. ward's liability, and rights, etc., 221-325. REPAIRS— guardian must see to, 90, 162 n. how charged in guardian's account, 153, 157. REPORT- as to sale of ward's real estate. of appraisers, 116, 117. of guardian, that a sale was made, 127. of guardian, that no sale made, 130. of guardian, as to private sale, 1.31. as to lease of wards real estate. of freeholders advising for or against, 142, 143, 143a, 1436. RESIDENCE— , of minor. must be correctly determiued, why, 17, 21, 22, 23. how determined, 17-23. statutory rules for determining, 19. guardian for non-resident, 17. may be changed, how, 18. change of, if made, must be in good faith, 18. constructive residence effectual, 18 n. of illegitimate child, how determined, 19 n. how residence lost or changed, 17, 19, 20. of guardian. must be where, 23. effect of changing it, 23, 53. INDEX. 371 RESIDENCE— Continued. testamentary guardians not subject to same rules. 23, 27. as affecting taxes, 144 u. if unknown, service of summons by publication may be bad, 181 of defendants. copy of legal notice or summons may be left at, when, 10G. must be sent, to, when, 107. affidavits concerning, as to service of notice by publication, 107, 108. RESIGNATION— of guardian. does not. end surety's liability. 33 n. may resign for whai reasons, 49. but must first fully settle mid account, 49. of trustee. account must be filed, 257. RETURN— of service of legal notice, bow made, etc., 106, 107. ROAD LAWS— as affecting guardian and ward, 201-Jni ROADS— rights, duties, etc., of guardian and ward, as to, 201-204. ROMAN EMPIRE— laws of, affect us how, 6. RULES— for determining residence of minor, 17-23. for determining compensation of guardian, 159. RULE— of proper diligence of guardian, 60-61 n., 66 n., 67 n. 74 75 76 74-76 n., 86. every one presumed to know the law, as applied to guardians and trustees, 76 SALE— of intoxicating liquors, how ward's and guardian's rights, liabilities etc., affected by, 221-225. wife of insane man may sell her real estate, when and how, 246. of real estate by drunkard, invalid when, 251. of ward' s properly. See Guardian. can not be made to guardian or trustee, 80, 81, 82. such sales sustained sometimes, 80, 81 n.,'82 n. by guardian, of ward's personal property, 94.' court may order, on guardian's application, 95-97. petition for, must, contain what, 97-99. form of petition for, 99-102. must order guardian to notify ward, 102, 103. sale void for want of notice, 103 n. assignment of dower, 97, 111, 112, 234. hearing of petition for, 113. appointment of appraisers, 113 appointment of guardian ad litem, 110, 111, 271-9. 372 INDEX. SALE — Continued. laying off land into town lots, 113. •when town lots are lain 1 out, 121. platting of ground so laid out, etc., 113. plat of, how signed sealed, acknowledged, etc., 121. order of appraisement, 113, 114. guardian must file additional bond, 118. order of sale, its requirements, 120, 121. deferred payments, secured bj - mortgage, 120. the effect of not selling all land intended to be sold, 120 n., title acquired, same as by quit-claim deed, 120 n., 138. on what condition, 121. private sale of, may be made when, 121. how decree for private sale obtained, 123, 124. form of application for, 123. oath to, 123. affidavits in support of, 124. precipe for order of, 124. notice of, 125. where sale must be made, unless, 125. 192. guardian may subdivide land, and sell in parcels, but, 121 n., 125-6. best to get order of court, to subdivide, 126. effect not realizing two-thirds of appraised price, in such case, 126. how conducted, 126. 192. appraiser, attorney,, executor, etc., can not buy at, 126, 126 n., 127 n. report of, by guardian, 127. what affidavit should be attached to report of, 131. court will confirm when, 127. if no sale made, for want of bidders, what to do, 127, 128, 129-131. return of order of sale noted on execution docket. 128. report of guardian, when no sale made, 130. confirmation of, 131, 192. form of order of confirmation, 132. when sale is void, for want of jurisdiction, 131 n., 97 n., 103 n. taxes and penalties must be paid out of proceeds of, 132. by foreign guardian, 135-137. application for, must be made in what court, 135. guardian for foreign minor must be appointed here, to make, when, 137. purchaser's remedy, if sale invalid, 137. kind of title guardian conveys, 138, 120 n. when long lease may render unnecessarj', 140, 143. for taxes, effect of, etc. 145-148. must be had for, when. 146. in partition proceedings, 190-194. of idiot, insane x>erson, imbecile. how made, why, etc., 233-235. appeal from, may be had. 280. of entailed estates, etc. guardian's powers, duties, etc., as to, generally, 289-291. SCHOOL. See Education; Ward. SEALtf— to what extent abolished, 38 n. SECUE1TIES. See Bond; Investment. must be collected, when, GO n. guardian can not loan money on personal, 61 n., 66 n. in what, guardian may invest, 65-68. f INDEX. 373 SERVICE— of notice or summons. See Notice; Ward. SERVICES. See Compensation. SETTLEMENT, LEGAL— effect of, as to appointment of guardian, 22, 23. SETTLEMENT OF ACCOUNTS. See Accounts. must be made, when, 26, 50, 150, 163, 243. is final, when, 165, 166 n. may be reviewed, when, 165-6. can not be attacked collaterally, when, 166 u. of trustee's accounts, 253-269. appeal from probate court's determination as to, 261. force and effect of, by probate court, 261. may be opened up, when, by whom, how, 261-2. mistake or error in, corrected, when and how, 262. appeal from settlement, may be had, 280. guardian should have a, with ward, when, 163. SHERIFFS- must serve writs, etc., in probate court, 13, 56, 103, 104, 106, 170, 2J32. fees of, in such cases, 13. directions to, as to serving notices, 107. can not buy ward's land, when, 126, 126 n., 127 n. duties of, in partition, 189-194. liability of, and of his sureties, in partition, 193. SIDEWALKS— certain rights, duties, etc., of guardian and ward as to, 203, 201-204. SISTER— rights of, as to attendance at school, 205. SPECULATION— guardian or trustee can not use trust fund in, 78, 79. STATE— effect of guardian's removal from, 51. effect of ward's removal from, 52. guardian may invest in bonds of, when, 66, 68. STATEMENT OF WARD'S ESTATE— must be filed in court by applicant, 41. must be verified by affidavit, 41. form of, 41. affidavit to, 42. in case of sale of land of insane person, idiot, etc., 234. STATUS— of married woman under common law, 297-8. same, under Ohio laws, 297-8. STATUTES— modify married woman's common law rights in Ohio to what extent 297-8. 25 374 INDEX. STATUTORY PROVISIONS— override decisions, etc., 51. do not point out all of guardian's and trustee's duties, 73, 74. concerning executors, are followed as to guardians, to what extent, 74. STEP-FATHER— may change ward's residence, when, 18. must maintain and educate his step-children, when, 88. effect of joint release by, and others, 164 n. STOCKS. See Estate; Securities; Bonds. of building associations, may be paid to guardian, when, 69. " government stocks," 66 n. conveyed to insane person in lieu of dower, when, 244-5. as to railroad, owned by guardian, 294. STREETS— rights, duties, etc., of guardian and ward as to, 203, 201-204, 278. duties of guardian ad litem as to, 278, 203. SUIT. See Civil Action ; Sale. guardian must defend, against ward, 64, 179. foreign guardian may get property of non-resident ward by, 72. guardian or trustee may maintain, where, to get directions from court, 72. on guardian's bond to recover money lost in business, etc., 79. who must pay costs of, 86. on uncertain claims, 86, 154, 155, 158. guardian for the. See Guardian ad litem. can not be had between guardian and ward, until, 162, 166 n. on guardian's bond, how brought, by whom, when, etc, 178, 179, 180, 181. extent of remedy by suit on bond, 179-184. guardian liable to ward on what, 179, 180. guardian may bring, in his own-name, 182. for partition, how and where brought, etc., 186, 186-195. by tenant in common, parcener, etc., in partition, 195. for recovery of land held adversely, 196-199. for removing ward or child from house of refuge, 220. for damages caused by intoxicating liquors, etc., 221-225. for enforcing real contracts of decedent, 226-228. by guardian of idiot, insane person, etc., 232-3. by insane person, 232-3. trustee of non-resident idiot, etc., liable to, 266. justice of the peace can not try, when, if related to guardian or ward, 287. for libel, malicious prosecution, assault, nuisance, misconduct in office, mesne profits, money due, injury to property, and others, as to sur- vival of, 287-8. must be brought on note, etc., when, if surety gives notice to do so, 288. guardian's duty, liability, etc., in such case, 289. SUMMONS. See Notice. appointment of guardian ad littm must be after, 271. SUPERINTENDENT— of children s home, duties of, as to ward or minor. 216. of roads, duties, etc.. of, as to ward, etc., 204. of schools!, duties, etc., of, as to ward, etc., 205-207e. INDEX. 375 SUPPORT. See Ward; Guardian. ward's land may be sold for, 95. ward's land may be leased for, 235. SURETIES ON GUARDIAN'S BOND— qualifications of, 30, 31. 32. 243. number of, 33. may be examined under oath, 33. oral examination of. 33 form of oath for oral examination, 33. what questions to ask them, 33, 34. affidavit of, should be taken, 34. form of such affidavit, 34. liabilities of, generally, 172 n., 177, 178, 178 n., 179 n., 180. liabilities of, last how long, 33 n. court can not enlarge nor change liabilities of, 32 n. bond good if signed in blank 36. as to signers' liabilities, rights, etc., in such cases, 36. exceptions as to, may be filed, etc., 169. notice of, 169. additional, may be required, 172. may be released from bond, how, etc., 174-8. removal of guardian releases, as to future acts, 177. estate of deceased, liable when, 177 n. may be made parties to a judgment, when, 181. of married woman guardian, 230. on notes, etc. certain rights of, 288. may be released by what acts, 288. may require creditor to sue, 288. must give what notice, and how, in such case, 288, 288-9 n. SUSPICION— should cause investigation, when, 55. TAXES— dower assigned clear of, 117. must be paid out of proceeds of sale, 132, 146. guardian must pay, 144-147. and list ward's property for, 144, 146. penalty for neglect to, 145. must be listed where, 145 n., 147. when, 147. how, 147, 144 n., 146-7 n. payment of, by guardian enforced how, 147, 148. charged in account, how, 153. lands sold for, may be redeemed how and when, 148, 149. guardian paid for his time, trouble, etc., as to, 160-161. rights of purchaser under sale for, 196-7. See Tax Title. TAX TITLE— of ward, guardian may release when, 148. effect of offer to release, if not accepted, 148. ma} - be redeemed, when, 148-9. general validity of, 148, 149. becomes good, when, 149. proceedings against a person in possession under, 197, 196-199. TEACHERS— duties, etc., of, as to waid, etc., 207/. 376 INDEX. TEMPORARY ABSENCE— does not change residence, 18, 19. nor affect jurisdiction of court to appoint guardian, 18 n. TENANT. See Occupying Claimant. may be evicted from land lately ward's, how, 138. rights of, under lease of ward's lands, 143, 235. rights, duties, etc., of, as to lease of ward's premises for sale of liquors, 224. TENANT FOR LIFE— rights of, in partition proceedings, 194. rights of, in sale of entailed estates, 289-291. TITLE— abstract of, must be furnished, when, 31, 39. conveyed by guardian's sale, same as by quit-claim, 120 n. if invalid, purchaser's remedy, 137. tax. See Tax Title. validity of, can not be questioned, in proceedings to redeem from tax sale, 149 h. adjusted between adverse claimants to land, 196-200. TOWN LOTS. See Lots. TOWNSHIP TRUSTEES. duties of, as to binding out ward, 209. duties of, as to sending ward or minor to children's home, 217. as to road material from ward's land, 204. TRADE— can not be carried on with trust funds, 77-79. penalty and liability of guardian or trustee, if this is done, 78, 79. TRANSCRIPT— must be filed when, etc., in case of appeal, 281. TRUANTS AND TRUANT OFFICERS— provisions as to, 2076-207/. TRUST— will result to ward or other beneficiary, when, 81, 84. created by will, deed, etc., 253. probate court determines as to execution of, 257. TRUSTEE— notes concerning duties, liabilities, etc., of, 60, 61, 63, 64, 67. must keep clear and accurate accounts, or, 63 n. should lend money on what kind of security, 64 n. are liable for interest on trust funds, when, 66-67 n., 79, 81, 84. may invest funds, how, 68, 66 n. may receive ward's building association stock, when, 69. may maintain civil action, to get directions from court, 72-3. general principles governing, stated and summarized, 73, 74, 73-90. as to deposits of money by, in bank, 60 n., 74, 74-76 n. rule, as to proper care and diligence of, 74, 75, 76, 60-61 n., 66 n 67 n., 74-76 n. exonerated, if advice of counsel followed, 76. are responsible for money paid to wrong person, 76-7. can derive no profit from use of trust fund, 77, 78. index. 377 TRUSTEE— Continued. remedy of beneficiary against, if he speculates with, or uses trust fund, 78, 79,81. can not carry on trade of decedent, except, 78 n. can not purchase property he holds in trust, 80, 81, 12G n. when such sale may be upheld, 80-81 n. if he purchases property with trust funds, what, 81, 84. must do what, as to taxes, 146, 147. manner of charging; interest against, 153 n. must pay cost of notice of filing account, when and how, 161. to defend insane person, must be appointed, when, etc., 2:;:;. duties ot such, 233. of foreign idiot, lunatic, etc., powers of, etc., 242, 253-269. same, of trustee appointed by will, deed, or competent authority 253-2(1!). J ' such trustee must render accounts, when, 253-257. how, 254-2."i7. must be sworn to, 254. vouchers as to, must be filed, 254. form of account, 254-6. how compelled to file, 256, 257-261. notice of filing, 256-7. must pay what costs as to, 257. examined under oath as to, 257. probate court decides all matters as to, 257. when trustee's ex'r or adm'r must file, 257. settlement of accounts of, force and effect of, etc., 261. appeal from, 261. when may be reopened, why, by whom, effect of, etc., 261-2. compensation of, 263. when court may accept resignation of, or remove, 263. appeal from settlement of account of, 280. appeal from appointment of. 280. to take charge of proceeds of sale of entailed, conditional etc estate, 290, 291. ' as to testifying by, or against, in certain cases. 291-2. may receive estate, assets in kind, 293. rights of, as to railroad stocks held by him, 294. married women may be, to what extent, 30, 298 et sen. as tu appointing, 30, 299, 312. of non-resident minor, idiot, lunatic or imbecile. how, why, etc., appointed, 264. how appointment of brought about, 264. application for, 265. journal entry of appointment, 265. duties of, 264, 266-9. jurisdiction of court appointing, 265. bond of, 265-6. must settle with the court. 266. may be removed, sued, etc., 266-7. may lease land, 267. may sell land, 267. holds office, how long, 267. must, pay over trust money, etc., to whom, 267. may loan trust money, when, how, etc., 66' n., 269. of township. See Township Trustees. of industrial home, duties, etc., of, as to girl sent to, 215, 216. 378 INDEX. TRUSTEES— Continued, of children's homes. duties, etc., of, as to ward or minor sent to, 216-218. act as guardian of inmates, 218. may apprentice inmates, 218. may discharge inmate, when, 218. TRUST FUND— must he invested how, 68, 66 n. can not be used by guardian in any way for his benefit, 77-82, 84. TUITION. See Education; Ward. TUTOR— under civil law had care of person, 6. UNITED STATES— bonds of See Money. _ guardian may invest in, when, 66, 68. how guardian may collect interest on registered, and how, 292-5. trustee may invest in, when, 290. UNSUITABLE PERSON— when parent is, custody of child is removed from, 6 n., 23, 24 n. VERIFICATION. See Affidavit; Oath; Pleadings; to widow's answer, filed by guardian, not required, 112. form of, when filed by widow, 112. of guardian's expenditures, must be made how, 63, 161. to applicant's statement of ward's estate, 42. to petition for leave to sell ward's real estate, 102. to petition for leave to lease ward's real estate, 142, 237. to petition to compel guardian to pay money, 183, 184. to petition as to real contract of ward's ancestor, etc., 228, 240. to petition as to transfer of ward's money to foreign guardian, 268. VOUCHERS— expenditures must be verified by, 63, 161, 163. concerning estate of lunatic, idiot, etc., deemed void, when, 231. must be filed with account, 163, 254. WARD. See Minor; Guardian; Parents. definition of, 2. position of, like that of child, to some extent, 2. rights, of, generally under English guardianships, 3-5. custody of, not changeable by habeas corpus, 8-10 n. name of, etc., must be entered in docket in probate court, 10. need not be present, when guardian for is appointed, 17 n. effect of marriage of, 50. • effect of removal of, from the state, 52. may choose another guardian, when, 25, 26, 58. notice to guardian, in such case. 58. estate of, managed by guardian, 62, 68-9, 84 n. parents of, have no control over estate of, 2, 3. suits of, who sees to, 64. right of, to be educated, 60, 64, 65 n., 69. 70, 85, 95, 140, 143. a journey by, adjudged not necessary, 69 n. who has custody of, and must educate, explained, 70. INDEX. 379 WARD— Continued. can not marry without guardian's consent, when. 70. how such consent must be witnessed and certified, 71. form of consent, and certificate thereto, 72. when promise to marry, etc., constitute marriage, 70-71 a. when marriage of, void, 70 n., 71 n. rights of, as to money in bank, if bank fails, 60— Gl n., 67 n., 74, 75, 74- 76 n. rights of, if guardian or trustee in any way use trust fund, 77-79. or purchase property of, 80, 81. or purchase property with money of, 81, 82. contracts of, with guardian, how treated, 82. gifts by, to <_ r u;inli;m, how treated, 82, 83. interests of, carefully guarded by court, 13, 14, 23-25, 77-85, and notes, 113, 142. as to labor and services of, 84-85. must contribute to his own maintenance by, when, 84, 90 n. fixed sum for maintenance of, may be allowed, 85-6. if ward dies, what must be done, 51, 88. how estate of, then descends. 88. parents must maintain, when, 87, 88. when not, 87, 88. relative amount of estates decides, 87. can not manage nor dispose of his estate, 89. guardian's duty as to character, morals, etc., of, 89, 90. should be taught trade, profession, or business, 90. guardian may sell property of, how and why, 94. debts of, must be paid, how, 95. as to service of notice or summons upon, 103-105. as to defense of, by guardian ad litem, 110, 111, 233, 244, 271, 273-9. collusive assignment of dower will not prejudice, 112. warranty by guardian, does not bind in sale of land 120 n. lease of real estate of, how and why made, etc., 139-143. as to taxes on property of, 144-148. guardian should keep a separate account with each, 152. guardian should charge, and credit, with what, 152-160. guardian's compensation out of estate of, how computed, 160. can not sue guardian, nor be sued by, until, 162. how accounts of, with guardian settled, when, etc., 163. how guardian must treat, at such time, 163-4 n. must give guardian a receipt, when, 163, 165. effect of receipt of, to guardian, 164 n., 166 n. effect of release of, to affect family arrangement, 164 n. effect of release of, to guardian, 167. may open final settlement when, 165-6. stands in relation of creditor to his' guardian, when of age, 166 n. may sue iruardian, when, 180. estate of, affected by partition laws, 186-194. rights, obligations, etc., of, as to occupying claimants, 196-200. rights, obligations, etc., of, as to roads, streets, etc., 201-204. rights, obligations, etc., of, as to public schools, 205—207/, 209. may be bound out to service or apprenticeship, when, how, etc, 208-213. 215,216,218,220. may be sent to reform school, when, 214. or to industrial home, when, till when, why, etc., 215, 216. or to children's home, when, till when, why, etc, 216-218. 380 INDEX. WARD— Continued. or to industrial school, when, etc., 216-218. or to house of refuge, when, how, why, etc., 218-220. who may apply for such ward's release, how, etc., 220. rights of, etc., as to sale of intoxicating liquors, 221-225. premises of, must not be rented nor used for, 224. guardian's liability, in such case, 224, 221-225. property of insane, may be sold, when, how, etc., 232-235. or leased or improved, how, for how long, etc., 235-238. how dower of, etc., may be divested, 238-242. children of drunkard become wards, when, 249. non-resident, rights of, 17, 285. how boundaries of land of, fixed by guardian, 28G. how lands of. affected by board of public works, 286—7: rights of, not affected by admissions of guardian ad litem, 275, 276. rights of, when is an adopted child, 287. can not try case as J. P., when, 287. rights, etc!, of, as to sale of entailed, conditional, etc., estates, 289-291 identity of, shown how, for collection of U. S. interest of, 294-5. WARRANTY— by guardian, effect of, in sale of land, 120 n. WASTE— of ward's real estate, how stopped sometimes, 95. guardian liable for, when, 179. pay for, when land recovered from occupying claimant, 198. WIDOW— WIDOWER— court may assign dower of, in guardian's sale, 97, 111. proceedings as to dower of, 99, 111, 112, 194, 293. guardian of insane, may act for, 111, 234-5. may waive dower, and claim money in lieu of, 111, 112. heir's remedy against, for fraudulent dower, 112, 113. dower of, in partition proceedings, assigned how, etc., 194. dower of, if insane, 234-5. WILL— appointment of guardian by, 5, 26, 27 n., 29. and of trustee by, 253. how such will to be executed, 27 n. grandparent can not appoint guardian by, 27 n. nor can uncle so appoint for children of nephew. 27 n. guardian may be excused from giving bond by, 27, 31. as to authenticated copies of, and filing same, etc., 243 n. WIFE. See Married Woman; Dower. may be guardian, when, 30, 230. liabilities, etc., of, in such case, 230. rights, etc., of, in sale of land of idiot, insanp person, etc., Ill, 234. may carry on husband's business, how. 251 n. as to right of generally to be appointed guardian, 30, 297-312. under control of husband in eyes of law, 298, 300-307. WITNESSES— fees of, in probate courts, 13. in case of ward's marriage, duties, of, etc., 70, 71. in case of ward beina: sent to reform school, 214. WM. F. MUCHMORE, . — LAWYER,— Room 47, Wiggins Block, CINCINNATI, O. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. MAY 2 6 1970 DEC 2 1975 Form L9-Series4939