e /^^^^\ 1 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY / :SlJs^NTJ A.J. GUARDIANS AND TRUSTEES MINORS, INSANE PERSONS, IMBECILES, IDIOTS, DRUNK- ARDS, AND FOR GUARDIANS AD LTTKM, RESI DENT AND NON-RESIDENT, AKFECTEn BY THK L^^VS OP^ OHIO. Forms, Notes of Decisions, and Practical Suo-gestions. FLORIEN GIAUQUE, Editor of K;UT"s " Guide to Executors and Administrators," "Tlie Laws of Elections in Oliio, " etc. CINCINNATI: ROBERT CLARK K k CO. 1881. T 1 ■ ^ 'v^ I Copyrighted, l88l, by ROBERT CLARKE & CO. JIM (f^ L-CLlU PREFACE Law books upon special subjects of importance, if so prepared as to be clear and trustworthy, into which arc gathered within a small com- 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 un 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 otiier 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 largo or expensive one. The time devoted to it being cliieHy 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. The writer is under obligations in various wa\s relating to this vol- ume, to Justice Stanley Matthews, lions. Wm. Lawrence, W. M. Bate- man, Rufus King, S. J. Thompson, Judge Isaac B. :M!itson 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 forms in F. J. Matthews' Guardian's C.uide. its copyright was pur- chased, and that many of these forms, willi or without moiliticatiDiis, will be found herein. ^- *' CiNCiXN'ATi, May, 1881. 110575 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 Eeal Estate 139 CHAPTER 8. Taxation and Tax Titles, as affecting Guardian and Ward 144 (V) VI CONTENTS. CHAPTER 9. Account and Settlement, and Compensation of Guardian 150 CHAPTER 10. Bond — Exceptions to — Release from — Suits on 168 CHAPTER 11. Partition 186 CHAPTER 12. Occupying Clnimants to Real 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 CHAPTEl? 16. Charitable, Reformatory, and Punitive Institutions, as Affecting Guardianship of Minors, etc 214 CHAPTER 17. 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 1, Revised Statutes 221 CONTENTS. Vll CHAPTER 18. Real Contracts of Ward's Ancestor 226 CHAPTER 19. Guardians of Lunatics, Idiots, and Imbeciles 229 CHAPTER 20. Guardians of Drunkards 249 CHAPTER 21. Trustees Generally, and their Accounting 253 CHAPTER 22. Trustees for Non-residents 264 CHAPTER 23. Guardians Ad Litem 270 CHAPTER 24. Appeals 280 CHAPTER 25. Miscellaneous Matters 285 APPENDIX. Can a Married Woman be a Guardian? 297 GUARDIANS AND TRUSTEES. CHAPTER 1. PRELIMINARY— INCLUDING CERTAIN DEFINITIONS, AND A BRIEF REVIEW OF ENGLISH, CIVIL LAW, AND OHIO GUARDIANSHIPS. Par. Par. 1. Who are minors ? 10-11. Guardian by nurture, and ia 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. IVho are minors? — 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, an_y law or custom to the contrary notwithstanding.^ It therefore fol- lows that all male persons who are not twenty-one jxars old, and all female persons who are not eighteen years old are not of full age.'^ 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 sarao meaning.^ i§ 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. & Gov. 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. [CIIAP. 1, 3-(> 2. Ward. — A minor placed by authorit}- of law under the care of a guardian is called a icard. 3. On ichat day /till age attained.— It appears from the author- ities that a male person is of full ago the day before the twenty- first aiDiivcrsar}^ of his birth ;' anil 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 mvcy 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- caiise the most common, are the guardians of minors. Concern- ing them 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."* 6. 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 '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 &r\y legal act on the morning of the 15th of February, 1829, though he may not have lived twenty-one years 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 twent.y-one years after, then twentj'-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. «, below. CHAP. 1, 7-8.] PRELIMINARY, ETC. 3 with ur statutory provisions, and others not tliere 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. Sucli guar- dian is subject to the court of chancery, which might, for a just cause, interpose and control his authority.^ 8. As to natural guardian in U. S. — In this countr}' the father is the guardian hy 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 .^ But such guar- dianship gives to neither of them an}' right to manage the estate or otherwise meddle with the property of the child, and extends onl}' to the custody and control of the person of the infant, and to his maintenance, support, and education.^ 9. On principle, it would seem that the mother becomes the iCoke Litt. 88; 2 Kent's Com. 220, 221; Reeve's Dom. Rel. 314, 315; Bouv. Law Die., Art. " Guardian" ; 1 Black. Com. 461, Hargrave's note. 2 2 Kent's Com. 220; Reeve's Dom. Rel. 315; Bouv. Law Die. "Guar- dian;" Schouler's Dom. Rel. 406 ; 3 Redfield on Wills, 435; Tyler on Inf. and Gov., ? 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. Stephen's note to 1 Black. Cora. 461. The mother is the natural guardian of her illegitimate child. Reeve's Dom. Rel. 315, note 1; Bouv. Law Die, " Guardian." •^2 Kent's Com. 220, 22; 3 Red.^on Wills, 436; Schoul. Dom. Rel. 333-4, 391, 392 ; Bouv. Law Die, " Guardian ;" par. 5, this chap.; par. 14, chap. 3. 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 Yerg. (Tenn.) 463; Anderson v. Darley. 1 Mott & McC. 369; Miles v. Kaigler, 10 Yerg.(Tenn.) 10; May v. Calder, 2 Mass. 55; Gerrett v. Tallmadge, IJohns. fN. Y.) 3; Combs v. Jackson, 2 Wend. (N. Y.) 153; Hyde t7. Stone. 7 do. 4 PRELIMINARY, ETC. [CHAP. 1 , 10-14. i;,nardi:iii by nature of the childi-cn whose custody is awarded to her because of her husband's personal unfitness.^ 10. Guardian hi/ nurture and in chivalry. — The guardian by na- ture occuj)ic(l nmeh the same relations to iiis (or hei') younger children that he did to the heir-apparent, and was called their guardian by nurture. 11. As pi'opoi-ty has always descended here to all the children, in.stead of to the eldest son, this species of guardianship has never been in existence here.'-' Nor has that in chivalry, which lias long been abolished even in England, and llierefore needs no description now.^ 12. These two included in guardianship of -person. To what ex- tent these technical guardianships " by nature " and '' by nur- ture " ever existed in this State need not be discussed here. Our guardianship " of the person " includes all the powers of both,- as far as they could be in force under our laws and institutions.* 13. Guardian by socage. — Such a guardian has custody of the infant's lands as well as of his person. It applies only to lands which the infant acquires by descent. The common law gave this guardianship to the next of blood to the child, to whom the inheritance could not possibly descend. Such guardianship ceases when the child ai-rives at the age of fourteen years, if he then •chooses another guardian, which he has the right to do ; and in that case the guardian in socage must account to the ward for the rents and profits of his estate.* 14. The question as to whether this species of guardianship exists in Ohio* has been raised in some of our courts, but not de- 554; Fonda ('. Van Home, 15 do. Gol ; Kline v. Beol)e, 6 Com. 494; Ken- dall V. Miller, 9 Cal. 591; McGruder v. Peter, 4 Gill & J. (Md.), 323. But see Wilson v. Bayer, 1 Har. & S. (Md.) 297 ; par. 56, Appendix. The surviving; parent is the natural jrnardian of a minor child. McKin- ley V. Noble, 37 Tex. 731. 1 Schonler's Dom. Rel. 406; same, 338, 339, 391. =^2 Kent's Com. 222; Reeve's Dom. Rel., 315 ; Tyler on Inf. and Cov., §167; Bouv. Law Die, " Guardian," and American cases there cited. 3 Reeve's Dom. Rel. 311. * See chapter 5. 6 2 Black. Com. 87, 88; 2 Kent's Com. 221-223; Bouv. Law. Die, "Guardian." *Wirt V. Turner (Lorain Dist. Court, 1858), 1 W. L. M. 94. CHAP. 1, 15-17.] PRELIMINARY, ETC. 5 cided. In New York, since the adoption of the JKcvised Statutes, a father may be guardian in socage in that State. ^ 15. Testamentary guardians. — This species of guardianship was instituted by a statute^ passed in the reign of Charles II. It provided that any father, whether of full age or not, might, by deed or by last will, dispose of the custody and tuition of his child, born or unborn, to any person or persons in possession or remainder, other than popish recusants; such custody to last till the child attained the age of twenty-one years, whether he raurry or not, or for a less time. It gave the guardian the entire manage- ment of the ward's estate, both real and personal. All religious disabilities, and the power of an infant father to appoint, have since been removed.^ But a mother can not appoint, nor can a putative father, nor a person in loco parentis} 16. The statutes of Ohio provide for the a2:»pointment of tes- tamentary guardians^ by will but not by deed. Though these statutes use the w^ord "appoint," yet, strictly speaking, the parent can, with us, only nominate a guardian, whom it is the duty of the court to appoint., if, in the opinion of the court, he be a suitable person. 17. Chancery guardians. — The chancery courts of England, chiefly since the settlement of the United States by the colonies of that country, have assumed and now exercise the right of su- pervision, control and removal of all guardians, and of appoint- ing them when such appointment is not olhcrwise provided for; and in these respects, and in providing suitable maintenance for infants, in awarding custody of their person, and in superintend- ing the management and disposition of their estates, Ukjso courts wiekl large powers for the benefit of thcj'oung and helpless, and adapt themselves far more readily to the various grades of so- ciety, the different varieties of property, and the needs of the minors themselves, than can be done by all other kin«is of guardianships combined. Chancery guardians are, in general, 1 Fonda v. Van Home, 15 Wend. (N. Y.), 631. n2 Car. II., c. 24. 331 Geo. III., c. 32; 1 Vic, c. 26. *2 Kent's Com. 224; Reeve's Dom. Rel.. 328; Bouv. Law Die, "Guar- dian;" Schouler's Dom. Rel. 394; and the cases there cited. 5 See par. 25, page 26. iy PRELIMINARY, ETC. [cHAP. 1, 18-19. only ap|)oiiitcd where there is ]n'opcrty, us such a step can scarcely be necessary otherwise ; but tlie court compels them to give security to invest under its direction, and to keep regular accounts.' 18. Guardianship under the civil law. — The laws of guardian- ship, as is true of other laws both of England and the United States, are not without the strong impress of the laws of the Roman Empire, the fountain of the civil law as in force in France, Spain and other nations of Europe, through which chan- nels it has come to be in force in our French and Mexican ac- quisitions of Louisiana, Texas, etc. By that law a tutor had charge of the maintenance and education of the minor, while a curator had the care of his fortune.^ 19. We readil}' recognize the similarity between these and our own guardian of the person and guardian of the person and estate, though the likeness is not complete. 1 Schouler's Dom. Rel. 396, 397 ; 2 Kent's Com. 163 and notes ; Reeve's Dom. Rel. 317. The jurisdiction of a court of chancery extends to the care of the person of the infant so far as is necessary for his protection and edu- cation, and to the care of his property, for its management and pre- servation and proper application for his maintenance. It is upon the former jrround tliat the court interferes with the ordinary rights of parents as guardians by nature or by nurture; for whenever a father is guilt}' ot gross ill-treatment of or cruelty to his children, or is in constant habits of drunkenness or blasphemy, or low and gross debauchery, or proiesses athe- istical or irreligious principles, or his domestic associations are such as tend to the corruption and contamination of his children, the court will interfere and deprive him of the custody of the infants, appointing at the .same time a suitable person to act as guardian and superintend their education. And this interference may be obtained on the petition of the infant himself, or of any of his friends or relatives : nay, a mere stranger may at any time set the machinery of the courts in motion. 1 Black. Com. 162, part of Kerr's note. * 1 Black. Com. 460. <3HAP. 2, 1.] DUTIES OF PROBATE COURTS. CHAPTER 2. POWERS AND DUTIES OP PROBATE COURTS, AS APPECTINQ GUARD- IANSHIP. Par. Par. 1. Their jurisdiction generally. 18. Guardianship, etc., when the 2-5. Exclusive jurisdiction. probate judge is interested, 6. Concurrent jurisdiction. etc. 7. Oaths to accounts, petitions, 19. Questions arising in probate etc. court — how determined. 8-14. What books are kept. 20. Depositions may be used in 15. Probate judge must make all probate court trials. entries, records, etc., omitted 21. Sheriffs, constables, etc., most by his predecessor. serve in probate court. 16. How paid. 22. Fees of witnesses, officers, etc., 17. No probate judge or his clerk in such court. can prepare any papers, etc., 23-24. General duties of probate for guardian. judges. 1. Their jurisdiction generally. The coustitution of this state* provides that the pi'obate court shall have jurisdiction in probate and testamentarj^ matters, the appointment of guardians, the set- tlement of their accounts, the sale of land by guardians, and such other jurisdiction, in any county or counties, as may be provided by law.^ ^Art. iv, §8. '^The probate courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are com- petent to decide on their ovvn jurisdiction, and to exercise it to final judg- ment, without setting forth the facts and evidence on which it is rendered, Shroyer v. Richmond, 16 O. S. 455. The act of January 9, 1871 (68 v. 6), conferring jurisdiction upon courts of common pleas to appoint guardians of the property of persons incapable of taking care of and preserving their property, by reason of intemperance and habitual drunkenness, is not in conflict with the provisions of this sec- tion defining the jurisdiction of probate courts. Hagan}' v. Cohnen, 29 0. S. 82. This jurisdiction may be extended to all the counties in 'T8ij«i and estate.^ 22. How long powers of guardian continue. — When a guardian has been appointed for any minor before he or she has attained the age for making a selection, as fixed in the two last preceding paragraphs, the powers of such guardian will continue until the ward shall arrive at the age of majority,* unless such guar- any interest adverse to the interest of bis ward, and if he is known to have any such, he will not be appointed. A person under his full u^e, or a minor, can not, of course, be appointed to take care of another minor; and one under the power of another, although possessing understanding as a mar- lied woman, is not qualified for the trust. 1 Bouv. Institute, 42; Tyler on Inf. and Gov. § 17:5. ^Tlie statute coincides with the common law in lliis respect. "At com- mon law, an infant can elect a guardian at fourteen years of age, if a male; if a female, at the age of twelve years." Reeves Dom. Rel. '^' p. 240. (Citing Fondb. 74; Ch. Rep. 53; 1 Eq. Ca. Abr. 2S2 ; 1 T. Rep. (itS; 2 Vent. 203; 1 Stra. 690.) 2 2 6257. But the minor can not select, if a guardian has been selected by valid will. Sec; par. 2o. below. As to notice to guardian, see p. 58. 3 g 6257. * Befor(> the enactment of the saving provision, it was held that the guar- dianship of a minor expired by the limitation of the law, when the ward ar- rived at the age designated in paragraph 20. It was further held that a guardian appointed for such ward could not, after the ward had reached the a<:e where the statutory right to select a guardian applied, sell the lands of the ward on a petition tiled after such time, and that a sale m.vle on an or- der of the court, under such petition, was void. Perry r. Brainard, 11 0. 442. Under the old law, it was also held that a guardian for u female under 26 APPIONTMENT OP GUARDIAN'S. [cHAP. 3, 23-25, ditiii bo sooner removed for <^oou cause, or such ward selects another suitable guardian.' 23. Superseded guardUnis settlement. — Alter such selection is made and approved by the court, and the person so selected is duly appointed and qualified, the powers of the i^uardian pre- viously appointed cease, and thereupon the final account of such guardian must be filed and settled in the proper court.' 24. If minor faUs to select, and uiien court first appoints, ichat to do. — If the minor, after arriving at the proper age for selecting, is .satisfied with the guardian already acting, or fails to select another, no action need bo taken by the court, as such guardian continues in office till the ward's majoritj'. But the court should, in no case, except in that of a testamentary guardian, appoint a guardian for a minor, of proper age to select for himself, until Huch minor has had an opportunity to make such selection ; and therefore, before such appointment is made, if the minor does not comehimself voluntarily before the court to make the selection, the court should send him a written notice, that unless he appearand make such selection within a reasonable time, or on a da}" named, the court will appoint a guardian for him ; for until he has had a day in court, he can not be said to have failed to make the selection.^ 25. Tesfamentary guardians — hoic appointed. — An}- father, or in case the father be dead or have gone to parts unknown, any mother may, by last will in writing, appoint^ a guardian or guardians, for any of his or her children, whether born at the time of making the will, or afterward, to continue during the minority of the child, or for a less time.* twelve continued only till the ward attained that age. After that, his guar- dianship expired, and payment of his ward's money could no more be made to him validly than if he had never been appointed. Nor were the acts of the child treating him after that time as guardian, admissible to show au- thority. 1832. Campbell v. English, W. 110. ^'i 6258. See par. 48, page 58. -See Perry v. Urainard, 11 O. 442, 443. *See paragraph 16, chapter 1. ^?6266. This power of a father to appoint a guardian extends to all his legitimate cliildren who are under age and unmarried at his decease, or who are born afterwards. 2 Bro. C. C. 538. Where a man having no children, by will appointed his wife and brother, CHAP. 3, 2(5-27.] APPOINTMENT OF (iLAKDIANS. 27 26. Testamentary gaanlian to have preference — his duties, powers, arid liabilities. — When a guardian has been appointed by will, by a father or mother of any child, such guardian will be entitled to preference, in appointment over all others, without reference to his place of residence, or the choice of such minor; but his appointment, duties, powers, and liabilities will in all other re- spects bo governed by the law regulating guardians not ap- pointed by will, except as otherwise specially provi(Jed.' 27. Bond of such guardian. — Such guardian need not, generally, give bond, if excused from so doing b^^ the will.^ But tliis rests or the survivor of them, to the jxuardianship of all his sons thereafter to be born, it was held that the •guardianship extoMded tu ail his sons by that or a future marriage. 7 Yes. 348. A testator, by his will, jrave real and personal property to the children of his nephew, and appointed their father their guardian, "for the purpose of receiving and maiiagino; said property so given. Held, that such testator eould not make such appointment, and that the will did not vest an estate in trust in the father for the children. Brighara v. Wheeler, 8 Mete. (Mass.) 127. A will appointing a guardian must be executed in same manner as other wills, or the appointment will not be valid. Wardwell v. Wardwell, 9 Alien, (Mass.) 518. Where a testator left the care and custody " of his infant children to his wife so long as she remain his widow, she to be guided by the advice of my executors as to the education of my said children," etc. Held, that the wife was constituted sole testamentary guardian, and that, she having married dgain, the appointment of a new guardian was necessary. Corrigan v. Kiernan, 1 Bradf. (N. Y.) 208. An executor was also named in the will as guardian of the minor child of the testator. He qualified as executor, but never took upon himself the duties of guardian, and renounced the guardianship after six 3-ears. Another per- son was appointed guardian, who receipted to the executor for his ward's share of the estate. Held, that such appointment was valid, and that th^ mere naming the executor in the will, as guardian, did not constitute him such, although he may have done some acts appropriate to that character. McAlister v. Olmstead, 1 Humph. (Tenn.') 210. A testamentary guardian can not be appointed by a grandparent of the infant. Hoyt v. Hilton, 2 Edw. (N. Y. ) 202; Fullerton r. Jackson, 5 Johii.<. Ch. (N. Y.) 278; Williamson r. Jordan, 1 Bush. (N. C.) Eq. 40; Vanarts- dalen v. Vanartsdalen, 14 Pa. St. ;>84 ; Tyler on Inf and Gov. 253. '§ 6267. See preceding not. ^§6268. ^8 APPOINTMENT OF GUARDIANS. [CHAP. 3, 28-30. in the discretion of the court, as is more fully stated in para- graph 42 bolow. WHO MAY BE GUARDIAN. 28. Certain administrators and executors are not eligible. — No person who may have been, or shall be, an administrator on an estate, or executor of a last will and testament, can be appointed a ii^uardian of the person and estate, or of the estate only of any minor who will be interested in the estate administered upon, or who will be entitled to any interest under or by virtue of such last will and testament; but an executor or administrator may be appointed a guardian of the person only of an}" minor.^ 29. Probate judge can not l)e — Letters of guardianship can not be issued to any person after his election to the office of pi'obate judge, and before the ex])iration of his term of office.'^ 30. Non-resident of state can not be. — As the statute provides that the removal from the state of an}' person who has been heretofore or who may be hereafter appointed guardian, shall of itself determine the guardianship of such person,^ the infer- ence is probably conclusive that a person not a resident of the state can not be appointed guardian. Even if the statutes were silent on this point, the fact that such a person is entirely outsideof the jurisdiction and control of the court seems of itself 1 1 G25(;. -^ 535. As to other disabilities of probate judge in matters of guardian- ship, see chapter 2. ^§ 6272. See Appendix, par. 71. " Persons residing out of tlie jurisdiction will not usuall}^ be appointed guardians, although one who was out of the state might yet control from a distance; for, it is said, there must be some one answerable to the court (Logan V. Fairlee, Jacob, 193.) But if the sureties on the guardian's bond reside within the jurisdiction and are pecuniarily responsible, is not some one answerable to the court ? The cases, however, are rare where such an ap- pointment would be advantageous to the ward for business reasons; and hence, others are usually chosen, both in chancery and probate. In some of the United States, the appointment of non-residents is prohibited by stat- ute; and even without such prohibition the court is justified in withholding letters of guardianship at discretion, where the petitioner is be.yond the reach of state process. (Finney v. State, 9 Mis. 227.)" Schouler's Dom. Rel- 419. OBAP. 3, 31-33.] APPOINTMENT OF GUARDIANS. 29" to be a sufficient reason for refusing to appoint a non-resident to such a trust, even if named for it by will. 31. 3Iust be resident of the countij — And as it is provided that, if a person who has been appointed guardian removes from the county, it is good cause for removing the guardian from the trust, ^ it would seem that no one should be aj)pointed thereto (except testamentary guardians, mentioned in paragraph 26), unless he resides in the county when the appointment is made. 32. A minor can not be guardian ; nor can idiot, lunatic, etc. — A minor is entirely incompetent to be appointed or to act as guar- dian. Nor can an idiot, lunatic, or imbecile; and should any such pei'son be so nominated by will, or become so after the making of the will and before the time for appointment by the court, such appointment should not be made. The power of the court is ample to protect agoinst such a step, or to remove any guardian who may become of unsound mind after appointment.* 33. When father or mother should be appointed. If the father be living, and is a suitable person to act as guardian of his minor child, the court should appoint him, as being the person first entitled thereto ; if the father be dead and the mother be i§6272. ''As a statutory power to remove, see § 6272. It is not believed that the case of Starr v. Wrigkt, 20 0. S. 97, in which it was held that a minor could be trustee for certain purposes, authorizes a minor to act as guardian. ". . . These considerations, and others that mij^ht be named, render an infant incompetent to exercise the olFice of trustee.'' 3 Redfield on Wills, 571. It is requisite that the person appointed be siti juris — " of his own riaht," and capable of performing the appointment. He must not have any interest adverse to the interest of his ward, and if he is known to have any such, he will not be appointed. A person under full age, or a minor, can not, of course, be appointed to take care of another minor. 1 Bouvier's Institutes, 42; Tyler on Inf. and Gov. 259. If a person appointed become lunatic or is otherwise incapaclated to exe- cute the trust reposed in him, or if he abuses the trust, the court may eidier totally remove him and appoint another, or, by obliging him to give security to make good his deficiencies, hinder him from doing any thing prejudicial to the infant. Tyler on Inf. and Gov. 253 (citing Ex parte Salter, :? Br. Gh. cases, 500; O'Keefe v. Garey, 1 Sch. & Lefroy, 106; Roach v. Gowan, 1 Yes. Sen. 160). 30 APPOINTMENT OF GUARDIANS. [ciIAP. 3, 34-37. living, iiiinuirried, and a suitable person, she should receive the appointment ; if botli father and mother be dead, or if the father, or in case of iiis death, the mother, are unsuitable persons, then the court will be authorized to appoint some other proper person as such guardian.^ 34. When other relative should be. If the estate of sucli child has come b}' gift from some other relation, as a grandfather, which person is unobjectionable, the court would, in such case, deem it right to give such relative the preference in the appoint- ment. Such has been the rule adopted b}'^ courts of chancery, and is undoubtedl}- a safe rule f u' the probate court.^ 35. May a married woman he appointed guardian? Whether a manned woman is legally competent to act as guardian by ap- pointment of court in this state, except as specified in chapter 19, paragraph 4, is a question that has never been judicially de- cided. But the general]}' accepted opinion is that she is not, and the uniform practice of the courts has been in accordance with that opinion. 36. That she can not act in that capacity, unless specially authorized to do so bj' statute, es])ecially if such appointment would place in her hands the management of the ward's estate, scarcely admits of a doubt. But if there is room for such doubt, the practical difficulties that must attend such management on her part, owing to her general legal incapacitj^ to manage prop- erty, etc., and the perplexing, but vitally important questions that would so frequently arise therefrom, as well as her gene- rally existing lack of business training and experience, should be sufficient to prevent the court from making such appoint- ment, and subjecting the ward's property to the risks and entan- glements that would arise therefrom.^ BOND. 37. Applicant for appointment ynnst give bond ; its amount. Be- fore any person can be appointed guardian of the person and estate, or of the estate only, of any minor, he must, after filing the statement prescribed in paragraphs 90-99 of this chapter, give bond, with freehold sureties, resident of the state, one of whom must be resident of tbe county where such guardian is ^ See notes 3 and 4, pp. 23, 24. ^ See Appendix, p. 297 ; also, p. 50. CHAP. 3, 38-42.] .M'POINTMKNT OF OirARDIANS. 31 appoiiilccl, jjuyablc lo tlie slulo. in double llic iimouiit of tlic pur- sonal esfute beloii<^iii the duties devolving upon bim, as sucb guardian.' 40. Mortgage maybe given instead of freehold surety. In lieu of tbe freebold surety required in paragrapb 37, above, tbe ap- plicant may execute to said minoi- a mortgage upon good and unincumbered real estate, first furnisbing to tbe probate coiirt an abstract of bis title thereto, which must, by affidavits dul^' filed, be shown to be in value, exclusive of all improvements thereon, sufficient to secure said bond to tbe satisfaction of the probate court ; and sucb mortgage must be duly recorded in tbe county in wbieb sucb real estate is situate, and filed with tbe probate court. ^ 41. Bond of guardian of person ; oath required. — Before a per- son is ap])ointed guardian to have the custody, maintenance and tuition of a minor, without the right to take charge of the minor's estate, be must give bond in double tbe probable ex- penses of maintaining and educatiug such minor daring one year. In all other respects bis bond must be the same as if be bad charge of the estate of the ward ; and be must take the same oath prescribed in paragraphs 114-115 below.'' 42. When such guardian must give bond, etc. — Everj- testament- ai'y guardian must give bond, in like manner and with like con- ditions, as is required of a guardian appointed b}' the probate ^§G259. Trust funds should not bo paid over to the guardian without se- curity, even though he is the father, and is unable to give security. Savage V. Olmstead, 2 Redf. (N. Y.) 478. See also par. 8, chap. 1. 2 § 6259. '§6259. For form of this oath see pars. 114-115. * 'i 6259. For form of mortgage, see page 35. s§ 6260. 32 APPOINTMENT OP GUARDIANS. [CIIAP. 3, 43-44. court; but when the testator, in the will appointinij the guard- ian, shall have ordered or requested that sueh bond should not be given, tlie bond can not be required, uidess, from a change in the situation or circumstances of the guardian, or for other suffi- cient cause, the court of probate shall think ijroper to require it.^ 43. One bond for tiro or more v:(irds ; and fees in svcJi cases. — When the same person is a])])oiiitetl guardian of sovei-al minors, being children of the same ])arentage and inheriling from (he same estate, separate bonds can not be required ; and in such cases onl_y one application can be required ; and the hitters of guardianship to be issued to such guardian by tlie court must be- in one copy, and not one for each minor ; tind the court approv- ing and recording such bond, and issuing such letters, must charge sueh fees as are allowed by law for such services, to be charged but once, and not once for each ward of such guardian.* 44. Qualification of sureties. — Sureties must be residents of this state, and worth, in the aggregate, double tlie sum to be se- cured, beyond the amount of their debts, and have pi-operty liable to execution in this state equal to the sum to be secured.* ' ?G268. See paragruph.s 2G, 27, this chtipter. ■-'?6263. 3 M 95:5. The foUowins: is tlie rule of tlie Probate Court of Hamilton county: ^^ By Order of Court. — On all bonds taken in this court there shall not be less than two sureties, who must be residents of this county; and such sureties on each bond must, in the aggregate, own real estate in this county worth double the amount of the bond, beyond their debts, and have rea) estate in this county liable to execution, equal to the amount stated in the bond." Journal 65, page 1G2. A probate court appointed B. guardian of some of the minor children of W., and he gave bond as required. Held, that the court had no power, at » subsequent term, to appoint him guardian of another of said minors, with- out bond, and simply make an order that the bond executed on behalf of the other children should stand as a bond for the latter also ; and that such order was wholly inoperative to constitute the second guardianship. Van- derburg v. Williamson, 52 Miss. 233. " The bond of a probate guardian renders him and his sureties liable for all estate of the ward which shall come into his possession or knowledge. This includes chattels due from the guardian to the ward at the time of his appointment, or of the execution of the bond, even though the fund be pro- ceeds of land already sold and paid for, and the rent of real estate occupied b}^ the guardian before that time. It embraces chattels and rents and in- come from every species of property' that the guardian actually receives in CHAP. 3, 45-49.] APPOINTMENT OF OUARDIVNS. 33 45. The number of sureties. — The statute docs not direct how many sureties shall be required to the bond, but as it uses the plural number, and saj's that the sureties to the bond shall bo freeholders, it is evident that the projjer course is to require at least two sureties, as in case of executors and administrators ; ' and the court should look to it carefully that they have a free- hold qualification, and are abundantly good for the amount of the bond over and above their debts, liabilities, right of home- stead and other exemptions from execution. 46. Sureties may be examined under oath. — The law provides that a court or an officer, authorized by law to ap|)rove a surety, may require such person to testify, orallj- or in writing, touch- ing his sufficiency; but that this shall not, in itself, exonerate the officer in an action for taking insufficient surety. - 47. Oral examination of proposed surety. — For the purpose of ascertaining the responsibility of each surety, before he is ac- cepted as such, the court may administer an oath to him in the following form : 48. Do you solemnly swear [or affirm, as the case may be'] that you will true and fall answers make to such questions as may be put to you by the court, counsel or parties, touching your prop- erty, indebtedness, liabilities or responsibility, and this you will do as you will answer to God [or if the party affirms, say as you will answer under the pains and penalties of perjury]. 49. The judge may then ask hjw. mf wha^ his pV(Vp6rty*cdn'- sists, the value of his real and perio.nai pv6{>erfy,' wlial'li'enis ai'e upon it by mortgage, judgment or otbei^vvise,',Cl?e;',i5eno,i;aliai')i6unt of bis indebtedness or as to parti cHv'a'v debts,* wBa^^ '•oonti'ngent his official capacity, or that lie mislit have recMved if .'h?lla(3' fai^liUiHy per- formed his duties." [CitinjrMattoon v. Cowing,!:'/ 6i&>' (Masi^.), 387; ^eilll>. Neill, 31 Miss. 36; Bond r. Lockwood, 33 111. 212: Williams i: Morton, 3,S Me. 47; McClendon v. Harlan, 2 Helsk. (Tenn.). 337] Schoiilcr's Dom. Rcl.-191. ''The liability of sureties lasts while the responsibilities of the <];uardian- ship continue, and it does not terminate by the resignation or death of the guardian. For the ward's estate in the guardian's hands or subject to his con- trol at the time of his death, they continue liable." [Citing Mooro r. Wallis, 18 Ala. 458; State v. Thorn, 28 Ind. ?M: Ashley v- Johnston, 23 Ark. 1?6262. 2 §6. CHAP. 3, 72-79.] AITOINTMENT OF (UTARDIANS. 37 72. The bond should be signed in court. — To guard effect uall}' against mistakes, frauds, forgeries, and misapprehenHioiiH, the bond should be always signed at the office of the probate judge, and in his presence, or that of his clerk. The practice of per- mitting the bond to be carried out and signed by the parties to it, and then returned, is very improper, and fraught with many dangers. 73. A moment's reflection will convince any one of this. The infant has no part in this matter, and can give no attention to it, nor has he any control over it. It is the peculiar province of the court to give the infant the most ample protection, and nar- rowly watch his every interest. These bonds may often run for a great number of years, before there is any occasion to look into them, or before any inquiry is made concerning them ; then Bome of the actors may be dead, and some dishonest, and if the surety answer to the bond that his name is a forgery, the ward may be defrauded of his whole estate. The safest guard against the possibility of this answer is to have the bond signed and attested in court, before the judge or his clerk, and witnesses. 74-9. Form of mortgage. If, instead of freehold securities, a mortgage is given, as specified in paragraph 40, such mortgage may be in form as follows : Know all men by these presents : That whereas A. B., of county, Ohio, baving applied for appointment as guardian of the person and estate [or, estate only, if so] of C. J), [^and if more than one minor is named in the bond, here name them aW], child [or, chil- dren] of E. F., deceased ; Now therefore the said A. B., in lieu of freehold surety and in pursuance of the statute in such case made and provided, and in consideration of the trust to be im- posed upon said A. B., by reason of said appointment, does hereby grant, bargain, sell and convey to tbc said [^here namethe said minor or minors'] his \_or, her, or, their] heirs and assigns forever, the fol- lowing-described real estate, situate in the [city, or, village, or. township, as may be] of , in the county of , and State of Ohio, to-wit [liere describe the property by metes and bounds, or in other suitable icay] : and all the estate, title and interest of the said A. B., either in law or in equity, of, in and to the said prem- 38 APPOINTMENT OP GUARDIANS. [CIIAP. 3, 72-79. ises ; together with all the privileges and appurtenances to tlie same belonging, and all the rents, issues and profits thereof; to have and to hold the same to the onlj^ proper use of the said Inhere name the said minor or minors] his [or, her, or, their] heirs and assigns forever. And the said A. B., for himself and for his 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 convej^ed, 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 [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 must 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. [And if W. B. signed, here add] and the said W. B., wife of the said A. B., being examined by me separate and apart from her said husband, and the contents of said mortgage being by me made known, and explained to her, as the statute directs, declared that she did voluntarily sign, seal and acknowl- CHAP. 3, 80-82.J APPOINTMENT OP GUARDIANS. 3^ edge the siime, and that she is still satisfied therewith, as her act and deed, for the uses and purposes therein mentioned. In testimony whereof, I have hereunto subscribed my name [if the officer have an official seal, say and affi.xed my official, or notarial, seal], on the day and 3'car aforesaid. [seal.] Eichard Eoe, Notary Public, [o7'. J. P. etc.'], as aforesaid. 80. Where mortgage to he filed. The law does not lu-ovido 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 securifj/.. The law does not prescribe the number nor character of the affi- davits menlioued 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,^ we may infor 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 vicinitj-, or for other good reasons, may fairly be premmed to be entitled to credit in this matter. 82. How to proceed when mortgage security is given. If the ap- plicant proposes to give mortgage security, he will observe- 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 01-99, below; and tlio judge can then inform him whether these affidavits are suffi- cient, or whether additional ones will be inquired, and also whether a mortgage on the property described in them would 1 See § 6076 ; Raff's Guide, p. 83. *See par. 40, this chapter. 40 APPOINTMENT OP GUARDIANS. [CHAl . 2, 83. -bS be satisfactory security, in case the abstract shall show it to be free and unincumbered, for the amount of the bond he must give, 83-6. The form of the affidavits may be, for instance, as fol- lows ; and they may be taken before the probate judge, or no- tary ])ublie, a justice of the jDeacc, or other officer authorized to administer oaths : 'The State of Ohio, county, ss. Before me, Hichard Roe, a notary public [^or, justice of the peace, etc.'] in and for said county, personally appeared L. O., who, being dul}' sworn, says that for fifteen years last- past lie Las 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 [Aere give a description of the real estate similar to that ivhich must be given in the mortgage, which 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 i {Signed) L. 0. Sworn to and subscribed before me, this day of , A. D. 18—. [seal.] Eichard 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, bas, 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 {iffidavit, if desired,], described in the annexed affidavit of L. O., and that by reason of his former residence in that vicinity, and other i-easons, 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 mo, this day of , A. D. 18—. [seal] Richard IIoe, Notary Public, county, Ohio. 89. Further consideration of bonds, found where. The steps so fur directed with regard to the bond arc those which arc 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., will be found in chapter 10. PROCEEDINGS TO APPOINT A GUARDIAN. 90. Statement of icard's estate must be filed. Before any person can be appointed guardian of the ])erson 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.' 91-99. For7n 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 court 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 [fiere give a not too minutely itemized, yet full statement; as] 1. One house and lot in Glendale, probable value 812,500 2. Farm, IGO acres, in Green tp., this county, probable value 5,200 J 2 6259. 42 APPOINTMENT OP GUARDIANS. [CIIAP. 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 & Go's bank 1,080 6. "D. S. bonds, from the estate of E. F., after settlement. 1,000 7. Promissory note of H. S., from same estate I,lfi0 $22,776 The probable annual rent of Glendale house and lot is.. S900 Of the 160-acre farm, (90 acres cleared) 300 81,200 RECAPITULATION. Probable value of real estate $18,100 '< " " personal property 4,G76 " annual rents of real estate 1,200 The following freehoiders 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 are 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. C, Probate Judge, etc. 100. What officer may take affidavit. This affidavit may be made before the probate judge, a notarj^ 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 j^roper and suitable person, and that the statement as to the estate of the minor is correctly and honestly made, he should then apjjoint such person, and make a minute thereof upon the journal of the court. CHAP. 3, 102-7.] APPOINTMENT OP GUARDIANS, 43- 102-5. Form of journal entry^ of appointment of a guardian. In the matter of the guardianship of C. D. This day came A. B., and made a])p!ication to be appointed guardian of C. D., and the eourt 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. , andehildofE. 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 aflSdavit, 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 eourt, 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 co|»rt. {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 C. 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.'] 'See directioa about plural number on page 41. 44 APPOINTMENT OF GUARDIANS. [CHAP. 3, 108-13. 108-110. 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 entryl, 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 day 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 da}- came and filed in this oflSee 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 fourteen 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 jjarent (or, parents) is an unsuitable person (^or, are unsuitable persons) to have the custod}' 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 fiaid appointment, and took an oath that he would fiiithfullj' and honestly discbarge the duties devolving upon him as such guard- CHAP. 3, 116-17.] APPOINTMENT OF GUARDIANS. 45 ian, and also gave and filed herein Iuh bond in the sum of dollars, conditioned according to law, with and , free- holders, as sureties [or irith mortgacjc security, ns in preceding entry'], which bond was approved of by the court. 114-115. Form of guardimis oath at appointment. (See par. 39.) A. B., guardian of C. 1)., a minor, being duly sw rn [or af- firmed'], says that he will faithfully and honestly disciiarge 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 icith 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. What the journal entry should show, and why — It should be remembered that these appointments may come under the review of other courts tlian 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. ^V}lat 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.* * A guardian for a minor, appointed by the court * * * , lia.-? no- power to act or control the property of his ward, until he has jriven bond, with surety approved b}' the court. Letter.s of guardianship, issued to hinv by the clerk, before such bond is given, confer no such power, and have no legal effect whatever. 1851. State r. Sloane, 20 0. 327. A guardian derives his power to act from the appointment and giving 46 APPOINTMENT OP GUARDIANS. [cHAP. 3, 118-22. 119. Another form of oath — Hoic 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 paragraph — ; and blanks for these statements and oath are bound into a volume for con- venience of filing and reference. The 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. C, Probate Judge. By A. (x., 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 m that capacity to the extent for which he has been appointed.^ bond. Letters of guardianship need not in fixct issue. Ma.xsom v. Sawyer, 12 0. 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. ^ See note 1, preceding page. CHAP. 3, 125.] APPOINTMENT OP GUARDIANS. ^ 125. IVJiat to do first after appointment. — Immediately after his appointment, the guardian should get a suitable book for prop- erly keeping the accounts required of him b}^ law, as more fully set forth in chapter 9, especially paragraphs 4 and 5. 48 RESIGNATION, ETC., OF GUARDIAN. [CHAP. 4, 1. CHAPTER 4. RESIGNATION, REMOVAL, RELEASE, ETC., OF GUARDIAN. Par. Par. L Continuance of guardianship. 18. 2. Resignation. 19. 3. Form of resignation. 4. Form of journal entry in ease of 20. resignation. 21. 5. Another guardian should be ap- pointed. 22- 6. When ward may select another 26. guardian. 7. When unmarried female guardian 27. marries. 28- 8. When female ward marries. 30- 9. Does marriage of male ward end 32. guardianship ? 33- 10. Death of ward. 11. Death of guardian. 37. 12. Removal of guardian from the 38. state. 39- 13. When ward removes from the 41. state. 14. When and under what circum- 42-5 stances the guardian here may be removed. 15. No such removal made, unless. 46-7 16. What is to be done, if guardian here removed. 17. Maybe removed for drunkenness, etc. For not filing inventory, etc. Court must enforce guardian's duties. IIow to enforce such duties. Complaint, who to make; hearing of. •25. Form of complaint. Why such complaints some- times necessary. Affidavit to such complaint. -9. Form of affidavit. -1. Form of a citation. How served. 6. Another form, more commonly used when served by sheriff. The hearing. The discretion of the judge. 40. What justifies removal. Proceedings, when bond ex- cepted to notice. Form of journal entry upon citation to remove a guar- dian. Form of entry if charge not sustained. Notice to guardian of ward's intended selection. 1. Continuance of guardianship. — A guardian onco appointed and qualified to act, will continue in that capacity^ until the ^"As two persons, or sets of persons, can not at the same time hold the same trust, it follows that one guardian must be removed, or a vacancy otherwise created, before the court can make a new appointment. This principle, apparently simple, has sometimes been overlooked; when, for CHAP. 4, 2-4.] RE^KKNATION, ETC., OF GUARDIAN. 49 ward arrives at the ago of majority,' unies.s such guardian Hoonor dies/ resigns,^ i.** removed for cause,* the ward selects another suitable guardian at the proper age,* become legally disqualified to act, as in the case of a female guardian who marries,* or in case of the marriage of the ward,'' etc. 2. Resignation. — The court by whom any guardian has been or may be appointed, ma}-, for reasons satisfactory to such court, accept the resignation of any such guardian, and appoint another in his stead.* But tlio court should, in no case, accept the resig- nation of any guardian, until he has filed a full and true account of his guardianship, for final settlement, up to the time he ten- ders his resignation. 3. Form of resignation of guardian. The undersigned, heretofore a]>])ointed b}' this court guardian of C. D., says, that he has this day filed a full, true, and just account of his guardianshij) up to tliis time, and now tenders his resignation of such guardianship, for reasons which he will «how to tlie court, as the court may direct. {Signed), A. B. Dated the ■ day of , a. d. . 4. Form of journal entry, in case of resignation. In the matter of the guardianship of C. D. This day came the said A. B., guardian of C. D., and filed his accounts for settlement up to this time, and thereupon instance, a court has i.'^sned new letters without revoking the old. . . . The appointment of a new guardian does not of itself terminate the authority of one, previously chosen. It is an act without jurisdiction, and void." Schouler's Dom. liel. 429. 1 See par. 22, chap. H. *See par. 11, below; also o Redf. on Wills, 457. '' See ne.\t par. * See par. 17, below. * See par. 2!>, chap. 3. * See par. 35-;'>(5, chap. '^, and par. 7, below. ' See par. 8, below. « § 6274. 4 '2l^^k4'9'>-t^ ^ 50 RESIGNATION, ETC., OF QUAEDIAN. [CHAP. 4, 5-9. tbereupon tendered his resignatiou as Kueh guardian, \vliich, for reasons satisfactory to the court, is hereby accepted. 5. Another guardian should be appointed. — In such case, another guardian should be at once appointed, in the manner already laid down for an original appointment.^ 6. When ward selects another guardian. — When the male ward arrives at the age of fourteen years, or a female at the ago of twelve j'ears, and selects a guardian, and such new guardian is appointed and qualified, the powers of the guar- dian i)reviously appointed cease, without fui'ther action by the court. 7. When unmarried female guardian marries. — When any un- married woman, who has been or may bo appointed guardian of any minor, shall marry, such marriage of itself determines the guardianship of such woman ; and the probate court of the proper count}' must appoint another guardian for such minor, to which last named guardian all the estate of such minor must, on demand, be delivoi-ed up by such former guardian ; and she must forthwith reniler her guardianship account to the court from which she received her appointment, for final settle- ment. - 8. When female ward marines. — The marriage of a ward, if a female, ends the guardianship as to the person, but not as to the estate, of such ward.^ 9. Does marriage of male ward end guardianship ? — The author- ities seem uncertain as to the effect of a male ward's marriage* ^ See olifip. 3. ■''g 6292. See Appendix, par. GG. 3 2G2G5. *"Upoti the mai'i'iage of a male ward, the guardianship continues as to his estate, though it has been thought otherwise as to his person." 2 Kent. 226. (Citing a note as follows: " Reeve's Domestic Relations, 328. By the ■civil law, marriage did not confer on a minor the privileges of majority. Dig. 4. 4,2; Code, 5, 37,12. But the laws of modern nations are very diverse on the effect of marriage upon minors. Marriage is an emancipa- tion of the minor to full rights by the French and Dutch laws. Code Civil Art. 476; Voet. ad Pand. 4, 4, G; Vanderliaden's Inst. b. 1, e. 5, sec. 7.) " If a male ward marry, I apprehend he has contracted a relation, and one that he had a right to contract, wholly inconsistent with a guardianship CHAP. 4. 11-12] RESIGNATION, ETC., OP GUARDIAN. 51 on liis wardsliij) ; but our stiitutes declare thai tbe guardianship of an infant ward continues till the age of majority, and, as to males, make no exceptions. The marriage of a male ward would therefore appear to have no effect on his relations with his guardian. Of course statutory provisions override the de- cisions of the courts of other states and countries, and the opin- ions of the ablest writers. 10. Death of ward.—U the ward dies, the guardianship over the estate ceases, as a matter of course, and the guardian has no further power over the property. He should then settle his accounts finally, and if any thing further is to be done with the property of the ward, an administrator should be appointed. 11. Death of guardian.— 1{ the guardian dies, the power he had as guardian, ceases, and his executor or administrator has no power to act in that capacity ;^ but it is the duty of such ex- ecutor or administrator to render an account of his decedent's gaai'dianship, as directed in chapter 9. 12. Removal of guardian from the state. — The removal from of his person. As to his estate, marriage does not vary hia situation. Reeve's Dom. Rel. 328. (No citations.) "Though the court of chancery can not appoint a guardian after mar- riage, yet it will not determine a guardianship, or discharge an order made for a guardian because of marriage." Bacon's Abr., Guardian (E.) Citing Roach V. Garvin, 1 Ves. 159; Matter of Whittaker, 4 Johns. 378.) " The lawful marriage of any ward, whether male or female, must neces- sarily effect the rights of the guardian. So far as the ward's person is con- cerned, there can be no question that the guardianship ends. Marriage is paramount to all other relations, and its proper continuance being incon- sistent with guardianship of the person, the latter yields to it, whatever may be the sex of the ward. But as to the estate, the rule, in view of the late mar- ried women's statutes, is not so clear. If, however, a male ward marries a female, whether she be minor or adult, his guardian retains power over his estate, as before, until he becomes of age. Schouler's Dom. Rel. 425. (Citing Reeve's Dom. Rel. 328; 2 Kent's Com. 226 ; Bacon's Abr., Guardian, (E) ; Eyre v. Countess of Shaftsbury, 2 P. Wm-s. 103; Mendes v. Mendcs. 3 Atk. 619; lb. 1 Ves. 89; Jones r. Ward, 10 Yerg. IGO.) The marriage of a female ward terminates the guardianship; it is other- wise of the marriage of a male ward. Brick's estate, 15 Abb. (N. Y.) Pr. 12; Holmes v. Field, 12 111. 424; Shutt v. Carloss, 1 Ired. (N. C.) Eq. 232 ; Burr V. Wilson, 18 Tex. 367 ; Ware v. Ware, 28 Gratt. (Va. 1877) 670. » Schouler's Dom. Rel. 426. 52 RESIGNATION, ETC., OP GUARDIAN. [CIIAP. 4, 13-17. this state of any person who has been heretofoi'e or may be hereafter appointed guardian, will, of itself, determine the guardianship of such person.' 13. WhciL ward removes from the state, what? — When a minor, for whom a guardian has been ai)pointed in this state, removes to another state or territory, and a guardian of such infant is there a]i])ointed, the guardian appointed in this state may be removed, and required to settle his account as hereinafter provided.^ 14. W/u;n and under what circumstances the guardian here mai/ be removed. — Such removal must not be made unless the guardian appointed in another state or territory shall apply to the pro- bate court in this state which made the former appointment, and file therein an exemplification from the record of the court making the foreign appointment, containing all the entries and proceedings in relation to his appointment, and his giving bond, with a copy thereof and of the letters of guardianship, all au- thenticated as required by the act of congress in that behalf; and before such application can be heard, or any action taken therein by the court, at least thirty days' written notice must bo served on the guardian appointed in this state, specifying the object of the application and the time when the same will be heard.* 15. iVo such removal made, unless. — No such removal can be made in favor of any foreign guardian, unless at the time of the hearing the state or territory in which he was appointed has made a similar provision as to wards removing from such state or territory; and the court may, in any case, deny the applica- tion unless satisfied that the removal of the guardian appointed in this state would be to the interest of the ward.' 16. What to be done if guardian here removed. — If the court, on such hearing, remove the guardian, the court may cause all suitable orders to be made discharging the resident guardian, and authorizing the paying over and delivery to the foreign guardian all moneys and other property in the hands of the res- ident guardian after his settlement.* 17. May be removed for drunkenness, etc. — The probate court > 2 6272. Seenote3,p.28;par. 7l,p.312. »?6276. »§6277. * 2 6278. CHAT. 4, 18-19.] RKSIGNATION, ETC., OF GUARDIAN. 53 may at any time remove a guardian appoiiited by such court, he having thirty days notice thereof, for habitual drunkenno.SH, neglect of his duties, incompetency, fraudulent conduct, removal from the county, or any other cause which, in the opinion of Buch court, renders it for the interest of the ward that such guardian be removed.' 18. For not filing inventory^ etc. — If the guardian fails to file an inventory, as required by law, for thirty days after having been notified so to do by the probate judge, such judge must re- move him. See paragraph 5, chapter 5. 19. Court must enforce guardian's duties. — It is made the duty of the court by which any guardian has been or ma}- be ap- pointed, to enforce the return, at the prescribed times, of all in- ventories and accounts required to be filed in such court by such guardian, and also to enforce the performance of all other duties devolving upon guardians appointed by such court, either with or ivithout complaint being first made, and thereupon to make and enter such judgments and orders as maybe requisite in any case to promote the faithful and correct discharge of the duties 1 g 6272. See also 2 Story Equity Jur. § 1289; Perry on Trusts, §? 276 €17; 3Redf. on Wills, 458. A guardian and bis sureties are liable for any money collected by the guardian after removal, if the person paying the money does so in good faith. Sagei). Hammonds, 27 Gratt. (Va.) 651. A father, who, as guardian of his minor children, received an annual in- come of $2,000 from their propert}^ but refused for a period of several years to provide for their support and education, was not a suitable person to Manage their estate, and was properly removed from their guardianship. In \e Swifts, 47 Cal. G29. Where it appeared that a guardian failed to return his account, employed the slaves of his ward in his own service, kept his own stock on his ward's land, and fed them on the corn of his ward. Held, this was a sufficient cause of removal. Ripitoe v. Hale, 1 Stew. (Ala.) 166. The insolvency of the guardian and of one of his sureties is good cause for removal. Ee Cooper, 2 Paige (N. Y.) 34. Conduct of a guardian tending to alienate the ward's aH'ections from its mother, a person of good charactei", is sufficient ground for removal. Per- kins V. Finnegan, 105 Mass. 501. Mere whim, or caprice, or choice, either in the ward or the friends, will not be a sufficient ground of removal. The objection must rest on substan- tial grounds of unfitness in the guardian. 3 Redf on Wills, 458. 54 RESIGNATION, ETC., OF GUARDIAN. [CHAP. 4, 20-25. of 8uch guardians, or to preserve the estate of minors for whom such guardians may have been or shall bo appointed.^ 20. How to enforce such duties. — It is perfectlj'- clear from the three preceding paragraphs that the probate judge may enforce such duties by removal, if necessary, and that, in certain cases, such removal is imperatively required. 21. Complaint, who to make; hearing of. — Any person may complain to the probate court of the dereliction of duty in any guardian ; and whenever such a complaint is made, or whenever the probate judge himself knows, or has good cause to believe, that there is ground for such a complaint, his duty is to act at once, and institute proceedings to inquire into the matter, of course giving the required notice of thirty days. 22-25. Form of complaint. No special form of complaint is prescribed in the cases mentioned in paragraph 19 above, but the following form may be used, and adapted also to other cases where application is made to the court to do certain things : To the Honorable, the Judge of the Probate Coui't of county, Ohio ; Your petitioner represents that E. F., late of said county, died on W about the day of 18 — , leaving C. 1). \^and Gr. H., etc., if so; making the proper changes below, if more than one child~\, his minor child, and an estate to be administered, worth about$ ; that on or about the day of , 18 — , A. B. was appointed guardian of said C D. ; and that said guardian has neglected and failed to file an inventory, as required by law [or, has re- moved from the state : or, has become a habitual drunkard ; or, has become a lunatic ; or, is incompetent to manage so important a trust; or, that said guardian's bondsman, P. Q., has died; or mention any other cause or failure of duty']. Your petitioner further represents that he is interested in said minor, as adult brother [or, as a friend ; or mention any other ground of interest in ward or estate], and prays that citation may issue, requiring said A. B. to appear before said court, on the day of , 18 — , at o'clock, — m., then and there to bliow cause, if any he may have, why he should not be re- ^§ 6275. CHAP. 4, 26-31.] RESIGNATION, ETC., OF OUARDLAN. 55 moved '[or, give additional security; or do any other proper thing required by law for the good of said minor']. (Signed) N. F. 26. Why such coinplaints sometimes necessary. It may be further said of such complaints, that in many counties, especially our most populous ones, the probate judge can not know, from personal knowledge, the condition of every ward's affairs, es- pecially of such matters as the record does not yet disclose ; for instance, the removal from the state, or death, of the guardian or his sureties. It is true that such information could be con- veyed orally or by letter to the judge, and that it might then be his duty to act upon such light as this would give him ; but it is best to give such information in a more formal way. and to have it filed among the papers in the case. 27. Affidavit to such complaint. Upon the strength of such a complaint, the judge would, under most circumstances, issue a citation against the person complained of, even tliough the law, in some cases, authorized him to require an affidavit. As the wel- fare of the ward, and especially the protection and preservation of the ward's property, are so completely intrusted to his watch- fulness and care, he should generally assume that even seem- ingly well grounded suspicion must be examined into, and the matters they relate to righted, if need be. But should he re- quire an affidavit, it can be added or annexed to the foregoing complaint, as follows : 28-29. Form of affidavit to complaint. State of Ohio, county, ss. N. F., being duly sworn, says that the various matters and things set forth in the foregoing [or, annexed] complaint are true, to the best of his knowledge and belief {Signed) N. F. Sworn to and subscribed before me, this day of . a. d. 18—. A. C, Probate Judge, etc. 30-31. Form of a citation. The State of Ohio, county, ss. : Probate Court. To A. B., guardian of C. D. : You are hereby notified to appear forthicith [or, on the • 56 RESIGNATION, ETC., OF GUARDIAN. [CIIAP. 4, 32-37. day of , A. D. 18—, at — o'clock a. m.) at the office of the probate court of said county, to answer why you have not filed your accounts as guardian as aforesaid, according to law [or, ac- cording to the order of said court heretofore made, if such order has been made and not complied icith, or, why you have not loaned the money of j'our said ward, according to law, or state any other failure of duty or ground of complaint, as in paragraph 23; and also add, if desired'], and to show cause why you should not be removed from such guardianship. Witness mj' hand and the seal of said court, this day of a. d, 18—. [l. s.] a. C, Probate Judge of said Court. 32. How served. This citation may be served by the sheriff, . or b}' any disinterested person, in like manner as the notice is served when exceptions are filed to the bond.^ 33-36. Another form, more commonly used when served by sheriff. The State of Ohio, count,y ss. To the sheriff of our said county, greeting: "We command you that you cite and give notice to A. B., guar- dian of C. D., to be and appear before A. C, judge of the pro- bate court within and for the county aforesaid, at , on the day of -^ — , a. d. 18 — , at — o'clock, — m., then and there to show cause, if any he may have, why he has not filed his accounts as guardian aforesaid [or state any other failure of duty, etc., as in preceding form ; and also, if desired, and to show cause why he should not be removed from such guardianship]. And of this writ make due service and return to our said court, at the time and place aforesaid. In testimony whereof, 1 have hereunto set my hand and affixed the seal of the probate court, at , this day of , a. d. 18—. [seal.] a. C, Probate Judge. By , Deputy Clerk. 37. The hearing. — Upon the appearance of the guardian, the court should inquire into the charges against him, and if the ' See pages 170, 171. •CHAP. 4,38-45.] resignation, etc., of guardian. 57 court is of the opinion, tiftcr .such examination, that .-iich pcr- Bon is not a proper or not a competent i)er.son to act as hucIj guardian, he should be removed, and a new guardian should be appointed; but if, upon the hearing, the court finds that tbo complaint is not sustained, the motion should be di.smiss('(l, and the guardian should not be removed. 38. 2'he discretion of the judge ought, no doubt, to be reason- abl}' exercised, and witli due caution, for the guardian is not without some rights, as well as the ward, and he ought not to be removed for a mere frivolous cause ; but there should be some substantial I'cason, materially affecting the interests of the ward, either in his person or property, as the case may be.' 39. What justifies reuwval. — It is not ever}- failure to perform the full and exact duties of guardian that will justify a removal; as, for instance, if a guardian should not ])romj)tly, on the very day his two years expire for rendering his account, so render it, and when cited to answer for the delinquencj", should give a reasonable excuse therefor, and should then i-endcr a fair and just account, it would not be proper in such case to remove him ; ■whereas, a gutirdian who habitually neglected his duties, in whole or in part, ought ])romptly to be removed.' 40. The good sense and sound discretion of the court will be brought into action in these eases to the fullest extent ; for no rule that will be ajiplicable to all cases, or even to the majority of cases, can be laid down. 41 . Proceedings ichen bon d excepted to — notice. — Th e proceed i :igs in case of exceptions being filed against the guai'dian's bond, in -which only ten days' notice is required, and in which a o-uardian mvij no doubt be removed, are considered in chapter 10. 42-5. Form of journal entry upon citation to remove a ouardian. In the matter of the guardianship of C. D. On the motion of M. N. [or, of the court, if it be so, without the movement of any one else] to remove A. B. from such guard- ianship, on the ground that \1iere state the charge as in the notice]. This day, this motion came on to be heard, and testimony be- ing produced, and the court being fully advised in the ])remises, do tiiul that the charge made against saiti A. 13., as guardian of 'See note 1, page 53. 58 RESIGNATION, ETC., OF GUARDIAN. [CIIAP. -4, 46-48. C. D., is true, and that said A. B. ought to be removed from said guardianship ; therefore, it is ordered by the court, that said A. B. be, and lie is herebj^ removed from said guardianship, and his powers and authority therein revoked ; and it is further ordered, that said A. B. shall file in this court a full and just account of bis guardianship, within daj's, and that he also pay the costs herein taxed, at dollars, and in default thereof, that an execution issue therefor, against his individual property, as upop judgments at law. 46-7. Form of entry, if charge not sustained. If the court, however, find that the charge is not sustained, tb..j journal entry should be accordingly. In such case, the form of the journal entry, after stating the caption as in the la^^t form, ma}' be as follows : This day this motion came on to be heard, and the court hehig fully advised in the premises, do find that said charge against said A. B. is not sustained, and the said motion is therefore dismissed. And it is ordered, that M. JS". pay the costs herein taxed at dollars, within days, and in default thereof, that execution issue therefor, as upon judgments at law. 48. Notice to guardian of ward's intended selection. — As the right of the guardian, who is selected by a minor of the proper age for selecting his own guardian, to supersede the former guardian, depends upon the fact that the ward has attained that age, as such fact is not necessarily determinable by inspection in court, but may be proved or controverted by other evidence, it seems that such former guardian is entitled to notice of the in- tended application to the court to appoint a new guardian, of the ward's election, so as to give him an opportunity of proving the ward not to be of that age, if the fact be so.^ 1 3 Dana, 599. CHAP. 5.] POWERS OF GUARDIANS. 59 CHAPTER 5. GENERAL POWERS AND DUTIES, ETC., OF GUARDIANS. Par. 1. Powers of ji;uiu-diaii.s of person and estate. 2. Rif!;hts of parents. 3. Statutorj^ duties of guardians of person and estate. 4. Must file inventory. 5. Penalty. 6. Must manage estate. 7. Must render accounts. 8. Penalty. 9. Must settle fully. 10. Must pay, compound, etc., debts, defend suits, etc. 11. Must educate ward, when. 12. Must lend money, on what se- curit}'; change of invest- ment; penalty. 13. Must obey court. 14. How guardians, etc., may invest funds. 15. Duties of guardian of the estate onh^ 16-30. Duties of guardian of person only ; must protect, con- trol, maintain and educate his ward, etc. 21. How enforced. 22. Stock in building associations held by trustees, etc. 23. Guardian's and parent's powers as to custody and education of minor. 24. Certain minors may not marry, unless guardians, etc., con- sent. 34. 45 But others may. Such consent must be witnessed and certified. What the minister or justice must know before perform- ing the marriage ceremony. •31. The form of certificate. Effect of marriage. When foreign guardian of foreign ward may demand, or re- ceive property of his ward in this state. Guardian and others interested may get direction of court. ■37. General principles and ob- servations. Guardian subject to these prin- ciples. As to deposits of money In bank. -41. Rule as to proper care and diligence. Guardian responsible for criminal acts of his agents. Must pay right person. Guardian can in no way derive profit from ward's prop- erty. -46. Guardian can not speculate with, nor use ward's money in business. Guardian should gtMierally use only the income. Capital used for education. -50. Purchase of ward's property by guardian at his sale. -60 POWERS OF GUARDIANS. [CHAP. 5, 1. Par. Par. 51-52. Guardian's purchase with 63-64. How order for maintenance ward's monej'. granted. 53. Contracts between guardian and 65. A mother not compelled to main- ward, tain her children. 54-55. Gift from ward to {guardian. 66. Stepfather need not maintain 56. The ward may recover propert}' stepchildren, unless. wrongfully conveyed by 67. Effect of ward's death, guardian. 68-69. When one of two or more 57. Ward's labor and services. guardians ceases to act. 58. When ward resides with guardian. 70. Ward can not manage nor dis- 59. Allowance of fixed sum for pose of his estate. ward's maintenance. 71. Guardian's duty as to ward's 60. Cost of litigation, etc. ; who must character, etc. pay. 72. Repairs. 61. Suit on uncertain claims. 73. How ward's interest on regis- 62. Obligations of parents and guard- tered government bonds ians, as to support of minor collected, children considered. 74. Other duties, etc. 1. Powers of guardian of person and estate — Every person ap- pointed guardian both of the person and estate of a minor, shall have the custody and tuition of his ward, and the management' 1 The office of trustee is one of personal confidence, and can not be dele- gated. If a person takes upon himself the management of property for the benefit of another, he has no right to impose that duty on others, and if he does, he will be responsible. Therefore, if a trustee confides his duties oi the trust fund to the care of a stranger, or to his attorney, he will be per- sonally responsible. Perry on Trusts, § 402. See also 2 Kent's Com. 223, Schoulcr's Dom. Rel. 471; 3 Redf. on Wills, 527; and cases cited by these writers; also, Eichelberger's Appeal, 4 Watts, (Pa.) 84. But under some circumstances, a trustee may deposit money in bank. See paragraph 39. And there arc circumstances where trustees must employ agents. If he acts in accordance with the usages of mankind, and prudently for the trust, as he would have done for himself, and according to the usage of busi- ness, as if a trustee appoints rents to be paid to a banker, at that time in credit, but who afterward breaks, the trustee is not answerable. So in the employment of stewards and agents, if he acts in the usual method of busi- ness. Perry on Trusts, § 404 ; 3 Redf. on Wills, 528-9. It is the duty of the trustee to proceed at once, after his appointment and qualification, to receive the possession of the trust property and to proteci it from loss and Injury; and if there are debts or securities due and payable to the trust estate, he must proceed to collect them. If loss or damage tc CHAP. 5, 2-3.] POWERS OP 0UARDINA8. Q\t of such ward's estate during minority, unless sooner removed or discharged from such trust, or the guardiansl)ip shall sooner de- termine from any of the causes specified in cliapter 4.' 2. Bights of parents. — But the statute expressly provides that the father of such minor, or if there be no father, the mother, if a suitable person, respcctivel}-, shall have the custody of the person and the control of the education of such minor.^ 3. Statutory chttics of guardians of person and estate. — The fol- lowing are declared by the statutes'" to be the duties of every guardian of any minor, who may be appointed to have the cus- the trust estate occurs from his negligence in these respects, he would prob- ably be personally liable. Perry on Trusts, § 438; Schouler's Dom. Rel; 473; 3 Redf. on Wills, 540; but see last part of par. 12, below. Unless authorized to do so by will, a trustee will become liable if he allows money to remain out and uncollected on personal security, even if it was so loaned or invested by the testator himself. It is not enough for an executor to apply for the payment through an attorney ; he must follow the collection actively by legal proceedings, unless he can show that such proceedings would have been futile and vain. Perry on Trusts, § 440. No doubt this rule would also apply to a guardian. See Lane v. Mickle, 46 Ala. 600; Walker v. Walker, 42 Ga. 135; 3 Redf. on Wills, 540. An infant's guardian has power to accept delivery of deed of conveyance to his ward. Barney v. Seeley, 38 Wis. 381. A guardian's responsibility for the property of his ward extends only to such as is accessible to him. Bethune v. Green, 27 Ga. 56. Guardians can not release a debt due their wards. Horine v. Horine, 11 Mo. 649. Guardian is ward's mere agent, having an authority not coupled with an interest. Manson v. Felton, 13 Pick. (Mass.) 206. If a person has once accepted the guardianship, either expressly or by implication, he can not afterwards avoid its duties and responsibilities; he can only be discharged by a decree of a court having jurisdiction, and upon proper proceedings had. Perry on Trusts, §? 268, 401. See 3 Redf on Wills, 526. One who, in 1854, became guardian under circumstances sufficient to put him upon inquiry as to the rights of his ward to a pension as heir of a soldier of the Mexican war. Held to be responsible for the amount of such, pension from 1854 till his ward became of age. Clodfeltor p. Bost, 70' N. C. 733. See note 1, Page 94. 1 § 6264. =* § 6269, as amended, vol. 77 O. L. p. 77. 62 POWERS OF GUARDIANS. [CHAP. 5, 4-6. tody of Rucb minor and take charge of the estate of such minor, to-wit : 4. First. Must file inventory. — To make out and file, within three months after his appointment, a full inventory, verified by oath, of the real and personal estate of his ward, with the value of the same, and the value of the yearly rent of the real estate. 5. Penalty. If the guardian fails to file such inventory for thirty days after he shall have been notified of the expiration of the time by the probate judge, said probate judge must remove him and appoint a successor. 6. Second. Must manage estate. — To manage the estate for the best interest of his ward.^ ^ Where a guardian, for the purpose of paying for improvements to land in the possession of or claimed b}' his ward, gave a lien on the accruing rents, it was held that, if the guardian had the power to incumber the land, the ward could not overreach the lien by purchasing a paramount and better title than he had when the lien was created ; for the contract of the guard' ian, made within the extent of his power, binds the ward the same as if it were his own. Este v. Strong, 2 0. 401. If a guardian convert land scrip, receivable at the laud office in the pur- chase of public lands, into monej"^, by investing it in land for himself and others, and accounting with his wards for the scrip, with interest from the time of its investment, he can not, if he acted in good faith in the transaction, be charged as a trustee of the land purchased, or compelled to account for ihe profits growing out of the purchase. Davies v. Lowrey, 15 0. 655. Land scrip, or certificates for money paid by S., were issued under the act of Congress of May 23, 1828 (4 U. S. Stat. 286), to A., B. and C, minors, and in trust for the other heirs of S. ; the certificates were not assignable on their face, and were payable in lands. The following note was appended to the certificates: "The indorsement to be executed by (L.) guardian of said heirs." The certificates indorsed by A. B. C, and L., guardian of said heirs, were used by L. and his partners in the purchase of lands, and the title taken by H., one of the partners, for their common benefit, the part- ners agreeing, respectively, to pay L. their portions of the amount of the certificates in money. In a proceeding by the unnamed heirs of S. against H. and others in Interest, charging said lands : Held, that L. had no author- ity as guardian of A., B. and C, to dispose of or transfer the interest of the other heirs In the certificates. 1860. Stoddard v. Smith, 11 O. S. 581. A party creating a lien on an estate can not be permitted to defeat that lien by any act of his own. On this principle, where a guardian having authority for the purpose, improved the property of his ward, and gave a CHAP. 5, 7-8.] POWERS OP GUARDIANS. 03 7. Third. 31ust render accounts — To render, on oath, to tl>e proper court, an account' of the receipts and expenditures of such guardian, verified by vouchors or proof, once in every two years, or oftener, upon the order of the court, made upon mo- tion of any person interested in said ward, or the property of such ward, for good cause shown by affidavit.* But in all cases where the whole estate of said ward, or of several wards jointly, under the same appointment of guardianship, docs not exceed two hundred dollars in value, said guardian can only be re- quired to render such account upon the termination of said guardianship, or upon the order of said court, made upon its own motion, or the motion of some person interested in said ward or wards, or in his, her, or their property, for good cause shown, and set forth upon the journal of said court. 8. Penalty. Should the guardian fail to render' any account required in the preceding paragraph, for thirtj^ days after he shall have been notified of the expiration of the time by the lien on the accruing rents for the paj'ment of the costs of the improvementa, it is not competent for the ward, bj"- the purchase of a paramount title, to defeat that lien. The act of the guardian must be regarded as equally bind- ing on the ward, as if his own, when of full age. 1826. Este v. Strong, 'i O. 401. See note 1, page 94. " It may be remarked, in general, that, if any one of the acts which in- fants are disabled from doing of themselves, is requisite to be done to pro- tect their interests, they are to be done by their guardians." Walker's Am. Law, 257. 'See notes, pages 150-152, 164-166. -It is believed that the meaning of this, expressed a little diflerently, is as follows : That the guardian must render, on oath, as often at least as once in two years, an account of his receipts and expenditures as sucli guardian, verified by vouchers or proof; but that any person interested in the ward, or in the ward's property may, for any cause shown by affidavit to be good, ask the court, by motion, to i-equire such an account oftener than once in two years, and that, if the court considers the reason given to be a good one, it will grant the request. — . Ed.] A trustee is bound to keep clear, distinct, and accurate accounts. If he does not, all presumptions are against him, and all doubts and obscurities are to be taken adversely to him. See Perry on Trusts, i(i>821, 911. ^For directions as to preparing such accounts, etc, see chapter 9. 64 POWERS OF GUARDIANS. [cHAP. 5, 9-12. probate judge, he will receive no allowance for services, unless the court entei-s upon its journal that such delay was necessary and reasonable. 9. Fourth. 31nst settle fully — At tlie expiration of his trust fully to account for and pay over to the pro])er person, all of the estate of his ward remaining in his hands.' 10. Fifth. Mast 'pay, compound^ etc., debts, defend suits, etc — To pay all just debts duo from such ward, out of the estate in his hands, and collect all debts due such ward, and, in case of doubt- ful debts, to compound the same, and to appear for and defend, or cause to be defended,^ all suits against such ward. 11. Sixth. Must educate wards., when. — When any ward has no father, or having a father who is unable or fails to edu- cate such ward, it shall be the duty of his guardian to pro- vide for him such education' as the amount of his estate may justify. 12. Seventh. Must lend money, on what security ; change of investment ; penalty — To loan or invest the money of his ward ^See note 1, page 60. 2 Under the act of July 1, 1858 (S. & C. 673, ggU, 15), which require guard- ians of infants to " appear for and defend, or cause to be defended, all suits" against the infant, a guardian is authorized to appear for an infant to a pe- tition for dower, and where he appears and answers as guardian, and his answer is received and acted on \)j the court, the effect is the same as though he had been expressly appointed guardian ad litem, and had ap- peared and answered as such. 1871. Rankin v. Kemp, 21 0. S. 651. The act of 1824 (2 Chase, 1308), regulating the sales of land by executors and administrators, did not direct the mode in which the heirs should be made parties, and the courts adopted such practice as they deemed expe- dient. Where minor children who were not named in the petition had an appearance entered for them in court by their guardian, while the petition was pending, they were liound b}' the order of sale. Whatever irregularity there was in such practice, it did not affect the purchaser, who held his title as securely as a purchaser at sheriff's sale, under a judgment at law, or a- decree in chancery. 1835. Ewing's Lessee v. Higby, 7 0. 1 pt. 198. And see Ewing v. HoUister, 7 0. 2 pt. 138, where the legality of the same sale was sustained. ■'The following extract, full of accepted law, excellent judgment, and sound, practical common sense, is commended to the careful consideration of every guardian. " The general rules of law governing all cases are that: CHAP. 5, 12.] POWERS OF OUAREIANS. 65 •within a i-cason:iblo time' after he receives it, in notes or bonds secured by first mortgage'^ on real estate of at least double the the {Tuardian shall procure proper food, and clothiri}:, for his ward, and the opportunity to acquire the elements of practical education, both secular and religious, so lonp; as his estate, or the earnings of the ward will warrant it. Beyond this must depend upon the extent of. his property and his reasona- ble expectations in life, with reference to which the ward may expect his guardian will afford him the opportunities of education and instruction. Every ward who has the means of subsistence without manual labor, has the right to have that moans applied, to a reasonable extent, in procuring him indispensable support and education. Beyond this the guardian would not be expected, ordinarily, perhaps, to expend more than the income of tlio estate in procuring that extent of instruction which is merely ornamental, and which comes more especially within the range of the elegant arts, or the higher studies connected with education, which may tend to gratify the taste, or the laudable ambition Of the ward, but which do not, in any sensi- ble degree, qualify him for the essential duties of life. And if the estate of the ward is very large, the guardian would not be expected to expend all the income, probably, for the mere purpose of the indulgence of the ward, or in vain attempts to accomplish such attainments as were not within the compass of his capacitj'. The guardian is to exercise a reasonable discre- tion in this as in all other respects; and while he denies his ward no reason- ble indulgence, which is consistent with the extent of his fortune and fairly within the range of reasonable support and education, according to his just expectations in life, he is at the same time to hold such a firm and steady hand over all the expenditures, for the benefit of his ward, as will commend itself to the approbation of a prudent and just judge, who may be called to examine and adjust his accounts; and will not leave the ward, when he comes to control his own affairs, to entertain sorrow or regret that he had not fallen under a more discreet and prudent guardiansiiip." 3 Red- field on Wills, 456-7. See note 2, page 90. The guardian Is the proper judge as to the school or university at which his ward shall be educated ; and the court will compel the obedience of the ward to the selection, unless some reasonable objection is shown. But if there are two or more guardians appointed for the ward, and they disagree as to the mode of education, the court will exercise its own discretion on the subject, and will not regard itself bound by the wishes of the majority upon the subject. Tj'ler on Inf & Gov. § 174. (Citing Tremain's case. Strange, 168, and Hall v. Hall, 'J Atk. 721. A guardian will not be permitted to do any thing prejudicial to his ward, and courts will not construe any of his acts so as to prejudice them. Tor- rey v. Black, 65 Barb. (N. Y.) 417. ^ See note 1, page 67. "Mortgages on real estate are considered proper investments in all of the 5 €6 POWERS OP GUARDL\NS. [CHAP. 5, 12. value of the mone}- loaned or invested, exclusive of imin-ove- ■mciits, timber, or minerals, subject to destruction or exhaustion, in bonds of the United States, or of any state on which default has never been made in the payment of interest, or bonds of any count}' or city in this state, issued in conformity to law ; or, with the consent and approbation of the probate court, in pro- ductive real estate within this state, the title to which must bo ta'cen in the naine of the guardian a8 such ; and to manage such investments, and when deemed proper, change the same into -any other investment of the above classes; but no real estate so purchased can be sold by the guardian, except with the consent and approbation of the probate court ; and if said guardian fail United States ; and mortjfages upon real estate, of which the borrower is the absolute owner in fee simple, taken with proper caution as to the amount and title, are considered safe and proper investments. In all cases the trustee must use great care and dilif^ence in ascertaining the valuation, sit- uation, condition, and productiveness of the real estate or other property upon which it is proposed to make a loan of the trust money; for he will be liable for the loss if he is guilty of any negligence in this respect. Perry on Trusts, § 458. But trustees can not lend money on mortgage to one of themselves, lb. 2461. It is a universal rule that trustees can not invest money in personal secu- rities; and even if they have a discretion as to the kind of investments they may make, it is not sound discretion to invest in personal securities. In the ■words of an eminent authority [Lord Kcnyon]. " No rule is better established than that a trustee can not lend on a mere personal security, and it ought to he rung in the ears of every one who acts in the character of trustee. ' lb. §4o3.' A guardian lending trust funds to a man in active business, without secu- rity, will be held responsible for its loss. Clark v. Garfield, 8 Allen (Mass.) 427 ; of similar tenor, Lee v. Lee, 55 Ala. 590. A guardian or trustee, in the absence of specific directions, may, by the common law of England, loan on mortgage of real estate or invest in gov- ernment stocks only, unless otherwise directed by order of court. A tru.stee investing in the ordinar.y mode is not responsible for loss if he act honestly and with the common prudence and skill of competent men. The law does not require of him the care and skill of the most cautious or shrewdest money-makers. Miller v. Proctor, 20 0. S. 442. If a guardian, instead of loaning his ward's money, use it himself, though his liability is greater thereby, it is not a breach of the bond, so long as he has the money ready to pay over on legal demand. Case v. State (Hock- ing Dist. Ct. 1852), 10 W. L. J. 163. CIIAl'. 1, 13.] POWERS OF GUARDIANS. G7 to loan or invest the monc}- of his ward within such reasonable time, he must account on settlement for such money and inten'st thereon, calculated with annual rests;' and also to settle and ad- just, when necessary or desirable, the assets which he may re- ceive, in kind, from an executor or administrator, as ma}' be most advantageous to his wards; but before such settlement and adjustment will be valid and binding, it must be approved by the probate court, and such ap]>roval entered on its journal ; and with the like approval, to hold the assets as received from the executor or administrator, or what may be received in the set- tlement and adjustment of said assets. (See also par. 14, below. j 13. Eighth. — ^Ixiat obey court. To obej' and perform all orders and judgments of the proper courts touching the guardianship. ' Where a jjuardian had an opportunitj* to show any excuse for failure to invest the money of his ward, but introduces no evidence, the court will not presume inabilit}' to invest to excuse him from interest. Nor will it ex- cuse him that if the money had been invested in certain stocks, then deemed the best in the city, it might have been whoUj" lost. 1834. Armstrong v. Miller, W. 562. The object for which a guardian is appointed is to keep his ward's funds safely and to render them productive. If he fails to invest them produc- tively, when he coukl do so, he is chargeable with interest. Armstrong p. Miller, 6 0. 118, 124. It is a general rule that trustees should loan more on real estate of a fixed and permanent value, and not so much on property with houses of a perishable nature, or upon property of a fluctuating or contingent value. But a gurdian or trustee who, in good faith and with ordinarj' prudence, in- vests in a mortgage security to two-thirds the market price of unimproved lands adjacent to a growing city, or in a new state, the value of which land is generally estimated on fair anticipations of an influx of population, and continjient thereon, is not liable for depreciation in value, caused by finan- cial derangement or diminished immigration, which could not have been reasonably foreseen. In re Spencer's appeal. 1861. (Logan Co. Common Pleas.) 3 W. L. M. 408. Trustees must invest trust funds in their hands in the manner directed, within a reasonable time, though they are subject to no specific directions as to the time and manner of investment,'or they will be charged interest on the fund, and will be required to make good any loss or damage suffered on account of such delay. What is reasonable time depends on circumstances. One 3'ear has been so held in several cases, more especially relating to ad- ministration. The U. S. Supreme Court, in Barney v. Saunders, 16 How. 543, held three months to be reasonable time within which to invest tru.st 68 POWERS OF GUARDIANS. [CHAP. 5, 14-15. 14. How guardians, etc., may invest funds. Guardians, trustees, executors, and administrators may, when the}' have funds be- longing to the trust which ai'e to be invested, invest the 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.' 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 jjuardians generally take an estate ready to be invested. See Perry on Trusts, HG2 ; 2 Kent's Cora. 230-1 ; Tyler on Inf. and Gov., ?175- Schouler's Dom. Rel. 475; Barney v. Saunders, 16 How. 543; Ashley v. Martin, 50 Ala. 537; Re 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 un- 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 also, 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, ? 468-472; Tyler on Inf. and Gov. § 175. '§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 having 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 money 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, directing ia 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 chai'ge only of the estate of the minor, his duties are the same as those above 8])ccified in paragraphs 3-1!^, 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.^ 16. 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 : ^ 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. 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, or by or in the name of a guardian or trustee of a minor, may, at the discretion of the board of directors, and with the consent of such trustee or guardian, be paid to such trustee or guardian, And it will be a valid payment.* 1 § 6270. ^The f!:uardia,n is the judge in the first instance, of what are necessaries for the infant, his ward. If he, actinfji; 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- jority, as " necessaries." McKanna v. Merry, (il 111. 177. 3 §6271. 'gssse. 70 POWERS OF GUARDIANS. [CHAr. 5, 2a-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 rehiting 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 arc unsuitable persons to be intrusted with these duties.' 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 wawl, unless the ward has neither father nor mother, or unless such parents are respectively unsuitable persons to be in- trusted therewith.- 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." 24. Certain minors may not marry, unices guardian, etc., consent. Male persons under the age of twenty-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. 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 mai-riage, if consent as above directed be first obtained.* » § 6255 ; ? 6260 ; Third of § 6271. See par. 18, chap. 3 ; pars. 16-19, chap. 5. '■'§6255; ?6264; &x#^. of ? 6269. S^e pars. 19, .3H, chap. 3; pars. 1, 2, 11, ohap. 5. ^7ii 6270, 6269. Sop para2;i. An executor will not be liable for money allowed to remain with li.uikers 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.* But this rule will onlj^ protect the guardian as long as he man- ages the trust fund strictly as the law requires him to do.'^ 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. ' 42. 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.* 43. Must pay right person. Guardians, and others having trust money to distribute, must see that it i-eaches the person hank, or where it was only reasonable for the money to be deposited there under the circumstances. Smith on Equity, parajiraph 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 Gov., § 175. 1 Miller v. Proctor, 20 0. S. 442; State?'. Guilford, IS 0. 500; Perry on Trusts, ?2441, 014; Tyler on Inf and Gov., 'i 175; Schouler's Dom. Rel. 468, 469, 479; B Redf. on Wills, 535, 5G3, 453, n. 6; Morley v. Morley, 2 Gh. 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; Exj). 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; Gamp- bell V. Gampbell, 38 Ga. 304: White v. Parker, 8 Barb. 48, 53; Glover v. Glover, 1 McMullin (S. G.), 153; DePeyster v. Glarkson, 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 N. C. 629; State v. Mor- rison, 68 N. C. 162; Love v. Logan, 69 N. G. 70; Atkinson v. Whitehead, •66 N. G. 296; Genet v. Tallmadge, 1 Johns. Gh. (N. Y.) 3; In re Spencer's Appeal (Logan Go. 0., G. 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 regai'd to his own funds of like character and amount, but I with that which the most vigilant exercise about such matters (citing, at end «f"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. - See paragraphs 12, 37. =^ Miller v. Proctor, 20 0. S., 442; see also 3 Redf. on Wills, 565. * Perry on Trusts, §441 ; Schouler's Dom. Rel. 471 ; 3 Redf. on Wills, 542, CHAP. 5, 44.] POWERS OP GUARDIANS. 77 entitled to receive it, for if paid to the Avron|i^ person, by mis- take or otherwise, they are still li:ible to pay it to 'he rightful claimant.' 44. (ruardian can in no way derive profit from ivnrd'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^ 1 Perry ^n Trusts, ?926; 3 Redf. on Will.s, 538. But not for interest thereon, lb. 445-6. 2 Cox V. John, 32 0. S. 532; Perry on Trusts, §2427-432, 464, 621; 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 Gov., 2 175. Among recent eases outside of Ohio, not cited in above works, see Berk- meyer v. Kellerman (Conn.), 3 Cin. Law Bulletin, 19; Lowry u. State, 64 Ind. 421; Chanslor v. Chanslor, 11 Bush (Ky.), 663; 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 0. S. 532. An administrator [and this applies with equal force to guardians. — Ed.l 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. 76. It is the peculiar province of equity to take cognizance of ti-ansactions growing out of relations of trust, and to prevent those holding such posi- tions from using them and their influence for their own aggrandizement. Berkmeyer iK Kellerman. 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 j. 78 POWERS OF GUARDIANS. [cilAP. 5, 45-46. 45. Guardliins can not speculate icifh, nor use ward's money in business. — Trustees can not use any ]nivt of the trust I'mul in their own speculations or business. Should the}' nevertheless do BO, all 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.^ 46. In case of such 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. 76. One standing in the relation of a parent and guardian, in fact, of a minor, having the custody and control of sucli 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 his 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. 655. 1 See Schouler's Dom. Rel., H27-432. 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 mone}^ 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, ?42D- 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 iheir 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. If 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 iu the firm, as by the death or withdrawal of one of the part- CHAP. 5, -17-48 ] towkhs of ouahdians. 79 way; or (2) intcrosL foii. pounded iinnually f>n all fuiidb .so em- ployed during the time of sueli wront^l'ul use ; and of course, in Ciise of loss, could recovei' the funds s Ga. 89. * Perry on Trusts, ? 618-19; Tyler on Inf and Cov., ^76; Schouler's Dom. Rel. 457 ; Story's Eq., 'i i:)55. " 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 i)roperty. lastly, if both are inadequate, the ward's real estate, or so much of it as may be nece-^- 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 cai)ital to properl}' educate him for business or life than for mere maintenance, as it is tlien consid- ered to be not expended so much as converted into a different and useful form.' 49. Purchase of ward's -property by guardian, at his sale. — It is a well settled principle, applied Avith great strictness in this state,- that a trustee can not. either directly or indirectly, pur- chase the property he holds in trust.'' Of course, this would prevent a guardian from purchasing land of his ward at sales the maintenance and education of the ward, and to nay how far the principal' of the funds belonaino; to the ward sliall be encroached upon. Wigiile v. Owen, 45 Mi-ss. G91. The pension of wards from the U. S. on account of their dead father's niilitary services may be used for their support, but to justify an allowance therefrom to their surviving mother for their past support would require a stronjrer showin2 ; Lemley v. Atwood. 65 N. C. 46. 'SeeSchouler's Dom. Rel. 41)9; Tyler on Inf. and Gov. 265; Starllnj: v. Balkum,47 Ala. S14; Lewis v. Edwards, 44 Ind. 333; also, note 2, p. 64. If a f^uardian 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, atid 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 collectinp; the amount as oruardian. (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 be had his money, with interest, on arriving at his majority. Bannister v. do., 44 Yt. 024. 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 gencnill}' consider that such services as children render arc 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.^ However, tlie 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 comjielled 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, cayjable of and doing little or no work. And a guartlian 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 promptl}' removed.^ 59. Allowance of fixed sum for lonrd.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,^ 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 livinj; with A., under his control, and B. hh'eshis services from A. ; in an action hy 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. ^Schouler's Dom. Eel. 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. 1S69. Crosby v. Crosby, 1 S. C. 337. ^ 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. ("Removal of G.") *Schouler's Dom. Rel. 459, 461. 86 POWERS OP GUARDIANS. [cHAP. 5, GO-62. the estate has been appointed, to represent to the court the amount of income or property the wards each have, and to ask tlie court to fix an amount per annum which tlie mother maybe allowed for the maintenance and education of each ward. This sum maj' be changed in amount from time to time, as the needs of the ward or the change in value of the ward's propert)'- may require. This is the most conveni(Mit and desirahle, and a safe wa)' of proceeding, when the circumstances arc such as to justify its adoption. CO. Costs of litigation, etc. ; icho 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 for receiv- ing, properly administering, and protecting the ti'ust 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 ffood 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.^ 61. iSuit on uncertain claims. — It should be borne in mind that there may bo 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 pa}' them in the other, without a decree of court to direct the guardian what ho should do in relation to them. In such cases he should get the sanction of the court, and his costs and proper expenses will bo allowed. 62. Obligations of parents and guardians as to support of minor ^ Perry on Trusts, ?§ 891-90:^,910; Schouler's Dom. Rel. 462; Moore »." Shields, 69 N. C. 50; McNickle v. Henr}^ 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, 09 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. 2 6288. Perry on Trusts, ?? 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. 22 900-903, 910. cnAP. 5, 03-G5.] powers of guardians. 87 children considered. The general rule is that a father must sup- port his minor ehildren, 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 support, or at least not without an order of the court. But the courts now look with more liberality than for- merly to the circumstances of each case, and take into consider- ation the respective estates; and if that of the inftmt is much larger than that of the father, or- when, though able to support such children, he is yet not able to support them in such a man- ner as their future prospects, fortune, and expectations justify or require, the court may order their maintenance out of their separate estate.^ 63. The a]iplication for the maintenance of the minor out of his own income may be made by the father, or by the guardian. 64. How order for maintenance granted. If the estate belongs absolutely to the minor, and no conflicting interests can arise, the order for maintenance ma}' 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.'^ 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 wiiom she had the children, or is living with a second husband, or is a widow.'' ^See 2 Kent's Com, pp. 191-192, text and notes; Perry on Trusts, §§612- 615; Schouler's Dom. Rel. H22, 326, 459; Story's Eq. ?? 1346, i:U7 f; 1354 a. See also notes on page 79. G. was guardian of his children as to property bequeathed to them. G. was wealthy, and maintained and educated his ciiildren 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. ^ Perry on Trusts, ? 617. 'Perry on Trusts, 5^613; Schouler's Dom. Rel. 326; 2 Kent's Com. 191; Haley 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. Petre, 7 Ves. 403; Beasley v. McGrath, 2 Sch. & L. 35; Greenwell v. do., 5 Ves. 194; Douglas v. Andrews, 12 Beav. 310; 88 POWERS OF (JUAHDIANS. [cilAP. 5, G6-67. 66. Stepfather need not maintain stepchildren, unless. A step- father need not support his wife's children, und is entitled to maintenance out of their income, unless their maintenance costs liiin nothing.' But if they are taken into his house as a part of his familj', he is bound to maintain and educate them as if they were his own children.'^ 67. Jilffect of ward's death. If the ward dies, all of his prop- erty, bf^th real and personal, at once vests, subject to the pa3'nient of dibts and Ici^al charges, in the heirs of such ward, and the guardian must at once render his account.* The guardian can not ))r()ceed to settle such decedent's estate, but an administrator must be appointed for that purpose,* 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 v. Cathbert, 4 Des. 445; Re Bostwick, 4 John. Ch. 100; Whipple V. Dow, 2 Miis.s. 415; Dawes v. Howard, 4 Ma.ss. 97; Bruin v. Knott. 1 Phil. 573; Anderton v. Yates, 5 De G. & Sra. 202; Smee v. Martin, 1 Bunb, LSI; Hunches v. Iliiiihes, 1 Bro. C. C. 387. But it is also held that the mother, after the death '^of the father, being then tlie 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 ; Dedliam v. Nutick, 16 Mass. 140. See page 69, ante. ^2 Kent's Cora. 192; Perry on Trusts, § 613. Also, Appendix, par. 12. * 2 Kent's Com. 192 ; Schouler's Dom. R«l. 378, 499 ; Mulhern v. McDavitt, 82 Mass. 404. See also Douglas' Appeal, 82 Pa. St. 169; Bradford v. Bodflih, 39 Iowa, 681. •''Schouler's Dom. Rel. 424-5; Tyler on Inf. & Cov. 2 177; 1 Bouvier's In- stitute, 147. * Raff's Quids to Executors and Administrators, 50; Schouler's Dom. Rel. 425. Where a judirment 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 partj-, 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, children of his mother by a second marriage. Armstrong v. Miller, 6 0. 118. CHAP. 5, 68-71.] POWERS OF GUARDIANS 89 tate, and with its partition among thorn or otherwise, the guar- dian has nothing whatever to do.' G8. When one of two or more guardians ceases to act. When there are two or more guardians appointed for theaame 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 he or they will continue as if such former one had never been appointed.- 69. In such a case, however, the situation of those left to act, might be so changed as to i^equire 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 jdos- Bible, unless the real estate be ordered to be sold by the proper court. And if tlie ward ])ersist in selling or attemjiting 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 abroach of his fiducial duties.^ 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 conditionjn 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 ^ 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. •^BRedfield on Wills, 5:V2 ; Schonler's Dom. Rel. 4o8 ; lie Reynolds, 18 N. Y. Supreme Ct. 41 ; Pepper v. Stone, 10 Vt. 427. HDana, 631, 90 POWERS OF GUARDIANS. [ciIAP. 5, 72. the guardian should be judiciously used and kindl}- advice and warning given, to the end that the associations of his ward be proper ones, and his moral deportment, so fnr as possible, unex- ceptionable.^ 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 roquired.- 72. Jlepairs.—li is the guardian's duty to make tho proper repairs on ward's real estate, and pay for them out of the income. ^ As tlie 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, exppl them forcibly. This rijiht is to be reasonably construed ; and in the use of means and the amount of force necessary to efiect 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 t'. 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 fuU 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 latter 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 whlcli 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 tlie wishes of their relatives; and he can relievo himself of responsibility by asking judicial guidance." Schouler's Dom. Rel. 455. CHAP. 5, 73-74.] POWKRS OF niTAnDIANS. 91 73. How guardian may collect interest due loard on registered government bonds. — See chapter 25, paragraphs 21-37. 74. Other duties, etc. — As to the i^uardian's duties rchiting to the lease of hmd, sale of real and personal estate, bonds, etc., see the chapters respectively devoted to those subjects. d2 SALE OF ward's PROPERTY. [chap. 6. CHAPTER 6. SALE OF WARD'S PROPERTY. Par. Par. PERSONAL PROPERTY. 40- 1. When ward's personal property may be sold. 42. 43. REAL PROPERTY. 44- 2. Who ma}' sell ward's real estate, 46. and why. 47- 3-4. Jurisdiction of courts in such sale. 50- 6. The petition for sale of real es- tate must contain what? 57. 6. Dower of widow. 7. Liens, Ica.sos, partition, etc. 58- 8. Who are defendants. 9-23. Form of petition. 60- 24-26. Verification of petition. 27. Who administers oath. 64- 28-29. Notice of filing petition, how served, etc. 67. Code of common pleas to gov- ern in probate court, so far as 68. applicable. Since when. Infants; how served; law found where. 69. 33. Of summons. 34. Infant's a.iie; wh.y stated. 70- 35-36. Should the notice be served by the guardian. 37. How other defendants to be 74. notified. 75. 38-39. Form of journal entry of order of the court as to notice to defendant. 30 3L 32. •4L Form of notice to defend- ants. When, and how to be served. Return of ■45. Form of to affidavit. Directions to sheriff', etc. ■49. Service by publication ; af- fidavit required, etc. -56. Form of affidavit for service by publication. Form of notice by publica- tion. ■59. Publication made where, and how long. -63. Form of proof of publica- tion. -66. Is a guardian ad litem ne- cessary in such sales. As to duties, appointment, etc., of guardian ad litem. How widow may elect to be endowed out of proceeds of sale. Effect of sucli elec- tion. Guardian of insane widow may act for her. -73. Answer of decedent's widow, waiving dower in land, and ask- ing for value in money. Verification not required. Minor heir not prejudiced by collusive assignment of dower. CHAP. 6] SALE OP WAED S PROPERTY. 9a Pak Par. 76. Hearing of petition; appraisers 153- appointed; town lots laid off, 77-88. Form of order of appraise- 158- ment, and finding of court; de- cree for apprai.sement, etc. IGl- 89. Guardian usually suggests ap- 166. praisers. 1G7- 90. When appraiser fails to act. 171. 91-97. Certificate to the appraisers, 172- and form of. 176. 98. If no dower to assign, what to 177. omit. 99. Oath of appraisers. 178. 100-103. Form of appraisers' oath. 179. 104. How appraisers to proceed. 180. 105. Dower assigned in rents, etc. 181. 106. Appraisers duty in such cases. 107. How returned to court. 182. 108-111. Form of appraisement and 183- assignniont of dower. 112. Guardian to execute additional bond before sale. 186. 113-118. Form of journal entry ap- 187- proving appraisement, plat and survey. Widow^s dowe; order- ing guardian's bond. 195. 119. If no dower, what to do. 120-126. Form of guardian's bond 196- where real estate is to be sold. 127. Order of sale; how sale to be 198. made. 199- 128. Deferred payments secured bj' mortgage. 204- 129. May be sold at private sale, when, if. 207- 130. Decree, etc., when town lots are laid out. 209. 131-146. Form of decree for sale. 210. 147. When decree for private sale maybe made. 211- 148. How decree for private sale 216 obtained. 217 149-152. Form of application to sell real estate at private sale. 157. Maybe sworn to. Form of oath. 160. The form of affidavit for private sale. ■165. Another form. Precipe for order of sale. -170. Form of precipe for. Notice of sale. •175. Form of notice of sale. Where sale must be made. Guardian ma}' sub-divide and sell; his risk in so doing. Best to get order of court. How sale conducted. Appraisers, etc., can not buy. Report of sale; confirmation and deed. If no sale made, what to do. -185. Form of a return to an order of sale, when a sale has been made. Attached copy of notice, etc. 194. Forms of the affidavit prov- ing the publication of the no- tice. If no newspaper in the coun- ty. 197. When not sold for want of bidders. Report, when no sale Is effected. 203. Form of report; sale not made. 206. Form of order of re-ap- praisement. 208. Order to sell at a fixed price. Report of private sale. Affidavit required in case of private sale. 215. Form of affidavit, etc. Confirmation of sale. 219. Form of order of confirma- tioQ. 94 SALE OF ward's troperty. [chap, 6, 1. Par. Pau. 220. Entry, if liens adjusted. 24o-246. Form of bond. 221. 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 lands foreign guardians; application sold at guardian's sale. for sale; security. 253. Kind ot title guardian's sale 240. The proceedings. conveys; caveat emptor. 241-242. Order of court for security; Form of. 1. When ward's -personal property may he 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.' 12G280. 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, 2? 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 w. Schiefifelin, 7 Johns. (N. Y.) Ch. 150; Woodward v. Don- nally, 27 Ala. 198. 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 pecu- liar 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 Gov. 262; Schouler's Dom. Rel. 475.) But see paragraphs 44-46, and notes thereto, of chapter 5, as to con- ducting any business for ward's benefit. CHAP. G, 2.] SALE OF WAUD's I'ROl'KKTY. 95 2. Who may sell iiuirds real estate, and ichy. Whenever nec- essary for the education, support, or payment of just debts of any minor, or for the disehare;o of any liens on the real estate of such minor, or whonevei" the real estate of siicli minor is suf- ferini!; untivoidable waste, or a better investment of tiie 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 b}^ which a uuardian of the person and estate, or of the estate only, has been appointed, may, on the ai)plication of such guard- ian, order the real estate of such minor, or u part ".hereof, situ- ate in this state, to he sold.' i§6280. The court of common pleas that appointed a guardian may empower him to sell the land of a minor situate in another countj'. 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. Sawj^er, 12 0. 195. 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 CouLiress of Februar3' 11,1847, which provided that the guardian of such minor may, "upon being duly authorized bv 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 b}' the pro- bate court, to a person who knew all the facts of the case, but supposed the assignmeut gave 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 !;. Bramnior. 28 O. S. 508. A sale made b}^ 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 maj* 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. Nowcomb's Lessee v. Smith, 5 O. 447. Formerl}', 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 years, Bell the ward's land. A sale, under an order of court, upon such petition, ■was void. Perry v. Brainard, 110. 442. See note 4, page 25. Under the act relating to guardians, passed February 9, 1824 (2 Chase 96 SALK OF ward's PROPERTY. [('HAP. 6, 3, 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 by them^ 1317, Swan's Rev. Stat. 444), the only power to authorize a f^uardian to sell the real estate of hi.s 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 appointod. Foresman v. Haa5!;— The value and (Ky.) 289; Burnett w. Churchill, 18 same, 387; Wyatt v. Mansfield, same, 779; Banker w. Hopewell, Mete. (Ky."), 260; Megowan v. Way, same, 418; Leary v. Fletcher, 1 Ired. (N. C.) L. 259; Ducket v. Skinner, 11 same, 4;-51 ; Spruil V. Davenport, 3 Jones (N. C), L. 42; Pendleton v. Trueblood, same, 96. i§6280. '^§625. 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 the 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 respect! velj'. Foresman v. Haag, 36 0. S. — . Hence, whore, 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 count}-, 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 b}' order of that court, the sales confirmed, and the deeds executed accord- ingly. Held, that the proceedings in the probate court of Cuyahoga coun y were void for want of jurisdiction. Ih. See also 4th, 5th and 6th paragraphs of note 1, page 95. 3 §627. 7 98 SALE OF WARDS PROPERTY. CHAP. 6, 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 any, 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 ])nrposc. Seventh — Each item of indebtedness, or the amount and character of the lien, if the sale is praj-ed for the discliurge 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 the. 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 mj^iner in which the same is to be laid out.^ ^ Tlio stiitute 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. Purrish, 26 O. S. 6;!6. In ii 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 75, in East Iron- ton, and as having come 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 bj' 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 by 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 thecountj^ although it maybe ground for error, does not render the proceedings void, or the sale invalid. Ibid. For construction of former law, see Armstrongs. Miller, 6 0. 118; Stall CHAP. 6, G-23.] SALE OF ward's tropkrty. 99 6. Dower of ividow. If there is a claim of a wiaow for dowei', that should also be set out in the petition/ 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,^ 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 Avard 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 the wartl — fact should be set forth in the petition ; and in all cases the na- ture 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) is the defendant to the petition,^ together with the other parties in interest desig- nated above. 9-23. Form of petition. — The form of petition, journal entries, etc., will be given as if there were but one ward. Should there be more, the necessary changes are easily made : V. Macalester, 9 0. 19; Este v. Strong, 2 0. 401; and Maxsom v. Sawyer, 12 0. 195. ^ See paragraph 4, this chapter. ^The mortgage lien remains in full force, if the mortgagee is not made a party to the suit. Holloway v. Stuart's admr, 19 0. St. 472. See also note 1, above. '§6282. A ward will not be bound by a decree aflfecting 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 0. 401. 100 SALE OP ward's property. [chap. 6. county, Ohio, ss., Probate Court [^or, Court of Commoa Pleas]. A. B., guardian of C. D., a minor, plaintiff, ^X Y ''^ "^'^^ T*'tJ~G^h' ' Petition to sell real estate. trustee [and name all other per- sons whose lights this suit affects, and give age of each minor de- fendanf^. The plaintiff represents that he is the duly appointed and qualified guardian of C. 1)., now of the age of years, and re- Biding with , at . [//■ there was never any personal property, say .•] That no per- sonal estate of any kind, belonging to said ward, ever came to the jDossession 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 [J/ere 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 Avard iu clothing, dollars; boarding, dollars; tuition, books,* etc., dollars ; in payment of a certain mortgage held by X. Y. upon lot J^o. — , in Glendale, 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 anjr 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 OP ward's PROPERTY. 101 trust estate in the hands of "G. H., who was made trustee by E. D., and which will probably be paid, state when']. That said ward is the owner of the fee simple [or, life estate or leasehold, as the case may be] of the following described real es- tate, situate in county, Ohio, and described as follows, 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 icild land, say, which is wild land, and yields no income.] 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 slate, 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 necessaiy 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 se'jure 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 e.vist, say, There are no liens upon said real estate to the knowledge of the plaintiff.] [If there be a icidow's dower on the land, say :] That L. D., widow of E. D., has a dower estate in said lands. [If it is desired to lay out the land, or part nf it, in town lots, say :] That it is desired to lay out said land [or if a part only of it, say, That part of said land described as follows : and here describe or otherwise clearly designate the part to be so divii(e Petition to sell land. Said C. D., his ^Yard. ) This day came the said A. B., as guardian of C. D., and filed his petition, dul}^ 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 bj' the court ordered, that said A. B., b}' the sheriff, [«/ 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 widoic, and to X. Y. and T. N., if there be lienholdcrs'], in writing, personally, and by leaving copies thereof at the usual ))lace of residence of each of those who can not be served personally, weeks [or, da3's] before the day of the hearing of said ap- plication to sell said real estate ; which time of hearing is hereby 1 § G406. 106 SALE OF ward's PROPERTY. [CIIAP. G, 40-43. fixed by the court, for the day of , A. D. , at — Al/^ 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 [7^ case no form or instructions are considered necessary except as o-iven in par. 46 ; but the following would be a sufficient form of notice, even if served by the sheriff or other officer. 41. Form of Notice to Defendants. ToC. D., L. D., X.Y., andT. U.: You are hereby notified that on the day of , A. d. 18_, A. B., as guardian of C. D., a minor child of E. B., de- ceased, late of county, Ohio, filed in the probate court of county, Ohio, a petition, the object and prayer of which is, to procure said court to oi'der the sale of the real estate of the said C. D., situate in the county of , Ohio, and described as follows, to-wit: \_IIere describe it as in the i>etition ; and if the prayer is, to reinvest the money, add, and to authorize the said guardian to reinvest the funds in here state the manner, as in the petition: and if dower is to he assigned, add, and that dower may be assigned to said L. D., in the premises; and if liens ai e set out in the petition, add, and that the liens of the other defendants may be adjusted ; and, if so, for the division of said land into town lots.] The application thei-efor will be for a hearing by said court, on the day of , a. d , at — o'clock, — m., at which time un order will be asked as prayed for in said petition. (Signed) A. B., Guardian of C. D. Dated this day of , a. d. 18—. 42. When and how to be served.— A true copy of this notice should be given personally to each of the defendants, as long, at least, before the day set for the hearing, as is directed in the order of court, or left at their usual place of residence with some one there found, or if no one is there found, then left in some place at the residence where it will most probably be discovered upon the return of the family; but service on minors must be as stated in paragraphs i}2-:{6 above. 43. Return of. — The notice should then be returned to the court, CHAP, fi, 44-47.] SALE 01' ward's propkrty. 107 with an affidavit by the person servini; it on the buck thereof, of the service, and its manner of service. 44-45. Form of such Affidavit. The State of Ohio, county, ss. A. B., being duly sworn, says that on the day of , A. D. 18 — , he served the within notice on tlie within named C. D., L. D., X. Y. and T. U., by leaving with each of them per- sonall}- a certified copy tliereof (o?* if not personally, as to any of them, then say, as to those not served personally, by copy left at tho usual place of residence of \_here naming them'\ who could not bo seen personally). (Signed) A. B. Sworn to and subscribed before me, this day of , A. D. 18 — . A. C, Probate Judge, etc. 46. Directions to sheriff., etc. — If the notice or summons is to be served by the slieriff, directions to that officer as to where the persons to be served reside or may be found should be left for or given to that oflacer, in such way as may be customary in the county where the proceedings are pending. 47. Service by publication ; affidavit required, etc. — The law provides that service b}^ publication may be made on any de- fendant who resides out of the state ; or whose residence is un- known ; or wlio, though a resident, has (U^parted from the county for the purpose of avoiding service ; or who keeps himself con- cealed for the same purpose ; or wliich is a foreign corporation, having no agent in this state on whom service can be made. In any such case, when tlie residence of a defendant is known, it must be stated in the publication ; and, iniiiu'diately after the £r8t publication, the party making the service must deliver to the clerk co))ies of the publication, with the proper postage, and the clerk must mail a copy to each defendant, directed to his residence named therein, and make an entry thereof on the ap- pearance docket. In all other cases, the party making the ser- vice, his agent or attorney, must, before the hearing, make and file an affidavit that the residence of the defendant is unknown, and can not, with reasonable diligence, be ascertained.' ' § 5048. 108 SALE OF ward's PROPERTY. [CHAP. 6, 48-56. 48. Before such service can be made, an aflSdavit must be filed that service of a summons can not be made in this state, on the defendant to be served by publication, and that the case is one of those mentioned in the preceding paragraph. After filing such afiidavit, service by publication may be made.^ 49, When an heir or a devisee of a deceased person is a neces- sary party, and it appears by afiidavit that his name and resi- dence are unknown to the plaintiff", proceedings against him may be had without naming him ; and the court must make an order respecting the publication of notice, but the order must require no less than six weeks' publication.'^ 50-5G. Form of Affidavit for Service by Publication. county, Ohio, ss., Probate Court. A. B., guardian of C. D., plaintift; ^ ^^^^^^^y ^^ ^^toiu publication, ^^' i etc Said C. D. et al., defendants. I State of Ohio, county, ss. A. B. being sworn, says that he is the said plaintiff" [or, the attorney of the said phiintiff], '^ that the said defendant, A. V., is a resident of Fairfield, in the State of Iowa, f that service of summons on him can not be made in this state, and that the case is one of those mentioned in § 5048 of the Eevised Statutes of Ohio. [If the defendant's residence be unknown, omit the matter between the * and f, and insert instead'^, that the residence of said B. V. is unknown to aflSant, and can not with reasonable diligence be ascertained. [If there be a non-resident defendant, A. V., ichose residence is known, and another defendant whose residence is not known, and can not be ascertained, omit nothing above, and insert, at the f, the matter concerning B. V. as given.'] [If there be an heir or devisee, as mentioned in paragraph 49, insert also.] that the residence [and name, if so] of the said defendant, heir of , mentioned in the petition in said cause, is [or, arc] unknown to said plaintiff; a7id omit or retain i§5049. Hbm^. CHAP. 6, 57-62.] SALE OF WARDS PROPERTY. 109' the matter concerning A. V. and B. F., as the circumstances reqiure.'] Sworn [or, aflirmed] to and subscribed before mo this day of , 18 — . H. M., Notary Public, county, Ohio. 57. Form of Fotic; by Publication. LEGAL NOTICE. A. v., who resides at Fairfield, in the State of Iowa [add, if so, B. Y., whose residence is unknown, and the unknown heirs of L. Y.] 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 tiled ; 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.^ 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.'' 60-62. Form of Proof of Publication. The State of Ohio, county, s.s. 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 » I 5050. * § 5051. 110 SALE OF WARDS PROPERTY. [CHAP. 6, 63-65. said notice appeared in the daily edition, the circulation of wbich in said county exceeds that of the weekly edition, and that the cost of puVjlication in the daily does not exceed that in the weekly edition. Sworn to and subscribed before me, this day of , 18—. EiCHARD Roe, Notary Public. count}', Ohio. 63. This affidavit might be made by the guardian or other person connected with the case, 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 in such sales? There is no provision made in the chapter mentioned in paragraph 29, for a guardian ad litem in suits for such sales, nor is there any allusion to such guardian. But section 5003 is a part of Title I., mentioned above, and is as follows : '■ The defense of an infant must be b}^ a guardian for the suit, who may be ap- pointed by the court in which the action is prosecuted, or by a judge thereof, or by a ]»robate 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- tially in that capacity?^ ^ Section 6144, relating to sale of lands by execators 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. IloUister, 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 CUAP. G, GG-GO.] SALK OF ward's PKOI'KRTY. Ill 66. It may bu safel}- said lliat il 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 reasun lo be urged against it, except the at- tendant expense ; and if it be granted, for argument's sake, that the law does not require ii, would not cautious persons be de- terred from bidding on lands to which the ward, or some one under him, might set up a claim long afterwards, and tiius more loss result than could occur by a compliance with the probable, if not the certain, meaning of the law? 67. As to duties, appointment, etc., of guardians ad litem, see chapter 28. 68. How u-idoiv may elect to be endowed out of proceeds of sale- effect of such election. In actions for the sale of real estate by guardians, the widow of an}- decedent who has a dower interest therein, being a party, may file her answer, and waive the as- signment of dower by metes and bounds, and ask the court to have the estate sold free of dower, and to allow her in lieu thereof such sum of money, out of the proceeds of the sale, as tbe court deems the just and reasonable value of her dower in- terest therein ; and the answer of the widow will have the same force and effect, in all respects, as the deed of release to the pur- chaser of such estate of the dower interest therein of such widow. ^ 69. Guardian of insane widow may act for her. If the widow Bhall have been adjudged insane or imbecile, her guardian may, with the consent and approval of the judge of the court in which the action is pending, file such answer in her behalf, and who were made defendants and served by publication, though no guardians had been appointed. Morjian v. Burnett, 18 0. 5H5. Is 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 i\ Smith, 3 0. S55. 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 New 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. i§57l9, 5720. 112 SALE OF ward's PROPERTY. [CIIAP. 6, 70-75. it will luive the same force und effect as if she were not under disability, and filed the same personall.y.' 70-73. Ansicer of (Jecedenfs widow, waiving doicer in land, and asking for its value in money. A. B., guardian of C. D., ") county, ss., V. > 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 said 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. D., 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.^ 75. Minor heir not to he frejudiced by collusive assignment of dower. If, during the minority of an heir, dower be assigned to a widow not entitled thereto, or if she recover the same by de- »§5721. "25103. CHAP, fi, 7<)-8S.] SALE OP ward's I'ROI'KRTY. 113 fault, fraud, or collusion of the <:;uardiaii, sueli licir may, on com- ing of age, liavo an action against hucIi widow to recover the lands wrongfully awarded.' 76. Iledring of petition — appraisers appointed — toivn Ids laid off. At the time appointed for the hearing of said ])i-tition, 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 proposed 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.^ 77-88. Form of Order of Appraisement^ and Findings of Court. [Om.il parts not applicable to case in hand, and change singular to plural number when necessary.] A. B., guardian of C. D., ) county, ss. Probate Court. V. y Decree for appraisement, etc., in pro- Said C. D. and others. ) ceedings to sell ward's land. This cause coming on this da}^ 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- enc}' and prayer of the petition, as prescribed b}' 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 bo for the advantage of said ward to have said land \_or. a jiart of said laiidj laid out into town lots, as prayed for in said petition \_or otherwise, as the court may deem best.] '25717. '§6283. 8 114 SALE OF ward's PROPERTY. fCHAP. 6, 89. That said L. D., widow of said E. D., is cntiUed to dower in said real estate. That said L. D., widow, waives, as in her answer herein set forth, assij^nment 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 tin's 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, [o?-, if the lands are in another county, say of • county], and vtot of kin to the petitioner, be and are hereby ap- pointed appraisers in said cause, and that they be sworn as requireg57l4. ^ In Hillgartner v. Gebhart, 25 0. 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 ta.xes should be deducted from the gross rents ; but no deduction shouli be made for expenses of water rent or insurance." See also Dunseth v. Bank, 6 0. 77, 79; 2 Scribner on Dower, 661,662; Hale V. Jones, G Johns (N. Y.), 258; Riley v. Glamorgan, 15 Mo. 331; Beavis v. Smith, 11 Ala. 32. 118 SALE OF ward's PROPERTY. [CHAP. G, 110-1 18. 110. If there he 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 : [.ffere describe the dower.'] And we do ap- praise the value of said several ti'acts as follows : The one con- taining acres, in which dower has been assigned, 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 fiiithful payment and accounting for of all moneys arising from such sale accord- ing to law.^ 113-118. Form of Journal Entry approving Appraisement^ Plat, and Survey^ Widow's Dower, ordering Guardian' s Bond, etc. A. B., guardian of C. D.^ ^ . . , , . ' ^ ( Decree approving appraisers report in Said C. D. and others. j Proceedings to sell ivard'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. i§6285. A sale niiule without giving such bond, held to be void. Ryder v. Flan<- ders, HO Mich. 336; Stewart v. Bailey. 28 Mich. 251. CHAP. 6, 119-126.] SALE OF WARD's PROPERTY. 119 [That said L. D., widow, hold in severally the lands so assigned and set off to her, as her dower estate in said real estate ; [o?* if an amount of money is assigned to her, say'], and that said L. D., widow, shall receive the sum 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, [o/*, quan- tity, etc., as the case may be], on the day of , of each year during her life, and in default of payment thereof, an execution sliall issue therefor against said lands, as upon judgments at law.]* That said A. B. execute, within daj's, to the State of Ohio, a bond with suflScient 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. Jf 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 survej', or both, as the facts may requii-e. 120-126. Form of Guardian's Bond ichere Real Estate is to be Sold. E^now all men by these presents, that we, A. B., of county, Ohio, P. Q., of county, Ohio, and E. S , of county, Ohio [^or if all of same county, say here, all of count}', Ohio, and omit accordingly], are 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. . The condition of the above obligation is such, that whereas the above bound A. B. was, heretofore, appointed guardian of the person and estate [o?- of the estate only, if such be the ca>^e^ of C. D., minor child of E. D., deceased, late of [or, then living, if such was the case], and which appointment the said A. B. ac- cepted, and gave bojid 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 SAiE OP ward's property, [chap. 6, 127-128. there duly had, has been ai^praiscd 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 monej^s 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., [SEAX.] V. W. This bond approved by rae, tbis 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,^ 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.* 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 ^ 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. Tlie 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 {{uardian duly authorized; and, in general, he can not bind his ward by any covenants of warranty in the deed. Schouler's Dom. Rel. 483. ^§6286. =* § 5404. See par. 30, this chapter. CHAP. G, 129-14G.] SALE OP ward's puoperty. 121 must bear interest at the legal rate per animni from the day of sale, payable annually.' 129. May he sold at private sale, when.—li it i.s made to appear to such 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,^ and upon such terms of payment as ma}' be prescribed \)j the court; but in no case can such real estate be sold at pri- vate sale for less than the appraised value thereof 130. Decree^ etc., when toivn 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 eurvey 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.' 131-1 -IG. Form of Decree for Sale. county, Ohio, ss., Probate Court. A. B., guardian of C. D., | j^^^j.^^ y^r sale in proceedings to sell Said C. D., and others. ) ''"^'^■ 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 R. 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.] ^§ 6286. See paragraphs 177, 178, this chapter. * Sheriffs, adinhiistrators, 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 r. Macalester, 9 0. 19. 122 SALE OP ward's property. [chap. 6, 147. It is therefore ordered by the court : That the petitioner proceed to sell the hinds in Uie petition de- scribed. [If private sale is ordered, here order.'] That the petitioner may sell lands at ])rivate 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 he given in some paper of gen- eral circulation in that county, or by hand-bills, or both, or in any other icay the court may think proper.]^ That said sale shall be at public auction, at the door of the court-house of county [the county ichere 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 by 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 annually. That said A. B., guardian, is hereby authorized, on behalf of said 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 tho foregoing decree for sale be made without any reference to a private sale, and it should at any time afterward be made to ap- ^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 ouglit to be bad, tbo 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. \ AppHcation to sell land at private sale. Said C. D. and others. ) The undersigned applicant represents that it would be best for tbe 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 reasonsl^ 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 rac, tliis day of , a. D. 18 — . A. C, Probate Judge, [seal.] [or other proper officer. '\ 124 SALE OF WAHD's PROPERTY. [CHAP. 6, 158-170 158-1 GO. 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 swoi-n, 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. C. D. 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., Notary, 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. county, Ohio, ss., court. A. B., Guardian of C. D., ^ t> • ^ j j^ i ■ j- r)s {■ -f^T^ci^e/or order of sale in proceedings C. D., and others. j ^o sell land. Issue the order of sale iu this case. A. B., Guardian of C. D. CHAP. 6, 171-177.] SALE OF 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 tei^ms 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 [Here describe it.~\ Termsof sale, one third cash on theday of sale, one-third in one and one-third in two years from the day of sale, to be secui-ed by mortgage on the premises sold, and the deferred payments to bear interest at the rate of 6 per centum per annum, jjayable- annually \or othenoise, as the court may have directed^. Appraised at ^ . A. B., Guardian of C. D. 176. JVhere 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, ^ 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 »§5404. * 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 thereb}'. 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 separatel3^ 179. How sale conducted. — The sale should be made by the guardian, by a professional auctioneer, or other person as may seem best for the interests of the ward ; and after having dwelt a suflScient 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 propert3^ 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 ? 5404. See also paragraphs 49, 50, chap. 5. An appraiser of land at an administrator's sale, stands in such a relation^ 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, attorneys, 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 money 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 sheritFs sale. The rule of policy applied in the case of Arm- strong V. Huston, 8 0. 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 0. 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. G, 1S1-182.J SALK OF WARD's PROPERTY. 127 181. Report of sale — confirmation ami decl. — Upon the return day of the order of sale issued by the court, such guardian must make a report of the saUi b}' him made; \viiereupo!i. the court, on being satisfied that such sale was faii-l}- 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 llie deferred payments of the purchase money in the manner prescribed in paragrapli 128. • 182. 7/ no sale made, ichat to do. — And if no sale is made, f(jr 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, his guardian, by receivinir and appropriating the proceeds of the sale, with full knowledge of the facts, he is estopped in equity from taking advantage of a mere irregularitj' 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 partj' 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 propertj^ shall, either dlrectlj^ or indirectl}', 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 onl^', 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 he in all respects complied with the require- ments of the law and the order of the court, in giving notice, in offering tlie premises at the time and place mentioned in the notice, and in the time allowed for the paj'ment 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. Raffs Guide, pp. 150-1. The foregoing extract relates to the report of sale by executors and ad- ministrators, but it is equally applicable to reports of guardian's sales. 12S SALE OP ward's property, [chap. 6, 183-188. i.s noted on the execution docket, and it is important, in order to make a clear record, that everj' order of sale should be returned to the coui't whence issued, whether it has been acted upon or not, and with the action, if any was bad, and why not, if none was had. 183-185. Form of return to an Order of Sale, ichen a Sale has been made. In obedience to the within [or, attached] order, I dul}^ 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 flirects'], 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, ?/-So], for that sum. Terms of Sale — One-third of the purchase money to be paid in hand, one-tiiird in one year, and one-third in two 3^ears from day of sale, with interest on the two deferred payments, 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 afiidavit of its due publication. 187-8. Forms of the Affidavit proving the Publication of the No- tice of sale State of Ohio, county, ss. : X. Y., being duly sworn, says that ho is the publisher \or, fore- man, or otherwise, as may he] of the , a newspaper printed-!^ CHAP. 6, 189-197.] SALE OF ward's property. 129 and in general circuUition in siiid county, and tliat 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 cditiiMi of said newspaper is published ; that said notice appeared in the daily edition ; that the circulation of the daily in said count}' exceeds that of the weekly, and that the cost of publication in the daily does not exceed that in the weekly. Sworn [o/', affirmed] to and subscribed before me, this day of , 18 — . S. C, Notary Public county, Ohio. 193-4. AVhen 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 \jind conclude as above ajte?' the'-''']. 195. If no newspaper 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 appraised, and twice advertised and offered for sale, remains unsold for want of biddei's, 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 f()r sale, and then remains unsold for want of 130 SALE OF ward's PROPERTY. [CIIAP. G, 198-206. ■bidders, the court ma}' direct the amouut 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 shouhl make the following report : 199-203. Form of Report, Sale not made. County, Ohio, ss., court. A. B., guardian of C. D., | j^^^^^^ ^f ^^ g^le in proceedings for ^ . , ^,^!. , , ( sale of land. Said C. D. ct al. j 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 [jind continue as already stated in this forni]. ^ 18 — . A. B., Guardian. 204. Form of order of reappraisement. — The order of reap- praisernent may be as follows : 205-G. A.B.,guardianof C. D.,|^^,^^^,^. ^^ reappraisement in c^ ■ ^ r^ '^^ . , C proceedings to sell land. Said C. D. et al. ) ^ ^ 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, 207-21G.] SALE OP ward's pbopekty. 131 207. Order io 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 coui-t, at a sum not less than dollars. 209. Report of private sale. — The circumstances being ho vui'ious 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 mak'c 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.^ 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 I'eport to which this is attached, was made after diligent endeavor to obtain the best price possible for said property, and that the sale reported \% 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 b}" the court, and if found fair, legal, and correct, the sale must be con- firmed,^ and a deed, and mortgage, if required, will be ordered. ^§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 OF ward's I'llOI'EKTY. [CIIAI'. 6, 217-228, 217-19. Form of Order of Confirmation. A. B., guarduiu of C. D., | ^^^^^ ^j gon^mailiLies 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 bo prevented, the court must make an order authorizing the lease to be made on such terms luid in such manner as the coui't sliiill thiulf proper.^ 17. How the improvements may he 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.^ 18. Wlien 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 o,f 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 read) full age.^ 19. Lien of tenant for improvements. — When such lease is de- termined b}' 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.^ ^§6299. 2 §6300. ^§6301 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 Hen 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.^ 2. And list same for taxation. — It is the duty of every person ig? 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 may 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. QucBre. 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 O. S. 544. CIIAP. 8, 3-G.] 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 Ixj subject to taxation ; and iu 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 l^er centum interest thereon, in addition to the taxes of the cur- rent year.^ 3. Penalty for neglect. — If any guardian neglect or refuse to list= 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.'^ 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 bo subjected to the payment of a ])enalty, or be sold for the taxes at delinquent or forfeited sale, the guardian will be liable to the ward for any such penaltj^, or for the penaltj^ and interest required to bo'paid to redeem them ; or, in case the lands are thereby lost, then for the value of the lands. 6'. Must fay out of his own funds, if necessary. — It seems that the guanlian must in all cases list and pay the taxes upon the lands of his ward, whether he has money of the Avard'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 diflFerence between them and agents and attor- ^ Wlicre three executors of an estate reside in the same township — two of them within the corporate limits of a village, the others without such limits, and the three have possession, in law, of the taxable moneys, credits, bonds, and stocks of the estate, the same must, in view of the equities and analogies of the statute (which does not expressly provide for such case) be entered for taxation — one-third as of the place of residence of each execu- tor. Harkness v. Mathews, 10 Ohio St. 4;>1. This would very probably apply to guardians, also. '§2848. ^^ 146 TAXATION AND TAX TITLES. [CIIAP. 8, 7-10. neys, as these bitter are oiiJy required to pay the taxes, and made Yvdh]c for the consequences of not paying them, when they have funds of the principal in their hands.^ 7. So tliat, if the iijuardian have no personal estate in his hands, and the ward lias no means but the land itself, the guar- dian mav make application to court for an order to sell the lands;- 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 tlic 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 mone}^ 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.^ 9. When guardian or trustee sells land, tax paid out of pro- ^gej5._\Vhenever 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 7ni(st list the personal property of ward for taxa- tion. The personal property of every ward must bo listed by his guardian, of ever^^ minor child, idiot, or lunatic having no guai'dian, 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.'^ 1 § 2850. ^ In such case tlie 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. *g2854. 6 § 2731. This same section of the law provides that " every person of full afte 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 townshij), 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 cor])oration, to whom it belongs.^ 12. TI7it7i property to be listed, and as of ichat day. Each per- son required to lit^t 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, monej's, credits, investments in bo*ids, 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.^ 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 propertj' 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,^ 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 mouej^ 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." The guardian must list all such property of his ward. 1 § 2735. See note 2, page 145. » § 2736. 3§§1094, 1095, 1104. 148 TAXATION AND TAX TITLES. [CHAP. 8, 15-18. auditor, and said clerk must cause a notice to be served upon Buch 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.^ 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 ])erson 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^ 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.^ 17. Lands sold for taxes may he redeemed within two years. All lands and town lots which have been, or may hereafter be sold for taxes at delinquent sale, under the laws of this state, may be redeemed at any time within two years from and after the sale thereof; and all lands belonging to minors, insane persons, and others,^ which have been or may hereafter be sold for taxes, may be redeemed at any time within two years from and after the expiration of such disability.* 18. As to general validity of tax title. Although the statutes indicate that a tax title is good after two years, it is in effect not much, if any thing, more than a lien on the land for the taxes paid, and the penalties and interest prescribed b}^ law, as the courts almost universally find some way of restoring the lands igl097. ="§6194. 'The others are married women, persons in captivity, and persons serving: in the army or navy of the United States during actual war. *§281)0. €HAP. 8, 19.] TAXATION AND TAX TITLES. 149 to tbeir 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 any 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 year 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 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 in- terest, and fifteen per centum penalty on the whole amount paid, including costs, and one dollar to pa}^ 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.^ ^§2891. The proceeding to redeem is essentially ?n re?«; and it is not necessary that any person be named as party defendant. Plumb v. Rob- inson, i;^ 0. S. 298. Parol evidence admissible to show trust estate. lb. Validity of title can not be drawn in question in a proceedinsi 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 0. S. 298. 150 ACCOUNT OP GUARDIAN, ETC. [chap. 9, 1. CHAPTER 9. ACCOUNT AND SETTLEMENT, AND COMPENSATION OF GUAEDIAN. Par. Par. 1-2. When settlements must be 32. made. 33. 3. Object of account, and how made. 34. 4. Should get blank book for ac- count. 35. 5. Account of each ward separate. 6. Should charge himself with what. 3G. 7. As to interest on funds in his hands. 37. 8. Should credit himself with what. 38. 9. Bad debts, what to do about. 10. Guardian should take receipts. 39- 11-12. Concerning the form of the account. 41- 13-15. Form of account. 16-17. The final account must show 43- what. 18-22. Bad debts, how noted. 49. 23-25. Guardian must make affidavit to the account. Its form. 50. 26. Form of journal entry when the 51. accounts are filed. 52. COMPENSATION OF GUARDIAN. 27-30. Its amount. 53- 31. For care of real estate. 55. For taxes paid, etc. When no compensation allowed. Compensation of guardian's ex- ecutor, etc. Notice of filing accounts to be published. Who may file exceptions to ac- count. The hearing. Examination of accountants un- der oath. 40. Guardian and ward can not sue each other, until. 42. When to settle with ward, and take receipts. •48. Form of journal entry of con- firmation of accounts. To whom guardian must pay bal- ance in hand at settlement. Effect of settlement with court. When, and how ward may review the settlement. Guardian should get final re- lease from ward. ■54. Form of such release. Such release no defense, when. 1. When settlements must be made. — As already stated in chap- ter 6, the guardian must make a settlement of his account with the court, under oath, at least once in cveiy 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;^ and he 1 2 G2G9. The account required by section 14 of the guardian act of April 12, ISSS' CHAP. 9. 2-3.] ACCOUNT OF GUARDIAN, ETC. 151 must make a final Rctllement in the same manner, at tlic expira- tion of his trust,' whether by resignation, removal, marriage of a female guardian,-' removal from the state, choice of another guardian by the ward at a proper age,^ the ai-rival of the ward at full age, death of the ward,^ or from other cause.'' 2. In either of the above cases, the court should at once re- quire the guardian to make a full and final settlement" of his account, and a failure to comply would bo a breach of his bond.' 3. Object of account, and Jiow 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. G70; §6269 Rev. Stat), to be rendered by a guardian to a probate court at least once in every two 3-ears, when rendered and judiciall}- passed upon b}' the court, is a settlement within the meaning of section 31 of the act. (2 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 clearl}^ a breach of his bond. Hocking District Court, 1852. Case V. State, 10 W. L. J. 163. A guardian, appointed in Penn,sylvania, 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 equitj', in the courts of Ohio, for an account against the personal rep- resentative of the guardian. Pedan v. Robb, 8 0. 227. ^ ? 62G9. A probate court, in settling an account, would act upon equitable principles. Perry on Trusts, § 407. *2 6292. 3 2? 6258, 6272. *See par. 67, chap. 5. ^H 6269. 6272. ® Upon closing his final account in the probate court, an amount being due his ward, the guardian induces her to sign a receipt for the mone}- 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 actuall}' 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 0. S. 157, *10 W. L. Journal, 167. See notes above. 152 ACCOUNT OF GUARDIAN, ETC. [CIIAP. 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 witliout the presence of the guar- dian, and without making it necessary to call him into court for the pui'pose of explaining any of its items. 4. Should get blank book for accounts. — As soon as the guardian is ready to ejitcr upon the discharge of his duties, he ought to procure a con venicnt 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 sack ward separate. — It does not matter whether they be all the children of the same parents, and derive their pi'operty 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 icith what. — The guardian sliould charge himself with all moneys, goods and chattels, notes,' 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 acceptino; from an administrator or other party a note or other obligation in lieu of nionej^ coming to the ward's estate, when the same proves uncollectible. Bescher v. State, G3 lud. 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 OP GUARDIAN, ETC. 153 earnings of the ward, and all interests upon money duo the ward, and if 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^ upon money in his hands, unless he apply the same to his own use, or derive some benefit from the loan of it <)]• 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.^ 8. Should credit himself icifh lohat. — 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 property, insurance in j^ropcr cases, exj^enses of the guardianship, as probate fees, reasonable attorney's fees in proper cases,'' 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 recover}- of the fund, he will be estopped to deny that he still holds the same as administrator. Ih. ^See pao;e 67, as to when the statutes makes him liable for interest. Also, pages 79, 81, 84, and notes thereto. ^ " The proper mode of taking the account of trustees is to treat all the income of the trust received during the current j'ear as unproductive, and to charge against the income of the current j'ear all the disbursements, in- cludivg the compensation or commissions of the trustees for the same year, and,io strike a balance, upon which, as a general rule, interest is to be al- lowed, but in suck a waj' 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. ^It is stated in Perry on Trusts (}A'M), 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. [CIIAP. 9, 9. closed, the land being of more value than the amount of tlio mortgage, he will be allowed interest on the monej^ so advanced, and may credit himself, in his account, with the same. 9. Bad debts, icliat to do about. — If there are an}' bad debts duo 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 Avhy 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, especiallj' if a debt be large, to reduce it to judgment, and get the sheriff's or other oflScer's return of "no go(xls " 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 by the guardian maj- be considered in fixing the rate of commission, but not as an additional charge. . . . McElhenny's Appeal, 4G 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, formerlj' 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 w. 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. 754; Evarts 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 pecuniarj' com- pensation whatever, the first paragraph of this note maj'be said to state the English, rather than the American rule; and in view of the fiu-therfact 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 fiir as known to the writer, it is ia accordance with the practice of our probate courts. CHAPTER 9, 10-15.] ACCOUNT OF GUARDIAN, ETC. 155 needlessly incurved in this way.' 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 b}^ statute, that his accounts be verified by vouchers or proof; and unless he makes it an invai'iable i-ulc 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 jDroduced ; 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. ^" 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 state. He is not to sue in all cases where ordinar.y modes of collection tail; for the expenses of litigation are lo bo weighed against the chances of realizing a benefit." Schouler's Dora. Rol. 474. See page 86, above. '? 6269, as amended, Vol. 77, 0. L., p. 77. See par. 7, chapter 5. 156 ACCOUNT OF GUAttDIAN, 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 ] April 1. " 1. July 1.. 1.. " 1.. •' 10.. Oct. 1... " 1... " 1.5... 1880. Jan. 2... " 2... " 12... March 1. 1. April 1.. " 1.. " ]<;.. July 1.. 1.. " 16.. STATEMENT OF ASSETS RECEIVED, OTHER THAN MONEY AND LANDS. From J. L., administrator of said decedent, the following prop- erty on distribution in Ivind, to-wit: 2U. 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 13,560 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 G per cent., 1 year quarterly dividend L. M. R. R. bonds :; mo's rent of liouse in Glendale interest on U. S. bonds. quarterly dividends L. M. R. R. bonds interest on U. S. bonds 8 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 Glendalq interest on U. S. bonds cjuarterly dividend L. ^L 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 $ 2 1,080 00 10 (K) 75 00 28 00 225 00 10 00 28 00 350 00 225 00 1,160 00 69 60 28 00 225 00 10 00 28 00 10 00 225 00 28 00 225 00 10 10 28 00 350 00 32 00 225 00 10 00 2S 00 10 00 225 00 28 00 4,985 60 4,755 25 230 35 CHAP. 9.] ACCOUNT OP GUARDIAN, ETC. 157 of C. Z>., 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. IG. 16. 16. " 27 27'. Sept. 1. . . " 1... " 1... " 1... " 1.... " 1.... Dec. 15. . " 15.. " 15.. " 15., 1880. Jan. 10.. " 10... " 10.. May 1. June 25. Paid, probate court, letters of sruardianship. " probate court, til ins? inventory " taxes on farm in Greene towns'p " taxes on liouse in Glendale " on personal property " repairing house in Glendale " back taxes, Louisiana land Sept, 25. 1.. 1... 1... 1... 1... 1.., 1... 1879. Dec. 10.. 1880. Aug. 1... 1880. Sept. 18. Voucher. repairing fences on farm repairing barn on farm suit of clothing for ward underclothing " " repairing shoes " " tuition and room rent at college car faro : 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 boolis and stationery for ward taxes on Louisiana land taxes on farm in Greene township taxes on liouse i n 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 . 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 JI. D., on mortgage note, at 7 per cent., paya- ble annually v • • • ; 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 ? \Z 4 00 1 31 242 49 66 25 28 51 8 1 120 105 10 245 42 19 20 1 31 250 60 15 15 25 5C 40 50 00 50 50 00 40 00 00 00 00 00 50 60 00 52 10 45 5 60 60 15 30 120 40 21 20 160 1 1,500 1,000 .<;230 35 2,000 00 1,400 00 i,50o;oo 5,130 35 158 ACCOUNT OP GUARDIAN, ETC. [CIIAP. 9, 16-21. 16. The entries showing the balanee of cash, bonds, stocks and other property in the hands of the guardian, should be 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. Bad debts, how noted. Should there be uucoUectible debts, they may be noted as follows in the final account: " The following debts were uncollectible, and are still due, though every proper and reasonable etfort has been made to collect them : From B. C, rent of Avondale house for Jan- uary arvd 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 t-enant, failed in business in December, 18 — , with no assets w-hatever 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. Or, the guardian can charge 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.^ ^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.] ACCOUNT 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 : 2-1-5. The State of Ohio, county, ss: A. B., guardian of C. D., a minor, being duly sworn, says that the foregoing account is in all respects true, just and correct, to the best of his knowledge and belief. [7/ any pi-opcrty 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 daj^ of , 18—. A. C, Probate Judge. 20. Form of Journal Entry ichen the Accounts are Filed. In the matter of the guardianship of C. D. 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 ever}^ 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.^ 28. Ordinarily, perhaps, as good a rule as can 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 t)k same, 7 S. C. (1876) 317. ^§6268. See note 3, p. 153. IGO ACCOUNT OF GUARDIAN, ETC. [CIIAP. 6, 29-32. centum on all over tluit and not exceeding five thousand dollars, and two percent um 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 jDercentage should be on the income only ; ^ otherwise, by making short in\'(_'Slments, 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. '-^ 30. But no absolute rule can be given, either 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 responsibilit}' of the guar- dian in handling the monej^s ; 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 b}' 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 1(50. ''See note 3, page 153, as to compensation for special services as attorney. CHAP. 9, 33-37.] ACCOUNT OP GUARDIAN, ETC. 161 trouble in listing lands for taxation, and paying the taxes thereon.^ 33. When no compensntion nlhnced. — But if the guardian fails to render, upon oath, to tiic 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, ho will, unless excused by court, receive no allowance for his services. This is the per- emptory command of the law.^ 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 bo allowed such com- pensation for the same as the court with which the settlement is made shall deem reasonable.* 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 reasonahlc compensation for his services to the time of his death, should be allowed to his estate. 35. Notice of filing accmints to be published. — It is the duty of the probate judge to cause notice to be published in some news- paper of tlie 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 ' See par. 8, chap. 8. * See par. 8, chap. 5. 'See par. 11, chap. 4. * 2 6402. 1G2 ACCOUNT OF GUARDIAN, ETC. [CIIAP. 9, 38-40. the vouchers, and sec thai the footing of figures are all correct ; iind this the judge should do whether excejDtions arc filed or not. 38. Examination of accountants under oath. — The probate judge has fall 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 requii'o 8uch guardian or trustee to sign the same; and such examination must be filed with the papers in the case.^ 39. Guardian and ward can not sue each other, until. — II may he remarked here that a guai"dian is not liable in an action bj^ 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 bahince has been found duo to the ward.-^ 40. And on the other hand, if the guardian has advanced money for his wai-d, he can not sue his ward therefor, when he arrives at full age, but must have it adjusted bj' a settlement of his accounts with the probate court.^ 1 § 6403. ■^Schouler's Dom. Rel. 502, 506; also Gibbs v. Lum, 29 La. Ann. (1877), 526. =* Davis V. Ford, 7 0. 2a pt., 104, 109. See more fully note 1, page 165, 166; also Schouler's Dom. Rel. 502. A ciuardian may, in his account, filed for settlement in the probate court, charrre all proper debts due him from his ward, althoujxh accruing); prior to the jjuardianship. 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 ivard, and take his receipt. — Some pro- bate judges direct the guardian to settle in full with hi.s 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. In such case, the guardian must afterward pay the ward the amount so found due, and take his receipt therefor.' 42. The latter practice is more in accordance wnth the spirit of the law than the former, and, if the views of the judge and guardian as to proper compensation, etc., disagree, it is more convenient. liar circumstances exist, when claims incurred by a guardian without au- thority, bej'ond the income, may be allowed as a charge on the principal. "Walker & Bates Digest, art. Guardian. ^ 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 equit}* 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. Berkmj-er 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. lb. A conveyauce 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., lierctofore filed for partial [or, final J 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 final settlement, add, which he i& hereby ordered to pay to said C. D., or loJiomsoever is entitled thereto']. 47. [Or, if there be exceptions filed and overruled, begin at the *, and say .•] Upon the account and the exceptions thereto filed by , and having heard the testimony, and the court being fully advised in the premises,* finds that the said exceptions aro not well taken, but that said account is true and correct; where- covding as the equity of the case 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 Gin. 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 OP GUARDIAN, ETC. 165 upon it is ordered, that the said account ought to be, and it is hereby confirmed and settled. And the court further finds, that there is remaining in the hands of said guardian, a balance of dollars of his ward's moneys [and if on final settlement, add, which he is hereby ordered to pay to whomsoever is entitled thereto']. 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 finds 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 farther finds that there is remaining in the said guardian's hands a bal- ance of dollars of his said ward's moneys ; [if on final set- tlement, conclude as before.'] 49. To whom guardian must pay balance in hand at settlement. — When a final settlement is made and an amount found in the hands of the guardian, he must pay that balance over to the ward, if of 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 either case the guardian should take a receipt therefor. 50. Effect of settlement with court. — The settlement made in the probate court of the accounts of a guardian will be final be- tween him and his ward, unless an appeal be taken therefrom to ) the court of common pleas in the manner provided by law.^ \ 51. When and how ward may review the settlement. — But any such ward has the right of opening and reviewing such settle- ^§6289; as to appeals, see chap. 2-L 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. Woodmansle v. Woodmansie, 32 0. S. 18. When a guardian closes his account with his ward, bj' filing a final settle- ment in the probate court, an amount being due his ward, for which he in- 166 ACCOUNT OF GUARDIAN, ETC. [CHAP. 9. ment, for fraud oi* manifest mistake, by civil action in the court of common pleas of the county in -which such settlement was - made, 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 after the said ward shall arrive at full age} duces her to sic;n a receipt as for monej- paid, he agreeing: to be responsible to her for the amount, with interest, an action maj' 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 which 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, for advances made to his ward, as evidenced by a balance due to him on settlement with the court. Davis v. P'ord, 7 0. 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. Ih- But a guai-dian 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 bj'^ statute thereafter, the claim is barred. Cole- man V. Willis, 46 M. 2:5G. The accounts rendered from time to time by a guardian during ward's minoritj', 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. 640. ' In the absence of fraud, account can not be attacked bj' ward after two years. High v. Snedicor, 57 Ala. 403. Only upon clear and satisfactory proof will a final settlement, made bj- a guardian with his ward after she has arrived at majority, be impeached after a lapse of a long interval of time — as here, nearlj' a quarter of a century. Railsback v. Williamson, 88 III. 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 such. J settlement. Holland V State, 48 Ind. 391. CHAP. 9, 52-55.] ACCOUNT OF GUARDIAN, ETC. 167 52. Guardian should get final release from icard. After tbo guardian has fully settled hi.s accounts and paid over any balance due to tbo ward, and taken a receipt tbcrefor, it would be good and prudent practice to ask the late ward, some timo after tho 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 aek for them ; and if all matters are found to be satisfactory, tlien to give to the guardian a full release^ and divscharge from all obligations arising from the guardianship. 53. Form of. Such release might be in form as follows, or be varied to suit the facts: 54. I have examined, in person (or^ by attorney; or, in per- son and with the assistance of H. M., my attorne}-) the accounts and final settlement of A. B., m}- 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, ichen. Such a release would not protect the guardian from any fraud, deception, or manifest mis- take.2 • ^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. Satlerfield v. John, 53 Ala. 127 ; Cheever v. Congdon, ?A Mich. 296. 2 Lindsay v. Lindsay, 28 0. S. 157; Beedle v. State, 62 Ind. 26; Bruce v. Doolittle, 81 111. 103; Monnin v. Beroujon, 51 Ala. 196; Trader v. Lowe, 45 Md. 1; Womack v. 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 facie 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. Par. • Par. exceptions to the bond. 41- 1. Already treated in part. 2. Who may file exceptions, and 46. when. 47- 3-6. Form of exceptions. 7. Notice must be given to guar- 50. dian. 51- 8-9. How served. 10-14. Form of notice. 53- 15. When served. 16. By whom served, and how ser- 55. vice proved. 5G- 17-20. Form of affidavit in proof of service. 58. 21. Adjournments. 22-23. Form of journal entry of ad- 59-i journraents. 24. Final hearing. 25. Court may require, additional 61. sureties, etc. 26-28. Form of journal entry. 62. 29. If exceptions sustained, what. 30-32. Form of journal entry, sus- 63. taining exceptions, revoking 64. letters, and assessing costs. 33-34. Costs, who to pay. 35-36. Court must act of its own 65. motion. 37. Guardians right to notice, etc., in 66 such case also. 67- THE RELEASE OF SURETIES. 70 38. How surety of guardian re- 71 leased. 39-40. Form of the request to be re- 73- leased as surety. 45. Form of notice to the guar- dian. The service of such notice. 49. The form of the affidavit of service. Journal entries. 52. Form of entry noting the fil ing of the request. ■54. Form of entry requiring new bond. Entries when new bond given. 57. Form of entry where the bond is approved. Guardian removed, if bond not given. 60. Form of journal entry where bond is not approved or not given. As to release of sureties, if guar- dian removed. New guardian should be at once appointed. Extent of old surety's liability. As to joint bonds. SUITS ON THE BOND. How suit on bond brought, and by whom. Effect of judgment. -69. Extent of remedy by suit on bond. Separate liability of guardian. -72. Liability of the sureties on the bond. ■75. When suit on guardian's bond must be brought. CHAP. 10, 1-7.] EXCEPTIONS TO BOND, ETC. 1G9 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. 89-9:5. 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 lOl-lOH. 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 or 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 tlic sufficiency of the amount of the penalty thereof, or the sureties therein.^ 3-6. Form of exceptioris. These may be in the following form : Exceptions taken bj' M. N., 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 i§6261. 170 EXCEPTIONS TO BOND, KTC. [CIIAP. 10, 8-16. Avitliin :i reasonable time, not exceedinfr ten daj'S, and show cause against the aHoAvancc of the exception.^ 8. How served. The hiw 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.^ 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 Mie 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. AVitness my hand and the seal of said court, this day of , A. D. 18 — . [l. s.] a. C, Probate Judge, etc- 15. When served. The notice should be served upon the guard- ian without delay, as he will otherwise be adjudged not to havo had sufiicient time to 2:»repare 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 '262G1. ^2 0106 CHAP. 10, 17-25.] EXCEPTIONS TO BOND, ETC. 171 other process is sei'vcd uiid rcturiietl by him, or it may bo served by the person taUinrj the exceptions, or by anj^ 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 makinij the service, and returned to the court on or bcfoi'C the day set for the hearing. 17-20. Form of affidavit in proof of service. Such affidavit may bo in the following Ibrm : The Slate of Ohio, county, ss. M. N., being dul}' sworn, says, that on the day of — , A. D., 18 — he served the Avithin 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 Judg«, etc. 21. Adjournments. Upon the day set for the hearing, the court ma}', 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 Avithin 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 excejitions of M. N. to the bond of A» B., as guardian of C. D. This matter is continued until the day of , A. n. , 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 m;iy also be heard. 25. Court 7naij 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 case may require.^ 26-28. Form of journal entry. If the exceptions are dismissed, the following entr}^ should be made: In the matter of the exception of M. N. to the bond of A. B., as guardian of C. D. This daj^ this matter came 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 JVI. N. pa}- 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, ivhat? If the court, however, sus- tain the exceptions, in any or all particulars, then an order must ^§6162. The proper court has the power to require the , Citation. A. B. j You are hereby commanded to make known to said A. B. that said C. D. has this day filed in said court a petition claiming the sum of dollars, as due to him upon defendant's settlement with the probate court of this county, as guardian of C D., and command him to appear on the day of , A. D. 18 — , and answer said petition, and show cause, if any he has, why judg- ment should not be rendered and execution awarded against him for the amount claimed, and interest. You will make due service of this citation, and return the same upon the day last above mentioned. Witness my hand and the seal of said court, this day of , A. D. 18—. {Signed) A. G., Probate Judge. 100. How to proceed, if guardian has become a non-resident. — No CHAP. 10, 101-103.] EXCEPTIONS TO BOND, ETC. 185 doubt that, under the provisions of liiw given in paragraph 30, ov in paragraph 37, of chapter 6, a guardian who had become a non-residert, or whose residence had become unknown, could be notified by publication, as directed in paragraphs 47-63 of the eame chapter, making, of course, such changes in the forms there given as the facts might require. 101-103. Fonn of notice by publication, in suit to compel dis- tribution, may be as follows ; or varied to suit the circumstances and facts : LEGAL NOTICE (OR, NOTICE). A. B., a resident of Cameron, in the county of Clinton, in the state of Missouri [or, whose residence is unknown], will take notice that C. D., his late ward, filed in the probate court of Wayne county, in the State of Ohio, a petition claiming the sum of dollars, and interest, as due to him upon the defendant's settlement with the probate court of said county, made on the day of . A. D. 18 — , as guardian of said C. D., and also for costs, and praying for a judgment and execution therefor against the defendant. The day fixed for the hearing thereof is on the day of , A. D. 18 — , at which time, unless j^ou answer and show cause to the contrary, a judgment and order will be asked, as prayed for. (Signed) C. D. 186 PARTITION, [chap. 11, 1. CHAPTER 11. PARTITION. Par. 1. Law governing partition ; wliy given here. 2. Power of guardian to act for ward in partition. 3. Powers of foreign guardian. 4. Wlio maybe compelled to parti- tion. 5. Where proceedings for partition may be had. 6. Who may file petition, and what to set forth. 7. The order of partition. 8. The writ of partition. 9. Duty of commissioners in mak- ing partition. 10. Their duty when partition of more than one tract demanded. 11. Amicable partition. 12. Commissioners to appraise land when they can not divide it; election of party to take at ap- praisement. Pau. 13. Terms of payment when estate taken by party; execution of conveyances. 14. Sale of the estate when the par- ties do not elect to take the same. 15. How such sale conducted, and terms thereof. IG. Confirmation of sale, and execu- tion of conveyances. 17. Distribution of proceeds; sher- iff's liability. IS. Proceedings when estate has been once offered and not sold. 19. When successor of sheriff who made sale to execute convey- ance. 20. When widow is entitled to dower, or an interest is subject to a life estate. 21. Commissioners appointed to partition estate to assign dower. 22. Actions by one parcener against another, etc. 1. Laxo governing partition; icJuj given here. — As very many ward's estates, and, consequently, the the duties of their guard- ians, are affected by the provisions of hiw governing partition, it is deemed best, fur the convenience of these persons, to give hero fully the substance of these provisions, except so far as they re- late to the partition of property belonging to religious societies. Pnit as the guardian, in such matters, would probably always em- ploy an attorney conversant with the practice of courts of com- CHAP. 11, 2-3.] PARTITION. 187 nion pleas, in which court proceedings for partition arc had,' it is not deemed necessary to encumber this chapter with the foi-ms with which such attorneys are familiar in the standard books of pleadings. 2. Power of guardian to act for ward in partition. — The guard- ian of a minor, idiot, or insane person, may, on behalf of his ward, do and perform any act, matter, or thing respecting the partition of an estate which such minor, idiot, or insane person could do under this chapter if he were of age and of sound mind ; and he may elect, on behalf f)f such ward, lo take the es- tate, Avhen the same can not be divided without injury, and make payments therefor on behalf of such ward.^ 3. Powers of foreign guardian. — A person appointed according to the laws of any other state or country, to take charge of the estate of an idiot or insane person not a resident of this state, ^ See paragrai)li 6, below. 2 ? 5772. 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. 807; and under that act, v;here 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 iii partition, the acts of a guardian of a minor, done in good faith, are binding upon his ward. Bohart v. Atkinson, 14 0. 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 propertj', 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 regularitj', or, by evideiice aliunde, impairing its effect. 1855. Merritt v. Home, 5 0. S. 307. Sections 2 and 9 of the statute of iS20 (2 Chase, 1162) authorized guard- 188 PARTITION. [chap. 11, 4-5. may, upon being duly authorized in this state to take charge of such estate situated in tliis 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.^ 4. Who may he compelled to partition. — Tenants in common, xind coparceners, of any estate in lands, tenements, or heredita- ments within the state, maj'' be compelled to make or suffer par- tition thereof in manner prescribed below. '^ 5. Where proceedings for partition may be had. — When the ians of minors to bring petition anii 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 both to institute and defend, or consent to pro- ceedings, no process of an adversary nature was necessary to confer juris- diction upon the court. 18o8. Goudy's Lessee v. Shank, 8 0. 415. ^l bin. 2 § 5754. Neither i-eversioners 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, ma}' have partition. Morgan v. Staley, 11 0. 389; Tabler v. Wiseman, above. A right of entrj-, 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 therebj^ from setting up their legal title. McBain v. McBain, svpva. 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 O. 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 chancer}' will exercise jurisdiction to bring all parties before the court, and CHAP. 11, G-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.' G. Who maij file petition, and what to set forth.— A ])orson en- titled to partition of an estate may file his petition therefor in the court of common pleas, setting foi'th 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 there in. 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.^ 8. The writ of partition. — The writ of partition may be directed to the sheriff of either of the counties in which any part of the ■while it preserves all substantial rights, will so mould them, in makinp;a new division of the land, as to impose burdens where, in equit}', they ought tO' fall, and thus diminish, as far as practicable, the evils of previous errors. Dawson V. Lawrence, 13 0. 544. i§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 nilshrj for PiUshimj. Plllsbury v. Dugan, 9 O. 117. The plaintiff is bound to set forth in bis 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 misdescrlbed 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. Ih. 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. 3 §5757. 190 PARTITION. [chap. 11, 9-12. estiite lies, and must command liini tluit, by the oaths of the commissioners, which oath may be administered by him, he 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.' 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.^ 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 arc owned b}' the same proprietors in the same proportion in each tract, in which case the whole share of an}^ proprietor, in all the several tracts, may be set off to such proprietor ac- cording to the best discretion of the commissioners.^ 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.* 12. Commissioners to appraise land when tliey can not divide it ; election of party to take at appraisement. — When the commissioners arc 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 pajnng to the other parties their proportion of i§5758. *§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. ' § 5760. * 2 5761, CHAP. 11, 13.] TARTITION. 191 tlic appraised value thereof, aeeordini^ to their respective rights, or seeuring the same as provided beh>w.' 13. Terms of payment when eiftate taken by party ; execution of conveyances. — If one or more of the parties elect to take the es- tate at the appraised value, tlie terms of payment, unless the court, on good cause sliown, by special order, direct and require the entire payment to be made in casli, 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 paj'ment being made in full, or in part, with sufficient security for the remainder, as above provided, the shcriflF must, according to the order of the court, make and execute a conveyance to the party electing to take the same.^ * § 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, ho 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 look 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 curtes.T, 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, S 0- 87; and a hu.sband, 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 0. 121. "VVhcn a division of the land has been reported by the commissioners, and possession was taken in severalty under it, and improvements made, it w-ill not, after the lapse of several 5'ears, be disturbed, although no entry of con- firmation of the report was made hy the court. Piatt v. Hubbell, 5 0. 243. ^§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 ma}-, in order to affect the partition, allow his wards money to be secured on other real estate; and if a loss accrue, the guardian will not be liable if he acted 192 PARTITION. [chap. 11, 14-16. 14. Sale of the estate when the parties do not elect to take the same. If no si.ch 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, by the sheriff who executed the writ of partition, or his successor in office/ 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 necessar}- to ajjpraise the estate; but the estate can not be 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 cntii-e paj'ment to be made in cash, the purchase money will be paj'able one-thii*d on the day of sale, one-third in one year, and one-third in two j'cars thereafter, with interest.-' 16. Confirmcdion 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 paj'ment of the consideration money, or taking sufficient security therefor, to the satisfaction of the court, must execute and deliver a deed to the purchaser.* in good faith and with ordinary prudence. la 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. ;-]55. 1 § 5764. '^ 257G5. 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, 2G O. S. 629. ^§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. €HAP. 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- tics entitled tlicrcto, 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 any misapplication thereof^ 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 i^evaluation, 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 «uch sum as it may fix.^ 19. When successor of sheriff loho 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 V . 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. ^ § 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 w. 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 v. Freeman, 21 0. S. 402 ; Preston v. Comp- ton, 30 o". S. 299. ^§5768. 13 194 PARTITION. [OIIAP. 11, 20-21. tliiit 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. ^ 20. When widoio 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,'-* 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^ 21. Commissioners appointed to partition estate to assign doioer. — 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 tlie proceedings must conform to, the provisions pre- scribing the duties of commissioners in assigning dower, in sec- tion 5707 to 5725, inclusive, of the Ecvised Statutes.* i§5769. * See paragraphs 68-73, chapter 6. •'^.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 hold 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 w. Peters, 25 0. S. 270. *?5771. CriAP. 11, 22.] PARTITION. 195 22. Actions by one parcener against another, etc. — Ono 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 equity of the CEBe; and one parcener may maintain an action of waste against another; but no pai'cener 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 8 6774. 196 OOCUPYINQ CLAIMANTS. [CHAP. 12, 1-2. CHAPTER 12. OCCUPYING CLAIMANTS TO REAL ESTATE. RIGHTS AND OBLIGATIONS OF GCARDIAXS 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 b}' jury. ceive value of land. 4. Judgment and execution on 8. When occupant may have ac- verdict for plaintifif. tion for title. 1. What 2')Osition 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 ichat 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 jdos- session of the same without fraud or collusion on his part, can not be evicted or turned out of pos;session 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 advei'se 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 oflSce ; or, 2d. Holds the same CHAP. 12.] OCCUPYING CLAIMANTS. 197 by deed, devise, descent, contract, bond, or agreement, from and Tinder 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 noi'th-west of the river Ohio ; or, 5th. Under a sale and conveyance 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.^ 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. 5o8. The words " b}' 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 be 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 v. 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 O. 9 ; and so is a purchaser upon a sale under execution, Seller's v. Corwin, 5- O. 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 Wir^ 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 by 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. 1&8 OCCUPYING CLAIMANTS, CHAP. 12, 3-4. 3. Damages, value of improvements, etc., determined by jury. — If the court renders judgment against the occupying claimant/ 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 the oocupjnng claimant before he received notice of the adverse claim as above mentioned. The jury must also assess the dam- ages, if any, sustained by waste, and the net annual value of the rents and profits of the land which the occupying claimant has received since the receipt of said notice by service of said sum- mons; and must deduct the amount thereof from the estimated value of such improvements ; and the jury must also assess the value of the land at the time judgment was rendered, without these improvements or damages sustained by waste.^ 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 in 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. Beardslej'U. Chapman, 1 0. 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 such notice, that he pur- chased in actual good faith, and made his improvements in the honest belief that the land was his own. Harrison v. Castner, 11 0. S. 339. ^This is a separate proceeding, in which the party prevailing is entitled to costs, though he be the party ejected. Martin's case, 1 0- 156. 2 g§ 5788, 5789. An occupying claimant is entitled to recover, as well for improvements made by himself, or the person under whom he claims, befoje his title com- menced, as for those made afterward. Shaler ». Magin, 2 0. 235; Davis v. Powell, 13 0. 308. But he can not recover for improvements made out- side of the land described in his title-deeds. Waldron v. Woodcock, 15 0. 13. CHAP. 12, 5-8.] OCCUPYINQ CLAIMANTS. 199 either case, the claimant not in possession can not maintain a suit for mesne profits.' 5. Proceedings if verdict is for occupying claimant. ~l( tha ]wry report a sum in favor of llic 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 occup3'ing claimant, or may pay the occupying claimant the sum so allowed b}' the jury in his favor, withivi such reasonable time as the court shall allo'v.'^ 6. When a writ of possession will issue. — If the successful claimant, his heirs, or their guardians, elect to j^ay, and do pay, to the occupj-ing claimant, the sum reported in his favor by the jurj'-, 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. •' 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 couvej'ing such adverse or better title, within the time allowed b}' 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. Mlien occupant may have action for title. — The occupying claimant, or his heirs, can not be evicted from the possession of i§5792. ^§5793. '§5794. «?5795. It is necessary that the successful claimant who elects to convej- 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 is made. Wilkins v. Iluse, 15 0. 285. 200 OCCUPYING CLAIMANTS. [CHAP. 12. such land, except as is provided in tlie two preceding para- graphs, where an application is made for t!io value of improve- ments; and in all cases where the occupj'ing claimant, or his heirs, pay into court the value of the land, without improve- ments, williin 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.^ ^§5796. CHAP. 13, 1.1 ROAD LAWS, ETC. 201 CHAPTER 13. ROAD LAWS, ETC., AS DIRECTLY AFFECTING GUARDIANS AND WARDS. Par. Par. 1. A,s to new roads, and chanj:;es in 4. Appeals by claimant of damage • old ones; notice to guardians. notice to guardian. 2. Guardians and others may ap- 5-6. Powers of guardians as to two- peal in such matters. mile assessment pikes. 3. Guardians need give no appeal 7. Assessment for streets ; duties bond. of guardians as to, etc. 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 the road which it is proposed to alter or vacate may have been pre- viously established, and also six days' notice to the viewers and survej^or 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 bj- which claims for compensation must be filed ; and the principal peti- tioner, if the road is proposed to bo 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 •. 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 2H638, 4645, 4642. 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}' 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.' 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, ma}'' appeal without giving bond, by causing an en- try to tluit effect to be made within the period aforesaid, by the county auditor, in the record of the commissioners.'^ 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 vievvei's in his behalf, or the refusal of the viewers to award damages to him, and also provides how such appeal shall be pei'fected 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.^ 5. Powers of guardians as to two-mile assessment pikes. — Certain improved free roads, designated as two-mile assessment pikes, from the fact that they are constructed at the expense of property situate within two miles of them, may be built by the county commissioners, if a majority of the resident landliolders, 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- 1H688. ^H689. =»§H699-4701. CHAP. 13, T)-?.] ROAD LAWS, ETC. 203 ports, and assessments must be made, damages may be claimed and I'ccovercd, and other things done which do not come within the scope of this volume to describe in detail.' 6. In all these matters, the guardian of any minor, idiot, or insane person ma}^ act for his ward, and all his acts will be binding upon the ward ;- 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 heii-s or owners, either adults or minors, to any undivided estate, will be entitled to only one vote.^ 7. Assessments for streets, etc. ; duties of guardians as to, etc. — The law also provides' 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* 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 grade of the first class, when a petition, sub- scriljed by three-fourths in interest of the owners of property abutting upon anj- street or highway of any description, is reg- ularly presented to the council for the purpose, the cost of any improvement of such street or highway may be assessed and collected in equal annual installments, pi-oportioned to the whole assessment, in a manner to be indicated in the petition, or if not 80 indicated, then in the manner which may be fixed by council ; and the interest on any bonds issued fijr the improvement, by the corporation, must be assessed, together with the annual install- ments provided for upon the property so improved ; but where the lot or land of one who did not subscribe the petition is as- sessed, 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 Eevised Statutes which relates to municipal corporations, the petition of the owners of 1 II 4829-4864. 2 § 4834. See, also, 4859. 3 §4836. *§§ 2262 and following. » 2 2263. 204 ROAD LAWS, ETC. fCHAP. 13. property is required, a married woman shall have the same authority to sign that she would have if unmarried ; and the guardians of infants or insane persons may sign such petition on behalf of their wai'ds, only when expressly authorized by the probate court, on good cause shown.^ *§2272. For numerous notes of decisions as to such assessments, see notes to §? 2263 and 2264, Rev. Stat, of Ohio. CHAP. 14, 1-2.] SOHOOL LAWS. 205 CHAPTER 14. SCHOOL LAWS, AS AFFECTING GUARDIAN AND WARD. Par. Par. 1. Suspension and expulsion of 3. Unlawful to employ children pupils from school ; rights of who have not attended school, guardians. 4. How books supplied, if guar- 2. Children must attend school, dian cannot purchase, unless. 5. Penalties against violation of preceding provisions. 1. Suspension and expulsion of pupils from school ; rights of guar- dians. — No pupil can bo suspended from school by a superin- tendent or teacher except for such time as may be necessary to convene the board of education of the district or the directors of the sub-district, and no pupil can be expelled except 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 pro- posed expulsion, and permitted to be heard against the same ; and no scholar can bo suspended or expelled from any school beyond the current term thereof^ 2. Children must attend school, unless. — Every parent, guardian, or other person having charge or control of any child between the ages of eight and fourteen years, must send such child to a common school for at least twelve weeks in each school year, at least six weeks of which shall be consecutive, unless the board of education, or the board of directors, as the case may be, bav- ins' control of the school district or sub-district in which such parent or guardian resides, excuse such child from attendance, when it appears to the satisfaction of such board that the chihl's bodily or mental condition is such as to prevent its attendance at school, or application to study, for the time required, or that its time and labor are essentially necessary for the support of an indigent parent, brother, or sister, or that it is being otherwise i § 4014. 206 SCHOOL LAWS. [CHAP. 14, 3-5 furnished with the moans of education for a like period of time, or has already acquired branches of learning ordinarily taught in common schools ; but if the common school of the district or sub-district in which such pai-ent or guardian resides is distant two miles from his residence by the nearest traveled road, he will not be liable to the provisions of this paragraph, nor to the sub- sequent paragraphs of this chapter.^ 3. Unlawful to employ children who have not attended school. — No manufacturer, owner of mills or mines, agent, overseer, contractor, landlord, or other person, is permitted to employ an)' child under fourteen years of age during the established school hours of the locality, who has resided in this state dur- ing the school year next preceding the commencement of such employment, and is under the control of a parent or guar- dian, and is not dependent upon its own resources for. support, unless such child has attended some common or private school for the term of at least twelve weeks during the school year next preceding the commencement of such employment, and delivers to its employer a certificate of that fact from the clerk of a board of education, or the clerk of a board of di- rectors, or the teacher of the school which it attended; nor can such employment continue for a longer period than forty weeks during any school year, unless such child deliver to such employer a certificate of excuse from the proper authority, for any of the reasons mentioned in the preceding paragraph.^ 4. 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 pur- chase for his child or children the necessary school books to enable him to comply with the requirements of this chapter, the board may furnish the same, free of charge, to be paid for out of the contingent fund at the disposal of the board.^ 5. Penalties against violation of preceding provisions. — A par- ent, guardian, or other person who fails to comply with the provisions of this chapter, will be liable to a fine of not less than two nor more than five dollars for the first ofi'ense, nor less than five nor more than ten dollars for each subsequent i§ 4023, '2 4024; see par. 5, chap. 15. '§4026. CHAP. 14.] SCHOOL LAWS. 207 offense ; such fine must bo collected by the clerk of the board of education, in the name of the state, in an action before any court having competent jurisdiction ; and the money so collected by each clerk must be paid to the county treas- urer, and bo applied to the use of the common schools of his district.* 1H027. 208 APPRENTICESHIP OF WARD. [CHAP. 15, 1-2. CHAPTER 15. APPRENTICESHIP OP WARD. 1. Wards may be bound out up- 10. Judgment thereon, and its ef- on approval by the probate feet. court. 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. guai'dian. 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. Wa7'ds 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 eighteen if a female, or for a shorter period ; but no such indenture can be executed unless the probate court appointing such guardian shall first ajaprove 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.^ 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 Kevised 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.] APPRENTICESniP OP WARD. 209^ 3. By ichom indenture to be executed. The indenture or cove- nant of service must be signed and scaled by the father; or, in case of the death or inability of the father, by the mother or guardian ; 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.^ 4. 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.^ 5. What covenant indenture must contain. The indenture or covenant by which a minor is bound, must contain a covenant, on the part 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.' 6. To he recorded ichen and by ichom ; 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 BO 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.* 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, neglect, or breach of covenant of the master or mistress, for which purpose ^§3120. »§3121. »§.S122; seepar. 3, p. 206. ♦§3123. 14 210 APPRENTICESHIP OF WARD. [CHAP, 15, 9-11. such parent, guardian, or trustees, or the minor, by bis or her next friend, may comphiin 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 he can reconcile the parties to each other, he must make such order therein as the right and justice of the case requires.^ 9. Jury to try complaint. If the justice be unable to settle and accommodate the diffo'ence in dispute between the parties, be must issue a venire to any constable of the townshij) to summon five disinterested freeholders, to be therein named, to meet at a time and ])lacc 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 accordingl}^, and assess such damages as the minor may have sustained.^ 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.'' 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 muster or mistress, and their authorit}' 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 ^■M26. 2 g 3127. 8§3128. CnAT. 15, 12-1.).] APPRENTICESHIP OF WARD. 211 must be had, as to summoiiiiiij: and impaniielini^ a jury, as aro provided in paraj^'raph 8 of this cliaptcr ; and if, upon snch in- vesti.i^ation, the jurors arc of opinion tliat the nnasler or mistress should bo disciiarged from liis or her covenants, they must cer- tify the same in writing to the justice, wlio 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, bj' the master or mistress.' 12. When guardian, cfc, 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 tluMcin that the said parent, guardian, or trustee, is made individually liable.'-^ 13-15. Form of indeninre 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'' of years, on the day of , A. D. 18—, and G. H. 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, «.s 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 boimdl, 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*], hereby covenants and agrees with said G. H., that the said C. D. shall fixithfuUy 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 rcquof»(s 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 i?3129. '23134 3 See parajiraph 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 iipon^ so that said C. D. shall be as thoroughly instructed and learned therein as his capacity will permit; and Avill 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 he 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']. In witness whereof, we have hereto set our hands and seals, (Signed.) A. B., [seal.] Guardian of C. D. G. H., [seal.] 16. Entry of approval by court. — As has been seen, terms and conditions of the indenture must be approved of b}^ 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 tiie 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 da}^ of , A. D. 18 — , b}^ the said A. B., as guardian as aforesaid, and the said G. H., whereby the said C. D. is bound unto the said G. II., upon the terms and covenant^ 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. If), 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 jn-obato court of said county examined the -within indenture, and approve the binding and the terms and conditions theiX'in, 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 a married woman, an infant, 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 to guardian. 6. May be bound out; who her guardian in such case. children's homes. 6. Wards in children's homos erected by counties or districts. Management, etc., ot such homes, 7. Who may be admitted to home. Par. 8. Children neglected and abused by guardians, etc. 9. Power of trustees over children. 10-12. Same as to children's home of cities. 13. Ma}' act as guardian of children and procure them homes. 14. Children may be apprenticed. 15. Trustees may remove children from unsuitable homes. IN HOUSES OF REFUGE. 16-19. When infants received into. 20. Infants entitled to private ex- amination and trial, unle.ss. 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 REFORM SCHOOL. 1. When guardian, etc., may send icard ^o.— Male youth, not over sixteen nor under ten years of age, may be committed to the reform school by any judge of a police court, judge of the court of common pleas, or the probate court, when, on complaint and proof by the parent, guardian, or next friend, of any such youth, supported by the sworn statement of two respectable wit- nesses, it is shown that he, by reason of his incorrigible or crimi- nal conduct, is beyond the control of such jmrent, guardian, or CHAP. IG, 2-4.] CIIARIT.\BLK INSTITUTION.S, ETC. 215 next friend, and that, from rei!;ard to his future welfare and the protection of societ}', he should be placed under restraint.' GIRLS AND INDUSTRIAL HOME. 2. Vicious or criminal girl; duty of judge and guardian. — When a girl above the ago of nine, and under the age of fifteen years, is brought by an officer, or other inhabitant, of any municipality or township, before the probate court of the proper county, upon complaint, under oath, that she has committed an offense against a law of the state, punishable by fine and imprisonment, other than by imprisonment for life, or that she is leading a vicious or criminal life, the probate judge must forthwith issue an order, in writing, addressed to the father of the girl, if living and resident of the municipality or township where she is found, and if not, then to her mother, if she is living and so resident, and if there is no father or mother resident, as afoi'esaid, then to her guai-d- ian, if so resident; if not, then to the person wnth whom the girl resides ; which order must require such father, mother, guardian, or oilier person, to appear before the probate judge at the time and place therein named, to show cause, if there is any, why said girl should not be committed to the industrial home.^ 3. 3Iay be sent to industrial home. — If the pi'obate jndge, after such time as is prescribed by law in such cases,^ deems the ac- cused to be a proper subject for the industrial home, he must commit her to that institulion, in the manner provided hy law.* 4. Detention and discharge of ; may he returned to guardian. — A girl duly committed to the home must be kept there, dis- ciplined, instructed, employed, and governed, under the direction of the trustees, until she is either reformed and discharged, or bound out by them, according to their by-laws, or has attained the age of eighteen years ; but the trustees have the right to dis- charge and return to the parents, guardian, or protector, any girl, who, in their judgment, ought, for any cause, to be removed fi'om the home, and in such case the trustees must enter upon their records the reasons for her diseliarge, a copy of which record, signed \>y their secretary, must be forthwith transmitted to the probate judge by whom the girl was committed.' '§753. ''§769. '§§770, 771. ♦§770. »§773. 216 CHARITABLE INSTITUTIONS, ETC. [CIIAP. 16, 5-8. 5. May he hound out ; who Jier guariUan in such case. — Any girl so committed may be bound out as apprentice or servant for a term not longer than till she arrives at the age of eighteen years, under conditions and restrictions imposed by the statutes ; ^ 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 slie is properly treated, and must cause every grievance to be redressed.'' 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 and a superintendent.^ Among the further provisions are the following: 7. Who may he admitted to the home. — The home is to be an asylum for all persons resident of the county where such home is located, under sixteen years of age (and such other persona under such age from other counties in the state, where no home is 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 par- ents, or orphanage, or neglect, or inability of parents to provide for them, in the opinion of the trustees, are suitable persons for such provision, and they must be admitted b}^ the superintend- ent, on the order of a majorit}^ of such trustees, accompanied by a statement of facts signed by them, setting forth the name, age, birtliplace, and present condition of the persons named in such order, which statement of facts contained in the order, togethei with any additional facts connected with the history and condi- tion of said persons, must be, by the superintendent, recorded in a book provided him for that pui'pose by the commissioners of such county, which book must be at all times open for inspection.* 8. Children neglected and abused by guardians, etc., may be sent to the home. — Children who ai'o under the custody of parent, guardian, or next friend, and who, by reason of neglect, abuse, or from the moral depravity, habitual drunkenness, incapacity i§§575-7. 2 §578; see chap. 15. ='g§929-956. "§931. €HAP. 16, 9-12.] CHARITABLE INSTITUTIONS, ETC. 217 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 impar- tial investigation of the condition and facts, as they exist, deem it manifestly requisite for the future welfare of sucli children, and tor the benefit and protection of society, be committed to the guardianship of the trustees of a county or district children's home.^ 9. Poioer of trustees over children. — All the inmates who have been neglected or abandoned, as aforesaid, or who have been by the parent or guai'diau voluntarily surrendered to the trustees, will be under the sole and exclusive guardianship and control of the trustees, during their stay in said home, and until they ai-- rive at the age of sixteen years ; and said trustees also have power to discharge any of the inmates of said home ; and when 60 discharged, the parent or guardian resumes power and au- ihority ; and the trustees may return any of the inmates of said home to the pai-ents or guardians of such inmates, when they believe them capable of caring and providing for themselves, or their parents or guardians for them.^ SAME, AS TO children's HOMES OF 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 i§945. '^§932. 218 CHARITABLE INSTITUTIONS, ETC. [cHAP. 16, 13-17 the application of the ti'ustees and managers, may be 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 by 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.^ 13. May act as guardinn of children^ and procure them homes. — The trustees and managers will have the guardianship of such children during their minority, and may, when it may seem proper, place them in suitable homes, having scruj^ulous 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.^ 14. Chi/dren may be apprenticed. — The law then farther pro- vides that such children ma}^ be bound out, and on what condi- tions, etc.^ 15. Trustees may remove children from unsuitable homes. — The trustees and managers may remove 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 caring and providing for himself, may discharge him to his own care.* IN HOUSES OP REFUGE. 16. When infant received into. — The board [of directors of house of refuge of municipal corporation] 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 corpora- 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. *? 2182 ; 78 0. L. 154. 3g§ 218.3-4; 78 0. L. 154. *? 2185; 78 0. L. 154. CHAP. 16,18-21.] CHARITABLE INSTITUTIONS, ETC. 219 such iiif'ar.t luis rendered his control be3-ond the power of Ruch 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. 18. 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. Jhird — 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, may be 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 fixther is dead, or has abandoned his family, or does not provide for their sup- port, or is an habitual drunkard.^ 20. Infants entitled to private examination and trial, unless. — In- fants under the age of sixteen years, 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.^ 21. How expenses shall be paid. — The expense of maintaining infants committed to a house of refuge and correction, by a court or mao-istrate of the county in which such institution is situated, or by the police or other court of the corporation, for oitVnses against a law of the state, or for trial, or as a witness, must be paid by the county; and the expense of infonts committed by 1 § 2050. " ? '-'056. 220 CHARITABLE INSTITUTIONS, ETC. [CHAP. IG, 22-25. [township trustees must be paid by tlie towusliip, 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 by the board.^ 22. Guardian or other party may apply to the board. — If a parent, guardian, master to whom an infant has 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, to 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.'-^ 23. Decmon 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 application.' 24. Action against directors.— The applicant may, if the appli- cation be declined, upon fii^st 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 tho house is situated, for the recovery of the infimt, 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.* 25. Other provisions. — There are many other provisions as to 6uch houses of refuge and infants who may be wards,^ for in- stance, a prescribed simple form of record of proceedings for commitment, unless tho minor, his guardian or parent object,* terms and conditions of binding out to apprenticeship, similar to those already specified,' etc., which it is not considered necessary to give here in full. i?2071. -i^207.'3. '?2076. "§2077. '-^3 2031-2107. «r2060. '§2 2062-2066. CHAP. 17, 1.] INTOXICATING LIQUORS. 221 CHAPTER 17. INTOXICATING LIQUORS. duties, rights, and liabilities of cuardiaxs axd wards, with referexck to the sale of ixtoxicatixg liquors, as provided ix cuartek 7, title t, part first, revised statutes. Par. Par. 1. The action for injury, or to 5. Sellers must not give publicity means of support, bj' causing to notice. intoxication. 6. Party fined not entitled to ex- 2. Notice to seller, or owner of emptlons. premises; its record and efifeet; 7. Liability of owner of premises penalty. for fines. 3. To whom damages to a minor 8. Guardian's liabilit}'. 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- ploj'er, or other person injured in person or property, or means- of support, by any intoxicated person ; or in consequence of the intoxiciVtion, habitual or otherwise, of any person, after the giv- ing and during the existence of the notice provided for in the- next paragrapli, has a right of action in his or her own name, sev- erally or jointl3^ 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 pe.'sonfr S32 INTOXICATING LIQUORS. [CHAP. 17. selling or giving intoxicating liquors as aforesaid, for all dam- ages sustained, as well as exemplary damages.' See par. 8. ^§4357. Under the seventh section of the act of Ma}' 1, 1854, (52 v. 153), contractors who had in their employ hired hands with teams, wagons, and other implements, were empowered to brin 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- monj^ And the court being fully advised in the premises, finds that said C. D., on the day 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 Lis 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 [add, when so,], and that said CHAP. 10, 55-59.] LUNATICS, IDIOTS, ETC. 241 guardian gavQ tin additional bond in the nnm of dollars for the payment to the proper persons of the money to come into his hands by reason of the completing of said contract. 55-57. Form of additional bond, when guardian completes real contract, and such bond is required. Know all men by these presents, that we, A. B., as principal, and L. R. and S. T. are held and firmly bound unto the State of Ohio, in the sum of dollars, for the payment of which we hercbj^ jointly and severally bind ourselves, our heirs, executors, and administrators, if default is made in the condition following : Whereas, In a certain cause in the court of county, Ohio, wherein said A. B., as guardian of C D., is plaintiff, and E. Gr. 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 B. Gr. and others, heirs at law of said C. D., for authority to make a deed to E. G., on behalf of the said C. D., and of his heirs at law, for the following described real estate, situate in said countj^ of , and State of Ohio, to- wit: [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- 16 242 LUNATICS, IDIOTS, ETC. [CHAP. 19, 60-61. half of the said C. D. and liis heirs, to execute and deliver to the fiiaid E. G. a deed in fee simjDle for said premises, upon payment of the purchase money remaining unpaid, which order is in words as follows, to-wit : [7icre 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 by law and the order of said court, for and on behalf of the said C. D. and his heirs, do hercb}^ give, grant, bargain, sell, and convey unto the said E. G. 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. 190, 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.^ 61. Foreign guardian of foreign idiot, imbecile, or lunatic may dispose of pro-perty belonging to his ivard. — 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 territorj^ 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 corapljnng with the following requix'cments : First — An authenticated copy of the foreign commission of idiocy or lunacy proved, allowed, and recorded in the probate court of the count}'', or one of the counties, in which such estate is situate, in like manner as is or may bo provided by law for the admission to record of an au- ' § 6314. See Rafif 's Guide, chapter 9. CHAP. 19, 62.] LUNATICS, IDIOTS, ETC. 243 thenticatcd' copy of a will mtide in an}- 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.' 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 lias 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.^ ^"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 such authenticated copies, so re*)rded, 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 sxny 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 raaj' be situated, a copy of such recorded will, with the copj^ 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 6315. The "First" and "Second" are incomplete sentences, mean what? Copied from the statutes. 3 §6316. " 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 guardianship ceases ; for the purposes of the trust are felt no longer. But a period so difficult to fix should be judiciously determined ; for which cause a formal discharge from guardianship is to be sought and obtained ; and, meantime, the guardian's authority will continue." Schouler's Dom. Rel. 424 (Citing Dyce Sombre's case, 1 Phil. Ch. 437; Hovey v. Har- 244 LUNATICS, IDIOTS, ETC. [cHAP. 19, 63-65. 63. Petition to discharge land of dower of insane woman.— A person owning real estate in this State, incumbered by the con- tingent or vested right of dower of an insane woman, may apply, by petition, to the court of common picas of the county in which the real estate, or any part of it, is situate, making defendants thereto such insane woman, and also her husband and guardian, if she has either or both, for leave to sell all or any part of such real estate, discharged and unincumbered of such contingent or vested right. This petition must set forth the insanity of the woman, together with a description of the land proposed to be sold ; the court must thereupon appoint a committee of six com- petent men, of whom at least three are physicians, who must, under oath, inquire into the fact of the insanity of such woman, and must hear testimony to be produced by her husband or guardian, or, if there is no such guardian, by her guardian ad litem,' to be appointed by the court in the action; and the com- mittee must, at any term of such court, make a report in writ- ing of the result of their investigation, signed by all the members of the committee.'' 64. Inquest of lunacy.— if the committee report unanimously that such woman is, in their opinion, permanently insane, the court must appoint three judicious freeholders to appraise the real estate mentioned in the petition, whether the same is in one or several counties, who must report in writing the value of each tract.^ 65. Proceedings on report of such fact to court. — Upon the filing of sueh report the coui-t may direct such petitioner to convey, by good and suflScicnt deed of conversance, to the insane woman, to be by her held in fee, such proportion of the real estate set forth in the petition as shall seem just and proper to the court, or the court may assign to such insane woman, to be by her held dui*- ing life, after the death of her husband, if she has a husband, such proportion of the real estate set forth in the petition, as seems right and proper to the court, for her support; or the court may order the petitioner to invest an amount, to be fixed mon, 49 Me. 269; Wendell's case, 1 Johns. Ch. 600; Kimball v. Fiske, 39 N. H. 110; Chase w. Hathaway, 14 Mass. 222). To aimilar efifect, 3 Redf. on Wills, 458-9. » See chapter 23. » § 5722. » § 6723 €HAP. 19, 66.1 LUNATICS, IDIOTS, ETC. 245 by court, in ihe 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 maintenance of the insane woman after the death of her husband, if she lias a husband; and the petitioner may, upon his compliance with the order of the court, sell all the real property he is possessed of, described in his petition, free and unimcumbered of the contingent or vested right of dower of euch insane woman.' 66. How dower of insane icomon may be barred. — When the husband of an insane woman conveys any real estate in this State, owned by him, in which such insane woman has a contin- gent or vested right of dower, by virtue of such ownership of her husband, or otherwise, and she does not join her husband in such conveyance, he may apply by petition to the court of coni- Bijon pleas of the county in which she resides, or, if she resides out of the State, then in which the real estate is situate, for leave to have any part or all of such real estate so conveyed, released and disincumbered of her dower right therein, which petition must set forth the insanity of the wife, and a description of the land proposed to be affected ; to which petition the insane wife, her guardian, if she has 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 para- graphs, except that instead of ordering the petitioner to sell the real estate, or to convey or assign to such insane woman any part thereof, the court must direct the petitioner to make such investment as provided in said paragraphs, or may require the petitioner to secure the amount to the use of the insane woman by the mortgage to her of unincumbered real estate of at least double the value thereof; and upon compliance by the petitioner with the order of the coui-t, the court must enter a judgment re- leasing and discharging the real estate from the incumbrance of euch 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 retained as indemnity against euch dower right.- »J»5724. ^§5725. 246 LUNATICS, IDIOTS, ETC. [CHAP. 19, 67-70. 67. How u'ife of insane husband may convey her lands. — When the wife of an idiot, lunatic, or insane person, who has been de- chired to be such bj^ inquest according to law, is the legal or equitable owner of real estate in this state which she desires to sell, convey, or mortgage, during the disability of her husband, she may appl}' by petition to the court of common pleas of the county in which the real estate is situate for leave to sell, b}^ con- tract or conveyance, or to mortgage, all or any part of such real estate. Such petition must set forth the insanity, idiocy, or lunacy of the husband, as the case may be, togetlier with a de- scription of the land which she desires to sell, convey, or mortgage.^ 68. Proceedings for such jnirpose. Guardian's duties, etc. — The guardian of such husband must be made a part}' to the action, and bo required to state any reason he may know why the peti- tion should not be granted. Upon satisfactory proof that the sale or mortgage of such land will be for the benefit of such married woman, the court must autliorizc her to sell, mortgage, or convey the premises in the petition described, upon such terms, and upon such conditions as to the disposition of the money arising therefrom, as the court may direct. Such sale, conveyance, or mortgage will have tlio same force and effect as though made by a ferae sole ; and all right, title, and interest of such husband in such lands and tenements will be forever there- after barred." 69. Apartments for lunatics, etc., in county infirmary. — The com- missioners of every county in which there now is, or may here- after be, established a county infirmary, must provide separate apartments, in or adjoining such infirmary, for the safe keeping and treatment of lunatics and idiots, residents in such county, and who have not been and can not be received into either of the lunatic asylums, or who have been discharged therefrom.* 70. Who admitted, and how provided for. — The directoi-s of the county infirmary, as soon as apartments are provided, as men- tioned above, must admit tlierein all lunatics and idiots wlio are or may become a charge upon their county, and provide for their safe keeping, support and treatment, in such manner as they now '2-1130. 2g4i3i_ 3^970. CHAP. 19, 71-72.] LUNATICS, IDIOTS, ETC. 247 do for the poor under their care, find also must receive and pro- vide for the safe keeping, support, and treatment of such lunatics and idiots, in their county, who, by their guardians or friends, ma}' apply for admission, as pay patients, under such rules and regulations as the directors prescribe.^ 71. Real estate of insane 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 an}' manner legally entitled to any gift, legacy, or bequest in real estate, the directors must take possession of all sucii prop- erty 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 common pleas, or probate court, in the county Avhei'o such property is situated ; and the proceedings thei-efor, sale, confirmation of sale and execution of deed by said directors, must be conducted, in all 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 sj^ecial direction of the directors, in such man- ner as they think best, to the maintenance of such person during his continuence as a pauper in the infirmary ; but if the guard- ian, husband, wife, heirs, or persons who are entitled to the residuary interest in the property of said pauper, give bond to the directors of the infirmary, to tiieir satisfaction, and pay into the hands of the clerk of tiie 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 jiroperty.'' 72. Certain duties of assessors as to guardians of insane, etc. — Each assessor, at the time of taking a list of property for taxa- tion in the year 1882. and every fourth year thereafter, must take an enumeration of all deaf and dumb, blind, insane, and idiotic persons, whose usual place of residence is in any family, jail, or infirmary in his township or precinct, on the day preced- ing the second Monday of April, together with their names in ^§971. ^Seechap. 6. »§ 972. 248 LUNATICS, IDIOTS, ETC. [CHAP. 19, 73. full, their age, and the duration of their muteness, blindness, in- sanity, 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.^ 73. How boundary of land of idiot or insane person may he fixed by written instrument. — See paragraph 73, chap. 19. * § 1526. CHAP. 20, 1-4.] GUARDIANSHIP OF DRUNKARDS. 249 CHAPTER 20. GUARDIANSHIP OF DRUNKARDS. Pah. Par. 1. When -guardian to be appointed 5. No jurj- allowed, for drunkards. 6-7. Form of notice. 2. Will be jiiiardian of drunkard's 8. How served. minor children, when. i>. Subsequent convej-ance invalid. 3. What law applicable to. 10. When guardianship shall termi- 4. Notice to be served on party, etc. nate. 1. When guardian to be appointed for drunkard. — The probate court, upon sutisfactoiy proof that any person resident of the county wherein the application may be made, is incapable of taking care of and preserving bis or her property, by reason of intemperance or habitual drunkenness, must forthwith ap- point a guardian of the property of such person.^ 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 appointed.^ 3. What laws apjMcable 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.^ 4. Notice to be served on p(irty, etc. — At least five, but not more than ten, days before the time when the application for the ap- pointment of the guardian authorized by paragraph 1, above, is made, a notice, in writing, setting forth the time atid place of the hearing of the application, must be served upon the person for whose property such appointment may be sought.^ i§6:)17. For forms of application, appointment, etc, readily adapted to such cases, see precluding chapters. 2 g 6318. 250 GUARDIANSHIP OF DRUNKARDS. [uHAP. 20, 5-8. 5. No jury allowed. — The person for whose property' such ap- poinlmenl is sought is not entitled to a jury trial on the hearing of such application.^ G-7. Form of notice. — The following form of notice would be sufficient : To G. AV. You are hereby notified that on (jiarne 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 be 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 prepert3^ [Signed] A. B. 8. lioiv served. — This notice may be served in any way the probate judge may direct.'^ 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. ^The defendant, in the case of Hageny ??. 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 lie 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 ] 871. 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 first or the present constitution. The court has no doubt upon the question. It ■■^ See par 37, chap. 6. CHAP. 20, 9-10.] aUAUDIANSIIll* OF DIIUNKAUDS. 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 per&ons 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.^ 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 lejcislature 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 vsubordinate 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 employ her to conduct the business. 1 Cin. Law Bulletin, 104. i§6318. 252 GUARDIANSHIP OF DRUNKARDS. [CHAP. 20. whoso 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.* i§6319. CHAP. 21, 1.] TRUSTEES ACCOUNTS. 253 CHAPTER 21. TRUSTEES GENERALLY, AND THEIR ACCOUNTING. Par. Par. 1. All trustees must render bi-en- 30. nial accounts, same as execu- 31. tors, etc. 2. Exceptions to above. 32. 3-4. Manner of settling executors' 33. and administrators' accounts. 34- 5. Account must be sworn to. 6. Vouchers must be filed. 36. 7-16. Form of trustees' account, etc. 37- 17-18. Affidavit to partial or final account. 39. 19-20. Notice of filing accounts to be published. 40. 21. Costs of notice ; how paid. 22-23. Form of notice. 41. 24. Examinations of accountants 42. under oath. 25. Probate court to determine as 43. to execution of trust. 44. 26. Court must require final ac- count. 27. How executor, etc., compelled 45. to file account. 46. 28-29. How order to file account served; judge's duty if not 47. obeyed. Effect of revoking letters. • If trustee imprisoned, how dis- charged. Trustee may be attached, etc. As to forms. 35. The form of application for writ of citation. Form of journal of entry of or- der of attachment. 38. Form of attachment against trustee. Form of revocation of the let- ters of trustee. Appeal from determination of probate court. How appeal taken. Force and effect of the deter- mination. Allowance of compensation. When the court may accept res- ignation of trustee, or remove him. Form of resignation. Form of journal entry of ac- ceptance of resignation. Form of removal of trustee. 1. All trustees must render biennial accounts, same as executors, etc. — Any trustee of any non-resident idiot, imbecile, or lunatic, appointed as in chap. 2:i, and any trustee heretofore or hereafter created by 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 AvliicU be 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.^ 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.^ 3. Manner of settling executors'' and achninistrators' accounts. — The only provisions of law relating to the manner of settling such accounts are in effect as given in the next tbree paragraphs. 4. Every executor or administrator must, within eighteen months after having given bond for the discharge of his trust, ren- der bis account of his administration upon oath, and he must, in like manner, render such further accounts of his administration, from time to time, 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 bands. ^ 5. Account must he sworn to. — Before filing the account, the ex- ecutor or administrator must make oath before the probate judge, or some other person authorized to administer oaths generally, that the same is, in all respects, correct, a certificate of which oath must be written upon or attached to such account, and signed by the affiant.^ When an account is rendered by two or more executors or administrators, the court may, in its discre- tion, allow it, upon the oath of one, or may require that it be sworn to by all. 6. Vouchers must be filed. — In rendering such account, every executor or administrator must pi'oduce vouchers for all debts and legacies paid, and for all funeral charges and just and neces- sary expenses, which vouchers must be filed with the account j and they, together with the account, must be deposited and re- main in the probate court.* 7-16. Form of trustee s account, etc. — The form of such ac- counts, oaths thereto, etc., may be substantiallv the same as those . . ! 1 1^6328. 2 g 6175. ^&116. *g6183. CHAP. 21.] TRUSTEES ACCOUNTS. 255 given for giuirdiaiis of minors, on pages 15G-7 ; or the following form of acc'OiiiiL may be used : First* [o/-, Second o/*, Pinal, efc.'\ account of A. B., trustee of C. D., a non-resident minor [or, idiot, e^c] Accountant charges himself as follows : Amount of sale bill , $ " received of G. 11. on note — Principal $ , Interest '« " " L. S. " book account " " " T. C. " note (not inventoried) " " for one stove (not inventoried) sold at private sale " " of R. P. on real estate sold him " of interest received on sale notes " received of tlie administrator of the estate of H. B., deceased, the father of A. B., deceased. Etc., Etc. And accountant claims credit for the following payments, made in behalf of said estate : Paid M. N., appraiser Voucher No. 1 $ " R. S., auctioneer ; " " 2 " C. T., for threshing grain " " 3 " C. C, for coffin for deceased " " 4 " Y. B., widow's allowance " " 5 " T.R., physician's bill, last sickness, " " G " L. S., in full of note " " 7 " J. R., '• " account " '■ 8 " S. C, legacy in full " " 9 Etc. Etc. Accountant claims the ordinary legal compensation for his services. And asks that he may be allowed, as compensation for extra services performed, the additional sum of $90.00, for the rea- sons following : Accountant says that Gr. H., from whom he collected the sum , ^See remarks about account, on pages 165, 158. Where several accounts are filed, it is a good practice to entitle them : "First account," "second account," "final account of," etc. 25G trustees' accounts. [chap. 21, 17-20» of dollars, resides in , stute of , and that lie was corapollod to iiiiiko several trips to that place, in order to secure to the estate the payment of said claim. His necessary expenses were dollars, and the time employed days. For these, he thinks an extra allowance of $90.00 to be but reasonable. The notes against T. U., Y. W., and E. S., mentioned in the inventor}-, were not collected, on account of the insolvency of said debtors. The book account against X. Y., mentioned in the inventory, was paid in the lifetime of the decedent, as appears by his re- ceipt, exhibited to me by said X. Y. A. B., Trustee, as aforesaid. 17-18. Affidavit to Partial or Final Account. The State of Ohio, county, ss. A. B., trustee of C. D., a non-resident minor [or, idiot, etc.'], being sworn, says that the foregoing account is in all respects just and correct, as he veril}- believes [if any of the j)roperty was sold at private sale by order of court, here add], and that the pri- vate sale of the properly 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. 19. Citations and notices. — The probate court must issue and have served in the same manner as is or may be provided by law, in the case of the settlement of executors and administra- tors, the necessary citations or notices by publication or other- wise, requiring all persons interested to attend such settlement und make objections thereto, if they have any.^ 20. 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 trustees, etc., specifying the time when such accounts will be heard, which must not be less than three weeks after the publication of such notice ; at which time it will be competent for said pro- 1 2 6329. [chap. 21, 21-27. trustees' accounts. 257 bate jiuli^e, for cause, to allow further tiii\e to file cxccj)ti()n8 to said accounts.^ 21. Costs of notice — how paid. — The costs of such notice must be paid, if more than one account bo specified in the same notice, in equal proportions by the executors, adiuinistrators. guardians, trustees, etc., respectively.^ 22-3. Form of notice. — The notice mentioned in the i)receflin.<^ paragraphs may be as follows : Notice of Trustee's Settlement. Notice is hercb}^ given that the [state lohicli] account of A. B., as trustee of C. D., has been filed in the probate court of county, Ohio, for settlement, and that said account will be fu- hearing on the day of , 18 — , at — o'clock, — m. All persons interested are required to attend at such settlement, and make known their objections thereto, if any they have. A. C, Probate Judge. 24. Examination of accountants lender oath. — The probate judge has full power and authority to examine under oath, all trus- tees, etc.. touching their accounts; and if he thinks proper to do so, he may i-educe such examination to writing, and require such trustee to sign the same ; and such examination must be filed with the papers in the case.^ 25. Probate court to determine as to execution of trust. — The said court has full power to hear and determine all matters relative to the manner in which the trustee has executed his said trust, and as to the correctness of his accounts rendered as aforesaid.'' 26. Court must require final account. — The probate court has the power to also require any trustee, created as aforesaid within said county, on the determination of his trust, or on the removal or resignation of such trustee, or in case of the death of the trustee, to require his executor or administrator, to render a final account of the manner in which he has executed his said trust, and to hour and determine all matters relating thereto, in the same manner as the accounts of executors and administrators are required by law to be settled,'' which is as follows. 27. How executor, etc., compelled to file account. — Should an ex- •§6402. ''?6403. »§6330. 17 25S trustees' account. [chap. 21, 28-31. ecutor or administrator fail to file an account of his administra- tion at such times as the law or the probate court may require, it is the duty of the probate judge of the county, upon the ap- plication of an}'' person interested in the estate, to issue an order requiring the person so in default, within some short period named in the writ, to file his account according to law, or to ap- pear and show cause why an attachment should not issue against him for his default.^ 28. How order to file account served; judge's duti/, if not obeyed. — The order may be served by a sheriff, constahle, or any other person ; and upon return being made that the executor or ad- ministrator was served by delivering him a correct copy of such writ, and upon his failing to file his account within the time lim- ited by the writ, or to appear and show good reason for such failure, the probate judge is directed by law to issue an attach- ment against him, and to commit him to the jail of the county until he returns such account, or is discharged by the order of the probate judge.^ 29. If the executor or administrator should abscond or secrete himself, so that personal service of an order can not be made upon him ; or if, after being committed to jirison, he should fail to return an account within thirty days, the probate court may revoke his letters, and grant administration to the person next entitled thereto after such delinquent executor or administrator, as in cases of original administration.^ 30. Effect of revoking letters. — By the revocation of his letters such executor or administi'ator is deprived of all power and con- trol over the estate of the decedent; and suit may be brought upon his bond to recover for any injury sustained by the estate by reason of his default or wrongful acts, and to the full value of all tlie propei-ty received by him belonging to the estate of the decedent and not duly administered.* 31. If trustee imprisoned, how discharged. — If an executor or administrator be committed to jail for default in filing an ac- count, the probate court may discharge him from custody upon his delivering, on oath, all the property of the deceased under his control to such person as the court may authorize to receive the eame.'^ i§§ 6178, 6047. 2 gg 6048, 6178. ^ 6049, 6178. -*2§ 6050, 6051, 6178. ^gg 6052, 6178. CHAP. 21, 32-35.] trustees' account. 259 32. Ti-ustee may he attached, etc. — The same proceedings may be had to attach and discharge a trustee, and the same power is vested in the probate judge to revoke his letters in case of his failing to render an account within thirty days after being com- mitted, or of his absconding or concealing himself for the pur- pose of avoiding the service of an order upon him ; and the same power to grant new letters, and with like effect, as in the case of an executor or administrator.' 33. As to forms. — The following are the forms alluded to in the preceding paragraphs: 34. The fonn of application for writ of citation against trustee for failing to file his account, may be as follows: The State of Ohio, — — county, ss. Probate court. The State of Ohio, on application of H. S., vs. } Motion for ivrit 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 maj- 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.'b estate, in the probate court of said county, according to law, or then and there to appear and show cause whj' 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. 1^2 6330, 6333,6178. 260 trustees' account. [chap. 21, 30-39'. 36. Form of Journal Enlry of Order of Attachment. The State of Ohio, on application of, etc.,") vs. > Citation. A. B., Trustee of the estate of C. D. ) The writ of citation having been returned served, and said defendant having failed 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 hira for his default, it is ordered that a writ of attachment issue to the sheriff of count}'', to bring the body of said A. B. into this court forthwith, to abide such order as the court maj'- make con- cerning him in this behalf. 37-8. Form of Writ of Attachnent against Trustee. The State of Ohio, county, ss. To the shcriif 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 defiault ; and the said A. B., having failed to comply Avith the order aforesaid, you are therefore commanded to take the said A. B., and have his body 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 tlie 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 sui'eties, etc.,a.s the cause may 6«], 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 determination of probate court. — Tho determi- nation of the probate court of any settlement of a trustee's ac- count, whether finiil or intermediate, may be appealed from in the manner provided for an appeal from said court on the settle- ment of the accounts of executors and administrators, and the like proceedings must be had on such appeal, and the result of Buch proceedings on appeal certified back to the probate court.* 41. Hov: appeal taken. — The manner of taking such appeal is stated in chapter 24, of this volume. 42. Forte 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;'^ and when an account is settled in i§63Hl. * 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 bj' 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 remedj'^ 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 remedy. 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 mutuallj- 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 e.xecutors, 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. 2ti2 trustees' account. [chap. 21. the ahsencc of any 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 any mis- take or error therein, excepting that any matter of dispute be- tween two parties, which had been previoasl}- 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.^ 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 be required to account a second time, unless the same is impeached for fraud or manifest error. lb. Where such an account has been rendered and settled, the probate court ma}', at any time within tiie time limited by the statute, compel the execu- tor or administrator to render a further account of anj- assets of the estate in his hands not settled in a former account. lb. Under section 1G9 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. Staj'ner's case, 33 Ohio St. 481. When such matter in dispute has been dul}- heard and determined by the court, it can not again be called in question b}- 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 coui't has no power to open up or disregard the order, a 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. ' ? 6832. CHAP. 21, 43-47.] trustees' account. 263 43. Allowance of compensation. — The probate court has power 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 ;^ and said judge is entitled to the same fees as in the settlements of administrators and ex- ecutors.^ 44. When the court may accept resignation of trustee, or remove him. — The probate court may accept the resignation of an}" trustee accounting therein or who has accounted therein, or who has been appointed thereby, or maj' remove an}^ such trustee for any cause for which the guardian of a minor may be re- moved, or because the interests of the trust require his removal.^ 45. Form of resignation. To the Hon., the Judge of the Probate Court of County, Ohio: The undersigned, trustee of [^state whaf^, hereby tenders his resignation of said trust, and praj's 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.] 1 See pars. 27-34, chapter 6. ^ § 633.S. ' § 6334. 264 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 nppointment 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 maj-. 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.i 2. Hoiv appointment brought about. — The probate court can make such appointment without waiting for any action on the part of any third person ; yet 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 api^ointment. i§6320 CHAP. 22, :^-9.] TRUSTEES FOR NON-RESIDENTS. 265 3-G. Form of applicntioti, etc.. for appointment. To the Honorable, the J iidgc of the probate court, of county, Ohio: Your pctilioner represents that C. D. is a minor [or, idiot, etc.'\, aired , residinc; 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 eounty, known as the "D Farm," probable value" §6,000 00 2. Lot Xo. — , in the village of , countj^ improved, ])robable value 1,000 00 3. Farming utensils on said tract 150 00 \^Ktc., etc. See list on pages 41, 42. Your petitioner makes this, his application, to be appointed trustee of said C. D.. and offers E. 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 foi*egoing statements are in all respects ti'ue 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 ) Pr. 118. CHAP. 23, 7-15. j GUARDIANS AD LITEM. 273 mcnt may bo 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 foi* instance: The State of Ohio, county, 5S., Probate Court. A. B., guardian of C. D., a minor, pUiintiff, ") Application for ap- vs. ^pointment of guard- Stud C. D., defendant. j ian ad litem. The said C. D., a minor over fourteen years of age [or, A. B., plaintiff, or,Ij. 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 E. 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.^ 12. How notice given and office accepted. — The guardian may be notified in any way the court may direct or sanction ; but the rule, prevalent in many tribunals, that theguai'dian ad litem must appear in person in open coui"t, 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. ^§5004. The appointment of a guardian ad litem to an infant not a party to the suit, is a nullity; but where made after such infant became a partj" 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. ^Ewing V. Higby, 7 0. 1st pt. 20.S; 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. 18 274 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 comes the said A. L., heretofore appointed guardian ad liteyn 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 appointm-cnt. (Signed) A. L. 15. Forjn 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 sand 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." ^ Though. ^To same effect, see Bobbins 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 bj' the supreme court to be sufficient, es- peciallj'' in view of the fact that to hold otherwise would disturb the title to millions of dollars worth of property, thou Answer of minor defendant. Said C. D., his ward, j Now comes the said C. D., minor defendant, by A. L., his duly appointed guardian for this suit, and for answer to the petition in this cause, denies all the allegations therein contained in any way prejudicial to said minor defendant ; and further says that he is of tender years, and not acquainted with the law in such cases, and therefore asks the coui-t to protect his rights in this cause, and for such relief as may be just. C. D., By A. L., his guardian ad litem. 24. Verification not needed. — The answer of a guardian ad litem jneed not be verified on oath.^ ^§5078. The answer of a guardian ad litem must not be his personal answer, but the answer of the infant by the guardian. Johnson r. McCabe, 42 Miss. 255. Where the answer does not in express terms den\' the allegations of the petition, but the record shows that it was so regarded by the court, and the plaintiff was required to prove the allegations of the petition, a judgment rendered against such defendant can not be reversed on error for want of such express denial. Randall v. Turner, 17 0. S. 262. The answer of the guardian ad litem alleging his ignorance of the mat- ters contained in the petition, and praying that the rights of his wards may be protected, has the effect of a general denial, and requires proof of all the material averments of the petition. Wood v. Butler, 23 0. S. 520. Where the answer of the guardian admits the bill to be true, the com- plainant must prove its allegations with the same strictness as if the answer had interposed a direct and positive denial. Long v. Mulford, 17 0. S. 484, 50o ; Massie v. Donaldson, 8 0. 377. Under the act of 1855 (55 v. 54), the guardian could appear and defend for his ward as effectually as if he were appointed guardian ad litem. Rau- .kin V. Kemp, 21 0. S. 651. See paragraph 15, chapter 19; note 1, p. 233. * § 5103. 278 GUARDIANS AD LITEM. [CHAP. 23. 25-30: 25. Decree under such answer impeachable. — A decree against minor defendants, rendered u]ion the answer of their guardian ad litem, may be impeached and reversed for fraud.' 26. In proceedings for vacating streets. — In such proceedings in court as directed b}^ law, such court must appoint, when neces- saiy, a guardian ad litem for all minors and insane persons who may be interested in the matter.'^ 27. Appropriation of property for iniblic use ; guardians therein. The law prescribes how property may be appropriated for pub- lic uses by municipal corporations, and provides how application therefor must be made to the common pleas or probate court, what proceedings must be had, etc., ^ and that if, at the time of such application, it appear that unj of the owners of the prop- erty sought to be appropriated ai-e infants, or insane, and that they have no guardian, a guardian ad litem must be appointed to act in their behalf^ 28. His expenses incurred should he paid. — A guardian ad litem for an infant defendant, who properly defends and preserves the rights of his ward, and in so doing incurs expense in the em- ployment of (tounsel, or otherwise, should be reimbursed all rea- sonable charges paid by him.^ 29. Should receive reasonable compensation. — Such guardians are entitled to reasonable compensation for the services they ren- der, which should be taxed as a part of the costs of the case.® The amount of this compensation should of course depend on the amount, character and value of the services rendered, to be determined by the court. 30. In suits before magistrates. — When a guardian to the suit 1 Massie v. Matthews, 12 0. 351. ^ ? 2656. »§2656. *§2243. ■•Smith V. do. 69 111. (1873) 308; see also Waring v. Crane 2 Paige (N. Y.) 79, 81; Whitaker v. Marian, 1 Cox's Cas. (Eng.) 285; Taner v. Ivie, 2 Ves. Jun. (Eng.) R. 466. The taxing of charges in favor of a guardian ad litem must be in the orig- nal suit, and while it is still pending, and can not be made after the case is disposed of and gone from the docket. A petition for such taxation, while the cause is pending, will be regarded but a continuance of the original- cause. Smith v. Smith, 69 111. 308 (1873). « Walker v. Hallett, 1 Ala. 379. See par. 17, chap. 19 CHAP. 23, 30-34.] GUARDIANS AD LITEM. 279 before a justice of the peace, or maj'or, is necessary, lie must be appointed by the magistrate, as follows : 1. If the infant be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years, or upward ; if under that age, upon the applica- tion of some friend ; the consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the ac- tion, must be filed with the justice. 2. If the infant be defend- ant, the guardian must be appointed before trial ; it is the right of the infant to nominate his own gurdian, if the infant be over fourteen j'cars of age, and the proposed guardian be present, and consent in ^vriting to be appointed ; otherwise the justice may appoint any suitable person who gives such consent.' 31. Form of Consent to he Appointed in Such Cases. A. B., an infant, by CD., his guard- ^ Before H. M., J. P., lan to the suit, plaintiff, ! township, E. M., defendant. J ^^^^'^^ I consent to be appointed guardian in the above suit of A. B., and agree to be responsible for costs, if said A. B. fail in said action. C. D. , 18-. 32. The docket entiy maj' be thus on the infant's application : " The said A. B., being an infant upward of the age of fourteen years, on his application, I appoint C. D. his guardian to this suit. The said C. D. appeared and filed his consent thereto in writing, and that he would be responsible for costs." 33. Or, as follows, on the application of the infixnt's friend : "The said A. B., being an infant under the age of fourteen, oa application of his friend C. D., I appointed him guardian to this suit, who filed his consent thereto in writing, and that he would be responsible for costs." 34. In proceedings relating to lunatics, etc. — The appointment and special duties of guardians ad litem in such matters have al- ready been fully stated, and need not be repeated here.^ i§§ 6474, 1744. *See pars. 15-17, chap. 19. 280 APPEALS. [chap. 24, 1, CHAPTER 24. APPEALS. Par. Par. 1. Where appeals must be taken 6-7. As to o«A>d in error, by guar* from probate court to court of dian. common pleas. 8-9. Appeal from probate court; 2. Appeal bond generally required. and from common pleas. Bills 3. Transcript, when to be filed. of exceptions. 4. Proceedings in common pleas, 10-11. Appeals to district court, and certifying same back. 12. Appeals from magistrates' 5. When appeal bond not required courts, of a guardian, etc. 1. '[Vfien appeals may be taken from probate court to court of common pleas. — In addition to cases specially provided for, ap- peals may be taken to the court of common pleas, from any order, decision, or judgment of the probate court in settling the accounts of an executor, administrator, guardian, and trustees? and assignees, trustees and commissioners of insolvents ; in pro- ceedings for the sale of real estate for the payment of debts ; in. cases where the probate court has increased or diminished the allowance made by appraisers of any estate to any widow, or minor child or children, for their support for one year; in pro- ceedings against persons suspected of having concealed, embez- zled or conveyed away the proj^erty of deceased persons ; in cases for the completion of real contracts, from any order or de- cision in the administration of insolvents' estates by assignees, trustees or commissioners ; and in proceedings to appoint guard- ians 01 trustees for lunatics, idiots imbeciles, or drunkards, by any person against whom such order, decision, or decree shall be made, or may be affected thereby; and the cause so appealed must be tried, heard, and decided in the court of common pleas, CHAP. 24, 2-4.] APPEALS. 281 in the same inaiinor as Uiou/ required. — The person desirini^ to take .nn appeal, as jtrovidcd in the preceding paragraph, must, within twenty days after the making of the order, decision, or decree from which he desires to appeal, give a written undertaking, ex- ecuted on the part of the person appealing, to the adverse party, with one or more sufficient sureties, to be approved by tiie pro- bate judge, and coi\ditioned that the party appealing shall abide and perform the order, judgmen!, or decree of the appellate <;ourt, and pay all moneys, costs, and damages, which may be required of or awarded against said part}', by such court; when the order, decision, or decree, from which the appeal is taken, directs the jiayment of money, the undertaking must bo in double the amount thereof" and in other cases, in such amount as the probate court prescribes.'^ 3. Transcript, ichen to be filed. — The probate judge must, upon the giving of the undertaking, or notice, as aforesaid, make out an aulluMitieated transcript of the docket or journal entries, and of the order, decision, or decree appealed from, which must be filed with the clerk of the court of common pleas, on or before the second day of the term of said court, next after an under- taking or notice is given, as hereinbefore provided, by the per- son appealing, and the appeal must thereupon be considered per- fected ; the original papers pertaining to the cause may be used upon the trial or hearing in the court of common pieas.^ 4. Proceeding in common pleas, and certifying same back. — Upon the decision of any cause, appealed to the court of common pleas, the clerk of said court must make out an authenticated trans- BCript of the order, judgment, and proceedings of said court therein, and must file the same with the probate judge, who must i?6407. Seinble, that the parties have not a right to a trial bj^ jurj- on an appeal from a judgment of the probate court. 186('). Shroyer v. Richmond- 16 0. S. 455, 467. Qua're, whether in proceedings on bonds of executors, guardians, etc., in the probate court, under the act of April 17, 1857, either party has a right to demand a jury. Ih. 2^6408 "26409. 282 APPEALS. [cnAP. 24, 5-6. record tlie same, Jind the proceediiii^s thereafter must be the same as if such order, judgment, and proceedings had been had in the probate court. ^ 5. Wheyi appeal bond not required of a guardian, etc. — When the person appealing from any judgment or order, in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful dis- charge of his duties, and appeals in tlie interest of the trust, he will not be required to give bond, but must be allowed the appeal by giving written notice to the court of his intention to apj^eal within the time limited for giving bond.' This is also the rule in appeals to the district court.^ G. This is also the rule in appeals in matters relating to the appropriation of private property for public use ; * relating to laying out, vacating, etc., public roads. ^ ^§6410. *§G408. Executors or administrators, whether appointed in this state 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, ' 2 5228. See note 2, this page. * § 2256. 5§ 4689. See par. 3, chap. 17. CHAP. 24, 7-10.] APPEALS. 283 7. As to bond in error, by gvarJian. — The law provides for the giving of bond, among other things, in proceedings to reverse, vacate, or modify a decree in the probate, common picas, superior, or district court,^ but it also provides, that guardians who have given bond in this state, with surety, according to law, need not give such bond.^ 8. Appeal from probate court ; and from common pleas. Bills of exceptions. — "Appeals shall be allowed from any final order, judgment, or decree of the probate court to the court of common 2:)leas, by any person against whom any such order, judgment, or decree may be made, or who may be afiected thereby, in the Bame manner as is provided for appeals from the probate court to the common pleas in other cases ; appeals shall also be allowed from any order or judgment of the court of common pleas, in like manner, to the district coux't, in proceedings under the sec- tions 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 affected thereby, to the same extent and in the same manner as is provided for appeals from the common pleas in other cases; and bills of exceptions maybe taken and allowed upon an}^ decision of the probate court, court of common pleas, or district court, in proceedings in this behalf, as in other cascs."^ 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 ap])licable by its express terms. The section last mentioned is given as paragraph 34 of chapter 5. 10. Appeals to district court. — A guardian desiring to appeal his cause to the district 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* after the rising of the i§67l8. ^ § 5228. See note 2, page 282. 3 §6203. *As to construction of when this time bejiins and expires, see Steinberger V. Steinberger, 19 0. 106; Morgan v. Stittigan, 10 W. L.J. 7-i; Harris v. Gest, 4 0. S. 469; Hoagland v. Schnorr, 17 0. S. 30. 284 APPEALS. [CIIAP. 24, 11-12. court, give an undertaking with sufficient surety, to be approved by the clerk of the court, or a judge thereof,' 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 district court, as in other cases of appeal.^ 12. Appeals from magistrate's courts. — Cases tried before a mayor or justice of the peace, and in which a guardian is a party, may, of course, be appealed as other cases in such counts ; ^ and guar- dians would, no doubt, be liable for any loss occasioned to the ward because of his negligence in such appeals. i§5227. 2 g 5228. *ggl752, 6562, 6563, 6570, 6583-659L CHAP. 25, 1.] MISCELLANEOUS MATTERS. 285 CHAPTER 25. MISCELLANEOUS MATTERS. Par. 1-2. Foreign minors and guard- ians ; their rights in this state, etc. 3. Adjoining owners may fix cor- ner, or line, by written instru- ment. 4. Record of such instrument, etc. ; guardians duties as to. 5. Rights, etc., of guardians and wards as to acts of State Board of Public Works. 6. Adopted child ; rights of, and as to. 7. Justice of the peace; incompe- tent in certain cases. 8. Guardian liable for militia fines or dues. 9. Survival of actions ; revivor of judgments. Certain sureties may require creditors to sue. How guardian may become lia- ble in such case. 12. Not applicable to guardian's bond, etc. 13. Guardian's power in proceed- ings to sell entailed estates. 10. 11. Pak. 14. Sale by consentof guardians, etc. 15. How proceeds of sale disposed of 16. How proceeds may be invested. 17. Who to receive income, and pay taxes and expenses. 18. Such estates may be leased. 19. Privileged communications ; ev- idence, 20. When a party shall not testify. ward's registered government BONDS. 21-26. How guardian may collect interest of 27. What will be considered sat- isfactory proof of guardian- ship. 28. Of guardian's authority being in force. 29-31. Form of affidavit as to guardian's authority being ia force. 32. As to form of certificate. 33. How identity of ward shown. 3-1-37. Form of affidavit as to iden. tity. 1. Foreign minors and guardians; their rights in this state ^ gfc, — 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.^ 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.'-' 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 bj^ any minor, idiot, lunatic, or insane person ; but the same may be made, executed, and delivered for record, on his behalf, by his guai'dian ; 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 5. Bights, 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; * 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 'g6290. ='§4127. '§4128. ' II 7691-7707 ; see especially 7693. CHAP. 25, 6-9.] MISCELLANEOUS MATTERS. 287 of guardians and wards whum tliese. proiseedings can concern are com])aratively few, and to state these proceedings fully would occupy much space, it may be sufficient hero to allude to them onl}', and to state that guardians have as full power to act for their wards in these matters, as their wards themselves would have, wei-c they of full age, and capable of acting for them- selves.* 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 adoj^ter, entitled to all the rights and privileges, and subject to all the obligations, of a child of the adopter, born in lawful wedlock; therefore, it follows that the person so adopting a child, or designating an heir, has the right, while such child or person is a minor, of appointing by will a guardian for such minor, who will be governed by the rules relating to an}' other testamentarj' guardian ; and also has all the rights as natural guardian that he would have were he the actual parent.^ 7. Justice of the peace in.covipetent in certain cases. — No justice of tiie peace is permitted by law to try a case in which he is re- lated to either party to the suit, as either guardian or ward. ^ 8. When guardian liable for militia fines or dues. — For a fine assessed, or dues levied against a minor, by authority of the laws governing the militia of the state, in case such minor enlisted with the consent of his guardian, the guardian will be liable jointly and severally with his ward, for the amount of his ward's funds in his hands ; and all property held in common by any [militia] society or organization, the rules or tenets of which require a community of pi'operty, will be liable and bound for all fines assessed, or dues levied, under the provisions of these militia laws against any member of such society or organization.* 9. Survival of actions ; revivor of judgments. — Actions for libel, rslander,^ malicious prosecution, assault, or assault and battery, i§7699. =>?? 3137-3140. 3§584. *§3066. *In Dial's Adni'r v. Holter, 6 Ohio St. 228, it was held that where the de- ifendant, in an action for libel and slander, died after verdict, but before 288 MISCELLANEOUS MATTERS. [CHAP. 25, 10 for nuisance, und againnt a justice of the j^eace for misconduct in office, rebate upon the death of either party.^ In other actions as for viesne profits, for an injury to real or personal property for fraud or deceit, for monej'' due, for the recovery of personal property, and many others,^ the action survives the death of either party, and it may be necessary for the guardian to cause himself to be made plaintiff or defendant, as the case may be. It may also be necessary to revive a judgment which has become dormant.^ As either case will involve the necessity for employ- ing an attorney, it is not necessary here to give the details of such proceedings. 10. Certain sureties may require creditors to sue. — A person bound as surety in a written instrument for the paj'ment of money, or other valuable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor ; and unless the creditor commence such action within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, and to make, by execution, the amount thereof, the cred- itor, or the assignee of such instrument, so failing to comply with the requisition of such surety, will thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due thereon.* judgment, the action did not abate, but judgment uj^on the verdict could be entered after his death. ' U 4975, 5012, 5145, 5147, 6323, 5675, 5679, 5687, 5628, 5629, 4517. 3 ?^g 5146-5161. *§5833. Under a statute similar to this section it was held that when the surety gave notice to the creditor to sue, it was not a compliance with the statute to sue the surety alone. Starling v. Buttles, 2 0. 30.^). A surety who has given notice in writing to the creditor to proceed against the principal debtor, must set forth the facts in his answer; he can not otherwise avail himself of it as a defense at the trial. Headington v. Neff, 7 0. pt. 229. The notice is of no validity unless in writing. Jenkins v. Clarkson, 7 0. 1 pt. 72. And it must contain an unconditional requirement to commence an action CHAP. 25, 11-13.] MISCELLANEOUS MATTERS. 289 11. How guardian may become liable in such case. — As a guard- ian may have received such instrument as a part of the ward's estate, he may receive such notice to act, from a surety thereon ; and in such case, he would become personally liable if he neg- lected to proceed as directed in the preceding paragraph. 12. JVot applicable to guardian's bond, etc. — The provisions of paragraph 10, above, are not applicable to bonds of guardians, nor to any bond or undertaking required by law to be given in an action or legal proceeding, in any court of this state.^ 13. Guardian's power in 'proceedings to sell entailed estates. — The statutes j^rovide how entailed estates or other qualified condi- tional or determinable interests, etc., may be sold, when satisfied that such sale would be for the benefit of the first holder, and do no substantial injury to the heirs in tail, expectancy, reversion, succession, or remainder ; except estates in dower or curtesy.'^ forthwith; a notice that the surety "wishes" the creditor " to proceed against the principal debtor," and collect " the claim, or have it arranged in some way," and that the surety does " not wish to remain bail any longer," is not suflScient. Baker v. Kellogg, 29 0. S. 663. ^§5835. ^2 5803. The act of April 4, 1859 (56 v. 154), and the acts supplemental thereto, passed March 30, 1864 (61 u. 80), and April 13, 1865 (62 v. 184), in- clude as well estates created before as after their passage, but as to estates created before their passage they are in conflict with section 19, article 1, and section 28, article 2, of the constitution, and inoperative, Gilpin v. Wil- liams, 25 O. S. 283 ; but not as to estates created after their passage. Nim- mons V. Westfall, 33 0. S. 213 ; Oyleru. Scanlan, 33 0. S. 308- The act of April 13, 1865, extends and applies the acts of April 4, 1859, and March 3, 1864, to all estates tail or for life with remainder over to any other person or persons, and to all determinable estates which may be cre- ated by will, etc., after its passage. Nimmons v. Westfall, supra. Under the act of April 4, 1859, and said supplemental acts, the owner of a life estate in posses.sion created by will subsequent to April 13, 1865, may institute proceedings for the sale of both the life estate and the estate in re- mainder; and this may be done notwithstanding the testator provided in the will for the disposition of the land and the determination of the life estate. lb. A tenant for life who held the remainder in an undivided half of the estate, asked under this section for a sale of an undivided half in fee, and the owners of the other undivided half in remainder objected that such sale ■would injure them, and the tenant for life having consented to the sale of 19 290 MISCELLANEOUS MATTERS. [CHAP. 25, 14-16. 14. Sale hy consent of guardian, etc. — All parties in interest may appear voluntarily, and consent in writing to such sale; and testamentary guai-dians, and guardians appointed by the court of })robate, may assent, in the place of their wards, to the eale.^ As guardians may be responsible for the proceeds of such sales belonging to tlieir wards, the provisions of law concerning such proceeds will be given below. 15. How proceeds of sale disposed of. — All monc}'' arising from such sales must, for purposes of descent, succession, reversion, or remainder, have the same character, and be governed by ths same principles, as the estate sold, and must pass according to the terms of the deed, will, or other instrument creating the estate."'' 16. How proceeds may be invested. — Money arising from such, sales must, under the direction and approval of the court, be in- vested in the certificates of the funded debt of this state or of the United States, or in bonds secured by mortgage on unincum- "bered real estate situate in the proper county of double the value •of the money secured thereby, exclusive of buildings and other improvements, and of timber, mines, and minerals ; or the court may order the same to be reinvested in other real estate within this state, under such restrictions as it may prescribe, which in- vestment must be reported to the court, and subject to its ap- proval and confirmation ; the real estate in which the money is re-invested, must, for purposes of descent, succession, reversion, or remainder, have the same character, and be governed by the same principles, as the estate sold, and must pass according to the terms of the deed, will, or other instrument creating the estate sold: the court must appoint competent trustees to invest the money, and manage the same, who must, from time to time, re- port to the court their proceedings, and the condition of the fund ; and the court must require of such trustees security for the faithful discharge of their duty ; may, from time to time, require additional security''; may remove such trustee for cause, the whole property, and the court having found that such sale would not in- jure the remaindermen, decreed a sale : Held that there was no error in this decree. Oyler v. Scanlan, 153 Ohio 308. ^§5806. 2 2 5808. CHAP. 25, 17-20.] MISCELLANEOUS MATTERS. 291 or rca.sonablc iipprelicn.^ion tliercof; and ina}- accept the resigna- tion of a trustee, and fill a vacancy by a new appointnfient.^ 17. Who to receive income^ and pay taxes and expenses. — The net income accruing from such sales must bo paid to the person or persons who would be entitled to the use or income of the estate were the same unsold; and all taxes, and the expenses of the investment and management of the fund must be paid by the person or persons entitled to the income thereof.'^ 18. Such estates may he leased. — Upon like proceedings the court may direct that such estates be leased for a term of years, renewable or otherwise, as may appear most beneficial, and upon such terms as appear just and equitable; and the rents and profits must be paid to the person or persons who might otherwise be entitled to the use and occupancy of the estate, or the income thereof.^ 19. Privileged communications; evidence. — A person who, if a party, would be restricted in his evidence under the next follow- ing paragraph, can, where the property or thing is sold or trans- ferred by an executor, administrator, guardian, trustee, heir, de- visee, or legatee, be restricted in the same manner in iiwj action or proceeding concerning such property or thing.* 20. When a party shall not testify. — A party can not testify- where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee, of a deceased per- son, except: First. To facts which occurred subsequent to the appointment of the guardian or trustee of an insane person, and, in the other cases, subsequent to the time the decedent, grantor, assignor, or testator died. Second. When the action or proceeding relates to a conti'act made through an agent, by a person since deceased, and the agent testifies, a part}- ma}- testify- on the same subject. Third. If a j^arty, or one having a direct interest, testify to transactions or conversations with another party, the latter may testify as to the same transactions or con- versations. Fourth. If a party offer evidence of conversations ■ or admissions of the opposite party, the latter may testify con- ^§6809, *g5810. '§5811. *§5241. 292 MISCELLANEOUS MATTERS. [cHAP. 25, 20. cerning the same conversations or admissions. Fifth. In an ac- tion or proceeding by or against a partner or joint conti*actor, the adverse party can not testify to transactions with, or admissions by a partner or joint contractor since deceased, unless the same ■were made in the presence of the surviving partner or joint con- tractor : and this rule can be applied without regard to the char- acter in which the parties sue or are sued. Sixth. If the claim or defense is founded on a book account, a party may testify that the book is his account book, that it is a book of original entries, that the entries therein were made by himself, a person since deceased, or a disinterested person non-resident of the count}'; whereupon the book must be considered to be compe- tent evidence ; and such book maybe admitted in evidence in any case, without regard to the parties, upon like proof by any competent witness. Seventh. If a party, after testifying orally, die, the evidence may be proved, by either party, on a further trial of the case ; whereupon the opposite party may testify as to the same matters. Eighth. If a party die, and his deposition be offered in evidence, the opposite party may testify as to all com- petent matters therein. Nothing contained in this paragraph applies to actions for causing death, or actions or proceedings in- volving the validity of a deed, will, or codicil ; and when a case is plainly within the reason and spirit of this and the preceding para- graph, though not within the strict letter, their principles shall be applied.' ward's registered government bonds. 21. How guardian may collect interest of. — The First Comp- troller in the Department of the Treasury of the United i§5242. This section was eleven times amended from its adoption in the code of 1853 until the adoption of the Revised Statutes. For decisions construing it in its different phases, see A. & G. W. R. Co. v. Campbell. 4 0. S. 583; Myres v. Walker, 9 0. S. 558; Hoover v. Jennings, 11 0. S. 624; Bomber- ger V. Turner, 13 0. S. 263; Stevens v. Hartley, 13 0. S. 525; St. Clair v. Orr, 16 0. S. 220; Raab's Est., 16 0. S. 273; Bell v. Wilson, 17 0. S. 640: Thompson v. Thompson, 18 0. S. 73 ; Doughman v. Doughman, 21 0. S 658; Hubbell v. Hubbell, 22 0. S. 208; Baxter v. Leith, 28 0. S. 84; McNicol V. Johnson, 29 0. S. 85; Baker v. Kellogg, 29 0. S. 663; Wolf v Powner, 30 O. S. 472; Mosher v. Butler, 31 O. S. 188; Elliott v. Shaw, 32 O. S. 431 ; Black v. Hoyt, 33 0. S. 203. CHAP. 25, 21-26.] MISCELLANEOUS MATTERS. 293 States lia.s recently decided, as is shown in the Umv next succeed- ing paragraphs, concerning government bonds registered in the names of minors, that, 22. 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 infiints when the secretary of the treasury has been notified of such infancy. 23. Second. Neither the father nor mother of an infant has the right, as a general rule, to indorse or collect such interest- checks. 24. Third. The guardian of an infant, in order to indorse and <;ollect 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. 25. Fourth. The government is noi 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 secretarj' of the treasury had not been notified of the fact of infancy.^ 26. In explanation of the matter in paragraph 2-i above, the J^'irst Comptroller of the Department mentioned states as fol- lows : - 27. What icill 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 suf- ^ Infant's Case, 2 Lawrence Comptroller's Decisions, 26. * 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 being also desired to furnish therewith such forms of proof as would be satisfactory to the treasury department, concerning the points mentioned in paragraph 24 above, and as nobody except the proper officials of that department could assume to declare what proo: would be so, another request was sent for such forms; and in answer to this request, the matter found in paragraphs 27-H7, below, was very courteou.'^ly supplied. These ■forms are, therefore, entirely' reliable. 294 MISCELLANEOUS MATTERS. [CIIAP. 25, 27-33. ficient. If the ii])])oiiitmciit does not show ucccptance, this may be proved by the affidavit of the guardian or the certificate of the proper coui't. 28. Of guardian's authority being in force . — (2) It will be suf- ficient 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 record, and that the authority of the guardian is in Ibrce, with a reference to the statute showing the duration of the office of a guardian ; or this may be shown by affidavit, as follows : 29-31. Form of affidavit, as to guardian's authority. — State of Ohio, Logan county, ss. I, James Smith, being duly sworn, do on oath sa}', that I am a resident citizen of said count}' and state : that I am the iden- tical person who is the duly appointed, qualified, and acting guardian of Leila L. Fin ley, who resides at No. 17 High street, in the city of Bellefoniaine, in said county; that she was aged 15 years June 1, 1880. and that ni}^ authority as such guardian is in force. The duration of my office of guardian is prescribed by sections 6257, 6258 of the Eevised Statutes of Ohio. James Smith. Sworn to by said James Smith before me, and by him sub- scribed in my presence, this day, at mj' 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 guai'dian above named, aud that he is a credible ]:)erson. In witness whereof. 1 hereto subscribe my name and affix my Notarial Seal, at my office in Bellefontaine aforesaid, April 20. 1881. [notarial 8e.\l] John M. Lawrence, Notarj' Public in and for said county. 32. As to form of certificate. — The form of a certificate may readily be prepared by reference to the foregoing form of affidavit. 33. Boiv identity of ward shoion.—Tho identity of the ward as the payee in a bond may be shown by affidavit thus : — CHAP. 25, 34-37.] MISCELLANEOUS MATTERS. 2'J') 34-37. For7n 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 b}' 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 Bellelbntaine, in said county; that his au- 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 SLOOO, 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 pei'son. In witness whereof, I hereto subscribe my name and affix my notarial seal, at my office, in Bellefontaine aforesaid, April 20, 1881. John M. Lawrence, Fnotabial seal.] Notary Public in and for said county. APPENDIX. CAN A MARRIED WOMAN BE A GUARDIAN? (See paragraphs 35, 36, chapter 3.) 1. As the question whether a married woman' 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 o^jinion 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 spirit 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.^ 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 lixed 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 standard treatises of law, and om- 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.' It is not to esfablish this principle; it is to (1) The unprofessional reader should remember that a widow has been, but is not, a married woman. (2) Lindslcy 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 O. S. 387; R. R. v. Keary, 3 O. 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 lesixl 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. 2,31, n. k: Wells on Separate Property- Mar. Wom. S3, and below, in note 1, next page; Reeve's Dom. Rel., subject "Baron and Feme. (297) 298 APPENDIX. determine the eflfect of departures from it by the legislature, that legal decisions have chiefly been necessary.^ 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;'^ that she is under his control, and so presumably acting un- der his coercion f 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 thei'e are no decisions to that eflfect 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 SAY. 8. Perry, in his thorough and quite recent work on Trusts, §§ 49-51, says: "In equity, the absolute interest in the trust fund is (1^ See, among others, Rice v. Railroad, 32 O. S. 380; Alexander v. Morgan, 31 0. S. 546; Levi v. Earl, 30 0. 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 0. S. 87; Needles v. do., 7 O. S. 432; Alexander v. Morgan, 31 O. S. 4-16, 418; Coke Litt. 112 a; Mete, on Cont. 82, 83; 2 Kent Com. 129, 132: 1 Black. Com. 442; 2 Story, Eq. .lur., $1376; Schouler's Dom. ReL 10; Bell v. Bell, 36 Ala. 4G6; 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. (o) Reeve's Dom. ReL, 98 ci seq.; Schouler's Dora. Rel. 52; 1 Bish. INIar. Women, $$:>'), 30; 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. 209 vested in the cestui que iniat, the trustee is a mere instrument, and any power or authority in the trustee must have the character of a power simply collateral ;^ therefore there is nothing, as respects legal capacity, to prevent a married woman ftom administering a discre- tionary trust.^ . . . "At the same time a husband must always have a large influence over a feme covert trustee; indeed, as he would be 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.' . . . 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.* 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 be a perplexing question, although the sureties on such a bond might be liable. 9. " Subject to these inconveniences, a married woman can always be a ti'ustee; and she may even be a trustee for her husband," as well as her husband for her,^ and the courts will find means to enforce the trusts ; hut they will not appoint married women to such offices, nor will they ap- point them to be guardians of minors."^ A woman, on the contrary, will be removed from the office, if she is appointed while sole and afterward marries." ^ 10. Redfield's Law of Wills (;kl 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 /tvne covert being made a trustee ;® 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. Webster, 10 Wend. (N. Y.) 554. (2) Same cases. (3) Still V. Ruby, 35 Penn. St. 373. (4) Clark v. Saxon, 1 Hill Ch. G9. (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 {ct al.) (7) Re Kaye, L. R. Ch. 387. (S) Lake V. Dc Lambert, 4 Ves. .505. 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 bo a trustee.' " (0) Citing, at close of paragraph, to same proposition, Re Campbell's Trusts, 31 Beav. 176. 300 APPENDIX. calling them to account before the proper tribunals, there will always he 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, constanth^ exercise a watchful care over her conduct of the 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 upon a married woman. (Citing Kingham v. Lee, 15 Sim. 396, 401 ; Smith v. Smith, 21 Beav. 385 ; Drummond v. Tracy, Johns. Eng. ■Ch. 608.) 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 receii)t of the trustee and her husband.^ . . . So 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." ^ 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 laooks do not seem to be agree<;l.^ 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- Btoue 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; Griffing v. Hopkins, Walk (Mich.), 49; Jackson v. Combs, 7 Cow. 3G. (4) Macpherson on Infants, 60-65; Eyre v. Shaftsbury, 2 P. Wms. 103, 116; Roach v. •Garvan, 1 Ves. sen. 1.57, 158; Mendes v. Mendes, 3 Atk. 619, 624, 1 Ves. 91; Dedham *. Xatich, 16 Mass. 135, 140; Whipple v. Dow, 2 Mass. 415; Heyward v. Cuthbert, 4 WHAT STANDARD LAW WRITERS SAT. 3ljl ever guardianship is hers, it has been held, perhaps not justly, con- tinues in her, though she is married a second time.' 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 of 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.'^ In our own country, a statute sometimes provides that the guardianship shall end on the marriage,* but otherwise this does not tei'minate the guardianship ; * at least, not in all the States, perhaps it does in some."® 14. In McPherson on Infancy, 111, and Keeve'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 illegitinvite child ;' 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 Buch 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 Butcher, 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. K. 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 a 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." He 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., 1870; 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.^ 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.^ 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, ^'ot 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. Tliis 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. 387. [Macphers. Inf. Ill; Anon., 8 Sim. 346; Gornall's case, 1 Beav. 317; Jarrett v. State, .5 Gill & Johns. 27 ; Palmer i'. Oakley. 2 Doug. 433 ; Farrer v. ClarKe, 29 Miss. 195 ; HoUcy v. Chamberlain, 1 Redf. 333 ; Kettletas v. Gardner, 1 Paige, 488 ; Ex parte Maxwell, 19 Ind. 88, are also referred to. See these cases below.— jEd.] CASES EXAMINED. '303 •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 siii juris, and has 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 Hhe appointment of a married woman as guardian, or do not, either by implication or other- wise, forbid it; but (o.) 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 ;- 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,^ the inducement mentioned above docs 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 65, and references there found. (2) See paragraph 2, chapter 5. (3) See paragraph!! 17-18, chapter 3. It should be borne in mind tliat this is rot the case in all states, and that gene- rally the guardian's otlicc entitles him to the control of both the person and tho estate of the ward, to the exclusion of all other persons. (4) See paragraph 64, below, et seq. 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.^ 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 Re 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,^ 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 jiiri'!, 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. 39.5-300. 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— Ki). J is not 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. Mellish, 2 Swanst. -536. CASES IN ENGLISH CHANCERY. 305 care and custody of the infant, and tliat she may be appointed guar- dian. 1 can not, however, interfere in that, as it will be a matter for the consideration of the master. I believe tills 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. An 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 Ma.s- 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 thei'efore 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 oi-der."' 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, wlio 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. . . . lie 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 control. (i; See par. 14, p. 801. 20 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. Ilalley v. Chamberhiin, 1 Redf. (N. Y. 1860) 333. The second and last paragraph of the sylhibus in this case is tliat "The policy of the law is against tlie 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."^ 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 adrninistra- tion to a married woman, the same reasoning would forbid appointing her guardian of the estate o/ a minor. Also, that as the law gives the Surrogate the power to revoke the letters ^ 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. Ifc 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 only ; ancj 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 tlie surrogate, a mother was, at that time, entitled to manage the estate of her child as 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 ENOLISII niANOERY. 307 guardian of minors, because slio was free to act as a male, but upon her marriage she ceased to be tlie free agent she was before; and she in Uiw 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, slio might be appointed administratrix, and her husband was liable for her acts; but this rule was never made applicable to guar- dians. (Woodruti y. 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;' 2 Bradf. 155; Newhouse 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. " Thei'e 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 1867 authorize her to be continued as guardian, or rather does continue her such guardian. 41. "1 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 II. 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. APPENDIX. 308 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. 46. Ex parte Maxwell, 19 Ind. 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.^ . . . Our statute touching the capacity of a married woman to act as executrix is simply declaratory of the com- mon law.^ 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 her 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., $$1337-9; 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 11 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 eflfect 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 acts in the premises. 2 R. 8. 1876, 491, $2. CASES IN ENGLISH CHANCERY. 309 49. Parmer v. Oakley, 2 Doug. (Mich.) 43o. 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 nece.ssary that the guardianship bond, required by R. S., 1827, p. 59, g5, 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, a^jpointed 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 merel}', 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 the 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 "^Vood v. Stafford, 50 Miss. 370. 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, under 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 vMa. 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,^ 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. 1785) 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, e.xpressly empower married women to act as guardians. For instance, in Massachusetts, it is provided that a married Avoman 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. APPENDIX. ?,] I bound in the same m.annor and with the same effect in all respects as if she was sole. Stat. 1874, chap. 184; see also Stat. chap. 409, Act« of 1869. And, as may be seen from some of the preceding paragraphs,' the laws of several of the other states favor, in greater or less degree, the same policy. We should therefore expect the decinons 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. Rut 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 gvardianship of such woman; and the probate court of the proper county shall aj)- 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." - 67. "Skc. 6303. W^hen 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 man-ied woman, ap- pointed such guardian shall, in her said capacity, have i^owcr 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 pi-ovides 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 euch marriage, as might have been lawfully done, the court and her eureties 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 simihvr provision as to an unmarried woman appointed executrix or administratrix, who afterward marries, the hiw being so explicit as to provide that marriage shall have the same effect as her death would have had. $6022. Compare with paragraphs 32, 3o, above. It has been held in England that a. feme covert might be an administratrix, but that was before 22 and 23 Car. II., which required administrators to give bond. 1 Com. Dig. Tit. Adm'r, B. 6 o, p. 487. 312 APPENDIX. permission. It does not even leave it to the discretion of the judge to remove her, as for other cause, but makes the very act terminate the guardianship, and makes necessary her final settlement. 71. Suppose that we apply this reasoning to other causes of removal : that a guardian's removal from the state determines the guardianship because of changed relations, but that a non-resident of the state might have been originally appointed, and that this removed guar- dian might consequently be at once re-appointed, as this would neces- sarily follow. Or that a guardian may be removed because he has become a habitual drunkard, but that such a man might have been originally appointed! In these cases, certainly, such reasoning needs no refutation ; and the lawmakers have never deemed it necessary to provide against it. But they did carefnlh/ provide how, in one certain case only, "it shall be lawful " for a married woman to be a guardian, and how she can, in that case, give a good bond. 72. The matter in the preceding paragi-aphs is, on general princi- ples, as applicable to the other trustees whose duties are treated of in this volume as it is to guardians, with this difference, however, that the provisions of paragraphs 66 and 67 do not, in terms, apply to such trustees. But the other objection to a married woman's being in control of trust property are much the same, whether she be a guardian, executrix, administratrix, or other trustee. INDEX. r The figures refer to the fages, including the viatter in loth text and notes. If matter in the notes alone is referred to, the letter n follows the number of the page.'\ ABSTRACT OF TITLE— must be given by guardian to court, when, 31, 39. ACCEPTANCE— of guardianship, 42, 43. of guardianship ad litem, 273. ACCOUNTS, FINAL AND OTHER. See Guardian's Account. settlement of, in probate court, 7, 12, 26, 50, 150, 163, 243. must be recorded, 11, 152, 161. can not be made for guardian by judge, clerk, etc., 11, 12. must be settled in common pleas court, when, 12. mode of keeping, with ward's estate, 47, 152-9. when female guardian marries, account must be rendered, 50. when ward dies, 51, 88. when guardian dies, who must render, 51. filing of must be enforced by court, 53, 63, 161, 256-8. must be rendered by guardian and trustee, at what times, 26, 50, 63, 150, 253, 257. ■who may compel rendering of, and how, 63, 256-7. of money on deposit, how must be kept, 74, 75. guardian must jniy costs of suit to compel filing of^ 86 n. and costs caused by his neglect, incompetence, etc., 86 n. object of the account, and how made, 151, 152, 153 n., 154-9. should be clear and easily understood, why, 152. of each ward shoulil be separate, 152. form of, 156-9, 254-6. final must show, what, 158. must be sworn to, how, 159, 254, 256, 257. notice of filing must be published, how, etc., 161, 256. cost of this, how paid, 161. exceptions to, may be filed by whom, etc., 161, 162, 255-6. hearing of exceptions 161-2,255-6. settlement of, between guardian and ward, 16.3. guardian must exercise good faith as to, 163 u. is onl}' an ex parte statement, when, 164 n. is a settlement within meaning of the law, when, 165 n. journal entry as to fiUng of, 159. journal entries confirming or rejecting, 164-5. settlement of, must be in probate court, 162 n. 166 n. settlement of, is final when, 165, 166 n. 313 314 INDEX, ACCOUNTS, FINAL AND OTHER— ConAmwed. appeal from settlement of, ma}' be had, 280. may be reviewed when, Kio-G. notice of hearin n. of divorciMl parents, iiuardiaiis for, 8 n. residence of, how deterninied, and wliy important, 17-23. must attend public school when, 205. unlawiul to eraplo.v, wiio lias not attended school 206. maj' be bound to apprenticeship, how, etc., 208-213. of insane person, imbecile, etc., how consulted, 2'M. adopted, rijihts 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, 216-218. CITATION— court will issue, when, and for what, 55, 182, 256. form of, 55, 56, 259. how served, 56. journal entr}- as to 57 CITY— fjuardian 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 -155. trustee must collect, 206. oJ minor 7oard. 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. oJ" 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. 326 INDEX. DEED— Continved. must be 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, 253. 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 b.y 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 pi-oceedings as to insane woman's dower, 244, 245. DEFENSE— . of infant must be by guardian ad litem, 110, 111, 2(1. 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 sliould exercise, as to removing guardian, 57, 53 n. "gua'rdian 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, 111. must be set out in petition for sale of ward's land, 90, 234. if previous!}' assijrned, what to state, in such petition, 99. ma}' be assigned in such cases, 111. widow may take money in lieu of. 111, 141, 234. collusive assijrnment of, will not prejudice minor heir, 112. assignment of, in guardian's sale, 97, HI, 112. assignment of, in partition proceedings, 194. assignment of, in sale of 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. Low assigned, IIG, 117, 140. 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 wife's right of, may be divested, paid for, etc., 244-5. mortgage, stocks, etc., to insane person, in lieu of, 244, 245. estate by, can not be sold, how, 289. DRUNKARD. See Ixtoxic-\.tikg Liquors. guardian of defined, 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 irom such appointment, 280. effect of such appointment on power to convoy property, 251. powers, duties, etc., of such guardian, 249-252. conveyance 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 Guardi.vn; 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— Coniinned. ■ward must attend public school, when, 205, 209. books to, free of cost, when, 20(). duties, etc., of, board of, as to school attendance, 205-207. ENGLAND— guardianship in, 2-5. as to gifts to ijuardian in, 83. rule in, as to attorney's fees, in certain cases, 154 n. married woman's capacitj- to act as guardian in, 298-305. ENTAILED, CONDITIONAL, DETERMINABLE, ETC., ESTATES— maj' 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 lor, 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., E.sTATE. of minor child, not controlled by parent, 2, .S. all orders concerning, must be entered on guardian's docket, 10. duty of court as to protecting, etc., no, 54. mu.«t be managed by guardian, 02, 68-9, 84 n. what must be paid out of, 69. See Guakuiax. 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; Piiob.\te Judge. of accountant under oath, 257. EXCEPTIONS— io bond. where considered, 41, 57. INDEX. 329 EXCEPTIONS— Continued. may be filctl by whom, etc., 1G9. uoiice of, 1G9. to accounts. who maj' file, 161, 174. guardian and tni.stee must be notified of, 169, 174, 25S. hearing of, 161-2, 174, 256-7. judjie may srant further time for filinp;, 161, 257. final hearinj: 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, 2r!2. filing of accounts of, and of trustee, hoiv 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. FATllEh—Coniinued. shc^ild not l)e appointed guardian ad litem, when, 272 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 u, for certified copy of bond, must be paid when, 178. FEMALE PERSON. See Widow; Wife; Marpjed 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., subject to, for not sending child to school, 206, also, for sale of intoxicating liquors on ward's premises, 224. no exemptions, except, in such cases, 224. FORCIBLE ENTRY AND DETAINER— applicable to lands purchased at guardian's sale, 138. FOREIGN GUARDIAN— appointment of, will cause removal of guardian here, when, 52. proceeding in such ca.se, 52. what proof required, 52. such removal will not be made, unless, 52. will receive all ward's property, when, 52. notice to, may be served by publication, 181. FRAUD— final settlement will be opened on account of, 1G5-1G6. guardian liable on bond for, 179. rights of claimants to land, not gnilty of, 190. decree obtained under answer of guardian ad litem impeachable for, 278. FORMS— acceptance. of guardianship ad litem, 274. accmint. of guardian of ward's estate, 15G-7. oath to, 159. confirmation of, 164-5. of trustee, of beneficiary's estate, 254-6. ack7ioivledg7)ient. 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. INDKX. 331 FOR'!slS— Continued. as to statement of ward's estate, 42. to complaint ajrainst j;uartlian, etc., 55. to service of notice of summons, etc., 107, to obtain service of notice by publication, 108. in proof of same, lOi). verifj'ins 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. as to how private sale was made, 131. to guardian's account, 159. to notice of filinj; exceptions to bond, 171. to notice of surety's application for release from bond, 175. to trustee's account, 25G. as to jzuardian's ri^ht to collect interest on U. S. bonds, 294, as to ward's identity for same purpose, 295. agreemenf. concerning the binding-out of ward, 211. answer. of widow, waiving dower and asking money value of, 112. of guardian ad litem, 277. application. SeePKTiTiox; 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, 17(3. for citation to compel trustee to file account, 259. for appointment as trustee of non-resident minor, idiot, etc., 265, oath to, 265. journal entrj"- 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, 279. 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 sui-ety 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., i()9-l78. additional, when guardi;vn completes real contract, 241, of trustee of non-resident minor, idiot, etc., 266. 332 INDEX. FORMS— Continued., certificate. of guardian's consent to ward's marriage, 71. of appraisers' appointment, 115. of judge's approval of binding out ward, 213. citation. to guardian to appear, pay money, etc., 55, 184. another form, 5(). journal entry as to, 57. to trustee to file account, 259. comj>laint. against guardian, etc., 54, 55. aflidavifc to, when required, 55. consent- to be appointed guardian ad litem, 279, 274. confirmation. of sale, order of, 132. decree. See Jouunai. 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, 1G9. entry, if dismissed, 172. entry, if sustained, 172-3, indenture. to bind out ward, 211. journal extry. 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 survey, 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, 173. 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 of ward, 211. INDEX. 33:? VORMS— Continued. ordering {jiiardian of idiot, etc., to make deed, 240 of order of attachmont aj^ainst trustee, 2C0. of removal of trustee, 2()0. of resignation of trustee, 263. of appointment of trustee for non-residont 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. Ietie7-s. of guardianship. motion. See Application'; Petition. t6 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. allidavit to, 108, 184. by publication, form of, 109, 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 b}' 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 b}' 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. 334r INDEX. FOWSlS—Cuniinued. of guardian, to lease ward's real estate, 140, 141, 236-7. verification of, 142, 237. to compel fiiiardiun to pa}^ money due on settlement, 182-4. to compel c()nvoj%T,nce to ward, of land contracted for by ancestor, 227- as to completion of real estate contract of idiot, lunatic, etc., 239. to transfer eli'ects of ward to non-resident guardian, administrator, etc., 2G8. precipe, for order of sale, 124. release. of ward to «^/??»e(?. as to tiikinj: ward's real estate for public use, 201-4, 286-7. as to adopted child, 287. as to sale of on tailed estates, 289-291. as to testifying in certain cases, as to certain matters, 291-2. as to collectinjr; interest of retristercd government bonds, 292-5. can cliange 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 notliing about partitioning deceased ward's land, 87, 88. can receive onlj'^ 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 injur}', 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, maj'^ have custodj- and tuitioaof 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, wlion, 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 jointl}' with other guardian, in such sales, 97. may make the affidavit in proof of publication, 110, 129, form of, 129. may lease ward's land, when, 139-142, 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. INDEX. 341 GVARDl A^S—Coufinued. maj' bo required to '.). and not filin;^ inventory or account, M, 62. or l)ond, 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, 5;^, 54, 57. form of, and how served, 56, 57. proceedings for removal, 56-58, 16!)-178. when he should not be removed, 57, 177. resignation of. may be accepted by court, when, 49. should not be accepted till full account is filed, 49. form of ro.'^ignation, 49. form of journal entry, accepting, 49-50. sale of ward's property by. See Sale. personal wrongful, ward's remedies, etc., 83, 84. ward can not malce, 89. as to land warrant. See Land Warrant. real estate. See Rkat. Estati-; ; Pkobatk Court. can not be had, without court's approval, 66, 95. guardian or trustee can not buj', 80, 81. sotne 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, 8o, 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. maj' 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. hy foreign guardian. application for, where made, 13.'), 130. 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 for fifteen years, for what, 139-140. 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, OQ plaintiff's or friend's application, 272-3, 279. 344 INDEX. GUARmA^i— Continual. form of application i'or appointment, 273. liow iippoiiitt'd, 110, 2,);), 271. at what slajie of trial, 271. effect of appointing; too soon, 271. effect of not appointinii at ail, 272 n. appointment of, to minor not a part}', is void, 273 n. irre0. wife of, may be such guardian, 230, 311. 350 INDEX, INSANE PERSON— Coniimied. may be confined in county infirmary, when, 246-7. as to sale of real estate of, in such case, 247. powers, duties, etc., of trustee of, 242, 253-269. See Trustee. INSANITY— of part}' to action, how determined, 2o3, 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 case.s, 289. INSURANCE— charged in guardian's account, how, 153. INTEMPERANCE. See Dkunkexness. INTEMPERATE PERSON. See Drunkard. INTEREST— when n. can not be collaterally impeached, unless, 21, 103 n. rule as to taxes, to have same force as, 148. when final settlement has same effect as, 165. effect of generally, against guardian, etc., 179, 180, 181. sureties may be made parties to, when, 181. in case of apprenticed minor, 210. releasing land from insane woman's right of dower, 245. against infant will be reversed, in certain case, 272 n. as to revivor, etc., of, 287-8. JURISDICTION— of probate court or judge, 5, 7, 8-1 £. can not be interfered with b3' 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, 17. of appointing guardian is open to inquiry, 17 n., 21. minor must be resident of count}', or court can not appoint gnardian, 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, 97, 265. certain sales void, for want of, 97 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 ward's marriage, 70-72. duties of, as to apprenticed minors, 210. duties of. as to committing ward or minor to house of refuge, 218-220. can not tr}' case, if related to either party as guardian or ward, 287. as to survival of suit against, 287-8. LABOR AND SERVICES— qf ward. guardian's duty, etc., as to, 84, 85. S52 INDEX. LAND. See Real Estatk; Propp;rty; Guakdiax; Sale; Lease. LAND SCRIP- LAND WARRANT— convert^ioii of, Iiy <:uardian, 62 n., 78 n., 95 n. sale of, by guardian, invalid, when, 95 u. LAPSE OF TIME— makes title t^ood when, 149. ^u. /I J>^ ,^ LEASE OF WARD'S REAL ESTATE— / ''»-' guardian may make, for how long, etc., 130, 140, 235. guardian's responsibility for leasing too low, 131) n. what application for leave guardian must make, 140, 236. who may join in application, 140. what such applications must show, 140, 235, 230. rules as to parties, and notice in such matter, 140. ns to widow's dower, in such case, 140. form of application or petition for leave to make, 141, 142, 236. verification of, 142, 237. proceeding on liearing of, 142, 237. freeholders must be appointed, what for; report of, 142, 237. how freeholders appointed, forms for, etc-, 142, ^37. 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 case, by whom, 143, 2.35. guardian's liability, if rented for sale of liquors, 221-225. lease void, in such case, 224-5. trustee of non-resident minor, idiot, etc., may lease, 264-267. of entailed, conditional, etc., estate, 291. 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. as to executors, etc., govern accounts of trustees, 253-4, 257-9. as to own child, govern adopted child, 287. as to guardian of person and estate, govern guardian of estate, 69. LEGAL SETTLEMENT. See Settlement ; Reside>-ce. LEGAL REPRESENTATIVE. See Administrator; Executor. entitled to money and other effects of ward, when, 2G7, 268, 165. LEGATEE— as to restricting evidence by, or against, 291-2. LESSOR. See Lease. position of, who lets premises for sale of into.xicating 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 Gcardian, Appointment of. force and effect of, 17 ii., 46 n. how issued, etc., when more wards than one, 32. fees in such cases, 32. issued before bond piven, 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, 293. LIABILITY. See Negi.igexce; Loss; Damage; Guardian. of sureties. See Sureties ; Bond. of puiirdian. See Guardian. of shoritr and his sureties, in partition proceedinfjs, 193. of guardian, parent, etc, as to apprenticed ward, 211. of guardian, etc., as to traffic in intoxicating liquors, 221-225. of guardian, as to militia fines of ware, 287. of married woman ai guardian, 230. 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, 146. tax title little better than, 148-9. fines etc., for sale of liquors on ward's premises, etc., are, on premises, 224. by 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 Ixtoxicatino Liquors. LITIGATION. See Suits. costs of, who must pay. See Costs. LISTING— ward's property for taxation, 145-147. LOSS. See Negligente; Damages; Liability. as to guardian's and trustee's liability for 76, 74, 75, 60-61 n., 66 n., 67 n., 74-76 n., 78. LOTS, TOWN. See Reai, Estate. ward's land may bo 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. 23 354 INDEX. LUNATIC. See Insane Person. guardian of, defined, etc., 2. inquest respocliiijr, in jirobiite court, 9. wlio must list i^ paid, in redeeming land sold for taxes, 148, 149. for not sending ward or child to school, 20(5. for permitting ward's premises to be used for sale of liquors, 224. PENSION— guardian's duty as to, Gl n., 80 n. PERCENTAGES. See CoMPEN-s.moN. 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 OP WARD. See Pkoperty; Investment} Est.\te; Money. must be, or maj-, 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 of dower owner, when, 244. PIKES. See Roads. duties, rights, etc., of guardian and ward as to, 202. PETITION. See Application ; Motion; Pleadings. for sale of ward's land, must contain what, 97-99, 2B4. form of, 99-102. probate court has concurrent jurisdiction on, for such sale, 97. hearing of, llo, 234. in proceedings to lease ward's real estate, 140, 141. must contain what, 140. form of, 141, 142. hearing of 142. to compel guardian to pay money due on settlement, 182-184. as to streets, roads, etc., affecting ward's land, 201, 203, 204. as to real estate contracts of ward's ancestor, etc., 220-8. 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 woman, 244, do., 245. must contain what, 244, 245. to permit insane man's wife to sell or encumber her real estate, 246. PLAINTIFF. See Parties TO Action; Suit; Sale. PLAT— of town lots to be sold, by guardian, 113, 121. iM)t.x. 363 PLEADINGS. See Petitiok; Answer; Motion; Verification; Suit: Sale. must show what, 182. must be recorded, where, 10, (>!^. verification of. See VEiuKicATroN. POLICE JUDGE— may 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, 42. 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 be 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, etc., 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, G3, 69, 150-1. should not wait for complaint, in such cases, 53. whj' 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 of 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 by law for common pleas court, when, 103. 104 n. how legal notice gi"en by, if law silent as to manner, 105. duties of, as to service of noti-je by pulilication, 107-110, 232. duties of, as to insane widow's dower, etc., Ill, 234. 364 INDEX. PROBATE COURT— PROBATE i\JT)GE— Continued. usually appoints whom, as appraisers, 114. certificate of appointment of, to appraisers 115. appraisers' report to, 117, 118. must require additional bond, when <:uardian sells land, 118, 136. must authorize jiuardian to sijrn, seal, etc., plat, 121. must do what as io notice, if no paper published in county, 129. must require what affidavit, as to private sale had of ward's property, 131. must examine report of sale, and confirm, when, 131, 132, 135. and order deed, and mortgatre, when, 131, 235. may authorize what lease of ward's land, how, 139-143, 235-238. duties of, as to ward's ta.xes, guardian's duties thereto, etc., 146-149. must fi.x guardian's compensation, 159-l(il. must publish notice of filing of accounts, 161. is the only medium for settling affairs between guardian and ward, 163. must settle guardian's accounts, 162 n., 1G6 n. may adjourn hearing of exceptions, l7l. hearing and decision of, in such case. 171-3. must direct who shall pay costs, 86, 173, 174. must act of its own motion as to bond of guardian, 174. duties, etc., of, as to binding out ward to apprenticeship, 208-213. and as to sending minor to reform school, 214. and as to sending girl to industrial home, 215. and as to sending ward or other minor to children's home, 216-218. guardian ad litem must be appointed by, when, 110, 111, 233, 271. must require guardian ad litem to do his duty, 233. or must remove him, 233. must try question of insanity of partj'', when and how, 233. must do what as to real estate contracts of ward's ancestor, etc., 226-8. same, concerning real estate contracts of idiots, lunatics, etc., 238- 242. same, when idiot, lunatic, or imbecile is restored to reason, 243. duties of as to guardian for drunkard, 249-252. as to authorizing guardian to carr^^ on business, 251 n. See Business; Guardian. must do what, as to trustee's account and settlement, 243, 253-269. controls payment of money by resident trustee, etc., to non-resident trustee, guardian, administrator, etc.. 267-8. duties of, as to trustees, etc., security, in such cases, 268. appeals from, as to what, may be taken, how, when, etc., 202, 165, 261, 280-283. as to guardian's account and settlement in. See Account; Guardian. as to appointment of guardians by. See Guardians, Appoixtment of. guardians are -appointed by, 5, 7, 8, 16, 17, 25, 42, 50, 62, 137, 230. should consult minor's best interests in, 23, 24, 25. also, the state of minor's affections, etc., in, 24 n. and parents' wishes, when, 24 n. should appoint minor's mother, when, 24 n., 29-30. when not, 24 n., 30, 50. should appoint minor's father, when, 29. should select guardian, when minor fails to, at proper age, 25. but need not, getierally, 26. should require testamentary guardian to give bond, when, 27, 31. testamentary guardian nominated by will; but court appoints, 5. INDEX. 365 PROBATE COURT— PROBATE JVDGE—Contmued. must approve guardian's bond, 'M. See as to bond, below. or mortgaj^e security in lieu of freehold sureties, 31. See MORTGAGK. must require a statement of ward's estate, 41. form of statement, 41. applicant should be appointed, if, 42. journal entry should show what, and why, 45. if female guardian marries, must appoint another guardian, 50. must appoint guardian tor foreign minor, when, 137. and of idiot, lunatic, imbecile, etc., 230. and of drunkard, 249. as to appointment of trustee. See Trustee; Appointment. , of non-resident minor, idi®t, lunatic, or imbecile, 264-269. special duties and obligations of, to minors and wards. it is peculiar province of, to watch over and protect minor's interests, 13, 14, 37, 55, I6G n., 174. must call guardian to account, when, 14, 55, 174. must consult minor's best interest, in appointing guardian, 23, 24, 25. and also at other times, 174. should regard infant's affections, attachments, etc., 24 n. as to bond of guardian. See Bond ; Guardian. must be approved by, 31, 136. so must mortgage security for, 31. such mortgage recorded and filed, where, 31. should examine proposed sureties on bond, 33, 34. how done; form of oath, and of affidavit, in such cases, 33, 34. can not enlarge application of bond, 32 n. how to proceed, when mortgage security is given, 39. should be signed in court, why, 37. duties of court as to, 169-174, 242. as to removal, death, resigyiation, 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, 254-6. 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— Coniinued. may examine t^iiardian or trustee filirif^ accounts under oath, 162, 257. may reduce answers to writin2. appraiser, attorne}-,, 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 ot 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, 1.35. guardian for foreign minor must be appointed here, to make, when, 137„ purchaser's remedy, if sale invalid, l37. 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 person, 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. SECURITIES. See Bond; Investment. must be collected, when, 60 n. guardian can not loan money on personal, 61 n., 66 u. in what, guardian may invest, 65-68. INDEX. 373 SERVICE— of notice or sumiuons. 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 n. of trustee's accounts, 253-269. appeal from probate court's determination as to, 261. force and effect of, bj- probate court, 261. may be opened up, when, bj' whom, how, 261-2. mistake or error in, corrected, when and how, 262. appeal I'roin settlement, may be had, 280. guardian should have a, with ward, when, 163. SHERIFFS- raust serve writs, etc., in probate court, 13, 56, 103, 104, 106, 170, 232. 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. liabilitj' 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 afiBdavit, 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— modifj' married woman's common law rights in Ohio to what extent, 297-8. 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 bj', and others, 164 n. STOCKS. See Estate; SECURiTiEfs; Bonds. of building associations, may be paid to guardian, when, 69. "government stocks," 66 n. conveyed to insane woman, in lieu of dower, when, 244-5. 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 niaj'^ get property of non-resident ward by, 72. guardian or trustee may maintain, where, to get directions from court, 72. on guardian's jjond 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 Gu.vrdian 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 ma}' bring, in his own name, 182. for partition, how and where brought, etc., 186, 186-195. by tenant in common, jjarcener, 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. \)y 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 iry, 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 80,288. guardian's duty, liability, etc., in such case, 289. SUPERINTENDENT-^ of children s Jiome. duties of, as to ward or minor, 216. SUMMONS. See Notice. appointment of guardian ad litem must be after, 271. 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— qualifieations of, I'.O, 31. 32.243. number of, 3.'5. may be e.xamined under oath, 33. oral examination of. 33 form of oath for oral examination, 33, what questions to ask them, 33, 34. atlidavit of, .should be taken, 34. form of such affidavit, 34. liabilities of, c^enorally, 172 n., 177, 178, 178 n., 179 n., ISO. liabilities of, last how lonj:, 33 n. court can not enhirt^e 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. effeqt of ofl'er to release, if not accepted, 148. may be redeemed, when, 148-9. general validity of, 148, 149. becomes good, when, 149. proceedings against a person in possession under, 197, 196-199. S76 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, liow,^138. rights of, under lease of ward's lands, It!?, 235. rio-hts, 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, ol, 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. TRADE— can not be carried oo 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. TREATISES— concerning guardians, etc., 73. 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 depcsits 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. I.NDKX. 377' TRUSTEE— Cbn^niwe^. rt>melv of V)enfficiary against, if he speculates with, or uses trust f.in.i. 7.S, 7;), 81. can not carry on trade of decedent, except, 78 n. can not purchase property he holds in trust, 80, 81, 126 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, 14(), 147. manner of char'.iii) r64. n\ effect of release ofi to guardian, 167. , ' ; ' ' . > may open final settlement when, 165-6. _ , , ';''''> '■ ' stands in relation of creditor to his guardian, waen of la^e.^l^G r^.' may sue guardian, when, 180. ' ' ' estate of, affected by partition laws, 186-194. , . ^^, y, rights, obligations, etc., of, as to occupying claiiuantsl ]9f'-,20C. rights, obligations, etc., of, as to roads, streets, etc , ;2i)V-204. rights, obligations, etc., of, as to public schools, 205-207, 209. mav be hound 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. ViARB— Colli inued. or to industrial school, when, etc., 21G-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 into.xicating liquors, 221-225. prerai.ses of, must not be rented nor used for, 224. guardian's liability, in such ca?e, 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.. maj- be divested, 238-242. children of drunkard become wards, when, 249. non-residenf, rights of, 17, 285. how lioundarie.s of land of, fixed by guardian, 286. 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 trj' 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, efifect 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— court may assign dower of, in guardian's sale, 97, 111. proceedings as to dower of, 99, 111, 112, 194. guardian of insane, may act for, 111, 234-5. may waive dower, and claim money in lieu of, 111, 112. heir's remedj' 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 bj', 5, 26, 27 n., 29. and of trustee b}', 253. how such will to be executed, 27 n. g,ran.dparent can not appoint guardian by, 27 n. ^, • ..rror caN iviitlt no iip'point lor children of nephew, 27 n. jiiiaidian may bs ^^jxcusf-tl from giving bond bj', 27, 31. .as to authenticated copies of, and filing same, etc., 243 n. WIFE, ie^ M.jrrikd:\Vo,\ian; Dowkr. may be guardian, svhen, 230. iiah)litje!>., etc.,, of, in such case, 230. ji}S;h'i.s, ptj3.^ of, in sale of land of idiot, insane person, etc., 234. may cany on tiunband's business, how, 251 n. as to right of generailj-, to be appointed guardian, 29T-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 being sent to reform school, 214. Date Due 1 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 770 121 2 Lav) ix manual lor ,,uardians and trustees m r-