IN GENERAL 1259. Father and mother natural guardians-Statute-The father and mother are the natural guardians of their minor children, and, being themselves competent to transact their own business and not otherwise unsuitable, they are equally entitled to their custody and the care of their education. If either dies or is disqualified to act, the guardianship devolves upon the other.27 Prior to the revision of the statutes in 1905 the common-law rule that the father was the natural guardian of his legitimate minor children was in force in this state.28 Under the common law the mother is the natural guardian of her minor children if the father is dead.29 The natural guardians of a minor have no authority over his property except as expressly authorized by statute. Their authority is limited to the control of his person and education. They cannot collect, discharge or compromise claims in his favor, or sell, manage or dispose of his property, or maintain or defend actions in his behalf, except as expressly authorized by statute.30 They cannot sell the realty of the ward under a license from the probate court.31 1260. Minor ward of court-A minor under guardianship is a ward of the court appointing the guardian.32 1261. Estoppel of person acting as guardian to deny authority-One who has acted as a guardian is estopped from denying his authority as such in order to avoid liability for his acts and from asserting claims in conflict therewith.33 This rule applies even though the guardianship has been terminated by the ward arriving at majority.34 1262. Appointment of guardian ad litem not affected by general guardianship-Statute-Nothing contained in this chapter shall affect or impair the power of any court to appoint a guardian to protect the interest of any minor interested in any suit or proceeding commenced or to be commenced, or other matter pending therein, at any time.35 27 G. S. 1913, § 7442. See Jacobs v. Jacobs, 136 Minn. 190, 161 N. W. 525. 28 Townsend v. Kendall, 4 Minn. 412 (315, 321). 29 Hanson v. Swenson, 77 Minn. 70, 75, 79 N. W. 598. 30 Power v. Harlow, 57 Mich. 107, 23 N. W. 606; Ringstad v. Hanson, 150 Iowa 324, 130 N. W. 145; Kendall v. Miller, 9 Cal. 591; McNeil v. First Cong. Soc., 66 Cal. 105, 4 Pac. 1096; 15 A. & E. Ency. of Law (2 ed.) 26; 21 Cyc. 77; GUARDIANS OF MINORS APPOINTMENT AND TENURE 1263. Jurisdiction-Jurisdiction to appoint a guardian exists as well when the minor has property in the state where the appointment is sought as where he is domiciled therein. It rests in both cases on the right and duty of the state to take care of those who are unable to take care of themselves, as respects either person or property.36 Application for the appointment of a guardian for a resident minor must be in the county where the minor resides.37 The ward must reside in the county at the time when the petition is presented.38 Application for the appointment of a guardian for a non-resident minor may be in any county of the state wherein he has property.39 If application is made in the wrong county the appointment may be set aside in direct proceedings but it is probably not subject to collateral attack.40 A prior and existing appointment in another state does not bar a subsequent appointment of a guardian here if the ward is brought into this state."1 The domicil of his father is the domicil of a minor child. In case of divorce or abandonment the domicil of the mother may be that of the child.42 1264. When authorized-Statute-Whenever it appears necessary or convenient, the probate court may appoint a guardian for either the person or estate, or both, of any minor who has no guardian appointed by will, and who is a resident of the county, or who resides without the state and has property within the county; provided, however, that notice shall first be given in such manner, as the court may direct to the parents of such minor, if living, and if no parent is living, or if the whereabouts of both parents is unknown, then to the next of kin or custodian of the person of such minor; and provided further that no appointment by the probate court of a guardian of the person of a child under the age of eighteen shall be effective, if, at the time of making the same, proceedings involving the care and custody of such child are pending in a district court in this state, acting as a juvenile court.43 30 Davis v. Hudson, 29 Minn. 27, 31, 11 N. W. 136; West Duluth Land Co. v. Kurtz, 45 Minn. 380, 47 N. W. 1134. 37 In re Taylor's Estate, 131 Cal. 180, 63 Pac. 180; 15 A. & E. Ency. of Law (2 ed.) 33; 21 Cyc. 24. 38 Harding v. Weld, 128 Mass. 587. 39 See § 1345. 40 See §§ 647, 1273. 41 Jones v. Bowman, 13 Wyo. 79, 77 Pac. 439. 42 State v. Streukens, 60 Minn. 325, 327, 62 N. W. 259; Fox v. Hicks, 81 Minn. 197, 83 N. W. 538; 15 A. & E. Ency. of Law (2 ed.) 33; 21 Cyc. 25; 49 L. R. A. (N. S.) 860, 875. 43 G. S. 1913, § 7425, as amended by Laws 1917, c. 236. 1265. Petition-A proper petition is a jurisdictional prerequisite to the appointment of a guardian.* 44 1266. Notice-Notice of hearing on an application for the appointment of a guardian shall be such as the court directs.45 Provision is made for notice to the parents of the minor or next of kin or custodian.46 Notice is not a constitutional prerequisite to the appointment of a guardian.* In the case of the appointment of a guardian for the estate of a non-resident the notice under a former statute was held a jurisdictional requirement, but under the present statutes the rule is perhaps otherwise. The giving of the notice is presumed on a collateral attack unless the record affirmatively shows that no notice was given. A guardian for a resident minor under fourteen years of age may be appointed by the court without notice, but it ought not to be done under ordinary circumstances. A special guardian may be appointed without notice.50 Where the father has custody of a minor and petitions to be appointed guardian notice to the father is not necessary."1 48 1267. Nomination of guardian-Statute-If the minor be under the age of fourteen years, such appointment may be made on petition of a relative or of some other person on behalf of the minor. If above the age of fourteen years, he may nominate his own guardian, who, if approved by the court, shall be appointed. If not so approved, or if the minor resides out of the state, or if, after being duly cited by the court, he neglects for ten days to nominate a suitable person, the court may appoint his guardian in the same manner as if he was under the age of fourteen years. A minor may make such nomination before a justice of the peace, a notary public, or a city or town clerk, who shall certify the fact to the probate court.52 If a minor is over fourteen years of age he has a right to nominate his guardian, but the nominee is not entitled to appointment unless he is approved by the court.58 44 G. S. 1913, § 7227. See Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385; and §§ 31, 35. 45 G. S. 1913, §§ 7228, 7440. 46 See § 1264; Harding v. Brown (Mass.) 117 N. E. 638. 47 Kurtz v. St. Paul & Duluth R. Co., 48 Minn. 339, 342, 51 N. W. 221; In re Lundberg, 143 Cal. 402, 77 Pac. 156. 48 G. S. 1913, § 7440; Davis v. Hudson, 29 Minn. 27, 11 N. W. 136. This decision, so far as it holds notice jurisdictional, was criticized but not overruled in Kurtz v. St. Paul & Duluth R. Co., 48 Minn. 339, 343, 51 N. W. 221. It is inconsistent with Hanson v. Nygaard, 105 Minn. 30, 117 N. W. 235. It is to be observed that it was decided before the enactment of the present statute providing that every proceeding in the probate court shall be commenced by petition. See Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385; and §§ 31, 35, 40, 1345. 49 State v. Bazille, 81 Minn. 370, 84 N. W. 120. 50 See § 1342. 51 Asher v. Yorba, 125 Cal. 513, 58 Pac. 137. 52 G. S. 1913, § 7426. 53 Hanson v. Swenson, 77 Minn. 70, 74. 79 N. W. 598; Benedict v. Minneapolis & St. Louis R. Co., 86 Minn. 224, 90 N. W. 360, 1133. 1268. Same-When minor under guardianship becomes fourteen years of age-When a guardian has been appointed by the court for a minor under the age of fourteen years, the minor at any time after he attains that age, unless such guardian is a testamentary guardian, may select his own guardian, subject to the approval of the court.5* 1269. Who appointed-Trust companies-In selecting a guardian for the person and estate of a minor the main consideration is the present and future welfare of the child. The father or mother will be selected unless there are strong reasons to the contrary. The mere fact that a parent is poor does not disqualify him. Though a child is under fourteen years of age its choice may have some weight, but it is not controlling. If the father or mother is not selected their wishes should control unless there are strong reasons to the contrary. Other things being equal relatives should be selected.55 By express provision of statute domestic trust companies may be appointed guardians. National banks may be appointed guardians of the estates of minors when licensed by the Federal Reserve Board.o1 Non-residents should not be appointed unless there are special reasons therefor.57 56 1270. Married women may be guardians-Marriage of female guardian Statute-A woman shall not be disqualified by reason of her marriage from acting as guardian, and the marriage of a female guardian shall not terminate her guardianship.58 1271. Guardian may be appointed for estate only-Statute-The probate court, in its discretion, may appoint a guardian of the estate only of a ward, and commit the custody of such ward to some other person; and the court may, from time to time, direct the guardian to pay to the custodian such sums of money for the maintenance and education of such ward as it shall deem reasonable and proper.59 1272. Court may prescribe duties in order of appointment-Statute— The court, with the consent of the person to be appointed guardian of a minor, may insert in the order of appointment conditions in respect to the care, treatment, education, and welfare of the minor not other 54 G. S. 1913, § 7427; Hanson v. Swenson, 77 Minn. 70, 74, 79 N. W. 598. 55 Willet v. Warren, 34 Wash. 647, 76 Pac. 273; Russner v. McMillan, 37 Wash. 416, 79 Pac. 988; In re Lundberg, 123 Cal. 402, 77 Pac. 156; In re Dellow's Estate, 1 Cal. App. 529, 558; In re Mathews (Cal.) 164 Pac. 8; Jain v. Priest (Idaho) 164 Pac. 364; Harding v. Brown (Mass.) 117 N. E. 638; 15 A. & E. Ency. of Law (2 ed.) 38; 21 Cyc. 34. 56 G. S. 1913, § 6410; Minnesota Loan & Trust Co. v. Beebe, 40 Minn. 7, 41 N. W. 232. 01 First Nat. Bank v. Union Trust Co., 244 U. S. 416. 57 In re Johnson, 87 Iowa 130, 54 N. W. 69; 15 A. & E. Ency. of Law (2 ed.) 41; 21 Cyc. 37. 58 G. S. 1913, § 7430. |