1338. Settlement-Turning over estate-When a guardian has settled his accounts with the probate court and his guardianship has terminated he must turn over the estate to his successor, or to the ward, or other person entitled thereto. He cannot exonerate himself by turning it over to the court.3 31 An informal settlement has been sustained after a long lapse of time and acquiescence of wards.32

1339. Vacation of order allowing account-A probate court may on motion set aside its order allowing an account procured through fraud. The fact that consent by the ward to such allowance was procured through the aid of a written consent and acquittance obtained from the ward after his majority by fraud does not prevent the court from reexamining the account de novo.33

1340. Accounts and accounting of trust companies-Special provision is made by statute as to the accounts and accounting of trust companies acting as guardians.31

RESIGNATION AND REMOVAL

1341. In general-Statutes-The statutes governing the removal and resignation of executors and administrators apply to the removal and resignation of guardians.35 Prior to the enactment of the statute authorizing a guardian to resign his trust at any time, it was held that if a guardian tendered his resignation the probate court might enter an order removing him.36 A guardian cannot be removed without notice to him of the time and place of hearing if his residence is known.37 Where an effort is made in the probate court, upon petition of next of kin, to prevent a testamentary guardian from executing his trust, and the probate court decides that he is competent and suitable, upon appeal from such order the question of such guardian's right to act further may be considered, and the district court may permit an amendment of the petition of the next of kin, if necessary, to enable such question to be fully determined.38 The removal or retention of a guardian is largely discretionary with the court hearing the application and its action will not be reversed on appeal except for a clear abuse of dis

Ency. of Law (2 ed.) 115; 21 Cyc. 178; 12 R. C. L. 1165; 83 Am. Dec. 384; 9 Ann. Cas. 156; Ann. Cas. 1915D, 404.

31 Jacobs v. Fouse, 23 Minn. 51, 55; Jacobson v. Anderson, 72 Minn. 426, 75 N. W. 607.

32 Hanson v. Swenson, 77 Minn. 70, 79 N. W. 598. See L. R. A. 1916E, 863 (effect of settlement out of court).

33 Levi v. Longini, 82 Minn. 324, 84 N. W. 1017, 86 N. W. 333. See Ann. Cas. 1917A, 648 (lapse of time as affecting opening of settlement of account).

84 G. S. 1913, §§ 6415-6418. See St. Paul Trust Co. v. Kittson, 62 Minn. 408, 65 N. W. 74; St. Paul Trust Co. v. Strong, 85 Minn. 1, 88 N. W. 256.

35 See §§ 1141-1143.

36 Brown v. Huntsman, 32 Minn. 466, 21 N. W. 555.

37 McCloskey v. Plantz, 76 Minn. 323, 79 N. W. 176.

88 Chadwick v. Dunham, 83 Minn. 366, 86 N. W. 351.

cretion.39 Before removing a guardian for failure to account courts frequently allowed him to show, if possible, that no prejudice to the estate has resulted from the delay and if so to allow him to file a belated account.40 Mere unsuitableness, without misconduct of any kind, is a sufficient cause for the removal of a guardian. Acts of the guardian subsequent to the filing of the petition for his removal are relevant and material. The death, removal or resignation of a guardian terminates the guardianship, and where a successor is to be appointed, it must be in the county where the incompetent resides when such new appointment is made and upon notice the same as would be required in original guardianship.*2

41

SPECIAL GUARDIANS

1342. When and how appointed-Statute-When there shall be delay in appointing a guardian for the person or estate of a minor, or when it shall appear to the court to be necessary, it may appoint a special guardian for the minor until the cause of the delay or the necessity for such appointment shall cease and a guardian be appointed. Such special guardian may be appointed without notice, and no appeal therefrom shall be allowed. All provisions of law relating to guardians shall apply to such special guardian as far as applicable, and upon the filing and approval of his bond letters of guardianship shall issue to him.43

1343. Powers-Statute-Such special guardian shall have the same power and perform the same duties as other guardians, but no special guardian appointed under § 7462 (1342, supra) shall institute any proceeding for selling or mortgaging any real estate of his ward or dispose of any of his personal property without license from the probate court.**

TESTAMENTARY GUARDIANS

1344. Statute-The father with the written consent of the mother, and the mother with the written consent of the father, may by will appoint a guardian of their minor children, whether born at the time of making the will or afterwards, to continue during their minority or a less time, and if either parent dies without having appointed a testamentary guardian, the survivor may by will appoint such guardian. Such guardian, within thirty days after probate of the will, or after he has knowledge of his appointment, and in case of appeal within thirty days after final

39 In re Nelson, 148 Iowa 118, 126 N. W. 973; Rummels v. Clark, 164 Iowa 659, 146 N. W. 462. See Ann. Cas. 1912B, 977.

40 In re Nelson, 148 Iowa 118, 126 N. W. 973.

41 Gray v. Parke, 155 Mass. 433, 29 N. E. 641.

42 Allis v. Morton, 4 Gray (Mass.) 63; Harding v. Weld, 128 Mass. 587; Willwerth v. Leonard, 156 Mass. 277, 31 N. E. 299.

43 G. S. 1913, § 7462.
44 G. S. 1913, § 7463.

determination of such appeal, shall file with the probate court his acceptance of the trust and give bond to be approved by the court. Thereupon a certificate shall be issued to him, under the hand and seal of the court reciting his appointment by will, his acceptance and qualification. He shall then have the same powers and perform the same duties, with respect to the person and estate of the ward, as a guardian appointed by the probate court. Such guardian shall at all times be subject to the jurisdiction, direction and orders of the probate court, and may be removed by such court for good cause. If any guardian. so appointed by will does not accept the trust and qualify within the time limited, he shall be deemed to have renounced the appointment, and the probate court may then appoint a guardian as in other cases.45 Where, in proceedings instituted upon the petition of a testamentary guardian for his appointment to that trust, the next of kin appear and object to such appointment, and also file a petition setting forth that such guardian is not a suitable person to discharge the trust, a determination by the probate court that he is suitable and competent is reviewable, and, upon appeal being taken, is entitled to be heard upon its merits in the district court. On such appeal the right of the guardian to act further may be considered, and the district court may permit an amendment of the petition of the next of kin, if necessary, to enable such question to be fully determined. To be valid for the purpose of appointing a guardian under the statute a will must be executed in the same manner as other wills.47

46

GUARDIANS FOR NON-RESIDENTS

1345. Statute-Whenever a person liable to be put under guardianship is a non-resident and has property in this state, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition the probate court of any county in which there is any estate of such non-resident for the appointment of a guardian for such absent person; and after such notice to all persons interested as the court shall order, and a full hearing and examination, the court may appoint a guardian. Such guardian shall have the same powers and duties with respect to any estate of the ward within this state, and to the person of the ward, if he comes to reside therein, as are prescribed for other guardians. A probate court of this state may appoint a guardian for a non-resident minor, as respects any estate which the minor may have in the county where such court is established. If a general guard

45 G. S. 1913, § 7428. See 15 A. & E. Ency. of Law (2 ed.) 27; 21 Cyc. 16; 12 R. C. L. 1109; 45 L. R. A. (N. S.) 446.

46 Chadwick v. Dunham, 83 Minn. 366, 86 N. W. 351.

47 Wardwell V. Wardwell, 9 Allen (Mass.) 518.

48 G. S. 1913, § 7440.

49

ian is appointed in such case, the appointment is good to the extent of the estate of the minor within the jurisdiction in which it is made.* To authorize such an appointment it is not necessary that there should first be a general guardian appointed in the state of the domicil of the minor.50 The statutory notice is perhaps jurisdictional.51 Notice to the minor is not essential. The notice is within the discretion of the court. It should be given to natural guardians, relatives and next of kin as the circumstances of the particular case may require. The aim should be to give notice to those most interested in the minor or his estate so that they may have an opportunity to attend the hearing and give the court information as to the nature and value of the estate of the minor and as to the propriety or necessity of the appointment.52 In proceedings for the appointment of a guardian for a non-resident insane person who has property in this state, the representative of the estate including such property need not be given notice. The fact that the probate court orders such representative to be served with notice is not an adjudication of the question of his interest, and if, at the hearing, he is denied an opportunity to take part, he has no remedy by appeal.53 A court cannot appoint a guardian of a minor whose domicil and property are in another state. If the estate of the incompetent consists of personal property which is held in trust for him, the probate court of the county where the trustee resides has jurisdiction to appoint a guardian.55

54

FOREIGN GUARDIANS

1346. Control of ward-If a foreign guardian and his ward come into this state the guardian may exercise control over the person or property of his ward, subject to the laws of this state. He may retake the ward here and remove him to the state of his domicil."

1347. License to sell or mortgage real property-A foreign guardian may be licensed by the probate court to sell or mortgage real estate of his ward in this state and he may act through a resident attorney in fact, duly appointed for that purpose.57 The probate court of a county

49 Davis v. Hudson, 29 Minn. 27, 11 N. W. 136; West Duluth Land Co. v. Kurtz, 45 Minn. 380, 47 N. W. 1134.

50 West Duluth Land Co. v. Kurtz, 45 Minn. 380, 47 N. W. 1134.

51 Davis v. Hudson, 29 Minn. 27, 11 N. W. 136. See §§ 40, 1266.

52 Kurtz v. St. Paul & Duluth R. Co., 48 Minn. 339, 51 N. W. 221; Kurtz v. West Duluth Land Co., 52 Minn. 140, 53 N. W. 1132. See Edgerly v. Alexander, 82 Minn. 96, 84 N. W. 653.

53 Edgerly v. Alexander, 82 Minn. 96, 84 N. W. 653.

54 Connell v. Moore, 70 Kan. 88, 78 Pac. 164; State v. Macy, 93 Neb. 118, 139 N. W. 834.

55 Clarke v. Cordis, 4 Allen (Mass.) 466.

56 Townsend v. Kendall, 4 Minn. 412 (315).

57 G. S. 1913, § 7364; Townsend v. Kendall, 4 Minn. 412 (315, 324); Jordan v. Secombe, 33 Minn. 220, 22 N. W. 383; Menage v. Jones, 40 Minn. 254, 41 N. W. 972. See § 1179.

in this state in which there is real estate of a ward residing out of this state, under guardianship by virtue of an appointment of a guardian in another state, is the "probate court having jurisdiction" upon an application by the guardian for a license to sell real estate of the ward. There being real estate of the ward in the county, and the record of the probate court showing a petition by the guardian from another state asking for license to sell the real estate, and notice and opportunity to be heard, the jurisdiction in the matter appears. On such hearing it is for the probate court to determine whether the guardian was duly appointed in such other state, and whether he has complied with the law of this state by filing an authenticated copy of his appointment, and its determination, except on appeal, is final.58

1348. Dealing with property here-Removal of personal property-Actions to recover-Statute-Whenever the guardian of any non-resident ward, appointed as such in the state or district where said ward resides, shall have occasion to deal with property of his ward situated within this state, he may file in the probate court of the county in which such property may be an authenticated copy of his letters, and thereupon he shall be authorized to sue for and recover such property, or to receive and receipt for the same, and, if it be personalty, to remove it from the state, subject, however, to the rights therein of citizens of this state, 59 A bill in equity by a foreign guardian has been held not demurrable for failure to allege a filing of a copy of his letters as required by this statute. A foreign guardian, upon filing for record with the register of deeds of the proper county an authenticated copy of his letters, may assign, release, satisfy, or foreclose any mortgage, judgment, or lien, belonging to the estate represented by him, on real or personal property, in the same manner as such representative appointed in this state could do. He may act through a duly appointed attorney in fact.61

60

GUARDIANS OF INSANE PERSONS AND INCOMPETENTS 1349. Jurisdiction-The probate courts have exclusive jurisdiction of the appointment of guardians for insane persons."

62

1350. Grounds for appointing guardian-Petition-Statute-The probate court may appoint a guardian or guardians of any person who, by reason of old age or loss or imperfection of mental faculties, is incompetent to have the management of his property, or one who by excessive drinking, gaming, idleness, or debauchery so spends or wastes his es

58 Menage v. Jones, 40 Minn. 254, 41 N. W. 972.

59 G. S. 1913, § 7455. See §§ 740-742, 1180.

61 G. S. 1913, § 7302. See §§ 740-742, 1180.

€2 State v. Wilcox, 24 Minn. 143. See

§ 27.

60 Pulver v. Leonard, 176 Fed. 586.