for refusing

SEC. 1734. (8 310.) All such interrogations and answers Punishment must be reduced to writing and signed by the party exam- to attend. ined, and filed in the probate court. If the person so cited refuses to appear and submit to such an examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may commit him to the county jail, there to remain in close custody until he submits to the order of the court.

Statutes of 1851, p. 488, § 310.

See section 1460, et seq., ante.

SEC. 1735. (2311.) The probate court may at any time order on tha nählia administrator to account for and deliver all ministrator

Page 237.

1737. It is the duty of every Public Administrator, as soon as he shall receive the same, to deposit with the County Treasurer of the county in which the probate proceedings are pending, all moneys of the estate not required for the current expenses of the administration; and such moneys may be drawn upon the order of the executor or administrator, countersigned by the Probate Judge, when required for the purposes of administration. It shall be the duty of the County Treasurer to receive and safely keep all such moneys, and pay them out upon the order of the executor or administrator, when countersigned by the Probate Judge, and not otherwise, and to keep an account with each estate of all moneys received and paid to him; and the County Treasurer shall be allowed one per cent upon all moneys received and kept by him, and no greater fees for any services herein provided. The moneys thus deposited may, upon order of the Probate Court, be invested pending the proceedings, in securities of the United States, or of this State, when such investment is deemed by the Court to be for the best interests of the estate. After a final settlement of the affairs of any estate, if there be no heirs or other claimants thereof, the County Treasurer shall pay into the State Treasury, all moneys and effects in his hands belonging to the estate, upon order of the Probate Court, and if any such moneys and effects escheat to the State, they must be disposed of as other escheated estates.

public ad

Not to be

interested

for or on

account of

estates in

SEC. 1738. (302.) The public administrator must not in payments be interested in expenditures of any kind made on account of any estate he administers; nor must he be associated in business or otherwise, with any one who is so interested, and he must attach to his report and publication, made in accordance with the preceding section, his affidavit to that effect.

his hands.

N. S.

When to

settle with countyclerk, and how

Statutes of 1851, p. 414, § 4.

SEC. 1739. (302.) Public administrators are required to account under oath and to settle and adjust their acunclaimed counts, relating to the care and disbursement of money or property belonging to estates in their hands, with the county clerks of their respective counties, on the first

estate disposed of.

N. S.

and answer the information within the time allowed by law in civil actions; and the court must make an order, setting forth briefly the contents of the information, and requiring all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the order, why the same should not vest in this State; which order must be published at least one month from the date thereof, in a newspaper published in the district, if one be published therein, and in case no newspaper is published in the district, in some other newspaper in this State.

SEC. 1270. The court, upon the information being filed and upon the application of the attorney-general, either before or after answer, upon notice to the party claiming such estate, if known, may, upon sufficient cause therefor being shown, appoint a receiver to charge and receive the rents and profits of the same until the title to such real estate is finally settled.

SEC. 1271. All persons named in the information may appear and answer, and may traverse or deny the facts stated in the information, the title of the State to lands and tenements therein mentioned, at any time before the time for answering expires; and any other person claiming an interest in such estate may appear and be made a defendant, and by motion for that purpose, in open court, within the time allowed for answering; and if no person appears and answers within the time, then judgment must be rendered that the State be seized of the lands and tenements in such information claimed. But if any person appear and deny the title set up by the State, or traverse any material fact set forth in the information, the issue of fact must be tried as issues of fact are tried in civil actions. If, after the issues are tried, it appears from the facts found or admitted, that the State has good title to the land and tenements in the information mentioned, or any part thereof, judgment must be rendered that the State be seized thereof, and recover costs of suit against the defendants.

SEC. 1272. Within twenty years after judgment in any proceeding had under this title, a person not a party or privy to such proceeding may file a petition in the district court of the county of Sacramento, showing his claim or right to the property or the proceeds thereof. A copy of such petition must be served on the attorney-general at least twenty days before the hearing of the petition, who must answer the same; and the court thereupon must try the issue as issues are tried in civil actions, and if it be determined that such person is entitled to the property or to the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds paid into the State treasury, then it must order the controller to draw his warrant on the treasury for the payment of the same, but without interest or cost to the State, a copy of which order, under the seal of the court, shall be a sufficient voucher for drawing such warrant. All persons who fail to appear and file their petitions within the time limited, are forever barred, saving, however, to infants, married women and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions at any time within five years after their respective disabilities cease.

Monday in each month; and they must pay to the county treasurer any money remaining in their hands of an estate unclaimed, as provided in sections sixteen hundred and ninety-three to sixteen hundred and ninety-six, both inclusive.

Statutes of 1853, p. 211, §2.

how and by

stituted

public ad

failing to

money as

ordered.

SEC. 1740. When it appears, from the returns made in Proceedings pursuance of the foregoing sections, that any money re- whom inmains in the hands of the public administrator (after a final against settlement of the estate) unclaimed, which should be paid ministrator over to the county treasurer, the probate judge must order pay over the same to be paid over to the county treasurer, and, on failure of the public administrator to comply with the order within ten days after the same is made, the district attorney for the county must immediately institute the requisite legal proceedings against the public administrator, for a judgment against him, and the sureties on his official bond, in the amount of money so withheld, and costs.

Statutes of 1859, p. 213, §1.

cers, when

SEC. 1741. (2 305.) The fees of all officers chargeable Fees of offito estates in the hands of public administrators must be paid and by out of the assets thereof so soon as the same come into his N. s. hands.

Statutes of 1860, p. 357, §§ 1, 2.

See sections 1616 and 1618, ante, and cases cited there,

whom paid.

ministrator

SEC. 1742. (8 305.) Public administrators may admin- Public adister oaths in regard to all matters touching the discharge to adminis of their duties, or the administration of estates in their N. s. hands.

Statutes of 1860, p. 357, § 3.

ter oaths.

chapters ap

SEC. 1743. When no direction is given in this chapter Preceding for the government or guidance of a public administrator plicable to in the discharge of his duties, or for the administration of ministrator. an estate in his hands, the provisions of the preceding chapters of this title must govern.

public adN. S.

CHAPTER XIV.

OF GUARDIAN AND WARD.

ARTICLE I. GUARDIANS OF MINORS.

II. GUARDIANS OF INSANE AND INCOMPETENT PERSONS.

III. THE POWERS AND DUTIES OF GUARDIANS.

IV. THE SALE OF PROPERTY AND THE DISPOSITION OF PROCEEDS.

V. NON-RESIDENT GUARDIANS AND WARDS.

VI. GENERAL AND MISCELLANEOUS PROVISIONS.

Probat judge

point dians,

and on petitio:

ARTICLE I.

GUARDIANS OF MINORS.

SECTION 1747. Probate judge to appoint guardians, when, and on what petition.

1748. When minor may nominate guardian, when not.

1749. When appointment may be made by judge, when minor is

over fourteen.

1750. Nomination by minors after arriving at fourteen.

1751. Father or mother entitled to guardianship.

1752. Minor having no father or mother.

1753. Powers and duties of guardian.

1754. Bond of guardian, conditions of.

Pages 240-241.

1747. The Probate Judge of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either, or both of them, of minors who have no guardian legally appointed by will, or deed, and who are inhabitants or residents of the county, or who reside without the State, and have estate within the county. Such appointment may be made on the petition of a relative or other person, in behalf of such minor. Before making such appointment, the Judge must cause such notice as he deems reasonable to be given to the relatives of the minor residing in the county, and to any person having care of such minor.

a relative or other person, in behalf of such minor. Before making the appointment, the judge must cause such notice to be given to the relatives of the minor residing in the county, and to any person under whose care such minor may be, as he deems reasonable.

Statutes of 1850, p. 268, § 1, 1861, p. 603, §1; 4 Cal. 362; 15 Cal. 227. See sections 1749 and 1793, et seq., post, as to appointment of a guardian for a minor heir residing out of the State.

Want of notice, effect of.-A guardian's appointment by the proper officer, though without regular notice, is voidable not void. Cleveland v. Hopkins, 2 Aik. 394.

Minor residing out of the State.-Notice.-Where a minor resides out of the State, the notice to be given to all persons interested, on the application of a party to be appointed guardian of such minor, is matter for the exclusive judgment of the probate judge. The manner in which, and the period for which, the notice shall be given, are subject entirely to his direction-with, perhaps, the right of appeal to the supreme court from the order of appointment. Gronfier v. Puymirol, 19 Cal. 629.

Third persons cannot question the validity of such order upon an allegation that the notice of the hearing of the application for the appointment of the guardian, under the statute, was insufficient. Ibid.

In this case a purchaser at a judicial sale of partnership real estate, filed his petition to be relieved from the purchase on the grounds: first, that a non-resident minor was interested in the property, and that his general guardian who represented him in the suit resulting in such sale was appointed without sufficient notice having been given of the hearing of the application; and second, that a guardian ad litem ought to have been appointed: Held, that the notice having been according to the direction of the probate judge, the appointment of general guardian was properly made, the sale was valid, and that the purchaser will not be relieved, and that no guardian ad litem was required. Ibid.

Lunatic.-Letters of guardianship of a lunatic, issued by a probate court, cannot be questioned in collateral proceeding. Warnen et al. v. Wilson, 310. Attorneys for minor or absent heirs.-The probate court, under the act of 1851, had no authority to appoint attorneys for absent or minor heirs. Under said act when the administrator applied for leave to sell land to pay debts, and there were minor heirs with no general guardian, a guardian ad litem-not an attorney-was required to be appointed for the sole purpose of representing the minor heirs before the petition was acted on. Townsend v. Tallant, 33 Cal. 45.

PRIORITY IN APPOINTMENT.

Guardians at common law. There were four kinds of guardians at common law; by nature, for nurture, in socage and in chivalry. Lord v. Hough, 37 Cal. 659.

Testamentary guardians.—Guardians in chivalry were abolished, and testamentary guardians substituted by Stat. 12, Car. II, Ch. 24, and made to take precedence of all other kind of guardians. Like all other guardians, the testamentary guardian was subject to the supervision of the court of chancery, and could be removed for cause. Ibid.