situation of the father's family and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own property, in whole or in part, as judged reasonable, and must be directed by the probate court; and the charges therefor may be allowed accordingly, in the settlement of the accounts of his guardian. Statutes of 1850, p. 269, §9. Where the father was guardian of his children, and possessing limited means, was compelled to labor for their support, and in consequence of the decease of their mother was put to increased expense: Held, that it was reasonable, under the circumstances, to charge a portion of the expense of their maintenance upon the income or interest of the shares of his wards. Harring v. Coles, 2 Brad. 349. give bond. SEC. 1758. (2210, 345.) Every testamentary guardian Guardian to must give bond and qualify, and has the same powers and must perform the same duties, with regard to the person and estate of his ward, as guardians appointed by the probate court, except so far as their powers and duties are Powers legally modified, enlarged or changed by the will by which such guardian was appointed. Statutes of 1861, p. 604, §3. See Lord v. Hough, 37 Cal. 659, cited under section 1747, ante. Where a will appoints a guardian, there is no necessity for the issuance of any letters of guardianship to authorize the guardian to act. The guardian's authority comes directly from the will. Norris v. Harris, 15 Cal. 226. limited. courts to SEC. 1759. (22 11, 346.) Nothing contained in this Power of chapter affects or impairs the power of any court to appoint appoint a guardian to defend the interests of any minor interested and next in any suit or matter pending therein. Statutes of 1850, p. 269, § 11. See Norris v. Harris, 15 Cal. 226; Gronfier v. Puymirol, 19 Cal. 629; Townsend v. Gordon, 19 Cal. 201, and Lord v. Hough, 37 Cal. 659, cited under section 1747, ante. See section 1718, ante, and cases cited there. It is lawful and sufficient if an acting and qualified general guardian for minors, appears in a court of law and answers and defends for his wards; and it is not necessary that the guardian should be special for the express purpose of litigating, nor that personal service be had upon the minors. Such having been the uniform ruling of this court, the present bench will guardians friend not impaired. not overturn it, and imperil property interests of immense magnitude. It is a proper question for legislative action. Smith v. McDonald, October Term, 1871; Pac. Law. Rep., vol. II, p. 181. Dissenting justice holds contra and that by section 29 of the Code, personal service is required on a minor under fourteen years of age who is a resident of the State. Ibid. Guardians of insane and other ARTICLE II. GUARDIANS OF INSANE AND INCOMPETENT PERSONS. SECTION 1763. Guardians of insane and other incompetent persons. 1765. Powers and duties of such guardians. SEC. 1763. (22 12, 347.) When it is represented to the probata indee in pe pe End of Section 1763, Page 250. The power of the Probate Court to appoint a guardian for an insane person, is not defeated by the fact that such insane person is a married woman. Guardianship of Eliza Fegan, 45 Cal., 176. When an insane person is a wife, there is no rule of law which prefers the husband as such guardian, if he be unfit to discharge the duties of guardian. Id. See section 258, Civil Code, in next chapter. Letters of guardianship of a lunatic, issued by a probate court, cannot be questioned in a collateral proceeding. Warren et al. v. Wilson, 4 Cal. 310. Upon the application for the appointment of a guardian to one represented as non compos mentis, the court are not confined to a trial by the inspection and examination of such person, but may admit other evidence. Brigham v. Brigham, 12 Mass. 505. The decree of a probate court appointing a guardian is at least prima facie evidence of the disability of the ward. White v. Palmer, 4 Mass. 147. A person under guardianship as non compos mentis, if his reason be restored, is competent to make a will, although the letters of guardianship are unrevoked. Stone v. Damon, 12 Mass. 188. Where a person non compos mentis, under guardianship, had in his possession a promissory note, payable to himself, and received payment of it from the promissor, who had knowledge of the guardianship, it was held that such payment was of no effect, and the letter of guardianship was held to be conclusive evidence that at the time of the payment the ward was not of sound mind. Leonard v. Leonard, 14 Pick. 280. Yet it seems that the ward, if of sufficient capacity in fact, may make a will, this being an act which the guardian cannot do for him. Ibid., Opinion of Court, p. 284. ment by judge after SEC. 1764. (22 13, 348.) If, after a full hearing and ex- Appointamination upon such petition, it appears to the probate pr bate judge that the person in question is incapable of taking care hearing. of himself and managing his property, he must appoint a guardian of his person and estate, with the powers and duties in this chapter specified. Statutes of 1850, p. 270, § 13. flood 150 indan naut anation End of Section 1765, Page 251. 1766. (N. S.) Any person who has been declared insane, or the guardian or any relative of such person, within the third degree, or any friend, may apply, by petition, to the Probate Judge of the county in which he was declared insane, to have the fact of his restoration to capacity judicially determined. The petition shall be verified, and shall state that such person is then sane. Upon receiving the petition, the Judge must appoint a day for the hearing, and, if the petitioner request it, shall order an investigation before a jury, which shall be summoned and impaneled in the same manner as juries are summoned and impaneled in other cases in the Probate Court. The Judge shall cause notice of the trial to be given to the guardian of the petitioner, if there be a guardian, and to his or her husband or wife, if there be one, and to his or her father or mother, if living in the county. On the trial, the guardian or relative of the petitioner, and, in the discretion of the Judge, any other person, may contest the right of the petitioner to the relief demanded. Witnesses may be required to appear and testify, as in other cases, and may be called and examined by the Judge of his own motion. If it be found that the petitioner be of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardianship of such person, if such person be not a minor, shall cease. 3 and of ans. One who has been appointed guardian of an infant minor by the probate court, and has accepted the appointment, and by virtue thereof, become possessed of the infant's estate, is estopped from denying the jurisdiction of the court, or the illegality of his appointment. Fox v. Minor, 32 Cal. 111. Administrator guardian of an infant heir.—If the administrator is also guardian of an infant heir, the two positions, so far as general uses are concerned, are not necessarily incompatible. If, however, under the probate act of 1851, the administrator was also guardian of an infant heir, and as administrator, attempted to divest the title of the heir by a sale, under order of the probate court, of land to pay the debts of the intestate, his position was hostile to the heir, and in such proceeding he could not represent the heir, but a guardian ad litem should have been appointed to watch the interests of the heir. Townsend v. Talant, 33 Cal. 45. If the property record is full, and shows that an attorney-not a guardian ad litem was appointed to represent minor heirs on proceedings set on foot by the administrator to sell land to pay debts, it will not be presumed that a guardian ad litem was appointed. Ibid. Interest on funds of minor.-If the guardian neglects to put the ward's money at interest, but suffers it to be idle an unreasonable time, or mixes it with his own, the court will charge him with interest, and in cases of delinquency with compound interest. White v. Parker, 8 Barb. S. C. R., and cases there cited. As to proof of opportunity, or ability of guardian safely to invest ward's money, and what will be considered a reasonable time to do so, and the degree of diligence to which guardian is bound, see opinion in same case. Contested claim of guardian before appointment.-A guardian cannot be charged, in his account with his ward, for a contested debt claimed to have been due to the ward from him, at the time of his appointment. The surrogate has no jurisdiction to try such a controverted claim. Rait v. Rait, 1 Bradford, 345. The court will not order money of the infant to be paid to the father, or guardian by nature. Hs must procure an appointment and give security. Genet v. Tallmadge, 1 Johns. Ch. R. 3. Foreign guardian.—A guardian appointed out of the State, is not entitled to receive from an administrator here the legacy or portion of his infant ward. The guardian must be appointed here, and give competent security, to be approved by the court, befere payment of the infant's money to him will be ordered. Morrell v. Dickey, 1 Johns. Ch. R. 153. Necessaries furnished to minor.-A guardian is not liable for necessaries furnished to his ward without his consent. Call v. Ward, 4 Watts and Serg. 118. See Swift v. Swift, 40 Cal. 456, cited under section 1753, ante. Support of minor.-Where the guardian is in the control and possession of the ward's estate, and is in need of funds for the education and maintenance of the ward, the twentieth section of the act in relation to guardians applies, and the proper course for the guardian is to apply to the probate court for leave to raise the necessary funds, by selling a portion of the ward's property. Schmidt v. Wieland, 35 Cal. 343. Guardian foreclosing mortgage-A guardian foreclosed a mortgage, which he held in trust for his wards, in obedience to an order of the surrogate; which also directed that out of the proceeds of the sale or foreclosure he should pay over the sum due to one of the wards, who had come of age. At the sale under the foreclosure, the guardian, to prevent a sacrifice of the property, bought it in as guardian: Held, that he must account to such ward for the amount of his bid. Burtis v. Brush, 1 Redf, Sur. Rep. 448. ance, sup education of enforced. SEC. 1771. When a guardian has advanced for the Maintennecessary maintenance, support or education of his ward, port and an amount not disproportionate to the value of his estate, ward, how or his condition of life, and the same is made to appear to N. S. the satisfaction of the court, by proper vouchers and proofs, the guardian must be allowed credit therefor in his settlements. Whenever a guardian fails, neglects or refuses to furnish suitable and necessary maintenance, support or education for his ward, the court may order him to do so, and enforce such order by proper process. Whenever any third person, at his request, supplies a ward with such suitable and necessary maintenance, support or education, and it is shown to have been done after refusal or neglect of the guardian to supply the same, the court may direct the guardian to pay therefor out of the estate, and enforce such payment by due process. NOTE.-In the case of Swift v. Swift (40 Cal. 456), it was held that the probate practice act did not provide a remedy against the guardian for not supplying necessaries to his ward, except by action on his boud. The learned Judge Crockett says: "It is evidently a casus omissus in the statute." This section has been inserted here to supply the omission. When the estates of infants are in the hands of executors, and an order is made by the probate court for the executors to pay to the mother (who is also guardian of the infants) in her own right and also as guardian, a sum of money, the order is an appropriation of a sum of money for the immediate use of the heirs, and the guardian may assign the same without leave of the probate court, and the assignee may maintain an action against the executors to recover the money. Schmidt v. Wieland, 35 Cal. 343. to a parti SEC. 1772. (2 18, 353.) The guardian may join in and May assent assent to a partition of the real estate of the ward, wherever tion of real such assent may be given by any person. Statutes of 1850, p. 270, § 18. estate. to return estate of SEC. 1773. (22 19, 354.) Every guardian must return Guardian to the probate court an inventory of the estate of his ward inventory of within three months after his appointment, and annually ward. thereafter. When the value of the estate exceeds the sum of one hundred thousand dollars, semi-annual returns must be made to the probate court. The probate court may, |