to be upon application made for that purpose by any person, compel the guardian to render an account to the probate court of the estate of his ward. The inventories and accounts so to be returned or rendered must be sworn to Appraisers by the guardian. All the estate of the ward described appointed. in the first inventory must be appraised by appraisers appointed, sworn and acting in the manner provided for regulating the settlement of the estate of decedents; such inventory, with the appraisement of the property therein described, must be recorded by the clerk of the probate court in a proper book kept in his office for that purpose. Whenever any other property of the estate of any ward is when other discovered, not included in the inventory of the estate acquired. already returned, and whenever any other property has been succeeded to, or acquired by any ward for his benefit, the like proceedings must be had for the return and appraisement thereof that are herein provided in relation to the first inventory and return. Like proceedings property Settlements of guard ians. Statutes of 1870, p. 791, § 1. SEC. 1774. (2235, 370.) The guardian must, upon the expiration of a year from the time of his appointment, and as often thereafter as he may be required, present his account to the probate court for settlement and allowance. Statutes of 1850, p. 271, §35. Liability of guardian.—A general guardian held liable for money belonging to his ward of which the guardian has been robbed. It is his duty to prosecute for its recovery. In re Jackson, 1 Tucker's Sur. Rep. 71. Where one gave a negotiable note as guardian, it was held that he was liable in his individual capacity after his guardianship ceased, and that he might indemnify himself out of the estate of his ward. Thacher v. Dinsmore, 5 Mass. 300; Foster v. Fuller, 6 Mass. 58. A guardian using the money of his ward, or neglecting to invest it, is chargeable with interest. A balance of the money in the guardian's hands should be struck every six months, and simple interest charged thereon, allowing a reasonable sum to remain in his hands to meet expenses. Commissions are not to be deducted from the foot of the account, but from time to time as the services were rendered. Lay v. Barnes, 4 Serg. & Rawles, 112. Accounts of guardians.-The account of a guardian in exceptional cases, may be verified by a person other than the guardian, if the guardian also swears that he believes his statements are true. Racouillat v. Requena, 36 Cal. 651. A guardian is bound to keep separate accounts with each of his wards, and is chargeable with interest if he neglect to invest their funds. though he may keep a reasonable surplus on hand for contingencies. Baker v. Richards, 8 Serg. & Rawles, 12. Transactions between a guardian and ward during his minority, are alone the subjects of settlement in a guardianship account. Crowell's Appeal, 2 Watts, 205. Where the same person is administrator of an estate and also guardian of the minor heirs of intestate, his account as administrator is distinct from his account as guardian, and his account as guardian of each one of the heirs is distinct from that of all the others. Foteaux v. Lapage, 6 Iowa, 123. In such case the county court is required to consider each account separately, and to render a distinct adjudication upon each, and it is from such separate adjudication that an appeal must be taken, not from the whole. Ibid. of accounts SEC. 1775. (2249, 384.) When an account is rendered Allowance by two or more joint guardians, the probate judge may, of joint in his discretion, allow the same upon the oath of any of them. Statutes of 1850, p. 273, § 49. See Racouillat v. Requena, 36 Cal. 651, cited under preceding section. guardians. pensation of SEC. 1776. (8 47, 382.) Every guardian must be allow- Expenses ed the amount of his reasonable expenses incurred in the and comexecution of his trust, and he must also have such compen- guardians. sation for his services as the court in which his accounts are settled deems just and reasonable. Statutes of 1850, p. 273, §47. In allowing the guardian for counsel fees disbursed for the benefit of his ward, he will be credited only such sum as was a reasonable charge for the services rendered. Rait v. Rait, 1 Bradf. 345. When a guardian charges his ward with counsel fees paid by him, he must show that the services rendered by the counsel were necessary for the interest of the ward. McGary v. Lamb, 3 Texas, 342. The verdict of a jury on a question submitted to them, respecting the correctness of accounts rendered by a guardian against his ward, is entitled to great weight, and should not be set aside unless clearly and palpably against evidence. Ibid. 17 May sell ARTICLE IV. THE SALE OF PROPERTY AND DISPOSITION OF THE PROCEEDS. SECTION 1777. May sell property in certain cases. 1778. Sale of real estate to be made upon order of court. 1779. Application of proceeds of sales. 1781. Order for sale, how obtained. 1782. Notice to next of kin, how given. 1783. Copy of order to be served, published, or consent filed. 1784. Hearing of application. 1785. Who may be examined on such hearing. 1786. Costs to be awarded, to whom. 1787. Order of sale, to specify what. 1738. Bond before selling. 1789. All proceedings for sales of property by guardians to conform to chapter seven of this title. 1790. Limit of order of sale. 1791. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred payments. 1792. Probate court may order the investment of money of the ward. SEC. 1777. (22 20, 355.) When the income of an estate Derty in under guardianship is insufficient to maintain the ward and property certain cases. Sala es m or CO his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order therefor. Statutes of 1861, p. 605, §5. See Schmidt v. Wieland, 35 Cal. 343, cited under sections 1770 and 1771, ante. See also Fitch v. Miller, 20 Cal. 352, cited under section 1781, post. End of Section 1778, Page 258. Every alienation of the property of a ward by a guardian, if made without an order of Court, is void; and it is of no import whether the purchaser has knowledge that it belongs to the ward or not. De La Montagnie v. Union Ins. Co., 42 Cal. 291. མ༥་ sen the same for such purpose, upon obtaining an order therefor. Statutes of 1861, p. 605, § 6. See decisions under section 1770, ante. See, also, Kendall v. Miller, 9 Cal. 591, cited under section 1753, ante; see Fitch v. Miller, 20 Cal. 352, cited under section 1781, pos!. Appointment of guardian by legislature.-Foreign guardian —P. owning premises in San Francisco, died intestate in 1850, leaving a widow and three minor children, one died without heir or issue; a one fourth survivor, J., claims interest as heir of P. and his brother. In 1861, the widow of P. procured a special legislative act, authorizing her to sell, as guardian of J., his interest in real estate "in her discretion, and as shall best promote his interests, in her opinion." The widow had meanwhile re-married. Under the "act" she sold the premises to defendant's grantor. The widow had never been appointed as guardian in this State, but had been so named by a Massachusetts court, and also in the Hawaiian Islands. As required by the act, the sale was confirmed by the probate court of San Francisco. J. now sues to recover possession of an undivided fourth of the premises. (There had previously been a sale of the property to defendant's grantor by order of the probate court, on an application by administrators of the estate, to pay debts): Held: J. took, as heir to P., one sixth interest; as heir to the deceased child, his brother, one twelfth, making his whole interest one fourth, all undivided. Paty v. Smith, July Term, 1872; Pac. Law Rep. vol. IV, p. 70. The widow never was appointed guardian of J. in this State, the other appointments being of no effect here. The "act" did not constitute her guardian, though it calls her such by way of reference. Her marriage the second time disqualified her, moreover, for such an office. She was natural guardian to her son, but as such had no authority to sell his estate. Ibid. The legislature could not authorize her, as mother and natural guardian, to sell her son's estate "as shall in her opinion most promote his interests." The act authorizing the sale in that manner was unconstitutional and void. Ibid. Speculating with property of an estate.-An administrator cannot, under our laws, speculate with property of an estate of which he has charge, neither can the mother, as such, speculate with the property of her son, because, in her opinion, it will promote his interests. The same considerations of policy and law which forbid the one, equally forbid the other. Ibid. Jurisdiction over estates of persons who died prior to passage of probate acts.-Probate courts have no jurisdiction of the estates of persons who died prior to the passage of our probate laws. Hence the order of sale of the court was void. Ibid. Application proceeds SEC. 1779. (22 22, 357.) If the estate is sold for the purposes mentioned in this article, the guardian must apply of proce the proceeds of the sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward. Statutes of 1850, p. 270, § 22. See White v. Parker, 8 Barb. Sup. C. Rep., cited under section 1770, ante. Investment of proceeds of sales. Order for sale, how obtained. SEC. 1780. (22 23, 358.) If the estate is sold for the purpose of putting out or investing the proceeds, the guardian must make the investment according to his best judgment, or in pursuance of any order that may be made by the probate court. Statutes of 1850, p. 270, § 23. SEC. 1781. (22 24, 359.) To obtain an order for such sale, the guardian must present to the probate court of the county in which he was appointed guardian, a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale. Statutes of 1850, p. 271, § 24; 20 Cal. 352. What petition should contain.-In stating the facts and circumstances tending to show the necessity or expediency of the sale, it is not absolutely necessary that the petition should directly aver that there are debts to be paid, or that the income is not sufficient for the support and education of the wards, or that it would be for the benefit of the wards that the property should be sold and proceeds put at interest. If by a fair application of all the statements, it can be seen that one or more of these contingencies exists, it is sufficient to give jurisdiction. Fitch v. Miller, 20 Cal. 352. A sale made under order of the probate court by a guardian of infant devisees under a will, of the real estates devised to his wards, will not be effectual to confer a valid title, unless the probate court acquired jurisdiction of the proceeding for sale by the presentation of a proper petition by the guardian. lbid. The petition, in order to give jurisdiction, must contain the statement and showing required by section 24 of the act to provide for the appointment and prescribe the duties of guardians. Ibid. Expediency of the sale.---The necessity or expediency of the sale must arise from one or more of these circumstances: First, The existence of debts due from the ward which cannot be paid out of his personal estate and the income of his real estate. Second, The insufficiency of the income of the estate of the ward to maintain him and his family, or to educate him when a minor. Third, That it would be for the benefit of the ward that his real estate, or a part thereof, should be sold and the proceeds put out at interest or invested in some productive stock. Ibid. Thus, where the petition for the sale of an interest in Soyotome rancho, stated that the rancho was unproductive; that the greater part of it was occupied by persons who refused to pay any rent, and who were cutting down and destroying trees; and that it was subjected to heavy taxes which would amount to more than the value of the land by the time all the infants should come of age: Held, that these statements presented a case for the exercise of the judgment of the court as to the necessity or expediency of the sale for the purpose of investment, and give it jurisdiction to make the order. Ibid. |