The fact that in a proceeding in the probate court, for the purpose of obtaining a sale of the real estate of infant devisees, certain adult co-devisees were allowed to appear and their interests improperly made the subject of consideration in connection with the proceeding, and that these adults joined in the sale, and a partition incidentally resulted therefrom, are not sufficient irregularities to invalidate the sale. It is sufficient to support the sale that the facts rendering it necessary or expedient were brought before the court by a petition of the guardian and that the estate of the infants was duly ordered to be sold. Ibid. Death of testator before adoption of the common law. The liability of the property of wards to be sold by their guardians, under the order of the probate court, is not affected by the fact that their testator died before the adoption of the common law in this State. Ibid. So where the petition stated the interest of the ward in a certain rancho, to be two thousand acres, when in reality it was four thousand acres, but asked the sale of their whole interest, and the order of sale, and the sale and confirmation was of their whole interest: Held, that the mistake did not affect the jurisdiction of the court, or the validity of the purchaser's title. Ibid. Sale upon credit.—Sale of minor's lands upon credit, though regular and confirmed by court, will vest no right in purchaser, if he fail to comply with the terms of sale. Judson v. Sierra, 22 Texas, 365. next of kin, SEC. 1782. (22 25, 360.) If it appears to the court or Notice to judge, from the petition, that it is necessary or would be how given. beneficial to the ward that the real estate, or some part of it, should be sold, or that the real and personal estate should be sold, the court or judge must thereupon make an order, directing the next of kin of the ward, and all persons interested in the estate, to appear before the court, at a time and place therein specified, not less than four, nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the sale of such estate. If it appear that it is necessary, or would be beneficial to the ward to sell the personal estate or some part of it, the court must order the sale to be made. Statutes of 1861, p. 605, §7. be order to be served, published or consent filed. SEC. 1783. (226, 361.) A copy of the order must be per- copy of sonally served on the next of kin of the ward, and all persons interested in the estate, at least fourteen days fore the hearing of the petition, or must be published at least three successive weeks in a newspaper printed in the county; or, if there be none printed in the county, then in such newspaper as may be specified by the court or judge Hearing of application. Who may be Costs to be awarded to whom. Order of sale, to specify what. Bond before selling. in the order. If written consent to making the order of sale is subscribed by all persons interested therein, and the next of kin, notice need not be served or published. Statutes of 1861, p. 606, § 9. SEC. 1784. (27, 362.) The probate court, at the time and place appointed in the order, or such other time to which the hearing is postponed, upon proof of the service or publication of the order, must hear and examine the proofs and allegations of the petitioner and of the next of kin, and of all other persons interested in the estate who oppose the application. Statutes of 1861, p. 606, § 9. SEC. 1785. (2228, 363.) On the hearing, the guardian may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the probate court or judge, in the same manner and with like effect as in other cases provided for in this title. Statutes of 1861, p. 606, §.10. SEC. 1786. (22 29, 364.) If any person appears and objects to the granting of any order prayed for under the provisions of this article, and it appears to the court that either the petition or the objection thereto is sustained, the court may, in granting or refusing the order, award costs to the party prevailing, and enforce the payment thereof. Statutes of 1850, p. 271, § 29. SEC. 1787. (2230, 365.) If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specifying therein the causes. or reasons why the sale is necessary or beneficial, and may, if the same has been prayed for in the petition, order such sale to be made either at public or private sale. Statutes of 1861, p. 606, § 11. See cases cited under section 1781, ante. SEC. 1788. (22 31, 366.) Every guardian authorized to sell real estate must, before the sale, give bond to the probate judge, with sufficient surety to be approved by him, with condition to sell the same in the manner, and to account for the proceeds of the sale, as provided for in this chapter and chapter seven of this title. Statutes of 1850, p. 271, § 31. As to bonds see sections 947 to 981, of Political Code. ings for property by conform to this title. SEC. 1789. (22 32, 367.) All the proceedings under peti- All proceedtion of guardians for sales of property of their wards, giving sales of notice and the hearing of such petitions, granting or refus- guardians to ing the order of sale, directing the sale to be made at public chapter 7 of or private sale, re-selling the same property, return of sale N. S. and application for confirmation thereof, notice and hearing of such application, making orders rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, accounting and the settlement of accounts, must be had and made as required by the provisions of this title concerning estates of decedents, unless otherwise specially provided in this chapter. Statutes of 1850, p. 271, §§ 31, 32; 1861, p. 605, §7; 1861, p. 606, § 11; 1850, p. 271, § 35. order of SEC. 1790. (22 33, 368.) No order of sale, granted in Limit of pursuance of this article, continues in force more than one sale. year after granting the same, without a sale being had. Statutes of 1861, p. 606, § 12. of sales of of minor SEC. 1791. (2250, 385.) All sales of real estate of wards Conditions must be for cash, or for part cash and part deferred pay- real estate ments, not to exceed three years, bearing date from date of heirs. sale, as, in the discretion of the probate judge, is most beneficial to the ward. Guardians making sales must de- Bond and mand and receive from the purchasers bond and mortgage to be given on the real estate sold, with such additional security as the payments. judge deems necessary and sufficient to secure the faithful payment of the deferred payments and the interest thereon. Statutes of 1853, p. 129, § 1. mortgage for deferred court order the SEC. 1792. (22 36, 371.) The probate court, on the Probate application of a guardian, or any person interested in the may estate of any ward, after such notice to persons interested investment therein as the probate judge shall direct, may authorize and of the require the guardian to invest the proceeeds of sales, and of money ward. any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein; and the probate court may make such other orders and give such directions as are needful for the management, investment and disposition of the estate and effects, as circumstances require. Statutes of 1861, p. 606, § 13. Guardians of nonresident persons. ARTICLE V. NON-RESIDENT GUARDIANS AND WARDS. SECTION 1793. Guardians of non-resident persons. 1794. Powers and duties of guardians appointed under preceding section. 1795. Such guardians to give bonds. 1796. To what guardianship shall extend. 1797. Removal of non-resident ward's property. 1798. Proceedings on such removal. 1799. Discharge of person in possession. SEC. 1793. (22 43, 378.) When a person liable to be put under guardianship, according to the provisions of this chapter, resides without this State, and has estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the probate judge of any county in which there is any estate of such absent person, for the appointment of a guardian; and if, after notice given to all interested, in such manner as the judge orders, and a full hearing and examination, it appears proper, a guardian for such absent person may be appointed. Statutes of 1861, p. 607, § 14; 19 Cal. 629. See sections 1747 and 1749, ante. 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 discretion; with, perhaps, the right to 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 representing 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 the purchaser will not be released, and that no guardian ad litem was required. Where the court does not specially appoint a guardian ad litem for a particular action, it is the duty of the general guardian to appear for his ward. Ibid. duties of appointed ceding sec SEC. 1794. (22 44, 379.) Every guardian appointed under Powers and the preceding section, has the same powers and performs guardians the same duties, with respect to the estate of the ward under prefound within this State, and with respect to the person of tion. the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. Statutes of 1850, p. 272, § 44. guardians to SEC. 1795. (22 45, 380.) Every guardian must give bond such to the ward, in the manner and with the like conditions as give bonds. herein before provided for other guardians, except that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian, must be confined to such estate and effects as come to his hands in this State. Statutes of 1850, p. 272, § 45. guardianextend. SEC. 1796. (22 46, 381.) The guardianship which is first To what lawfully granted, of any person residing without this State, ship shall extends to all the estate of the ward within the same and excludes the jurisdiction of the probate court of every other county. Statutes of 1850, p. 272, § 46. non-res ward's SEC. 1797. (21, 386.) When the guardian and ward Removal of are both non-residents, and the ward is entitled to property ident in this State which may be removed to another State or property. foreign country without conflict with any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the State or foreign country of the residence of the ward, upon the application of the guardian to the probate judge of the county in which the estate of the ward, or the principal part thereof, is situated. |