CHAPTER 34.-GUARDIANS AND WARDS.

SECTION 1. [Minors.]-All male children under twenty-one, and all females under eighteen years of age are declared to be minors; but in case a female marries between the age of sixteen and eighteen, her minority ends. [R. S. 178. G. S. 396.]

SEC. 2. [Guardians.]-The court of probate in each county, when it shall ap pear to him necessary or convenient, may appoint guardians to minors and others being inhabitants or residents in the same county, and also to such as shall reside without the state, and have an estate within the same.

SEC. 3. [Appointment.]—If the minor is under the age of fourteen years, the court of probate may appoint his guardian, and if he is above the age of fourteen years he may nominate his own guardian, who, if approved by the court, shall be appointed accordingly.

SEC. 4. [Same.]-If the guardian nominated by such minor shall not be approved by the court, or if the minor shall reside out of the state, or if, after being cited by the court, he shall neglect to nominate a suitable person, the court may appoint the guardian in the same manner as if the minor were under the age of fourteen years.

SEC. 5. [Same.]—When such minor, being above the age of fourteen years, shall reside more than ten miles from the place of holding the court, his nomination of a guardian may be certified to the court of probate by a justice of the peace, which shall have the same effect as if made in the presence of the court.

SEC. 6. [Parents.]-The father and mother are the natural guardians of their minor children, and are equally entitled to their custody, and to care for their education, being themselves competent to transact their own business and not otherwise unsuitable. If either dies, or is disqualified for acting, the guardianship devolves upon the other. [Amended 1885, chap. 54.]

SEC. 7. [When minor is an orphan.]—If the minor have no father or mother living, and competent to have the custody and care of the education of such minor, the guardian so appointed shall have the custody and tuition of his ward.

SEC. 8. [Duty of guardian.]-Every guardian appointed as aforesaid shall have the care and management of the estate of the minor, and shall continue in office until such minor shall arrive at the age of twenty-one if a male, or eighteen years if a female, or until the guardian shall be discharged according to law.

SEC. 9. [Bond.]—Every such guardian shall give bond, with surety or sureties, to the judge of probate, in such sum as the court shall order, with condition as follows: First-To make a true inventory of all the real and personal estate of the ward that shall come to his possession or knowledge, and to return the same into the court at such time as the law directs. Second-To dispose of and manage all such estate and effects according to law, and for the best interests of the ward, and faithfully to discharge his trust as such guardian. Third-To render an account on oath of the property in his hands, including the proceeds of all the real estate which may be sold by him, and of

CHAP. 34. General duty of guardian; guardian may foreclose mortgage owned by ward. 10 Neb. 124. Licens to sell real estate may be granted at chambers. 13 Neb. 290. If in proper judicial district license may be granted in county other than where land lies. 14 Neb. 357. Non-resident infant not presumed to have a guardian residing In this state. 15 Neb. 30. Of insane and minor defendant; appearance; failure to appoint guardian ad litem when general guardian fails to appear does not render judgment void. 15 Neb. 297; 20 Id. 489; 21 Id. 683. Custody of infant child in case stated. 15 Neb. 462. Sale of property by guardian. 15 Neb. 503. Right of action on guardian's bond accrues to ward when amount due is ascertained by county court on settlement of guardian'. Anal account. 17 Neb. 42. 21 Id. 534. Jurisdiction of court to appoint guardian ad litem. 16 Neb. 702. Petition for appointment of guardian signed in name of child, Held, Good, and sufficient to give court jurisdiction. 14 Neb. 61. Sale of real estate of ward; presumption of regularity of proceedings; settlement by ward after he be comes of age, ratifies acts of guardian. 16 Neb. 64. No action can be maintained by ward to recover land sold by guardian unless commenced within five years next after ward becomes of age. 16 Neb. 64. Liability of guardian for negligence in care of ward. 18 Neb. 182. Failure to appoint guardian ad litem, where real estate is sold by administrator, not fatal. 18 Neb. 298. License to sell real estate of minors; petition therefor must be in writ ing. 20 Neb. 602. Action on guardian's bond; accounts of guardians; duties of county court. 21 Neb. 534. Cus tody, of children by parents. 15 Neb. 462. 46 N. W. R. 916.

the management and disposition of such property within one year after his appointment, and at such other times as the court shall direct. Fourth-At the expiration of his trust, to settle his accounts with the court, or with the ward, or his legal representatives, and to pay over and deliver all the estate and effects remaining in his hands, or due from him on such settlement, to the person or persons who shall be lawfully entitled thereto.

SEC. 10. [Expenses of minor.]-If any minor, who has a father living, has property, the income of which is sufficient for his maintenance and education in a manner more expensive than such father can reasonably afford, regard being had to the 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 shall be judged reasonable, and shall be directed by the court, and the charges therefor may be allowed accordingly in the settlement of the accounts of such guardian.

SEC. 11. [Appointment of guardian by will.]—The surviving parent may, by last will, in writing, appoint a guardian, being competent to transact their own business, and not otherwise unsuitable, for any of the children, whether born at the time of making the will or afterwards, and every such testamentary guardian shall have the same powers and shall perform the same duties with regard to the person and estate of the ward as a guardian appointed by the court. [Amended 1885, chap. 54.]

SEC. 12. [Bond.]-Every such testamentary guardian shall give bond in like manner and with like condition as is hereinbefore required of a guardian appointed by the court; Provided, That when the testator, in the will appointing the guardian, shall have ordered or requested that such bond shall not be given, the bond shall not be required, unless, from a change in the situation or circumstances of the guardian, or for other sufficient cause, the court shall think proper to require it.

SEC. 13. [Appointment by courts.]-Nothing contained in this chapter shall impair or affect the power of any court to appoint guardians to defend the interests of minors, impleaded in such court, or interested in any matter then pending, nor their power to appoint or allow any person, as next friend for a minor, to commence, prosecute, or defend any suit in his behalf.

SEC. 14. [Guardian of insane person.]-When the relations or friends of any insane person, or of any person who, by reason of extreme old age, or other cause, is mentally incompetent to have the charge and management of his property, shall apply to the court of probate to have a guardian appointed for him, the court shall cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the cause, not less than fourteen days before the time so appointed.

SEC. 15. [Same.]-If, after a full hearing and examination, upon any such application, it shall appear to the court that the person in question is incapable of taking care of him or her self and managing his or her property, he shall appoint a guardian of his or her person and estate, with the powers and duties hereinafter specified; Provided, That when a person has been declared insane by the commission of insanity, and no one applies to have a guardian appointed for such person for thirty days thereafter, it shall be the duty of the clerk of the district court to make application to the county court of such county to appoint a guardian for such persons. [Amended 1889, chap. 90.]

SEC. 16. [Same.]-Every guardian so appointed, as provided in the preceding section, shall have the care and custody of the person of his ward, and the management of all his estate, until such guardian shall be legally discharged, and he shall give bond to the judge of probate, in like manner and with the like condition as is before prescribed with respect to the guardian of the minor.

SEC. 17. [Guardian of spendthrift.]-When any person, by excessive drinking, or by gaming, idleness, or debauchery of any kind, shall so spend, waste, or lessen his estate as to expose himself or family to danger of want or suffering, or the county to charge or expense for the support of himself or family, any officer having

charge of the poor of the county, or justice of the peace of the county of which such spendthrift is an inhabitant, or in which he resides, may present a complaint to the court of probate, setting forth the facts and circumstances in the case, and praying to have a guardian appointed for him.

SEC. 18. [Same.]-The court shall cause notice to be given to such supposed spendthrift of the time and place of hearing the case, not less than ten days before the time so appointed, and if, after a full hearing, it shall appear to the court that the person complained of comes within the provision contained in the preceding section, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified.

SEC. 19. [Contracts of spendthrift.]-After the order for notice has been issued, the complainant may cause a copy of the complaint, with the order for such notice, to be filed in the office of the county clerk of the county, and a minute thereof be entered on the lien book in said office; and if a guardian shall be appointed on such application, all contracts, except for necessaries at reasonable prices, and all gifts, sales, and transfers of real or personal estate, made by such spendthrift, after the filing of a copy of such complaint and order, as aforesaid, and before the termination of the guardianship, shall be utterly void.

SEC. 20. [Allowance to ward.]—When a guardian shall be appointed for an insane person, or a spendthrift, the court shall make an allowance to be paid by the guardian for all reasonable expenses incurred by the ward, in defending himself against the complaint.

SEC. 21. [Duties of guardians.]-Every guardian appointed for a spendthrift shall have the care and custody of the person of the ward and the management of all his estate until the guardian shall be legally discharged, and he shall give bond to the judge of probate in like manner and with like condition as is herein before directed with respect to the guardian of an insane person.

SEC. 22. [Payment of debts.]-Every guardian appointed under the provisions of this chapter, whether for a minor or for any other person, shall pay all just debts due from the ward out of his personal estate and the income of his real estate, if sufficient; or if not, then out of his real estate, upon obtaining license for the sale thereof, and disposing of the same in the manner provided by law.

SEC. 23. [Settlement of accounts, etc.]-Every such guardian shall also settle all accounts of the ward, and demand, sue for, and receive all debts due him, or may, with the approbation of the court, compound for the same, and give a discharge to the debtor on receiving a fair and just dividend of his estate and effects, and he shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose, as guardian or next friend.

SEC. 24. [Management of estates.]-Every guardian shall manage the estate of his ward frugally and without waste, and apply the income and profit thereof, as far as may be necessary, for the comfortable and suitable maintenance and support of the ward and his family, if there be any, and if such income and profits shall be insufficient for that purpose, the guardian may sell the real estate, upon obtaining a license therefor, as provided by law, and shall apply the proceeds of such sale, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any.

SEC. 25. [Partition.]-The guardian may join in and assent to a partition of the real estate of the ward, in the cases and in the manner provided by law, and he may also assign and set out dower in the said estate to any widow entitled thereto.

SEC. 26. [Oath-Inventory of estate.]—Every guardian appointed by virtue of this chapter shall, before entering upon his duties, take and subscribe an oath or affirmation before the probate judge that he will faithfully perform the duties of guardian to such ward, according to law and the best of his ability. Every such guardian shall, within

SEC. 24. Guardians may foreclose mortgage belonging to ward. 10 Neb. 123.

three months after his appointment, make out and return under oath, into the probatecourt from which he received his appointment, a true and perfect inventory of all the property of his ward in this state which shall come to his knowledge or possession, and shall within that time cause the same to be appraised in like manner as is required with respect to the estate of a deceased person; and every guardian shall, except as otherwise provided in this chapter, account for and dispose of the estate of his ward in likemanner as is directed with respect to executors and administrators, as near as may be; and similar proceedings may be had to obtain such account or punish such guardian for contempt in not rendering the same. [Amended 1873, G. S. 400.]

SEC. 27. [Sale of ward's property.]—The courts of probate in their respective counties, on the application of a guardian, or of any person interested in the estate of any ward, after such notice to all persons interested therein as the court shall direct, may authorize or require the guardian to sell and transfer any stock in public funds, or in any bank or corporation, or any other personal estate or effects held by him as guardian, and to invest the proceeds of such sale, and also any other moneys in his hands in real estate, or in any other manner that shall be most for the interest of all concerned therein, and the said court may make such further orders and give such directions as the case may require for managing, investing, and disposing of the estate and effects in the hands of the guardian.

SEC. 28. [Removal of guardian.]-When any guardian, appointed either by the testator or court of probate, shall become insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the court, after notice to such guardian and all others interested, may remove him; and every guardian may, upon his request, be allowed to resign his trust when it shall appear to the court proper to allow the same; and upon every such resignation or removal, and upon the death of any guardian, the court may appoint another in his place.

SEC. 29. [Penalty for neglect.]-If any guardian, having the care and custody of such minor, shall neglect to well feed and clothe him or her, or in any way maltreat or abuse him or her, he shall, upon conviction thereof, be fined not exceeding one hundred dollars, or imprisoned in the county jail not exceeding sixty days, or both, at the discretion of the court.

SEC. 30. [Proceedings against guardian.]—Proceedings may be commenced by any one against such person who shall have such minor in charge, by filing an information under oath with the probate judge in the county where the guardian was appointed; and such judge shall, if any of the particulars mentioned in the preceding section appear to be proved by such information, issue his warrant requiring such guardian forthwith to be arrested and brought before him to answer such charge. [Amended 1873, G. S. 401.]

SEC. 31. [Same.]-Before being brought before the judge upon such warrant, the party arrested shall have a reasonable opportunity of making a defense, and the plea of "not guity" made by him, or entered by the court in case he refuse to plead, shall be the only plea necessary. If, upon the testimony adduced, it appears to the probate judge that the guardian is unfit for the trust, and that the condition of such minor would be ameliorated by the removal of such guardian, the judge shall remove him and appoint another in his place. [Id.]

SEC. 32. [Limitation of action.]-No action shall be maintained against. the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged; Provided, That if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or before such disability shall be removed.

SEC. 33. [Embezzlement.]—-Upon complaint made to the court by any guardian or by the ward, or by any creditor or other person interested in the estate, or

by any person having any prospective interest therein, as heir or otherwise, agai... any person, as having concealed, embezzled, or conveyed away any of the money, goods, or effects, or any instrument in writing belonging to the ward, the court may cite and examine such suspected person, and proceed with him, as to such charge, in the same manner as is provided with respect to persons suspected of concealing or embezzling the ef

fects of a deceased testator or intestate.

SEC. 34. [Non-resident minor.]-When any minor or other person liable to be put under guardianship according to the provisions of this chapter shall reside without this state, and shall have any real estate therein. any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the court of probate of any county in which there may be any estate of such absent person; and after notice given to all persons interested, in such manner as the court shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person.

SEC. 35. [Same.]—Every guardian appointed according to the provisions of the preceding section shall have the same powers, and perform the same duties, with respect to any estate of the ward, that shall be found within this state, and also with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed by virtue of this chapter.

SEC. 36. [Bond.]—Every such guardian shall give bond to the judge of probate, in like manner and with like condition as is herein before prescribed with respect to other guardians, excepting that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian, shall be confined to such estate and effects as shall come to his hands in this state.

SEC. 37. [Priority of appointment.]-The guardianship which shall be first lawfully granted to any person residing without the state shall extend to all the estate of the ward within the same, and shall exclude the jurisdiction of the probate court in every other county.

SEC. 38. [Compensation of guardian.]-Every guardian shall be allowed the amount of his reasonable expenses, incurred in the execution of his trust, and shall also have such compensation for his services as the court in which his accounts are settled shall deem to be just and reasonable.

SEC. 39. [Joint guardians.]-When an account is rendered by two or more joint guardians, the court may in its discretion allow the same, upon the oath of any one of them.

SEC. 40. [Spendthrift.]-The word "spendthrift" in all its provisions relating to guardians and wards, contained in this or in any other statute, is intended to include every person who is liable to be put under guardianship, on account of excessive drinking, gaming, idleness, or debauchery.