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TITLE III.

GUARDIAN AND WARD.

Under this head are placed not only the provisions of
law relating to the guardianship of minors, but also
those relating to the custody and care of persons of
unsound mind. The "committee" of a lunatic is here
termed a "guardian."

SECTION 117. Guardian, what.
118. Ward, what.

119. Kinds of guardians.
120. General guardian, what.
121. Special guardian, what.

122. Appointment by parent.

123. No person, guardian of estate without appointment.
124, 125. Appointment by court. .

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$117. A guardian is a person appointed to take Guardian, care of the person or property of another.

what

$ 118. The person over whom, or over whose pro- Ward, what perty, a guardian is appointed, is called his ward.

$119. Guardians are either:

1. General; or,

2. Special.

Kinds of guardians.

guardian,

$120. A general guardian is a guardian of the General person, or of all the property of the ward within this state, or of both.

what.

Special guardian, what.

Appoint. ment by parent.

No person guardian of

estate with

S 121. Every other is a special guardian.

$122. A guardian of the person of a child born, or likely to be born, may be appointed, by will, or by deed, to take effect upon the death of the parent appointing:

1. If the child is legitimate, by the father, with the written consent of the mother; or by either parent, if the other is dead, or incapable of consent;

2. If the child is illegitimate, by the mother.

S123. No person, whether a parent or otherwise, out appoint has any power as guardian of property, except by appointment as hereinafter provided.

ment.

Appointment by

court.

Id.

Jurisdiction.

By the existing law (1 R. S., 718, § 5), if any infant has real property, the father or mother, or if he has none, the nearest and eldest relative, males being preferred to females of the same degree, is declared the guardian of the child, and of the real property. When a parent dies in possession of real property leaving an infant heir thereof, and his guardian by nature enters thereon, the entry is presumed to be as guardian, unless accompanied by acts or declarations inconsistent with such character (Byrne v. Van Hoesen, 5 Johns., 66; Jackson v. DeWalts, 7 id., 157; Putnam v. Ritchie, 6 Paige, 390; Beecher v Crouse, 19 Wend., 306).

124. A guardian of the person or property, or. both, of a person residing in this state, who is a minor, or of unsound mind, may be appointed in all cases by the supreme court, when there is no such guardian, and by a surrogate in the cases provided in the CODE OF CIVIL PROCEDURE.

$ 125. A guardian of the property within this state of a person not residing therein, who is a minor, or of unsound mind, may be appointed by the supreme

court.

$126. In all cases, the court first making the appointment of a guardian has exclusive jurisdiction

to appoint and control him, except in case of a removal pursuant to section 134.

$127. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations:

1. By what appears to be for the best interest of the child, in respect to its temporal and its mental and moral welfare; and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question;1

2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor or business, then to the father;

3. Of two persons equally eligible in other respects, preference is to be given, as follows:

(1.) To a relative;2

(2.) To one who was indicated by the wishes of a deceased parent ;3

(3.) To one who already stands in the position of a trustee of a fund to be applied to the child's support.

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Rules for custody of

awarding

minor.

guardian

$128. A guardian appointed by a court has power Powers of over the person and property of the ward, unless appointed otherwise ordered.

$129. A guardian of the person is charged with the custody of the ward, and must look to his support, health and education.' He may fix the residence

by court.

Duties of

guardian of

the person.

Duties of guardian of estate.

Relation confidential.

Guardian under direc tion of court.

Death of a joint guardian.

Removal of guardian.

of the ward at any place within the state, but not elsewhere, without permission of the court.

Ex parte Bartlett, 4 Bradf., 221; Clarke v. Montgomery,

23 Barb., 464.

S 130. A guardian of the property must keep safely the property of his ward. He must not suffer any sale, waste or destruction of the real property, but must maintain the inheritance, its buildings and appurtenances, out of the moneys of the estate, and deliver the same to the ward at the close of his guardianship, in as good condition as he received them, inevitable decay and injury only excepted.

2 R. S, 153, § 20.

$131. The relation of guardian and ward is confidential, and is subject to the provisions of the Title on TRUST.

S 132. In the management and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court.

This section is new. It is intended to qualify the common law rules which empower him to dispose of personalty in his discretion, and of the realty during the term of his guardianship.

S133. On the death of one of two or more joint guardians, the power continues to the survivor, until a further appointment is made by the court.

People v. Byron, 3 Johns. Cas., 53.

S 134. A guardian may be removed by the supreme court for any of the following causes:

1. For abuse of his trust;

2. For continued failure to perform its duties;

3. For incapacity to perform its duties;

4. For gross immorality ;

5. For having an interest adverse to the faithful performance of his duties;

6. For removal from the state;

7. In the case of a guardian of the property, for insolvency; or,

8. When it is no longer proper that the ward should be under guardianship.

$ 135. The power of a guardian appointed by a Guardian parent is superseded:

1. By his removal, as provided by section 134;

2. In the case of a female ward, by her marriage ;' or,

3. By the ward's attaining majority.

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appointed by parent; how super seded.

S136. The power of a guardian appointed by a Guardian

court is superseded only:

1. By the order of the court; or,

2. If the appointment was made solely because of the ward's minority, by his attaining majority."

'It has been held that a guardian of the children of a
convict, appointed during his civil death, is super-
seded by his pardon (Matter of Deming, 10 Johns.,
232, 483), and that a guardian improvidently appoint-
ed by the court, is superseded by the production
of an appointment by the father (People v. Kearney,
31 Barb., 430), but it seems proper that the guardian
should be superseded only by order of the court.

appointed by court, how super seded.

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S137. After a ward has come to his majority, he Release by

may settle accounts with his guardian, and give him

a release,' which is valid if obtained fairly and without undue influence.2

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ward.

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