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of its birth. The foregoing provisions of this chapter do not apply to such an adoption.

This provision, like the rest, is new, but is so manifestly just, and the present state of the law is so unmerciful to innocent children, that it is presumed that no objection will be made to the change. The seducer can make reparation to the mother of his child, though she is more or less culpable, but can at present make absolutely none to the child, though perfectly innocent. By the law of France, and of almost every European nation, and in this country, by the law of Maine, Vermont, Massachusetts, Connecticut, Ohio, Illinois, Indiana, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky and Missouri, a child is legitimatized by the marriage of its parents after its birth. Privacy is an indispensable element of such an adoption. To compel the father to appear before a Judge, or in any way to place the matter upon record, would brand the child with the very stigma from which a repentant father would desire to save it.

N. Y. C. C., Sec. 116; Stats. 1870, 530, Sec. 9.

NOTE. Our Statute of 1870 was simply adopting this chapter of the New York Civil Code in advance.

TITLE III.

GUARDIAN AND WARD.

NOTE.-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 236. Guardian, what.

237. Ward, what.

238. Kinds of guardians.

239. General guardian, what.

240. Special guardian, what.

241. Appointment by parent.

242. No person guardian of estate without appointment.

243. Appointment by Court.

244. Same.

245. Jurisdiction.

246. Rules for awarding custody of minor.

247. Powers of guardian appointed by Court.

248. Duties of guardian of the person.

249. Duties of guardian of estate.

250. Relation confidential.

251. Guardian under direction of Court.
252. Death of a joint guardian.

Guardian, what.

Ward, what.

Kinds of guardians.

General guardian, what.

Special

guardian, what.

Appoint

ment by parent.

No person guardian

SECTION 253. Removal of guardian.

254. Guardian appointed by parent, how superseded.
255. Guardian appointed by Court, how superseded.
256. Release by ward.

257. Guardian's discharge.

258. Insane persons.

SEC. 236. A guardian is a person appointed to take care of the person or property of another.

N. Y. C. C., Sec. 117.

SEC. 237. The person over whom or over whose property a guardian is appointed is called his ward.

N. Y. C. C., Sec. 118.

SEC. 238. Guardians are either

1. General; or,

2. Special.

N. Y. C. C., Sec. 119.

SEC. 239. A general guardian is a guardian of the person, or of all the property of the ward within this State, or of both.

N. Y. C. C., Sec. 120.

SEC. 240. Every other is a special guardian.

N. Y. C. C., Sec. 121.

SEC. 241. 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.

N. Y. C. C., Sec. 122.

SEC. 242. No person, whether a parent or otherwise, has any power as guardian of property, except by appointment. pointment as hereinafter provided.

of estate

without ap

Appointment by

Court.

N. Y. C. C., Sec. 123.

SEC. 243. 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 Probate Court, as provided in the CODE OF CIVIL PRO

CEDURE.

N. Y. C. C., Sec. 124.

e

SEC. 244. A guardian of the property within this Same.
State of a person not residing therein, who is a minor,
or of unsound mind, may be appointed by the Probate
Court.

N. Y. C. C., Sec. 125.

SEC. 245. In all cases, the Court first making the ap- Jurisdiction. pointment of a guardian has exclusive jurisdiction to appoint and control him, except in case of a removal pursuant to Sec. 253.

N. Y. C. C., Sec. 126.

SEC. 246. 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.

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:

First-To a relative.

Second-To one who was indicated by the wishes of a
deceased parent.

Third-To one who already stands in the position of a
Trustee of a fund to be applied to the child's support.

N. Y. C. C., Sec. 127.

Rules for custody of

awarding

minor.

guardian

SEC. 247. A guardian appointed by a Court has power Powers of over the person and property of the ward, unless other- appointed wise ordered.

by Court.

N. Y. C. C., Sec. 128.

SEC. 248. 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 of the

Duties of the person.

guardian of

Duties of guardian of estate.

Relation confidential.

ward at any place within the State, but not elsewhere, without permission of the Court.

N. Y. C. C., Sec. 129.

SEC. 249. 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.

N. Y. C. C., Sec. 130.

SEC. 250. The relation of guardian and ward is confidential, and is subject to the provisions of the Title ou Trust.

N. Y. C. C., Sec. 131.

Guardian

under direc

SEC. 251. In the management and disposition of the tion of court person or property committed to him, a guardian may be regulated and controlled by the Court.

Death of a joint guar. dian.

Removal of guardian.

Guardian appointed by parent, how

N. Y. C. C., Sec. 132.

SEC. 252. 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.

N. Y. C. C., Set. 133.

SEC. 253. A guardian may be removed by the Probate 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.

N. Y. C. C., Sec. 134.

SEC. 254. The power of a guardian appointed by a superseded. parent is superseded

1. By his removal, as provided by Sec. 253.
2. By solemnized marriage of the ward; or,
3. By the ward's attaining majority.

N. Y. C. C., Sec. 135. Subd. 2 changed to conform to
Sec.

SEC. 255. 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.

N. Y. C. C., Sec. 136.

appointed by Court, how superseded.

ward.

SEC 256. 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.

N. Y. C. C., Sec. 137.

discharge.

SEC. 257. A guardian appointed by a Court is not Guardian's entitled to his discharge until one year after the ward's majority.

N. Y. C. C., Sec. 138.

persons.

SEC. 258. A person of unsound mind may be placed in Insane an asylum for such persons, upon the order of the County Judge of the county in which he resides, as follows:

1. The Judge must be satisfied, by the oath of two reputable physicians, that such person is of unsound mind, and unfit to be at large.

2. Before granting the order, the Judge must examine the person himself, or if that is impracticable, cause him to be examined by an impartial person.

3. After the order is granted, the person alleged to be of unsound mind, his or her husband or wife, or relative to the third degree, may demand an investigation before a jury, which must be conducted in all respects as under an inquisition of lunacy.

N. Y. C. C., Sec. 139.

NOTE. This Title (Guardian and Ward) is inserted here as being concise and giving harmony to the Civil Code. Some of its provisions are also in "Proceedings of Probate Courts," Tit. XI, Code of Civil Procedure, which had already been prepared. They will be expunged from the one or the other before presentation to the Legislature.

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