MINORS AND GUARDIANSHIP.
[Sidenote: Majority.]
The period of minority extends in males to the age of twenty-one years,
and in females to that of eighteen, but all minors attain their majority
by marriage. [§3428.] The disability of minority may also be terminated
by death.
[Sidenote: Contracts.]
[Sidenote: Disaffirmance.]
A minor is bound not only by contracts for necessaries, but also for
his other contracts, unless he disaffirms them within a reasonable time
after he attains his majority, and restores to the other party all money
or property received by him by virtue of the contract and remaining
within his control at any time after his attaining his majority.
[§3429.] The rule respecting the contract of an infant is, that when the
court can pronounce it to be to the infant's prejudice, it is void, and
when to his benefit, as for necessaries, it is good, and when of
uncertain nature, it is voidable, at the election of the infant. As to
what will be "a reasonable time," within which a minor must disaffirm
his contract, must depend upon the peculiar circumstances of each case.
In case of the marriage of a minor the time for disaffirmance will
commence from the date of the marriage. The intention of this law is to
limit the time in which a minor may take advantage of his minority and
disaffirm his contracts, but the disaffirmance may be either before or
after majority, if within a reasonable time after becoming of age. The
minor is under no obligation to restore money or property, unless it is
the identical money or property received by virtue of the contract, and
he may therefore disaffirm his contract without rendering back the
consideration, if such consideration is no longer under his control.
[Sidenote: Misrepresentations. Engaging in business.]
No contract can be thus disaffirmed in cases, where on account of the
minor's own misrepresentations as to his majority, or from his having
engaged in business as an adult, the other party had good reason to
believe the minor capable of contracting. [§3430.] If the fact of
minority is known to the other party, the minor will not be bound by his
contracts, although he may be engaged in business as an adult. The fact
that he is engaged in business on his own account will alone be
sufficient evidence to authorize others to conclude that he has attained
his majority and will make all contracts to which he is a party, binding
upon him.
[Sidenote: Natural guardians.]
The parents are the natural guardians of their minor children and are
equally entitled to the care and custody of them. [§3432.] While a
parent is the natural guardian of his child, this guardianship is not
absolute, and may be lost by any misconduct on the part of the parent
which would render it not best for the child to remain in his care and
under his control. The duty of furnishing support to minor children
rests equally upon both parents, but neither one is legally liable for
the support of their adult children. An adult child living at home in
the family of the parent, being supported as a member of the family, and
performing services in the household, cannot recover payment for such
services in the absence of an express contract on the part of the parent
to pay for them. A stepfather stands in the position of a parent to the
children of his wife by a former husband, _provided_, he receives them
into his family. He is entitled to their services and is responsible for
their education and maintenance. The parents can at any time consent to
surrender the custody of their minor children and transfer this custody
to another by agreement. Articles of adoption properly executed
according to the requirements of the law upon that subject, are
necessary to invest another with the rights and responsibilities of a
parent.
[Sidenote: Surviving parent, Guardian appointed.]
Either parent dying before the other, the survivor becomes the guardian.
If there be no parent or guardian qualified and competent to discharge
the duty, the district court shall appoint a guardian. [§3488.]
[Sidenote: Of property.]
If the minor has property not derived from either parent, a guardian
must be appointed to manage such property, which may be either parent,
if suitable and proper. [§3434.]
[Sidenote: Minor may choose.]
If the minor be over the age of fourteen years and of sound intellect,
he may select his own guardian, subject to the approval of the district
court of the county where his parents, or either of them resides; or, if
such minor is living separate and apart from his parents, the district
court of the county where he resides has jurisdiction. [§3435.]
[Sidenote: Powers.]
Guardians of the persons of minors have the same power and control over
them that parents would have if living. [§3440.]
[Sidenote: Duties.]
Guardians of the property of minors must prosecute and defend for their
wards. They must also in other respects manage their interests under the
direction of the court. They may thus lease their lands or loan their
money during their minority, and may do all other acts which the court
may deem for the benefit of the ward. [§3441.] All power of the guardian
over the estate of his ward is derived from the appointment of the
court, but an appointment as guardian will not authorize a sale of
property, nor an investment or disposal of money belonging to the ward,
without a special order of the court. All expenses for the education and
maintenance of the ward must be kept within the income of his estate. If
this should not be sufficient the principal may be resorted to, but not
without an order of the court. All transactions between guardian and
ward, where the former has secured an apparent advantage, by way of
gift, or contract or settlement, will be presumed to have been the
result of undue influence, and will be set aside by a court of equity,
unless it can be shown that they were made in good faith and for a fair
and valuable consideration.
[Sidenote: Property in state.]
The foreign guardian of any non-resident minor, may be appointed the
guardian in this state of such minor, by the district court of the
county wherein he has any property, for the purpose of selling or
otherwise controlling that and all other property of such minor within
the state, unless a guardian has previously been appointed under the
preceding section. The foreign guardian of any non-resident idiot,
lunatic or person of unsound mind may be appointed the guardian of such
ward by the district court in like manner and with like effect in all
cases where the foreign guardian of a non-resident minor could be
appointed the guardian of such minor in this state. Such guardian shall
have the same powers and be subject to the same liabilities as guardians
of resident minors. [§3457.]
[Sidenote: Guardians of drunkards, spendthrifts and lunatics.]
When a petition is presented to the district court, verified by
affidavit, that any inhabitant of the county is:
1. An idiot, lunatic, or person of unsound mind;
2. An habitual drunkard incapable of managing his affairs;
3. A spendthrift who is squandering his property, and the allegations of
the petition have been satisfactorily proved upon the trial, such court
may appoint a guardian of the property of any such person, who shall be
the guardian of the minor children of his ward, unless the court
otherwise orders. Such court may also appoint the guardian of the
property of an habitual drunkard as the guardian of his person. If the
person adjudged to be an habitual drunkard has no property, the court
may appoint a guardian of his person. [§3463 Sup.]
[Sidenote: Order for restraint of drunkard.]
The district court or any judge thereof, may, from time to time, enter
such orders as may be necessary, authorizing the guardian of the person
of such habitual drunkard to confine and restrain him in such manner and
in such place within the state as may, by the court or judge, be
considered best for the purpose of preventing such drunkard from using
intoxicating liquors, and as may tend to his reformation. [§3468a Sup.]
When it is sought to have a guardian appointed for a person of unsound
mind, the test of his mental capacity is not the degree of prudence and
foresight he manifests in the management of his affairs, for "the law
does not assume to measure the different degrees of power of the human
intellect, or to distinguish between them where the power of thought and
reason exists," but the question to be determined is whether or not he
possesses sufficient ability to understand in a reasonable manner the
nature and effect of his acts, or the business he is transacting.
"Although the mind of an individual may be to some extent impaired by
age or disease, still, if he is capable of transacting his ordinary
business, if he understands the nature of the business in which he is
engaged and the effect of what he is doing and can exercise his will
with reference thereto, his acts will be valid," and he will not be
adjudged to be of unsound mind and incapable of managing his business
affairs.
[Sidenote: Real estate sold. Allowance to family.]
Whenever the sale of the real estate of such ward is necessary for his
support or the support of his family or the payment of his debts, or
will be for the interest of his estate or children, the guardian may
sell the same under like proceedings as required by law to authorize the
sale of real estate by the guardian of a minor. The court shall, if
necessary, set off to the wife and children under fifteen years of age,
of the insane person or to either sufficient of his property of such
kind as it shall deem appropriate to support them for twelve months from
the time he was adjudged insane. [§3467.]
[Sidenote: Custody]
The priority of claim to the custody of any insane person, habitual
drunkard, or spendthrift aforesaid, shall be:
1. The legally appointed guardian.
2. The husband or wife.
3. The parents.
4. The children. [§3470.]