CHAPTER V.

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.]

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