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 Author and Title
Abbott , Twyman Osmand
A treatise on probate law and
practice
I Number KF
Vol . Copy
765
A92 3
V. 3
THIS BOOK IS BEING TAKEN OUTSIDE THE
UILDING , PLEASE INCLUDE FULL ADDRESS
ND TELEPHONE NUMBER , TAKING AS MANY
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Name Address or
Campus Location

Abbott , Twyman Osmand

A treatise on probate law and
practice
KF
765
A92
v. 3
1
.
 A TRE ATIS E
ON

PROBATE LAW AND PRACTICE

E MBRACING

THE LAW OF WILLS, AND THE ADMINISTRATION,

SETTLEMENT, AND DISTRIBUTION OF ES
TATES OF DECEASED PERSONS ;
ALSO

THE LAW RELATING TO MARRIED WOMEN, MINORS, INSANE

PERSONS, DRUNKARDS, GUARDIAN AND WARD, AND
OTHER PERSONS UNDER DISABILITY ;

TOGETHER WITH

RULES OF PRACTICE AND FORMS

ADAPTED TO THE LAWS AND DECISIONS OF ARIZONA , CALI
FORNIA, IDAHO, MONTANA , NEVADA , OREGON,
UTAH, WASHINGTON, AND WYOMING.

ALSO A

PRO BA TE CODE
GIVING THE FULL TEXT OF THE STATUTES FOR ALL
THESE STATES, TOPICALLY ARRANGED AND
COMPARED WITH EACH OTHER.

IN THREE VOLUMES.

BY

TWYMAN OSMAND ABBOTT,

OF THE WASHINGTON STATE BAR ,

VOLUME THREE,

SAN FRANCISCO :
BANCROFT - WHITNEY COMPANY ,
LAW PUBLISHERS AND LAW BOOKSELLERS .

1904 .
 KF
765
AL

COPYRIGHT, 1904, BY TWYMAN OSMAND ABBOTT.

SAN FRANCISCO :
THE FILMER BROTHERS ELECTROTYPE COMPANY,
TYPOGRAPHERS AND STEREOTYPERS
 PART I.
PERSONS UNDER DISABILITY .

DIVISION I. - MARRIED PERSONS.

TITLE 1.-EFFECT OF MARRIAGE ON PERSONS.
CHAPTER 1.- HUSBAND AND WIFE.
Section 1. – Agreements in Restraint or Anticipation of Marriage.
§ 1. Agreements in restraint of marriage.
§ 2. Antenuptial agreements.
§ 3. Minor may make settlement.
$ 4. How marriage contract executed.
§ 5. Record of agreement and effect of.
$ 6. Not to be altered after marriage.
87. When not binding.
Section 11.-Who May Contract Marriage and What Constitutes.
$ 8. Nature of the contract.
$ 9. Who may contract-Age,
Section III . - Who May not Contract Marriage.
§ 10. Prohibited within certain degrees of relationship.
§ 11. Marriage between certain races prohibited .
§ 12. Effect of marriage during lifetime of spouse - Effect of
continued absence.
Section IV.-Void and Voidable Varriages.
$ 13. What constitutes void marriage.
§ 14. What constitutes voidable marriage - How voided .
CHAPTER II . - CHILDREN .
Section 1. – Children by Birth .
$ 15. Who are legitimate.
f 16. Effect of nullity and divorce on legitimacy.
$ 17. Legitimation by subsequent marriage.
§ 18. Who may dispute legitimacy of child — How proved.
§ 19. Fraudulently producing child as heir.
8 20. Fraudulent substitution of child.
Section II . - Children by Adoption.
$ 21. Who may be and by whom adopted.
§ 2la. Consent of minor when necessary .
$ 22. Consent of parents, guardians, etc.
$ 23. .Jurisdiction , notice, etc.
§ 24. Manner of adoption of illegitimate child.
8 25. Relation between the parties.
$ 25a. Law of adoption in Wyoming.
(v)
vi TABLE OF CONTENTS.

CHAPTER III . - POWER OF MARRIED PERSON TO CONVEY BY WILL .

$ 26. Consent of spouse not necessary .

CHAPTER 1V . - MARRIED WOMEN AS SOLE TRADERS.

§ 27. Jurisdiction to grant privilege.
8 28. Notice to be given - Contents of.
8 29. Petition- What to state.
8 30. What community funds may be used .
§ 31. Manner of opposing petition .
§ 32. Hearing of application .
8 33. Form of decree,
$ 34. Oath of applicant-Record of decree.
$ 35. Rights and liabilities of sole trader.
§ 36. Maintenance of children of sole trader.
§ 37. Liability of husband of sole trader.

TITLE II.-EFFECT OF MARRIAGE ON PROPERTY .

CHAPTER 1. - NATURE OF OWNERSHIP OF PROPERTY BY MARRIED PERSONS .
8 38. Separate property defined.
$ 39. Earnings of wife also separate property.
$ 40. Community property defined .
CHAPTER II.-DOWER AND CURTESY .
§ 41. When , and when nct allowed .
§ 42. Manner of assignment of dower.
8 43. Admeasurement of dower after judgment.
§ 44. Dower in lands aliened during lifetime.
§ 45. How dower barred .
§.46. Damages for withholding - How estimated .
§ 47. Election - When necessary .
$ 48. Effect of mortgage.
§ 49. Right of widow to occupy dwelling house.
$ 50. Widow liable for waste.
8 51. When widow may be re -endowed .
CHAPTER III. - THE HOMESTEAD .
$ 52. In general .
$ 53. Conveyance when either spouse is insane.
8 54. Manner of succession-Liability for debts.

TITLE III.-- DISSOLUTION OF MARRIAGE.

$ 55. Grounds for divorce.
$ 56. Proceedings in case of void or uncertain marriages.
$ 57. Proceeding in case of insanity.
 TABLE OF CONTENTS. vii

DIVISION II.- MINORS .

TITLE I .-- WHO ARE MINORS.

$ 58. What constitutes mirority.

TITLE II .-CONTRACTS BY MINORS.

§ 59. Conveyances and powers.
$ 60. What contracts may be disaffirmed .
61. What contracts cannot be disaffirmed .
$ 62. Who entitled to wages .
$ 63. Guardian to act for.

DIVISION III. - INSANE AND INCAPABLE PERSONS,

TITLE 1.-DEFINITIONS .
$ 64. Persons of scund mind .
$ 65. Who are of unsound mind.

TITLE II. - CAPACITY TO CONTRACT.

§ 66. What contracts binding and what not - Rescission .
§ 67. Specific performance of contract after insanity.
TITLE III . - DETERMINATION OF INSANITY.
§ 68. Arrest and detention - Jurisdiction -- Hearing.
$ 69. Effect of discharge of patient.
$ 70. When proceedings for restoration may be instituted.
$ 71 . Notice of trial.
$ 72. Writ of habeas corpus may be used.

TITLE IV.-INSANITY AS AFFECTING CRIMINAL RESPONSI .

BILITY.
CHAPTER 1. - INSANITY OF PERSONS ACCUSED OF CRIME.
$ 73. Insane person cannot commit crime.
CHAPTER II . - INSANITY OF PERSONS ON TRIAL FOR CRIME.
$ 74. To be tried and committed ,
$ 75. Order of procedure.
$ 76. When found sane , trial for offense to proceed.
$ 77. Effect of commitment.
§ 78. Detention and proceedings after recovery.
$ 79. Expenses of commitment-Recovery of.
CHAPTER III .-INSANITY OF PERSON CALLED FOR SENTENCE .
$ 80. May show insanity in bar.
rii TABLE OF CONTENTS .

CHAPTER IV.-INSANITY OF PERSON UNDER SENTENCE OF DEATH ,

$ 81. Jury to be summoned .
§ 82. The inquisition . - Witnesses.
$ 83. The certificate or verdict.
§ 84. Execution of judgment or commitment.
CHAPTER V. - INSANE Convicts.
8 85. Commitment and return .

DIVISION IV . - INDIGENT PERSONS.

TITLE I. - LIABILITY FOR CARE AND SUPPORT.
8 86. Duty of relatives — Order of responsibilitv.

DIVISION V. - INTOXICATED PERSONS.

TITLE I.-INTOXICATION AS AN EXCUSE FOR CRIME.
8 87. May be considered as affecting crime.

TITLE II . - HABITUAL DRUNKARDS,

CHAPTER 1. - DEFINITION OF HABITUAL DRUNKARD .
§ 88. “ Habitual” and “ Common ” drunkards.
CHAPTER II. - PROCEEDINGS TO ADJUDGE PERSON AN HABITUAL DRUNK.
ARD ,

§ 89. Who may make application - Notice — Hearing - Order.

$ 90. Restoration of habitual drunkard.

DIVISION VI .-CRIMINALS.

TITLE I.- EFFECT OF CRIME ON CIVIL RIGJITS.

CHAPTER I.—PERSONS CAPABLE OF COMMITTING CRIME.
8 91. Definitions.
8 92. Who may commit and how manifested .
CHAPTER II.-SUSPENSION OF CIVIL Rights — CIVIL DEATH:
8 93. General effect of conviction.
8 94. Rule of succession as affected by crime,
 ix
TABLE OF CONTENTS.

DIVISION VII . - ALIENS - NON -RESIDENTS.

TITLE I.-WHAT CONSTITUTES RESIDENCE .
CHAPTER 1. - RESIDENCE IN GENERAL.
§ 95. Rules for determining.
CHAPTER II. - RESIDENCE FOR PURPOSES OF VOTING,
§ 96. What place must be considered.
§ 97. Residence of unmarried man.
$ 98. Residence of married man.
99. Intention to remove as an element.
100. Temporary absence or removal.
$ 101. Permanent absence or removal ,
$ 102. Absence in public service.
TITLE II.-PROPERTY RIGHTS.
CHAPTER 1.-Right to HOLD AND CONVEY PROPERTY.
103. When alienage is and is not a bar.

DIVISION VIII. GUARDIAN AND WARD.

TITLE 1. - QUALIFICATIONS, APPOINTMENT AND GENERAL
POWERS OF GUARDIAN.
CHAPTER 1. -NATURE OF RELATION BETWEEN GUARDIAN AND WARD .
$ 104. Confidential.
§ 105. Guardian defined .
$ 106. Ward defined .
§ 107. General and special .
8 108. General guardian defined .
CHAPTER II . - APPLICATION AND APPOINTMENT OF GUARDIANS.
Section 1. — Testamentary Guardians.
$ 109. Appointment and qualification.
Section II. - Appointment by Court,
$ 110. When may be appointed.
8 111. Who entitled to appointment.
& 112. Who cannot be appointed.
8 113. Power to nominate and select.
8 114. Failure of minor to nominate vests power in court.
$ 115. When minor may choose new guardian.
g 116. When more than one guardian appointed.
$ 117. Manner of appointment by court - Notice.
8 118. Bond to be filed — Conditions.
8 119. Oath and letters of guardianship.
$ 120. Preservation of bond-Action on .
§ 121. General provisions relative to bonds of guardians.
 TABLE OF CONTENTS.

CHAPTER III.-DUTIES AND POWERS OF GUARDIANS.

Section 1. - Control of Guardian.
§ 122. Jurisdiction to control.
§ 123. General power to impose conditions.
$ 124. Guardian of the person .
8 125. Guardian of the property.
§ 126. Guardian of person and property.
Section 11. - Maintenance, Support and Education of Ward.
§ 127. Income and profits of estate to be applied for such pur.
pose_Sales.
$ 128. In what case parent not liable for maintenance.
§ 129. Enforcement of maintenance.
Section 111. - Management and Control of Property.
$ 130. Inventory of estate.
§ 131. Payment of debts .
$ 132. Collection and payment of claims.
$ 133. Presentation of claim.
$ 134. Contesting claims.
$ 135. Claims established by judgment.
8 136. Life of lease.
Section IV.-Sales of Property of Ward.
$ 137. When may be sold .
§ 138. Who may apply for and how .
$ 139. Manner of giving notice.
$ 140. Manner of service of notice.
§ 141. Hearing of application.
§ 142. Examination of witnesses.
$ 143. Costs awarded in certain cases.
§ 144. Contents of order of sale.
§ 145. Bond .
§ 146. Rule governing manner of sales by guardian.
§ 147. Report of sale— When madeProceeds.
§ 148. Terms of sale.
$ 149. Limitation of order of sale .
$ 150. Private sales of estates of persons under disability and
decedents.
Section V.-Changing Assets—Investments.
§ 151. Application and order.
$ 152. Disposition of proceeds of sales.
§ 153. Investing proceeds of sales.
$ 154. Manner of investment of assets of estate.
Section 11. - Accounting and Settlement by Guardians.
$ 155. When must be rendered — Annual accounts,
Section VII. - Termination of Guardianship.
8 156. Manner of termination ,
8 157. Grounds for removal.
 TABLE OF CONTENTS. xi

§ 158. Removal of guardian .

§ 159. Resignation of guardian - Appointment of successor .
$ 160. Release of guardian by ward.
$ 161. Death of guardian .
§ 162. Then powers suspended .
Section VIII.--Compensation of Guardians.
$ 163. Manner of allowance.
§ 164. Costs in guardianship.
Section 18.-Misconduct of Guardian, and Penalty
§ 165. Embezzlement, etc., of ward s estate.

TITLE II. - APPOINTMENT, POWERS AND DUTIES OF GUARD.

IANS IN SPECIAL CASES .

CHAPTER 1. - GUARDIAN OF NON -RESIDENT WARD.

Section 1.- When Vay le Appointed .
8 166. When and by whom may be appointed.
$ 167. Power and duties of such guardians.
$ 169. Bond and conditions.
§ 169. Guardian first appointed has exclusive jurisdiction.
$ 170. When and how ward's property may be removed out of
the state.
$ 171. Effect of order as discharge of person in possession of
property .
CHAPTER II. - GUARDIAY OF INSANE AND INCOMPETENT PERSONS.
Section 1.-When and How Appointed.
§ 172. Who may make application ,
§ 173. Notice of application and hearing.
$ 174. Appointment.
$ 175. Notice of appointment to be given .
Section 11.—General Powers and Duties of Such Guardians.
$ 176. Care and custody of ward-Bonds.
§ 177. Inventory to be filed — Form .
$ 178. To whom costs of hearing to be taxed .
Section III.-Rights of Ward.
$ 179. Personal privilege of ward.
Section IV :-Support of Ward and Family.
§ 180. How enforced .
Section V. - Sales of Real Estate of Ward.
§ 181. Manner and grounds of sale.
§ 182. Of dower right.
$ 183. Sales of real estate of insane wife.
Section VI.--Discharge or Removal of Guardian.
$ 184. When and how released.
xii TABLE OF CONTENTS.

CHAPTER III. - GUARDIAN FOR NON -RESIDENT INSANE PERSON .

Section 1. - Appointment and Letters.
§ 185. When and how appointed.
8 186. Limitation of time for application.
$ 187. Hearing, appointment , bond.
§ 188. Notice to creditors.
Section 11.-Duties of Such Guardians.
$ 189. Inventory - Estate - Accounts - Debts, etc.
$ 190. Discharge of guardian - Disposition of furds.
Section III . - Sales of Real Estate,
§ 191. Notice — Venue - Disposition of proceeds.
§ 192. Sale of community property.
CHAPTER IV . - GUARDIAN AD LITEM AND NEXT FRIEND.
$ 193. Power to appoint other guardians not exclusive.
8 194. When and how may be appointed.
§ 195. Power of court over such guardian.

DIVISION IX.-CHANGE OF NAMES OF PERSONS.

§ 196. Application for — Jurisdiction.
g 197. Notice of application.
§ 198. Hearing of application .
$ 199. Returns to Secretary of State.
$ 200. Effect of change.

DIVISION X .-- SPECIAL RIGHTS OF HEIRS .

$ 201. Collection of deposit in banks.
 PART II.
DECEASED PERSONS .

DIVISION 1. - DEVOLUTION OF PROPERTY AFTER

DEATH .
TITLE I. — PRESUMPTION OF DEATH.
8 202. On account of absence.
§ 203. Death by accident - Principle of survivorship.
TITLE II.—DISPOSITION OF PROPERTY BY WILL .
CHAPTER 1.-TESTAMENTARY CAPACITY.
Section 1. - Definitions.
$ 204. Olographic or written will.
§ 205. Codicil defined .
Section 11.-Who May Make - How Made.
206. Who may make a written will,
§ 207. Requisites of a written wiil.
8 208. Manner of witnessing will.
Section III. -Proof of Wills.
§ 209. Custody of will before decease of testator.
$ 210. Jurisdiction and venue of proceedings.
8 211. Jurisdiction when estate in more than one county.
$ 212. Custodian to deliver will—Penalty for failure.
§ 213. Application or petition for probate—Who may make.
$ 214. Notice of petition,
$ 215. Proof of service.
8 216. Probate, etc., during vacation.
$ 217. Compulsory production of will.
$ 218. What petition must state .
$ 219. Certificate of probate.
$ 220. When admitted to probate.
8 221. Will, certificate and testimony to be preserved.
CHAPTER 11. - CONTESTS.
Section 1.-Contests Before Probate.
$ 222. Who may contest.
$ 223. Notice and grounds of contest — Pleadings.
§ 224. Trial of contest by jury.
8 225. Conclusions upon the proof.
( xiii)
xiv TABLE OF CONTENTS.

Section II.-Contests After Probate.

$ 226. Limitation of contest.
$ 227. Notice of contest.
§ 228. Issues - Trial- Judgment— Appeal.
§ 229. Costs of contest.
CIIAPTER III. - Lost OR DESTROYED WILL.
$ 230. How proved .
$ 231. When cannot be proved .
$ 232. Certificate of proof-Record-Letters.
§ 233. Proceedings pending proof of such will.
CHAPTER IV. - NUNCUPATIVE, OR UNWRITTEN WILL.
$ 234. When, how and by whom may be made.
§ 235. No proof before, when - Notice.
§ 236. No proof after, when - What petition shall state.
$ 237. Contests, etc., under nuncupative wills.
CHAPTER V. - FOREIGN WILLS .
Section 1. - Probate and Proceedings Under.
$ 238. When valid .
$ 239. When may be probated.
§ 240. Hearing - Proof - Effect of probate.
Section II. Ancillary Proceedings .
$ 241. When may be had.
$ 242. When cannot be made.
8 243. To whom ancillary letters may issue.
§ 244. Application for letters.
$ 245. Notice of the application - Contents.
§ 246. Manner of giving notice.
$ 247. Hearing the application .
§ 248. Bond.
$ 249. Form of letters - Qualification of sureties—Agent.
CHAPTER VI.-GENERAL RULES APPLICABLE TO PROOF OF WILLS.
§ 250. Proof of olographic wills.
$ 251. Written will must be produced.
$ 252. Effect of competent witness becoming incompetent.
$ 253. How incompetent witness may become competent.
$ 254. Testimony of witnesses laboring under disability.
§ 255. Witnesses to prove revocation .
CHAPTER VII .-REVOCATION OF Wills.
Section 1.- What Constitutes Revocation .
§ 256. The law of revocation .
$ 257. How mutual will revoked.
$ 258. Revocation of codicils.
$ 259. Revocation of duplicate will .
$ 260. Revocation by subsequent will, etc.
 TABLE OF CONTENTS . XV

§ 261. Revocation by marriage.

$ 262. Revocation by birth of issue.
$ 263. When a conveyance is a revocation .
Section II . - What does not constitute Revocation .
$ 264. Effect of encumbrance, etc.
$ 265. Effect of subsequent will .
$ 266. When conveyance is not a revocation .
$ 267. Effect of contract for conveyance.
Section III . - Revival of Mills .
§ 268. Revival by codicil.
$ 269. Revocation does not revive.
CHAPTER VIII. - WHAT WILLS MAY BE DENIED PROBATE.
$ 270. Conditional will .
$ 271. Will made under duress, etc.
CHAPTER IX . - INTERPRETATION OF WILIS.
Section 1. - General Rules.
$ 272. What law governs.
$ 273. The intention of the testator.
§ 274. How testator's intention ascertained .
$ 275. Several instruments construed together.
§ 276. All parts construed with each other.
§ 277. Distinct devise not affected by reasons, etc.
$ 278. Total intestacy to be prevented.
$ 279. How ambiguous parts explained.
$ 280. When real property deemed personal.
$ 281. Mistakes and omissions.
8 282. Bequest of all property in general terms.
$ 283. Bequest of all property in express terms.
§ 284. Devise of residue of real property .
§ 285. Bequest of residue of personal property.
$ 286. Effect of devise to a class .
§ 287. Conditional disposition defined.
8 288. Condition precedent defined.
§ 289. Condition subsequent defined .
§ 290. Effect of condition precedent.
$ 291. When condition precedent deemed performed.
Section II . - Meaning of Words.
§ 292. Technical words .
§ 293. Technical words not necessary .
$ 294. Ordinary meaning.
§ 295. To be given effective meaning.
§ 296. Words referring to death or survivorship.
8 297. Term " conveyance " as used in registration acts does rot
include " wills. "
$ 298. “ Tenancy in common."
xvi TABLE OF CONTENTS.

$ 299. Certain terms of donation , not limitation ,

$ 300. Term " heirs" not necessary to devise a fee.
Section III.-Legacies.
$ 301. How legacies are distinguished.
§ 302. Devises, etc., in common.
$ 303. When certain legacies become chargeable.
$ 304. Abatement of legacy.
$ 305. Specific devise of legacy passes by will.
$ 306. Proof and record of will necessary to affect rights
of third parties.
8 307. Disposition of life legacy to second legatee.
$ 308. When legacies and annuities are due.
$ 309. When legacies bear interest.
$ 310. When income accrues in case of bequest.
$ 311. When legacy , etc. , may be satisfied.
$ 312. Testator's intention to control.
CHAPTER X - GIFTS .
$ 313. Gifts defined .
$ 314. Verbal gift valid only when accompanied by possession .
§ 315. What gift not revocable.
$ 316. Gift in view of death, defined .
8 317. When gift presumed.
8 318. Revocation of gift in view of death .
8 319. Gift not affected by will , except.
$ 320. When gift treated as legacy.
CHAPTER XI.-EXTENT AND LIMITATION OF TESTAMENTARY CAPACITY.
8 321. Every estate and interest in property may be devised .
§ 322. Devise conveys entire estate.
§ 323. After-acquired interest passes by will.
8 324 . Interest of insured passes by will, etc.
$ 325. Insurance may pass by will.
$ 326. Notice of bequest of insurance not required.
$ 327. Conveyance must be in writing, etc.
§ 328. Provisions not to apply to wills.
§ 329. Fraudulent transfer, except wills, invalid.
CHAPTER XII. - LIMITATION UPON POWER OF ALIENATION .
Section 1. — Perpetuities.
§ 330. Perpetuities prohibited .
Section 11. - Conditions Restraining Alienation,
§ 331 , When void .
§ 332. How long it may be suspended .
$ 333. When future interest is suspended.
$ 334 . Certain leases.
§ 335. How long ownership may be suspended.
$ 336. Suspension of trust.
 TABLE OF CONTENTS. xvii

8 337. Limitation of successive estate for life.

$ 338. Time of creation.
$ 339. Estates-tail abolished .
Section III.--Future Interests.
§ 340. Estates in futuro — How may pass.
8 341. Right of possession.
§ 342. Perpetual interest.
$ 343. Limited interest.
§ 344. Kinds of future interests.
§ 345. Vested interests.
§ 346. Contingent interests .
§ 347. Alternative interests.
§ 348. Improbability of contingency.
8 349. How future interest defeated.
Section IV.-Estates in Remainder .
$ 350. Remainder defined .
$ 351. Certain remainders valid .
8 352. Effect when limited to heir, etc.
$ 353. How created.
$ 354. Contingent remainder in fee .
$ 355. Upon estates for life or term of years.
§ 356. Contingent remainders.
$ 357. Upon estates for life.
§ 358. Conditional limitation .
$ 359. Construction of certain remainders.
Section V.-Certain Estates Defined .
360. Reversion,
8 361. Estate of inheritance .
§ 362. Estate for life.
$ 363. Mere possibility not an interest.
8 364. Freeholds — Chattels real - Chattel interests.
Section VI. - Disposition of income.
§ 365. Income defined .
§ 366. What rules govern.
$ 367. Certain directions void.
§ 368. When income shall commence.
8 369. When directions are void .
§ 370. Who entitled to income during limitation.
§ 371. For support of minor.
CHAPTER XIII.—WHO MAY TAKE BY WILL.
Section 1.-In General.
§ 372. Any person except corporations expressly authorized.
Section 11.-Bequest of Debt.
$ 373. Against executors and others.
xviii TABLE OF CONTENTS.

Section III.-Devises to ' Witnesses.

8 374. Are void , except .
$ 375. When witness entitled to share.
§ 376. Witness cannot refuse , and afterward take devise.
Section IV . - Devise to Widou .
$ 377. Widow to elect - Election in case of disability ,
Section V.-Right of Children in Testator's Estate.
$ 378. Effect when unprovided for.
8 379. How the share of such child assigned .
§ 380. Effect of advancement on rights of child .
{ 381. Devise to posthumous children as a class.
§ 382. Posthumous children may take.
§ 383. Posthumous child defeats certain contingent estate.
$ 384. Posthumous child to inherit equally — Contribution.
Section VI.- Devises to Corporations.
§ 385. Limitation upon power to make such devise.
Section VII. - Vesting of the Estate.
$ 386. When and in whom vests.
CHAPTER XIV . - OFFENSES AGAINST INHERITANCE .
Section 1. – Forgery of Wills.
$ 387. Defined --Penalty.
Section 11.-Destroying Will.
§ 388. Penalty.

TITLE III.-DISPOSITION OF PROPERTY BY LAW.

CHAPTER 1. - EXECUTORS AND ADMINISTRATORS.
Section 1.-Public Administrators.
§ 389. Who may act as.
$ 390. Bond and oath.
$ 391. Of what estates to be appointed .
§ 392. To obtain letters – Official bond and oath is sufficient
Except.
$ 393. Certain persons to give notice of death-Penalty.
$ 394. Inventory to be filed .
$ 395. No administration necessary , when.
§ 396. When estate to be delivered .
§ 397. Civil officers to give notice.
$ 398. Actions by.
$ 399. To institute proceelings for embezzlement.
§ 400. Interrogatories – Refusal to answer.
$ 401. Accounting required .
$ 402. Return and statement to be made.
§ 403. Disposition of moneys—Compensation-Escheats ,
$ 404. Restriction upon public administration,
$ 405. Settlement and distribution of unclaimed estate.
 TABLE OF CONTENTS. xix

8 406. Proceedings to compel settlement.

§ 407. Compensaticn - How paid ,
$ 408. May administer oath.
§ 409. Register and its contents.
§ 410. The law controlling administrators.
$ 411. Penalty for failure to perform duty.
Section 11.- Appointment, Powers and Duties of Executers and Ad
ministrators.
$ 412. Letters to issue after proof of will.
$ 413. Powers of executor of executor.
$ 414. “ Executor, " " administrator " defined.
$ 415. Order in which persons entitled to letters.
$ 416. Who incompetant to be executo :
§ 417. Competency of married woman as executrix .
§ 418. Who incompetent to be administrator.
§ 419. Married woman as administratrix.
§ 420. Non - residence and minority disqualifies.
§ 421. Intention of testator as to appointment is conclusive.
$ 422. If person entitled is minor --Guardian appointed.
§ 423. In what case appointment deemed renounced.
$ 424. To whom granted when party entitled fails to apply.
$ 425. Appointment when several persons equally entitled.
§ 426. Incompetent person may be appointed at request of per
son entitled - Identity of non -resident.
$ 427. Objections to appointment of executors.
§ 428. Application for letters of administration - Petition.
$ 429. Limitation of application.
$ 430. When letters issued.
§ 431. Notice of application for letters.
$ 432. Contesting application.
§ 433. Hearing of application, and duty of court.
$ 434. Proof of notice of application .
$ 435. Oath - Record of letters, etc.
§ 436 .Proof necessary before granting letters.
§ 437. General power of administrator with the will annexed .
§ 438. Inventory and appraisement — When to be made.
$ 439. Appointment of appraisers - Compensation .
$ 440. Oath and duties of appraiser.
§ 441. Inventory of moneys.
$ 442. To be subscribed and sworn to—Claims.
§ 443. Additional inventory.
§ 444. Inventory as evidence.
§ 445. Power of executor before qualifying.
$ .446 . Validity of acts of less than all executors.
§ 447. Compounding debts .
$ 448. Not to profit or lose when not at fault.
§ 449. Liability for uncollectible claims.
 TABLE OF CONTENTS.

8 450. Liability of executor, etc. , for debt due estate.

$ 451. Effect of bequest of debt against executor.
§ 452. Liability for estate.
Section III.-- Special Administrators,
453. When may be appointed.
$ 454. Letters to issue.
$ 455. Letters - To whom shall issue.
$ 456. Bond.
8 457. Duties.
$ 458 . When powers cease.
§ 459. Accounting by.
Section IV.-Partnership Estates.
§ 460. Right of surviving partner.
§ 461. Must give bond.
§ 462. Penalty for failure to give tond.
§ 463. Inventory.
$ 464. Custody of property..
§ 465. Duties of surviving partner.
Section V. - Bonds.
§ 466. When required .
8 467. When not required.
$ 468. Additional bond may be required for sale.
$ 469. Form and condition .
$ 470. Justification of sureties.
§ 471. Qualifications of sureties.
§ 472. Examination of sureties.
8 473. If security insufficient, powers cease.
§ 474. Petition for further se urity.
$ 475. Notice of hearing of application for additional security .
§ 476. Hearing and order for new bond .
§ 477. Penalty for failure to give additional security.
$ 478. Citation for examination .
8 479. How sureties may be released.
8 480. New bond releases sureties.
8 481. When application may be heard.
§ 482. Bond not void on first recovery.
§ 483. In case of more than one executor,
Section VI.—Possession and Care of Estate.
8 484. Who entitled to possession.
§ 485. Care of estate.
$ 486. When possession to be delivered to heirs, etc.
8 487. Investment of funds.
§ 488. Continuing business of decedente
Section VII.-Claims.
$ 489. Notice to creditors.
$ 490. Form of notice.
 1

TABLE OF CONTENTS.

$ 491. Penalty for failure to give notice.

$ 492. Time for presentation of claims.
$ 493. Proof of notice.
$ 494. When claim barred.
$ 495. In what case affidavit not necessary.
$ 496. Claims barred by statute of limitations cannot be al
lowed .
$ 497. Claims to be sworn to-- Vouchers.
$ 498. Vouchers in certain cases.
$ 499. Hearing and proof of claim.
$ 500. Disposition of claims after approval.
$ 501. Limitation of action upon claim .
$ 502. Suspension of limitation.
$ 503. Claim necessary in actions pending at decease.
$ 504. Manner of allowance or rejection of claims.
8 505. Partial allowance - Costs.
$ 506. Enforcement of judgment.
§ 507. Proof of claim when the judge is creditor.
$ 508, Collection of judgment rendered in lifetime.
$ 509. Reference of doubtful claim .
$ 510. Hearing before referee — Compensation - Action of court
upon report.
§ 511, Liability of executor, etc., for costs.
$ 512. Claim of executor, etc. - Prese . tation and allowance.
$ 513. Statement of claims to be returned .
$ 514. Payment of interest on claims.
8 515. Claims must be presented before suit.
§ 516. Executor, etc., carnot purchase claims.
Section VIII . - Sales of Estates.
§ 517. With what estate is chargeable - For what may he sold.
$ 518. No sale without order of court.
$ 519. Application for sale.
§ 520. In what case only one petition, order and sale nec.
essary .
$ 521. Sales of perishable property.
$ 522. When personal property may be sold.
$ 523. Private sale of personal property.
$ 524. Sale of personal in lieu of real property.
§ 525. Sales of partnership interests and choses in action .
$ 526. Order of sale.
8 527. Manner of sale of personal property.
$ 528. Sales of real estate.
$ 529. Order for sale How obtained.
$ 530. Order for hearing-Notice.
§ 531. One description of real property sought to be sold is
sufficient,
$ 532. Service of notice,
xxii TABLE OF CONTENTS.

8 533. Service in case of minor leirs.

$ 534. Hearing — Who may be heard - Claims.
§ 535. Who may be examined.
8 536. When ordor shall be made.
8 537. Order for sale.
$ 538. What order must contain.
$ 539. If administrator neglects who may apply for sale.
§ 540. Manner of service,
$ 541. Notice of sale,
$ 542. Time and place of sale.
$ 543. Manner of conducting private sale.
§ 544. Price at which may be sold at private sale.
$ 545. Terms of sale.
8 546. Postponement of sale.
$ 547. Notice of postponement.
$ 548. Return of sale- Confii maticn- Vacation -Resale.
§ 549. Penalty for failure to make return .
$ 550. Objections.
$ 551. Confirmation of sale.
$ 552. Order of confirmation must show nctice.
§ 553. Conveyances — How made.
$ 554. Contract for purchase of lard ; may be sold.
$ 555. Terms of such sale.
$ 556. Conditions of bond.
$ 557. Confirmation of such sale - Assignment of contract.
$ 558. Sales of property under mortgage - Redemption ,
$ 559. Holder of lien may become purchaser.
Scction IX . - Sales Without Order .
$ 560. When directed by will - Corfirmation necessary .
§ 561. Where provision by will insufficient .
Scction X.-Sale of Real Property of Certain Estates.
§ 562. Who may maintain proceedings for.
8 563. Petition - What shall state.
§ 564. When sale may be directed.
$ 565. Who may consent to such sales.
§ 566. Report of sale - Conveyance.
8 567. Disposition of proceeds of sale.
§ 568. Investment of proceeds.
$ 569. Disposition of income.
$ 570. Leasing such estate.
$ 571. Sale of certain bequests, etc.
$ 572. Who shall be parties.
Section XI. - Sales of Mines and Mining Interests of Decedents, etc.
$ 573. When may be sold.
§ 574. Petition for sale, who may file and what contain.
$ 575. Order to show cause -Notice .
§ 576. Order of sale, when and how made.
 TABLE OF CONTENTS , xxiii

8 577. Proceedirgs after order.

$ 578. The conveyance on optional contract .
$ 579. Forfciture on failure to perform cptional contract .
Section XII. - Sales for Special Purposes.
$ 580. For railrcad purposes.
$ 581. For mining puu po : es.
Section XIII.- Validity of Sales by Ercutors, etc.
$ 582. When sale is conclusive.

CHAPTER II. - MORTGAGING AND LEASING ESTATES .

Seetinn I .-- Mortgaging the Estates.
§ 583. When and how may be mortgaged .
$ 584. Manner of leasing estate.
Section II. - Specific Performance of Decedent's Contracts.
§ 585. Executor may perform.
§ 586. Application to enforce performance .
§ 587. Hearing of application - Notice.
$ 588. Order to convey .
§ 589. When application to be dismissed.
590. Execution of conveyance .
8 591. Effect of conveyance .
$ 592. Right of appeal -Effect of decree.
$ 593. Order for conveyance to be recorded - Effect of.
8 594. Substitution on death of applicant.
$ 595. Order for possession of premises.
$ 596. Proceedings when deceased dies out of state.
$ 597. Proceedings by heirs, to enforce .
Section III.- Voluntary Performance of Contract to Convey.
§ 598. When executor may perform .
599. When contract is joint, survivor may perform .
Section IV . - Accounts.
$ 600. When exhibit of condition of estate to be rendered.
$ 601. Objection to account-Revocaticn of letters.
§ 602. Exceptions to report.
$ 603. Accounting after claims filed .
$ 604. Vouchers to be produced and filed.
8 605. Allowance when no vouchers produced.
8 606. Time of settlement of account to be fixed and notice given .
$ 607. Proof of notice necessary.
$ 608. Final settlement.
$ 609. Hearing - Reference and compensation.
8 610. Conclusiveness - Settlement of account.
Section V. - Compulsory Accounting.
§ 611. Manner of enforcing accounting or exhibit.
§ 612. Who may petition to require.
$ 613. If petition sustained, citation may issue.
xxiv TABLE OF CONTENTS.

8 614. Penalty for failure to obey citation.

§ 615. Accounting after authority revoked .
Section VI.-Proceedings to Enforce the Care of Neglected Estates.
$ 616. How instituted.
8 617. Notice.
$ 618. Hearing - Duty of court.
CHAPTER III. - SETTLEMENT AND DISTRIBUTION .
Section 1. - Liability of Estate for Debts.
$ 619. General liability of estates of intestates.
$ 620. Liability of estates of testates.
$ 621. Provisions of will as to debts-How Enforced.
8 622. Payment of specific legacies.
8 623. Order of liability for payment of legacies.
8 624. Order of liability for payment of debts.
§ 625. Order of payments of debts.
8 626. Employees ' wages.
$ 627. Extent of preferential right.
8 628. If estate insufficient, debt ; paid ratably .
§ 629. Payment of funeral expe : ses and expenses of last sickness.
§ 630. Expenses for monument.
§ 631. Payment of debts and discharge of executor, etc.
8 632. Provision for disputed and contingent claims.
633. Liability of executor to creditors.
§ 634. Contribution among legatees.
8 635. When contribution not allowed - Disposition of certain
claims.
§ 636. When debts paid, distribution to be made.
$ 637. When final account to be rendered.
§ 638. Neglect to render final account.
8 639. Final settlement, decree and discharge.
Section 11.-Provisions for the Family.
8 640. May remain in possession of homestead, wearing apparel,
furniture, etc.-Allowance.
8 641. Exempt property - Homestead.
8 642. Allowance for maintenance.
$ 643. Manner of payment of allowance.
8 644. Order of allowance to survivors.
{ 645. In what case children sole successor,
$ 646. In whom homestead vests.
$ 647. How homestead set off .
$ 648. When appraisers may be appointed.
8 649. Order of sale- Distribution of proceeds.
8 650. Report of appraisers.
$ 651. Report of appraisers — Hearing - Confirmation.
$ 652. Costs -Conveyances.
$ 653. Copy of order to be recorded .
 TABLE OF CONTENTS. XXV

Section III.-Determination of lleirship.

$ 654. Who may petition .
$ 655. Notice and proof.
$ 656. Appearance - Default - Trial.
$ 657. Parties Evidence—Decree-Costs.
8 658. Effect of proceedings.
Section 1V.-Partial Distribution.
$ 659. When may be had-Who may apply for.
8 660. Notice of application .
$ 661. Who may contest application.
$ 662. Decree of distribution - Bond .
§ 663. Order for payment of debts-Action on bond.
Section V. - Full Distribution Before Final Settlement.
$ 664. Who may apply for --When and how made.
Section VI.—Distribution Upon Final Settlement.
§ 665. How and to whom made.
$ 666. What order shall contain .
$ 667. Distribution of estate of non -resident -- Sales.
§ 668. Decree_Notice - Partition .
Section VII . - Partition .
8 669. When partition may be had-Commissioners for - War
rant of authority.
§ 670. When petition may be filed and heard.
§ 671. Disposition of interest of heir not to prevent.
§ 672. How shares set off.
$ 673. Proceedings when partition impracticable.
$ 674. Rules for making partition .
8 675. Excess share to be paid for before set off.
$ 676. Notice of partition - Powers of commissioners.
$ 677. Report of commissioners - Confirmation and record of.
$ 678. When may be sold .
679. When commissioners may be dispensed with .
8 680. Partition when estate in different counties .
$ 681. Partition of estates held in common by devisees and
other persons.
8 682. Partition after distribution,
Section VIII . - Advancements.
$ 683. What are advancements.
$ 684. What is not an advancement.
8 685. Rights of heir when advancement greater or less than
share.
8 686. Advancements constitute part of estate.
$ 687. Determination of value.
8 688. Hearing and determination of questions as to advance
ment.
$ 689. Effect upon widow with issue.
xxvi TABLE OF CONTENTS .

$ 690. Effect of death of heir before intestate .

§ 691. Advancements as ademptions.
CHAPTER IV. -COMPENSATION , RESIGNATION, SUSPENSION, REMOVAL
OF EXECUTORS AND ADMINISTRATORS .
Section 1.—Compensation.
8 692 . Commissions.
$ 693. Expenses, etc.
Section 11. - Resignation .
8 694 . When and how may resign - Liability .
Section II1. - Suspension .
$ 695 . For failure to give bond.
$ 696. For embezzlement, etc.
§ 697. Notice of suspension.
8 698. Manner of giving notice.
8 699. Trial before suspension.
Section 1V . - Revocation and Removal.
$ 700. Revocation upon application of party having prior right.
$ 701. Notice to show cause.
$ 702. Hearing -Order.
$ 703. Revocation on proof of will .
$ 704. Revocation for failure to make inventory.
$ 705. Revocation for contempt.
$ 706. Revocation for absence and failure to account.
§ 707. Revocation for failure to give bond.
$ 708. Who entitled to letters after vacancy.
$ 709. Notice of change.
§ 710. Powers and duties of successor ,
§ 711. Validity of acts performed before revocation .
$ 712. Coexecutor to act alone when others disqualified.
Section V. – Offenses by Persons Intrusted with Estates.
§ 713. Executor, etc., not to purchase estate.
$ 714. Penalty for misconduct in sales.
$ 715. Penalty for fraudulent sales.
$ 716. Embezzlement by trustee, etc.
§ 717. Penalty for embezzlement.
§ 718. Proceedings to discover and obtain possession of prop
erty of decedents .
§ 719. When attachment may be resorted to.
8 720. Notice to accused ,
8 721. Trial - Commitment.
CHAPTER V.-ADMINISTRATION OF ESTATES IN SPECIAL CASES.
Section 1. - Administration After Distribution ,
$ 722. Final settlement not to prevent.
Section II . - Settlement of Estates by Trustees .
§ 723. Trustees for spendthrift child.
8 724. Accounting by trustee.
 TABLE OF CONTENTS .
xxvii

$ 725. Expenses and compensation.

$ 726. Appeals.
$ 727. Resignation - Successor.
$ 728. Distribution of estate of disabled person .
Section III.--Continuance of Administration .
$ 729. When may be after time limited by testator.
CHAPTER VI. SETTLEMENT OF ESTATE WITHOUT ADMINISTRATION .
Section 1.- When Estate is of Small Value.
$ 730. Return of inventory - Provision for family.
Section II.-Estate of Unknown Decedent.
$ 731. Duty of county attorney in certain estates of small
value.
Section III.- When the Will se Prorides.
§ 732. Necessary administration .
$ 733. Non- intervention wills.
$ 734. Sales under non - intervention wills.
8 735. General powers under non -intervention will .
$ 736. When non- resident executor is sole legatee.
CHAPTER VII.- SUCCESSION.
Section 1. - Order of Succession of Estates.
$ 737. Succession defined .
$ 738. What passes by succession.
$ 739. Order of succession .
§ 740. Rules apply only to separate property of married per
sons .

741. Succession to community property.

$ 742. Death of devisee during lifetime of testator.
§ 743. Inheritance by representation .
$ 744. Succession to either parent.
§ 745. Who may inherit from illegitimate.
$ 745a . When illegitimate may inherit.
746. Rights of relatives of half -blood.
$ 747. Inheritance by issue of polygamous marriages.
§ 748. Descent of joint estates.
§ 749. Termination of life estate by death
Section 11. - Computation of Relationship.
$ 750. “ Issue" defined .
$ 751. Degrees of kindred .
8 752. Direct and collateral consanguinity.
$ 753. Direct line descending and ascending.
$ 754. Degrees in direct line.
8 755. Degrees in collateral line.
C'HAPTER VIII. - DISPOSITION OF UNCLAIMED ESTATES.
Section 1.- Estates in General .
$ 756. When creditor is absent.
$ 757. When fund is paid over by public administrator .
xxviii TABLE OF CONTENTS.

Section 11. - Estates of Missing Persons.

$ 758. Appointment of trustee for.
$ 759. Who entitled to appointment.
8 760. Bond .
$ 761. Duties and powers of trustee.
$ 762. Petition and notice Procedure.
$ 763. Special administrators for-Escheats.
Section III.- Estates of Non -residents .
$ 764. Appointment of agent to have charge.
8 765. Bond-Compensation.
$ 760. Disposition of unclaimed estate.
$ 767. Liability of agent.
$ 768. Accounting - Sale of estate.
$ 769. Payment by treasurer to parties entitled.
Section IV . - Escheats.
$ 770. In what case estates shall escheat.
§ 771. Institution of proceedings to discover and recover

escheated estates - Notice.

8 772. Appearance, pleadings and trial - Sales and convey.
ances — Counsel and compensation.
$ 773. Receiver may be appointed - Bond.
$ 774. Proceedings to recover escheated estate - Limitation
and manner of.
$ 775. Appeal and review of proceedings.
8 776. State may have final decree set aside for fraud, etc.
$ 777. Additional counsel-Compensation.
$ 778. Compensation of informer.
$ 779. Investment of escheated funds.
$ 780. Special proceedings in case of aliens.
$ 781. Escheated funds in possession of banking corporations.
CHAPTER IX .-SPECIAL RIGHTS AND LIABILITIES OF HEIRS.
8782. Liability of beneficiaries under will.
$ 783. Liability of successors to estate.
§ 784. Liability on warranties under conveyance.
$ 785. Effect of equitable mortgage upon rights of devisees, etc.
$ 786. Effect of assignment of mortgage - Notice to heirs.
§ 787. Devisee entitled to rents of devised premises.
CHAPTER X. - Right to ASSIGN, TRANSFER AND DISCHARGE MORTGAGES.
$ 783. Marginal release of mortgages.
$ 789. Release by separate instrument.
$ 790. Power to release mortgage paid before death of de
cedent.
& 791. Release in case of non -resident decedent.
$ 792. Penalty for failure to release.
$ 793. Assignment of certificate of purchase under execution
sale .
 TABLE OF CONTENTS. XXIX

TITLE IV. - TRUSTS AND TRUSTEES.

CHAPTER 1. - GENERAL PROVISIONS,
Section 1.-Definitions .
$ 794. Trusts classified .
$ 795. Voluntary trust.
$ 796. Involuntary trust.
8 797. Parties denominated.
$ 798. Trustee.
$ 799. Involuntary trustee.
$ 800. Involuntary trust resulting from negligence, etc.
Section 11. - Creation of Trusts .
$ 801. For what purpose a trust may be created.
$ 802. Creation of voluntary trust as to trustor and beneficiary.
$ 803. Creation of voluntary trust as to trustee.
Section III . - Duties and Liabilities.
$ 804. Trustee's obligation to beneficiary .
$ 805. Not to profit by use of property.
§ 806. Influence not to be used for advantage.
$ 807. Not to assume adverse trust.
8 808. Must disclose adverse interest.
$ 809. When guilty of fraud .
§ 810. Presumption against trustee.
$ 811. Liability for mingling trust property with his own.
$ 812. Must account for profits, etc.
8 813. Liability while acting in good faith.
$ 814. Liability of cotrustees.
$ 815. Liability of involuntary trustee.
$ 816. Application of trust property by involuntary trustee.
CHAPTER II . — TRUSTS IN RELATION TO REAL PROPERTY.
Section 1. - Classification .
$ 817. What are.
$ 818. How created.
Section 11.-Resuilting Trusts.
$ 819. Defined .
$ 820. Effect of on rights of purchasers.
Section III.-Express Trusts.
§ 821. For what purposes created.
8 822. Power to sell deemed part of the security.
823. Extent of estate of devisee in trust property.
$ 824. Estate not embraced in trust remains with trustor.
$ 825. Execution of trust when one of several trustees dead,
etc.
$ 826. When estate vested in trustee.
$ 827. Trustor may devise subject to trust.
XXX TABLE OF CONTENTS .

$ 828. When express trust is deemed absolute grant.

$ 829. Acts of trustee, contrary to trust, are void.
$ 830. When estate of trustee ceases.
$ 831. Trust in rents and profits.
§ 832. Beneficiary may be restrained .
8 833. Certain trusts do not include executors, etc.
$ 834. Effect of death on express trust.

TITLE V. - BONDS .
CHAPTER 1. - GENERAL PROVISIONS RELATING TO OFFICIAL BONDS.
Section 1. - Form , Execution , and Effect.
$ 835. Provisions extended to executors, etc.
$ 836. Conditions.
$ 837. Bonds to be joint and several.
8 838. Bond to be in name of state.
$ 839. Sureties—Who may and who may not be - Justification .
$ 840. Manner of approval of bond.
§ 841. Must be approved before filed.
§ 842. No approval until sureties qualify.
§ 843. Power to examine sureties,
$ 844. Filing bond.
Section 11. — Liability of Sureties.
$ 845. Liability of sureties in certain cases.
8 846. Liability of bond as to time of breach .
8 847. Liability of bond as to nature of breach.
$ 848. For whose benefit liability exists.
Section III. - Insufficiency of Sureties.
§ 849. Effect of death, or insufficiency of surety - Proceedings
to vacate.
$ 850. Effect of failure to file new bond .
$ 851. Additional bond_Conditions and effect.
$ 852. Additional bond not to affect original bond.
$ 853. Recovery may be had on either bond.
§ 854. Supplemental bond .
§ 855. In what case no supplemental bond required.
Section IV.-Release and Discharge of Sureties.
8 856. Release of sureties.
8 857. No release from certain liabilities.
$ 858. Manner of release - Application - Notice.
$ 859. Effect of release, etc., as to co-sureties.
§ 860. Vacancy may be declared .
8 861. Duty of principal on withdrawal, etc., of surety.
Section V. - Actions on Bonds.
8 862. Recovery on defective bond.
$ 863. Not void on first recovery.
§ 864. Execution of judgment against bond .
 TABLE OF CONTENTS. xxxi

$ 865. Right of recovery from co -sureties.

$ 866. Liability of surety as to kind of money .
CHAPTER II . — SPECIAL PROVISIONS RELATIVE TO BONDS.
Section 1. - Appeal Bonds.
§ 867. Executors, etc., not to give, when .
§ 868. In case of stay of execution .
Section 11. - Security Bonds.
§ 869. Executor, etc., not required to give.

DIVISION II. - ACTIONS AND PROCEDURE IN PRO

BATE MATTERS.

TITLE 1.-FEES AND COSTS.

$ 870. Liability for costs against administrators, etc.
$ 871. Liability for costs against minors.
$ 872. Expense of bond of surety company.
8 873. Liability for costs in special cases.

TITLE II.-PROCEDURE IN PROBATE MATTERS .

CHAPTER 1. - PRACTICE AND PLEADINGS.
Section 1.–General Rules.
§ 874. What rules applicable.
§ 875. Review of proceedings.
$ 876. Effect of proceedings in probate court.
§ 877. Appointment of attornejos for minors, etc., in certain
proceedings.
Section 11. - Citations and General Notice.
$ 878. Who entitled to be heard.
§ 879. When notice unnecessary.
$ 880. Personal notice given by citation,
$ 881. Notice of petitions in Utah .
§ 882. Issuance and contents of citation .
$ 883. Personal service of citation ,
§ 884. When guardian to le served .
8 885. Service on a prisoner.
$ 886. General rules for service by publication.
$ 897. Service by posting.
$ 888. Service by mailing.
$ 889. Proof of service.
Section III. - Issues — Trials.
& 890. Issues — Hearing — Costs.
$ 891. Trial with and without jury .
xxxii TABLE OF CONTENTS.

CHAPTER II . - EVIDENCE,
Section 1.-General Rules.
$ 892. Source of law of evidence.
§ 893. Conclusive presi mptions.
894 . Disputable presumptions,
§ 895 . Proof of certain facts.
$ 896. Declarations of decedent.
$ 897. Entries and writings of de edent.
$ 898. Proof of written instrument.
$ 899. Who is a subscribing witness.
$ 900. Proof by handwriting and subscribing witness, when.
$ 901 . Proof of handwriting.
§ 902. Evidence of subscribing witness not conclusive.
Section II.-Public Records.
$ 903. Recording probate proceedings.
8 904. Indexes to wills.
8 905. Index in representative character.
8 906. Restoration of lost or destroyed probate records.
8 907. Record of guardianship papers.
§ 908. Recording letters of administration .
8 909 . Certified copies of letters, etc.
$ 910. Order of business .
8 911. Entries in minute -book - Signing the record - Filing pa
pers.
$ 912. Record of guardianship proceedings.
§ 913. Transcript of minutes as evidence.
8 914. Record of orders affecting real estate - Effect as notice.
$ 915. Record of chattel mortgage to non - resident.
Section UI. - Witnesses.
8 916. Who are competent.
§ 917. Married persons as witnesses for and against each other.
8 918. Who are not competent.

DIVISION III.- TAXATION .

TITLE 1. - TAXATION IN GENERAL ,
CHAPTER 1. — MANNER OF ASSESSMENT.
Section 1.-0f Property in Representative Capacity.
§ 919. As guardian , executor, etc.
8 920 . Undistributed property of estates.
Section II . - Payment and Collection of Tax.
§ 921. Property of estates.
$ 922. No distribution can be had until payment of certain
taxes.
$ 923. Payment from proceeds of judicial sale — Lien for pay.
ment.
 TABLE OF CONTENTS. Xxxiii

Section 111.- Redemption .

$ 924. Of property of decedents.
§ 925. Of property of persons under disability.

TITLE II . - INHERITANCE TAX.

$ 926. In California and Montana.

1. What property is subject to - Amount - Liability for
payment.
2. Appraisement and valuation.
3. Estates less than freehold .
4. Administrator to set aside amount necessary to pay.
5. Administrator to sell estate if necessary .
6. When and how to be paid.
7. Duty of foreign executor.
8. Executors' commission subject to tax in certain case.
9. When tax is due - When discount allowed.
10. Penalty remitted — When.
11. How payment enforced .
12. Receipt for payment.
13. Duty of clerk .
14. County attorney to conduct proceedings to enforce pay .
ments.
15. Allowance of expense of enforcing payment.
16. Clerk must make statement of property subject to tax .
17. To whom tax paid.
18. Rebate of tax in certain cases.
19. Receipt to treasurer .
20. Compensation of treasurer.
21. Misconduct of appraisers- Penalty.
22. Jurisdiction of proceedings.
23. Liability of executor on bond.
24. Powers of special administrators.
25. Proceedings to enforce payment of tax when estate not
administered .
26. Scope of statute.
8 927. In Oregon .
1. What property subject to tax.
2. Rates of tax.
3. Tax when it accrues and is payable.
4. Payment, when made.
5. Tax, to whom paid - Duplicate receipts.
6. Tax a lien.
7. Discount, interest, and penalty.
8. Power to sell.
9. Duty of heir or devisee when legacy payable out of
property - Legacy for limited period — Duty of admin .
istrator.
Xxxiv TABLE OF CONTENTS.

10. Refund of tax erroneously paid .

11. Tax when foreign executor assigns stock , etc.
12. Depositaries of securities not to deliver same until no .
tice given to state treasurer- Penalty.
13. Deferred payment - Bond.
14. Taxes upon devises and bequests in lieu of commissions.
15. Jurisdiction of the county court.
16. Duty of county judge - Notice to state treasurer.
17. Duty of executors, etc. -Filing inventory and ap
praisement.
18. Extension of time to file appraisement.
19. Duty of administrator, etc., to send inventory and ap
praisement to state treasurer.
20. Court may act on first inventory.
21. Appointment of appraisers.
22. Immediate appraisal, when.
23. County court to fix time and place of appraisement,
and clerk to give notice to witnesses.
24. Report of appraisers to be filed with county court.
25. County court to give notice, when.
26. Re -appraisement, when.
27. Tax due and unpaid - Duty of treasurer.
28. Secretary of State to furnish books and forms of re
ports — Entries by courts.
29. Reports by county judges and custodian of deeds and
records.
30. Duplicate receipts to be furnished by the state treas
urer,

31. Recording receipts by county officer .

32. Compromise of amount of tax due.
33. Administrators, etc., to furnish additional reports,
when .
34. Appeals.
35. Penalty for secreting or willful failure to produce will .
36. Penalty for administering personal estate withcut
proving will.
37. Duty of administrators, etc., to notify state treasurer
of trust estate , when .
38. Property outside of the state ,
39. Taxes on foreign estate where part of property is in
state .
40. Compensation of officers.
41. Payment of disbursements by state treasurer.
42. Penalty for appraisers taking fee or reward .
43. Repeal.
8 928 . In Utah.
1. What property taxable.
2. Separate inventory to be filed.
 TABLE OF CONTENTS.

3. Appraisement.
4. Life estates, etc.
5. Compensation to executor.
6. Payment of legacies.
7. Deduction of tax.
8. Payable, when.
9. Duty to collect.
10. Manner of appraisement.
11. Notice to state treasurer.
12. Report.
13. Final settlement of account.
14. Jurisdiction .
& 929. In Washington.
1 . What taxable.
2. Rate of tax.
3. Foreign estates.
4. Same subject.
5. Inventory.
6. 'Appraisement.
7. Life estates, etc.
8. Rate in certain estates.
9. Compensation.
10. Legacies.
11. Tax to be deducted.
12. When payable.
13 , Notice to treasurer.
14. Shares of stock .
15. List of heirs, etc.
16. Extension of time for inventory.
17, Compromising the tax .
18. Report to treasurer.
$ 930. In Wyoming.
1. Inherited property taxable — How .
2. Life estate not taxable.
3. Tax payable — When .
4. Duty of person administering estate.
5. Sale of property to pay tax.
6. Tax payable to treasurer- Receipt for.
7. Duty of administrator regarding realty.
8. Refunding tax in case of debts .
9. Transfer of stocks,
10. Refunding tax erroneously paid.
11. Appraisement of property.
12. Penalty for misfeasance of appraiser.
13. Court having jurisdiction of realty.
14. Duty of court when tax nct paid .
15. Duty of treasurer when tax not paid .
16. Duty of clerk of court.
XXXVI TABLE OF CONTENTS.

17. Expenses of treasurer - How paid.

18. Records to be kept.
19. Treasurer of county to pay tax to state treasurer,
20. Duplicate receipts.
21. Limitations as to certain heirs.

DIVISION IV . – COURTS .
TITLE I. - JURISDICTION AND POWERS.
CHAPTER 1.-JURISDICTION.
Section 1. - Supreme Courts.
8 931. Statutory provisions.
Section II.- Superior Courts.
932. Constitutional provisions.
§ 933. Statutory provisions.
Section III . — District Courts.
§ 934. Constitutional and statutory provisions.
Section IV . - Circuit Courts.
$ 935. Constitutional provisions.
Section 1.-County Courts.
8936. Constitutional and statutory provisions.
Section VI.- Probute Courts.
$ 937. Constitutional ard statutory provisions.
CHAPTER II. - SEALS.
8 938. When to be affixed .
CHAPTER III. - JUDGES AND JUDICIAL OFFICERS.
Section 1. — Disqualification of Judges.
$ 939. In general.
$ 940. When cannot act in matters relating to estates of de
cedents, et
§ 941. When proceedings transferred.
8 942. Effect of transfer,
8 943. Order of transfer.
Section 11.-Powers of Judges at Chambers.
$ 944. In matters relating to estates of decedents, etc.
$ 945. Examination of bonds in vacation .
Section III. - Judicial Powers of Certain Officers.
$ 946. Clerks may make certain orders in probate proceedings.
$ 947. Validity and effect of such orders.
$ 948. Court commissioners.
§ 949. Qualifications of referees.
CHAPTER IV . - APPEALS .
Section 1. - When May be Taken .
$ 950. In what case allowed .
 TABLE OF CONTENTS . xxxvii

Section 11.—By Whom May be Taken .

$ 951. Who may appeal.
$ 952. Appeals in case of death of appellant.
Section III . - Effect of Appeals.
$ 953. Effect of reversal of judgment.
CHAPTER V. - PARTIES.
Section 1. - In General.
§ 954. Party in interest to sue -Exception.
§ 955. When may be plaintiff or defendant.
§ 956. When executor need not be joined.
§ 957. Proceedings when against several executors.
$ 958. Surviving executor may sue .
$ 959. On bonds of executors, etc.
§ 960. Authority of executor of executor.
$ 961. Action by reversioner.
Section II . - Married Persons.
8 962. When may and may not join.
$ 963. Rights of each when sued together.
8 964. Effect of marriage during pendency of action.
Section III.-Relating to Real and Personal Property.
$ 965. In general .
Section 1V . - Recovery of Property Fraudulently Conveyed by Tes
tator.
§ 966. When may be instituted.
$ 967. When for benefit of creditors-Costs.
$ 968. Disposition of estate recovered in action for benefit of
creditors.
8 969. When damages only recoverable.
Section V.- Actions for Waste and Trespass.
§ 970. By guardians.
$ 971 . By executors , etc.
$ 972. Against executor, etc.
Section VI.- Partition .
$ 973. When may be had - Parties.
$ 974. Interest depending upon devise How pleaded.
§ 975. Guardian may consent to partition .
§ 976. Guardian may consent to partition without action, and
execute releases.
& 977. Powers of guardian of non -resident ward.
§ 978. In what case minor may sue without guardian.
$ 979. Judgment - Upon whom conclusive - Effect of death.
$ 980. Effect of death or disability upon the proceedings.
8 981. Investment of shares of minors, etc.
§ 982. Proceeds of minor's share to be paid to guardian.
$ 983. Proceeds of share of insane person .
Xxxviii TABLE OF CONTENTS.

8 984. Sale of dower interests.

$ 985. Securities for purchase money , for shares of minor.
$ 986. Future or vested interests.
$ 987. Investment of share of non-resident.
$ 988. Investment must be made in name of clerk.
$ 989. Equalizing unequal partition.
$ 990. Guardian must not be interested in sale.
Section VII.-Actions Against Unknown Persons.
$ 991. In California .
8 992. In Idaho.
§ 993. In Washington .
CIIAPTER VI.-- ABATEMENT AND SURVIVAL ,
$ 994. Death or disability of party.
CHAPTER VII . - REVIVAL .
$ 995. Action may proceed as to other parties without revivor.
$ 996. When may be revived.
8 997. Revival on motion of successor in interest.
§ 998. Conditional Order.
$ 999. Who may apply for.
$ 1000. Notice of application.
$ 1001. Notice by publication .
§ 1002. Assignee may revive.
§ 1003. When order may include heirs , etc.
$ 1004. Limitation for revival.
$ 1005. If revival cannot be had cause to be stricken.
§ 1006. Order to strike may include costs.
§ 1007. Revivor not to work postponement.
CHAPTER VIII. - LIMITATION OF ACTIONS,
Section 1. - Period Within Which May be Brought.
$ 1008. Death by wrongful act.
$ 1009. Action to establish will.
§ 1010. On bond of guardian, executor, etc.
$ 1011. Recovery of estate sold by executor or administrator.
§ 1012. Recovery of estate sold by guardian.
§ 1013. Against executor, etc., for misfeasance, etc.
Scction 11. - Computing Time.
§ 1014. By disabled persons in actions relating to real prop
erty.
§ 1015 .In actions other than those relating to real property .
$ 1016. When party is absent from state.
§ 1017. In case of war - Aliens.
g 1018. When death occurs .
$ 1019 ,In case of reversal on appeal .
$ 1020. Not necessary to reserve right of minor.
$ 1021. Right of defendant in certain case.
 TABLE OF CONTENTS. xxxix

§ 1022. Lex loci contractus to control.

$ 1023. Disabilities cannot be combined.
§ 1024. Disability must exist at time of action .
$ 1025. When a demand is necessary .
CHAPTER IX .-STATUTE OF FRAUDS.
§ 1026. Promise of executor, etc.
CHAPTER X. — COMMENCEMENT.
Section 1.-Personal Service of Summons.
§ 1027. On persons under disability.
Section II. - Service by Publication.
$ 1028. Proceedings against unknown heirs.
CHAPTER XI.- TRIALS.
$ 1029. Venue of actions against executors, etc.
CHAPTER XII .— JUDGMENTS .
Section 1. - Taking and Entering.
§ 1030. Confession by minor.
§ 1031. By default against executor, etc.
$ 1032. Relief, from judgment when service by publication.
§ 1033. Effect respecting wills, etc.
$ 1034. Effect of foreign judgment.
Section II . - Executions.
§ 1035 . Effect of death upon enforcement of judgment .
§ 1036. When execution may issue after death of party.
§ 1037. How directed against property of decedent.
§ 1038. Confirmation of sale where judgment debtor is dead.
§ 1039. Remedy against executors, etc., under defective execu
tion sale .
Section 111. - Revival of Judgments.
$ 1040. When debtor is dead or disabled.
Section IV . - Redemption from Judicial Sale .
$ 1041. Who entitled to redeem .
CHAPTER XIII . - PLEADINGS.
Section 1.-In General.
g 1042. Pleading representative character.
§ 1043. No verification required of guardian .
Section II . - The Answer.
$ 1044 . Answer in representative capacity .
$ 1045. Counterclaim in representative capacity.
COMPARATIVE CODE
( xli )
 PART I.
PERSONS UNDER DISABILITY.

DIVISION I.
MARRIED PERSONS.

TITLE I. EFFECT OF MARRIAGE ON PERSONS.

CHAPTER I. HUSBAND AND WIFE .

Section 1. Agreements in Restraint, or Anticipation of

Marriage.

$ 1. AGREEMENTS IN RESTRAINT OF MARRIAGE .

(A) ( Cal. C. C. 1676. ) Every contract in restraint of the mar

riage of any person, other than a minor, is void.

(B) ( Cal. C. C. 710 ; Mont. C. C. 1143.) Conditions imposing re

straints upon marriage, except upon the marriage of a minor, are
void ; but this does not affect limitations where the intent was not
to forbid marriage, but only to give the use until marriage.

$ 2. ANTENUPTIAL AGREEMENTS .
( Ar. 3099. ) Parties intending to enter into the marriage state
may enter into what stipulations they please, provided they be not
contrary to good morals or to some rule of law ; and in no case
sball they enter into any agreement, or make any renunciation, the
object of which would be to alter the legal orders of descent, either
with respect to themselves, in what concerns the inheritance of their
children or posterity , which either may have by any other person,
or in respect to their common children ; nor shall they make any
valid agreement to impair the legal rights of the husband over the
person of the wife, or the persons of their common children .
Comparative Code-1
$$ 3-5 COMPARATIVE CODE, 2

$ 3. MINOR MAY MAKE SETTLEMENT.

( Cal. C. C. 181 ; Id. 2068 ; Mont. C. C. 251 ; Nev . 540.) A minor
capable of contracting marriage may make a valid marriagel set
tlement.2
1 Insert : " contract on .''-Nev,
2 Add : ' as herein provided. " ' -Mont.

§ 4. HOW MARRIAGE CONTRACT EXECUTED.

(A) (Ar. 2610.) When, by a marriage contract, either party
grants to the other any property or rights to property (whether
such rights be in esse or expectancy ), for such grant to be valid
as to the subsequent purchasers or creditors of the grantor the said
contract must be acknowledged by her husband or proved by at
least one witness, and recorded in the recorder's office of the county
in which said married parties may reside.

(B) (Ar. 3100.) Every matrimonial agreement must be acknowl

edged before some officer authorized by law to take acknowledg
ments to deeds, and attested by at least two witnesses; the minor
capable of contracting matrimony may give his consent to any agree
ment which this contract is susceptible of, but such agreement must
be made by the written consent of both parents, if both be living;
if not, by that of the survivor; if both be dead, then by the written
consent of the guardian of such minor.

( C ) (Cal. C. C. 178 ; Id. 2065 ; Mont. C. C. 248 ; Nev. 536.) All con
tracts for marriage settlements must be in writing, and executed and
acknowledged or proved in like manner as a 1 [ grant] of land is
required to be executed and acknowledged or proved.
1 ' conveyance ." ' - Nev .

8 5. RECORD OF AGREEMENT AND EFFECT OF.

( A) (Ar. 750. ) No covenant or agreement made in consideration
of marriage shall be good against a purchaser for a valuable considera
tion, or any creditor not having notice thereof, unless such covenant
or agreement shall be duly acknowledged or proven and recorded
iu manner and form as provided by law for deeds and other con
veyances .

(B ) (Cal. C. C. 179 ; Id. 2066 ; Mont. C. C. 249 ; Nev . 537.) When

such 1 [ contract ] is acknowledged or proved, it must be recorded
in the office of the 2 [ recorder ] of every county in which any real
estate may be situated which is 3 [granted ] or affected by such con
tract.

1 ' 'marriage contract or settlement.''- Nev,

2 ' 'county clerk .''-- Mont.
3 " conveyed .''-Nev .
 3

3 COMPARATIVE CODE. 88 5-8

(C) ( Cal. C. C. 180 ; Id . 2067 ; Mont. C. C. 250.) The recording

or nonrecording of such contract has a like effect as the recording
or nonrecording of a 1 [grant] of real property.
1 " conveyance. " - Id.

(D) (Nev. 537. ) When such marriage contract or settlement is

deposited in the recorder's office for record it shall, as to all prop
erty affected thereby in the county where the same is deposited ,
impart full notice to all persons of the contents thereof.

( E) (Nev . 538. ) No such marriage contract or settlement shall

be valid as to any real estate, or affect the same, except as between
the parties thereto , until it shall be deposited for record with the
recorder of the county in which such real estate is situate.

$ 6. NOT TO BE ALTERED AFTER MARRIAGE .

( Ar. 3101.) No matrimonial agreement shall be altered after the
solemnization of the marriage.

$ 7. WHEN NOT BINDING .

( Cal. C. C. 62 ; Id . 1996 ; Mont. C. C. 56.) Neither party to a con
tract to marry is bound by a promise made in ignorance of the other's
want of personal chastity, and either is released therefrom by un
chaste conduct on the part of the other, unless both parties partici
pate therein.

Section 11. Who May Contract Marriage and What Constitutes.

8. NATURE OF THE CONTRACT .
( A) (Cal. C. C. 55 ; Id. 1989 ; Mont. C. C. 50.) Marriage is a
personal relation arising out of a civil contract, to which the con
sent of the parties capable of making it is necessary. Consent alone
will not constitute marriage ; it must be followed by solemnization
1 [or by a mutual assumption of marital rights, duties, or obligations ).
1 Omitted - Cal.; " for by a mutual and public assumption of the marital
relation.''-Mont.

(B) (Mont. C. C. 58. ) The provisions of other portions of this

code in relation to contracts and the capacity of persons to enter into
them, have no application to the contract of marriage.

( C) (Nev. 482. ) That marriage, so far as its validity in law is

concerned, is a civil contract, to which the consent of the parties
capable in law of contracting is essential.
88 8-10 COMPARATIVE CODE .

(D) (Wy. 2955. ) In law, marriage is considered a civil contract,

to which the consent of parties capable of contracting is essential.

8 9. WHO MAY CONTRACT - AGE .

(A) (Ar. 3088; Utah, 1184, subd. 4.) Males under 1 [ eighteen ) and
females under 2 [sixteen ] shall not marry .
1 " sixteen." - Utah.
2 " fourteen . " - Ar.; Utah .

(B) (Cal. C. C. 56 ; Id . 1990 ; Mont. C. C. 51.) Any unmarried

male of the age of eighteen years or upwards, and any unmarried
female of the age of 1 [ fifteen ) years or upwards, and not otherwise
disqualified, are capable of consenting to and consummating mar.
riage.
1 " eighteen ." - Id.

(C) ( Nev. 483.) Male persons of the age of eighteen years, and
female persons of the age of sixteen years, not nearer of kin than
second cousins or cousins of the half blood, and not having a husband
or wife living, may be joined in marriage.

(D) (Or. 5216 ; Wash . 4467.) Marriage is a civil contract, which

may be entered into by males of the age of 1 [eighteen] years , and
females of the age of 2 [ fifteen ) years , who are otherwise capable.
1 " twenty-one ." - Wash,
2 " eighteen .''- Wash .

(E) (Wy. 2956.) At the time of marriage the male must be of

the age of eighteen years or upwards, and the female of the age of
sixteen or upwards.

Section III. Who May not Contract Marriage.

§ 10. PROHIBITED WITHIN CERTAIN DEGREES OF RELA
TIONSHIP .
(A) (Ar. 3093.) All marriages between parents and children, in
cluding grandparents and grandchildren of every degree, between
brothers and sisters, of the one-half as well as of the whole blood,
and between uncles and nieces, aunts and nephews, and between first
cousins, are declared to be incestuous and absolutely void. This sec
tion shall extend to illegitimate as well as legitimate children, and re
lations.

(B) (Cal. C. C. 59 ; Id. 1993 ; Mont. C. C. 54 ; Utah, 1183.) Mar

riages between parents and children, ancestors and descendants of
5 COMPARATIVE CODE. 88 10, 11

every degree, and between brothers and sisters of the half as well
as the whole blood, and between uncles and nieces or aunts and
nephews, 1are incestuous, and void from the beginning, whether the
relationship is legitimate or illegitimate.
1 Insert : " or between any persons related to each other within and not
ineluding the fourth degree of consanguinity, computed according to the rules
of the civil law . " - Utah.

(C) (Or. 5217.) The following marriages are prohibited : ...

When the parties thereto are first cousins or any nearer of kin to
each other, whether of the whole or half -blood, computing by the
rules of the civil law .

(D) (Wash . 4468 *.) Marriages in the following cases are pro
hibited : .... 2. When the parties thereto are nearer of kin to
each other than second cousins, whether of the whole or half-blood ,
computing by the rules of the civil law ;
3. It shall be unlawful for any man to marry his father's sister,
mother's sister, father's widow, wife's mother, daughter, wife's
daughter, son's widow , sister, son's daughter, daughter's daughter,
son's son's widow , daughter's son's widow, brother's daughter, or
sister's daughter ; it shall be unlawful for any woman to marry her
father's brother, mother's brother, mother's husband, husband's
father, son, husband's son, daughter's husband , brother, son's son,
daughter's son, son's daughter's husband, daughter's daughter's hus
band, brother's son , or sister's son ; and if any person being within
the degrees of consanguinity or affinity in which marriages are pro
bibited by this section carnally know each other, they shall be
deemed guilty of incest, and shall be punished by imprisonment in
the state penitentiary for a term not exceeding ten years and not
less than one year.

(E) (Wy. 2981.) Marriages are void without any decree of di

vorce that may hereafter be contracted in this state : .... Third .
When the parties stand in the relation to each other of parent and
children , grandparent and grandchildren, brothers and sisters , of half
as well as of whole blood, uncle and niece, aunt and nephew, and
first cousins, and this subdivision extends to illegitimate as well as
legitimate children and relations; provided, that this prohibition shall
not extend to any persons not related by consanguinity.

§ 11. MARRIAGE BETWEEN CERTAIN RACES PROHIBITED.

( A) (Ar. 3092. ) All marriages of persons of Caucasian blood, or
their descendants, with Negroes, Mongolians or Indians, and their
descendants, shall be pull and void.
$$ 11 , 12 COMPARATIVE CODE. 6

( B) ( Cal. C. C. 60 ; Id. 1994. ) All marriages of white persons with

Negroes, Mongolians or Mulattoes are illegal and void.

( C ) (Or. 5217. ) The following marriages are prohibited : ..

When either of the parties is a white person and the other a Negro ,
or Mongolian, or person of one-fourth or more of Negro or Mongolian
blood .

( D) (Utah, 1184.) Marriage is prohibited and declared void:

.... 5. Between a Negro and a white person ; 6. Between a Mon
golian and a white person.

& 12. EFFECT OF MARRIAGE DURING LIFETIME OF SPOUSE

-EFFECT OF CONTINUED ABSENCE .
(A ) (Cal. C. C. 61* ; Cal. L, 1903, p. 176 ; Id . 2426* ; Id . L , 1903,
p. 10 ; Mont. C. C. 55*. ) A subsequent marriage contracted by any
person during the life of a former husband or wife of such person,
with any person other than such former husband or wife is illegal
and void from the beginning. .... 2. Unless such former husband
or wife was absent, and not known to such person to be living for
the space of five successive years immediately preceding 1 [such
subsequent marriage ) , or was generally reputed 2[or] believed by
such person to be dead , at the time such subsequent marriage was
contracted ; in either of which cases the subsequent marriage is valid
until its nullity is adjudged by a competent tribunal.
1 Omitted .-Id .; Mont .
2 " and was .''-Id.; Mont .

( B ) ( Ar. P. C. 247 ; Cal. Pen . C. 282 * ; Id. 6806* ; Mont. Pen .

C. 491* ; Wash . 7234 * . ) The ( provision relating to bigamy ) does not
extend : 1. To any person by reason of any former marriage whose
husband or wife by such marriage has been absent for five succes
sive years , without being known to such person within that time to
be living .

( C) (Nev. 4764*.) .... Nothing herein contained [relating to

bigamy ] shall extend to any person or persons whose husband or
wife shall have been continually absent from such person or per
sons for the spage of five years together prior to the said second
marriage, and he or she not knowing such husband or wife to be
living within that time. .

( D) (Or. 1919 *.) The [provisions relating to bigamy] shall not

extend or apply to any person whose husband or wife shall have
voluntarily withdrawn and remained absent from such person for
the period of seven years together, the party marrying again not
knowing the other to be living within that time.
 7 COMPARATIVE CODE . 88 12-14

(E) (Utah, 4208*.) The ( provisions relating to polygamy] shall

not extend to any person by reason of any former marriage whose
husband or wife by such marriage shall have been absent for five
successive years, and is not known to such person to be living, and
is believed by such person to be dead.

Section IV . Void and Voidable Marriages.

$ 13. WHAT CONSTITUTES VOID MARRIAGE .
(A) ( Utah, 1184.) Marriage is prohibited and declared void :
1. With an idiot or lunatic .

(B) ( Or. 502 ; Nev . 498.) All marriages which are prohibited by
law , on account of consanguinity between the parties, or on account
of either of them having a former husband or wife then living, 1 [ or
on account of either of them being of one-fourth or more of negro
blood ), shall, if solemnized within this state, be absolutely void.2
1 Omitted . - Nev .
2 Add : " without any decree of divorce or other legal proceedings. " - Nev.

(C) (Wy. 2981. ) Marriages are void without any decree of di

- bi vorce that may hereafter be contracted in this state : .... 2. When
either party is insane or an idiot at the time of contracting the mar
riage.

| 14. WHAT CONSTITUTES VOIDABLE MARRIAGE - HOW

VOIDED .

Pea
(A) (Ar. 3112.) The district court shall have power to hear
and determine suits for the dissolution of marriage, where the causes
alleged therefor shall be natural or incurable impotency of body
tes
at the time of entering into the marriage contract, or any other im
pediment that renders such contract void, and shall have power and
authority to decree the marriage to be null and void.

10
(B ) (Cal. C. C. 58 ; Id. 1992 ; Mont. C. C. 53.) If either party
to a marriage be incapable from physical causes of entering into the
marriage state, or if the consent of either be obtained by fraud or
Der force, the marriage is voidable.
cond
be
( C) ( Cal. C. C. 82 ; Id . 2014 ; Mont. C. C. 110.) A marriage may
be annulled for any of the following causes, existing at the time of
the marriage : ( 1) That the party in whose behalf it is sought to
DO:
have the marriage annulled was under the age of legal consent, and
such marriage was contracted without the consent of his or her
for
parents or guardian , or person having charge of him or her; unless,
§ 14 COMPARATIVE CODE. 8

after attaining the age of consent, such party for any time freely
cohabited with the other as husband or wife; .... ( 3) That either
party was of unsound mind, unless such party, after coming to rea
son, freely cohabit with the other as husband or wife ,

(D) (Nev. 499.) When either of the parties to a marriage, for

want of age or understanding, shall be incapable of assenting thereto,
or when fraud shall have been proved, and there shall have been
no subsequent voluntary cohabitation of the parties, the marriage
shall be void from the time its nullity shall be declared by a court
of competent authority.

(E) (Nev . 500.) In no case shall a marriage be adjudged a nul.

lity, on the ground that one of the parties was under age of legal
consent, if it shall appear that the parties, after they attained such
age, had, for any time, freely cohabited together as husband and
wife, nor shall the marriage of any insane person be adjudged void ,
after his restoration to reason, if it shall appear that the parties
freely cohabited together as husband and wife after such insane per
Son was restored to a sound mind.

(F) (Or. 503. ) When either of the parties to a marriage shall

be incapable of making such contract or assenting thereto, for want
of legal age or sufficient understanding, or when the consent of either
party shall be obtained by force or fraud, such marriagel shall be
void, from the time it is so declared by the decree of a court having
jurisdiction thereof.
1 Or. 5218 is verbatim as this section, except that after the word " mar.
riage, '"
it reads : " ' is voidable, but only at the suit of the party laboring under
the disability, or upon whom the force or fraud is imposed ." ' - Or. In the one
case such marriage is called “ void " and in the other voidable ."

(G) (Utah, 1215.) Courts having general equity jurisdiction may

declare void a marriage obtained by force, or fraud, or where the
male was under sixteen or the female under fourteen years of age
at the time of the marriage, and the marriage was without the con.
sent of the father, mother, guardian, or other person having the
proper charge of his or her person , and has not been ratified by co
habitation after that age.

(H) (Wash. 4477.) When either party to a marriage shall be in

capable of consenting thereto, for want of legal age or a sufficient
understanding, or when the consent of either party shall be obtained
by force or fraud, such marriage is voidable, but only at the suit
of the party laboring under the disability, or upon whom the force
or fraud is imposed.
 COMPARATIVE CODE. 88 14-16

(I) (Wy. 2982.) In case of a marriage solemnized when either

of the parties are under the age of legal consent, if they shall sepa
rate during such nonage, and not cohabit together afterwards, or in
case the consent of one of the parties was obtained by force or fraud,
and there shall have been no subsequent voluntary cohabitation of
the parties, the marriage shall be deemed voidable.

CHAPTER II. CHILDREN .

Section 1. Children by Birth .
15. WHO ARE LEGITIMATE .
( A) (Cal. C. C. 193 ; Mont. C. C. 280.) All children born in wed.
lock are presumed to be legitimate.

(B) ( Cal. C. C. 29 ; Id . 1982 ; Mont. C. C. 13. ) A child conceived,

but not yet born, is to be deemed an existing person, so far as may
be necessary for its interests in the event of its subsequent birth.

( C ) (Cal. C. C. 194 ; Mont. C. C 281. ) All children of a woman

who has been married, born within ten months after the dissolution
of the marriage, are presumed to be legitimate children of that mar.
riage.

$ 16. EFFECT OF NULLITY AND DIVORCE ON LEGITIMACY .

(A) ( Ar. 3118.) A divorce from the bonds of matrimony shall
not in any wise affect the legitimacy of the children thereof .

(B) ( Cal. C. C. 84 ; Id . 2016.) Where a marriage is annulled on

the ground that a former husband or wife is living, or on the ground
of insanity , children begotten before the judgment are legitimate,
and succeed to the estate of both parents.

(C) (Cal. C. C. P. 1387* ; Id. 5703* ; Mont. C. C. 1853* ; Nev . 3046* ;

Utah , 2833 * . ) ... The issue of all marriages null in law, or dis
solved by divorce, are legitimate.

(D) (Mont. C. C. 112.) Where marriage is annulled on the

ground that a former husband or wife was living, and it is adjudged
that the subsequent marriage was contracted in good faith and with
the full belief of the parties or either of them, that the former
husband or wife was dead, or where a marriage is annulled on the
ground of insanity, children begotten before the judgment must be
specified in the judgment, and are legitimate and entitled to succeed
in the same manner as legitimate children to the estate of both par
ents,
g 16 COMPARATIVE CODE. 10

( E) ( Cal. C. C. 144 ; Mont. C. C. 197.) When a divorce is granted

for the adultery of the husband, the legitimacy of children of the
marriage begotten of the wife before the commencement of the ac
tion is not affected .

( F ) (Cal. C. C. 145 ; Id . 2044 ; Mont. C. C. 198.) When a divorce

is granted for the adultery of the wife, the legitimacy of children
begotten of her before the commission of the adultery is not affected ;
but the legitimacy of other children of the wife may be determined
by the court upon the evidence in the case.1
1 Add the following : " In every such case, all children begotten before the
commencement of the action are to be presumed legitimate until the contrary
is shown.''- Mont.

(G) (Utah, 1185.) When a marriage is contracted in good faith

and with the belief of the parties that a former husband or wife,
then living and not legally divorced, was dead or legally divorced,
the issue of such marriage, born or begotten before notice of the
mistake, shall be the legitimate issue of both parents.

( H ) (Wy. 3006.) Upon the dissolution of a marriage on account

of the nonage, insanity or idiocy of either party, the issue of the
marriage shall be deemed to be in all respects, the legitimate issue
of the parent, who at the time of the marriage was capable of con.
tracting or if neither parent be of age, then of the eldest parent.

(I) (Wy. 3005.) A divorce for the cause of adultery committed

by the wife, shall not affect the legitimacy of the issue of the mar
riage, but the legitimacy of such children, if questioned, may be
determined by the court upon proofs in the case, and in every case
the legitimacy of all children begotten before the commencement of
the action, shall be presumed until the contrary is shown.

(J) (Wy. 3007.) When a marriage is dissolved on account of a

prior marriage of either, and it shall appear that the second mar
riage was contracted in good faith and with the full belief of the
parties that the former wife or husband was dead, or that one of the
parties was ignorant of the fact that the other had a wife or husband
living, the fact shall be stated in the decree of divorce or nullity, and
the issue of such second marriage, born or begotten before the com.
mencement of the action shall be deemed to be the legitimate issue
of the parent who at the time of the marriage was capable of con.
tracting.

( K) (Wy. 3008.) Upon the dissolution by decree of nullity of any

marriage that is prohibited on account of consanguinity between the
parties, the issue of the marriage shall be deemed to be illegitimate.
 11 COMPARATIVE CODE. 88 17-19

§ 17. LEGITIMATION BY SUBSEQUENT MARRIAGE.

(A ) (Ar. 3095. ) When any unmarried persons who have hereto
fore lived together as husband and wife and who have had a child or
children born out of wedlock , shall have intermarried with each other,
such child or children so born out of wedlock, shall be and the same
are hereby declared to be legitimate, and entitled to all the rights
and privileges of children born in wedlock .

(B) ( Cal. C. C. 215 ; Id . 2069 ; Mont. C. C. 302.) A child born be

fore wedlock becomes legitimate by the subsequent marriage of its
parents.

( C ) (Nev. 495 ; Or. 5226* ; Wash . 4470*.) Illegitimate children

shall become legitimatized by the subsequent marriage of their par
ents with each other.

( D) (Utah, 2850. ) The issue of bigamous and polygamous mar

riages, heretofore contracted between members of the Church of
Jesus Christ of Latter - day Saints, born on or prior to the fourth
day of January, A. D. eighteen hundred and ninety -six, are hereby
legitimated ; and such issue are entitled to inherit from both par.
ents, and to have and enjoy all rights and privileges to the same
extent and in the same manner as though born in lawful wedlock.

§ 18. WHO MAY DISPUTE LEGITIMACY OF CHILD - HOW

PROVED .
( Cal. C. C. 195 ; Mont. C. C. 282.) The presumption of legitimacy
can be disputed only by the husband or wife, or the descendant of
one or both of them. Illegitimacy in such case, may be proved like
any other fact.

& 19. FRAUDULENTLY PRODUCING CHILD AS HEIR .

(A ) ( Cal. Pen. C. 156 ; Wy. 5079. ) Every person who fraudu
lently produces an infant falsely pretending it to have been born of
[ any parent ] whose child would be entitled to inherit any real es.
tate or to receive a share of any personal estate, with intent to inter
cept the inheritance of any such real estate, or the distribution of
any such personal estate from any person lawfully entitled thereto,
is punishable by imprisonment in the state prison not exceeding ten
years.

( B) (Or. 1834.) If any person shall fraudulently produce an in

fant , and falsely pretend that it was born of any parent whose child
would be entitled to inherit any real estate or interest therein, or
to receive a share of any personal estate , with intent to intercept
$$ 20, 21 COMPARATIVE CODE . 12

the inheritance of any such real estate or interest therein, or the

distribution of any such personal estate, from any person lawfully en
titled thereto, such person , upon conviction thereof, shall be pun.
ished by imprisonment in the penitentiary not less than one nor
more than ten years.

$ 20. FRAUDULENT SUBSTITUTION OF CHILD .

(A) ( Cal. Pen . C. 157 ; Wy. 5080. ) Every person to whom an
infanti has been confided for nursing, education, or any other pur.
pose, who, with intent to deceive any parent or guardian of such
child, substitutes or produces to such parent or guardian another child
in the place of the one so confided , is punishable by imprisonment in
the state prison not exceeding 2 [ seven ) years.
1 Insert : " under the age of years. "' - Wy.
2 " ten.''- Wy .

(B) (Or. 1835. ) If any person to whom an infant has been con
fided for nursing, education, or other purpose, shall, with intent to
deceive any parent or guardian of such child, substitute or produce to
guch parent or guardian another child in the place of the one so
confided, such person, upon conviction thereof, shall be punished by
imprisonment in the penitentiary not less than one nor more than
ten years .

Section II . Children by Adoption .

$ 21. WHO MAY BE AND BY WHOM ADOPTED .
( A) ( Ar. 2036 ; Cal. C. C. 221 ; Id . 2075 ; Mont. C. C. 310 ; Utah,
1.) Any minor child may be adopted by any adult person, in the
cases and subject to the rules prescribed.

(B ) (Ar. 2037 ; Cal. C. C. 222 ; Id. 2076 ; Mont. C. C. 311 ; Utah ,

2. ) The person adopting a child must be at least 1 [ten] years older
than the person adopted.
1 " fifteen .''- Id .

( C) (Nev . 608.) Any minor child may be adopted by any adult

person or by any husband and wife, in the cases and subject to
the provisions prescribed in this act. The person or persons adopt
ing a child must be at least ten years older than the child adopted ;
provided, that in the case of a husband and wife adopting a child,
if only one of them shall be ten years older than the child, it shall
bo sufficient.

(D) ( Or. 5316*.) Any inhabitant of this state may petition the
county court in the county of his residence for leave to adopt a
 13 COMPARATIVE CODE. 8 $ 21-22

child not his own, and if desired, for a change of the child's
rame .

(E) (Wash . 6480 *.) Any inhabitant of this state not married,
or any husband and wife jointly, may petition the superior court
of their proper county for leave to adopt a child under the age of
twenty -one years, not theirs by birth, and for a change of name of
said child,

$ 218 . CONSENT OF MINOR , WHERE NECESSARY .

(A) (Ar. 2040 ; Cal. C. C. 225 ; Id . 2079 ; Mont. C. C. 314.) The con
sent of a child, if over the age of 1 [twelve) years, is necessary to its
adoption.
1 " Fourteen . " - Ar .

(B) (Or, 5320.) If the child is of the age of fourteen years or

upwards, the adoption shall not be made without his consent.

$ 22. CONSENT OF PARENTS, GUARDIANS, ETO.

(A) ( Ar. 2039 ; Id . 2078 ; Utah, 4.) A legitimate child cannot be
adopted without the consent of its parents, if living, nor an illegiti
mate child without the consent of its mother, if living, except that
consent is not necessary from a father or mother deprived of civil
rights, or adjudged guilty of adultery, or of cruelty, and for either
cause divorced, or adjudged to be an habitual drunkard, or who has
been judicially deprived of the custody of the child on account of
cruelty or neglect.1 If it can be shown satisfactorily to the judge
that the parent or parents have abandoned, or ceased to provide for
its support, then it may be adopted by the written consent of
its legal guardian . If no guardian, then of its nearest relative.
If no relative, then by the consent of some person appointed by
the judge to act in the proceedings as the next friend to such child .
1 Balance of section omitted - Ar. Add : " 'or desertion, " and omit balance
of section . - Utah ,

( B) ( Cal. C. C. 224 ; Cal. L. 1903, p. 114.) A legitimate child

cannot be adopted without the consent of its parents, if living; nor
an illegitimate child without the consent of its mother, if living ; ex
cept that consent is not necessary from a father or mother deprived
of civil rights, or adjudged guilty of adultery or cruelty, and for
either cause divorced, or judged to be habitually intemperate in
the use of intoxicants, or who has been judicially deprived of the
custody of the child on account of cruelty or neglect; neither is the
consent of anyone necessary in the case of any abandoned child ;
provided, however, that any such child, being a half-orphan, and
$ 22 COMPARATIVE CODE . 14

kept and maintained in any orphan asylum in this state for more
than two years, may be adopted with the consent of the managers
of such orphans ' home without the consent of the parent unless
such parent has paid toward the expenses of maintenance of such
half-orphan at least a reasonable sum during the said time, if able
to do so . Any child deserted by both parents, or left in the care
and custody of another by its parent or parents, without any agree
ment or provision for its support, for the period of one year, is
deemed to be an abandoned child within the meaning of this section,
and where the parent is a non-resident of this state, such child may
without the consent of either parent be adopted with the consent
of the managers of such home whenever it has been left in such
home for more than one year.

(C ) (Mont. L. 1897, p. 229, sec. 313. ) A legitimate child cannot

be adopted without the consent of its parents, if living ; nor any
illegitimate child without the consent of its mother, if living ; ex
cept the consent is not necessary from a father or mother deprived
of civil rights, or adjudged guilty of adultery or of cruelty, and for
either cause divorced, or adjudged to be an habitual drunkard, or
who has been judicially deprived of the custody of the child on
account of cruelty or neglect, or who has, in this or any other state,
willfully abandoned a child, or caused the same to be maintained in
any public orphan asylum for one year without contributing to the
support of said chila ; neither is the consent of anyone necessary in
the case of an abandoned child ; provided, however, that when any
such child being a half-orphan, and kept and maintained within any
orphan home, or asylum in this state, for one year or over, may be
adopted with the consent of a majority of the board of trustees of
said orphans ' home or asylum , without the consent of the parent,
unless such parent has paid toward the expenses of the maintenance
of such half-orphan, at least sixty per cent of the legitimate cost
of keeping and maintaining said child, during the said time, if
able to do so ; and where the parent is a non-resident of this state,
said child may be adopted with the consent of a majority of the
board of trustees of such home or asylum, whenever it has been left
by its parents in such home or asylum for more than one year,
whether the parent has contributed to its support or not, and the
consent of the parent of such half-orphan is not necessary to its
adoption , whenever a majority of the board of trustees are au
thorized to give such consent as [to adoption ) provided, which con
sent shall be given in the same manner that parents are authorized
by law consent to adoption of their children.

( D) ( Mont. L. 1897, p. 230, sec. 321. ) A majority of the board of

trustees of any orphans ' home or asylum in this state, are hereby
authorized and empowered to consent to the adoption of any orphan
15 COMPARATIVE CODE. $ 22

child, or child abandoned by its parents, in the same manner that

parents are authorized by law to consent to the adoption of their
children , provided, that such orphan child, or child abandoned by
its parents, shall have been in the charge and under the management
of said board of trustees of such orphans' home or asylum for the
period of one year prior to such adoption and during that time sup
ported wholly or to the amount of forty per cent at the expense of
such home or asylum .

(E) (Nev. 611.) A legitimate child cannot be adopted without

the consent of its parents, if they be living and known, nor an
illegitimate child without the consent of its mother, if she be living
and known, and not without the consent of the father of such
illegitimate child also, if he be living and known, and if he shall
bave adopted such illegitimate child as his own, by the acts and in
the manner prescribed by [ $ 24] of this act ; provided, that such
consent shall not be necessary from a father or mother deprived of
civil rights, or adjudged guilty of adultery, or cruelty, abandonment,
or for either of said causes, divorced, or adjudged to be a habitual
drunkard, or has been judicially deprived of the custody of the child
on account of adultery, drunkenness, cruelty , or neglect; and pro
vided further, that no child over the age of twelve years shall be
adopted without his or her own consent in writing.

( F) (Nev. 614.) If the persons whose consent is necessary to

the adoption of the child are not within this state, their consent,
in writing, if they be known and their whereabouts can be ascer
tained, must be obtained and filed with the judge, duly executed and
acknowledged, in like manner as conveyances of real estate are re
quired to be executed and acknowledged ; provided, that if the judge
shall find that the person or persons whose consent is required have
abandoned such child, or if such persons are unknown, or their where
abouts cannot be ascertained , then in that case the judge may, in
his discretion, proceed to make the order of adoption without such
consent ; but in that case it shall be the duty of the judge to cause
to appear before him, by citation or otherwise, the persons in whose
custody the child is, and may also bring before him, in his discretion,
such of the next friends of the child as he may deem proper, and
shall examine them under oath, and if he deem it for the best in
terests of the child, he shall make the order of adoption.

(G) ( Or. 5317, 5318. ) The parents of the child, or the survivor
of them, shall, except as herein provided, consent in writing to
such adoption. If neither parent is living, the guardian of the
child, or if there is no guardian, the next of kin in this state , may
give such consent ; or if there is no next of kin , the court may
appoint some suitable person to act in the proceedings as next friend
$$ 22, 23 COMPARATIVE CODE. 16

of the child, and to give or withhold such consent. If either parent

is insane or imprisoned in the state prison , under a sentence for a
term not less than three years, or has willfully deserted and neglected
to provide proper care and maintenance for the child for one year next
preceding the time for filing the petition, the court shall proceed as
if such parent were dead , and in its discretion may appoint some
suitable person to act in the proceedings as next friend of the child,
and give or withhold the consent aforesaid.

(H) (Wash. 6480 *.) .... Written consent must be given to such
adoption by the child, if of the age of fourteen years, and by each of
his or her living parents who is not hopelessly insane or a confirmed
drunkard . If there be no such parents, or if the parents be un
known, or shall have abandoned such child, or if such parents, or
either of them , are hopelessly insane, or a confirmed drunkard, then
by the legal guardian ; if there be no such guardian , then by a dis
creet and suitable person appointed by said court to act in the pro
ceedings as the next friend of such child : Provided, however, that
if the parents are living separate and apart, the consent of both is
not required, but such consent may be given by the parent having
the care, custody and control of such child.

(I) (Wy. 2302.) Whenever it shall be made to appear, to the

satisfaction of the district court of any county, or to the judge
thereof, in the vacation or recess of said court, that any minor child
has been deserted by its parents or its surviving parent, and that it
has no legal guardian, it shall be lawful for any proper and fit per
son to adopt said child, who may desire to do so, in such manner as
may be now or hereafter provided by law for the adoption of
orphan children .

$ 23. JURISDICTION , NOTICE, ETC.

( A ) (Ar. 2041 ; Cal. C. C. 226 ; Mont. C. C. 315.) The person
adopting a child , and the child adopted , and the other persons , if
within or residents of the state , whose consent is necessary , must
appear before the 1 [judge of the superior court ) of the county where
the person adopting resides , and the necessary consent must there
upon be signed , and an agreement be executed by the person adopt
ing, to the effect that the child shall be adopted and treated in all
respects as his own lawful child should be treated . If the persons
whose consent is necessary are not within or are not residents of
this state, then their written consent , duly proved or acknowledged ,
as deeds or conveyances are acknowledged , shall be filed in said
2 [ superior court ) at the time of the application of adoption .
1 " probate judge ' ' - Ar.; Id .; " district court . " ' - Mont.
2 probate court ' ' - Ar.; " district court.''- Mont.
17 COMPARATIVE CODE. $ 8 23 , 24

( B ) (Id. 2080.) The person adopting a child, and the child

adopted, and the other persons, if within or residents of the county,
whose consent is necessary, must appear before the probate judge of
the county where the person adopting resides, and the necessary
consent must thereupon be signed and an agreement be executed by
the person adopting, to the effect that the child shall be adopted
and treated in all respects as his own lawful child should be treated.
But if the parent or guardian of the child, or either of them, is a
non-resident of the county where the application is made, such non
resident parent or guardian may execute his consent in writing, and
acknowledge the same before any officer authorized by the laws of
this state to take acknowledgments of deeds, which consent being
filed in the court where the application is made, is deemed a sufficient
appearance on the part of such non-resident.

( C) (Nev. 609.) The person or persons adopting a child, and

the child adopted , and the other persons, if known, if within or
residents of this state, whose consent is necessary , must appear be
fore the district judge of the county where the person or persons
adopting reside, and the necessary consent must thereupon be signed
and an agreement be executed by the person or persons adopting, to
the effect that the child shall be adopted and treated in all respects
as his, or her, or their own lawful child, should be treated, including
the rights of support, protection , and inheritance.

(D) (Utah, 6.) The person adopting a child and the child
adopted and the other persons whose consent is necessary, must ap
pear before the judge of the district court of the county where the
person adopting resides, and the necessary consent must thereupon
be signed and an agreement be executed by the person adopting to
the effect that the child shall be adopted and treated in all respects
as his own lawful child ; provided, that if the persons whose consent
is necessary are not within the county, then their written consent,
duly acknowledged in the manner provided for the acknowledgment
of deeds, shall be filed in said district court at the time of the ap
plication for adoption.

& 24. MANNER OF ADOPTION OF ILLEGITIMATE CHILD .

(Ar. 2045 ; Cal. C. C. 230 ; Id. 2084 ; Mont. C. C. 319 ; Nev. 616 ;
Utah, 10.) The father of an illegitimate child, by publicly acknowl.
edging it as his own, receiving it as such, with the consent of his
wife, if he is married , into his family, and otherwise treating it as
if it were a legitimate child, thereby adopts it as such ; and such
child is thereupon deemed for all purposes legitimate from the time
of its birth . The ( provisions relating to the adoption of legitimate
children] do not apply to such an adoption.
Comparative Code -- 2
$$ 25, 25a COMPARATIVE CODE. 18

§ 25. RELATION BETWEEN THE PARTIES.

( A ) ( Ar. 2043 ; Cal. C. C. 228 ; Id . 2082 ; Mont. C. C. 317 ; Utah, 8.)
A child when adopted, may take the family name of the person
adopting. 1 [ After adoption, the two shall sustain ] towards each
other the legal relation of parent and child, and have all the rights
and be subject to all the duties of that relation.
1 Insert : " and sustain . " ' -- Id .

( B ) (Nev. 613.) A child, when adopted, may take the family

name of the person or persons adopting it, and after adoption the
persons adopting, and the child, shall sustain towards each other the
legal relation of parent and child, and have all the rights, including
the rights of support, maintenance, protection , and inheritance, and
be subject to all the duties of that relation ; and the natural parents
of an adopted child are, from the time of the adoption, relieved of all
parental duties toward , and all responsibilities for, the child so
adopted, and have no rights over it.

(C) (Or. 5322.) A child so adopted shall be deemed, for the

purposes of inheritance of such child, and all other legal consequences
and incidents of the natural relation of parents and children, the
ebild of the parents by adoption, the same as if he had been born to
them by lawful wedlock ; except that he shall not be capable of taking
property expressly limited to heirs of the body or bodies of the
parent by adoption, nor property from the lineal or collateral kindred
of such parents by right of representation.

(D) (Wash. 6483. ) By such order the natural parents shall be

devested of all legal rights and obligations in respect to such child,
and the child shall be free from all legal obligations of obedience in
respect to them , and shall be, to all intents and purposes, the child
and legal heir of his or her adopter or adopters, entitled to all the
rights and privileges and subject to all the obligations of a child
of the adopter or adopters begotten in lawful wedlock : Provided,
that on the decease of parents who have adopted a child or children
[ as provided by law ), and the subsequent decease of such child or
cbildren without issue, the property of such adopting parents shall
descend to their next of kin, and not to the next of kin of such
adopted child or children.

§ 25a. LAW OF ADOPTION IN WYOMING .

( A ) (Wy. 3015.) Any parent willing to relinquish all right to
his or her minor child to any other person willing to adopt the same,
shall make application to the district court or the judge thereof
cf the county in which such parent resides ; and if such judge, after
due investigation, shall be satisfied that the person making said ap
19 COMPARATIVE CODE, § 25a

plication is entitled to make such relinquishment, and that the per

son proposing to adopt such child is a suitable person to assume the
relation of parent, and that the consent of both parties to such
adoption is mutual and voluntary, he shall enter of record in the
records of his office, the fact of such application and consent, with
his approval of such agreement and adoption.

(B) (Wy. 3016.) Any person may appear before the district court
or the judge thereof, of the county where he or she resides, and offer
to adopt any minor child as his or her own ; provided, such minor
and his or her parents, if living, or guardian, if any, or county com
missioners, as hereafter provided, shall appear and consent to such
adoption.

( C) (Wy. 3017.) In all cases where an offer is made to adopt

any minor, and consent obtained, as provided in [ $ 25a ( B) ] , the
district court or the judge thereof, after due investigation, if satisfied
as provided in [ $ 25a ( A) ] , shall make a like entry of record as
therein specified, with his approval of such adoption.

(D) (Wy. 3019.) If the district court or judge thereof shall

be satisfied, after due investigation, that any person proposing or
agreeing to adopt any minor child is not a suitable person to assume
the relations of parent to such minor, he shall refuse to approve such
adoption, and shall enter such refusal in the records of said court.

(E) (Wy. 3020.) In case the parent of any child is a non -resi
dent of this state , or shall have removed from the county in which
his or her child may be at the time it is proposed to adopt the same
as aforesaid, the written consent of such parent, properly acknow ).
edged, shall be obtained and filed with the clerk of the district court,
which shall have the same effect as if such parent were personally
present and consented to such adoption. And said judge shall note
the filing of such written consent in his record of approval, and the
like proceedings shall be had as if such parent were present.

(F) (Wy. 3021.) The contracting parties in all cases of adop

tion may also, in addition to the foregoing proceedings, execute an
agreement particularly specifying therein the terms of such adop.
tion, which shall be recorded in the recorder's office of the proper
county, and when so recorded, it shall be binding upon both parties
thereto, and the original, or certified copy thereof, shall be received
as evidence in all proceedings relating to such adoption.

( G) (Wy. 3022.) In all cases where a written agreement has

heretofore been executed between the parents of any minor child
88 25a, 26 COMPARATIVE CODE. 20

and the person adopting the same, such agreement is hereby legal.
ized . . . . provided, that if said agreement has not been recorded in
the recorder's office of the proper county, said parties or either of
them, shall cause the same to be so recorded before such adoption
shall be legalized as herein provided.

(H) (Wy. 3023. ) Where both the parents of any minor child are
dead and there are no relatives of such minor known, or being un.
willing to take charge of and assume control of such child, the
county commissioners of the proper county, upon information or
otherwise, may provide for the adoption of such child in the same
manner as the parent, if living, could under the provisions of

[ $ 25a) . In any case of parents abandoning their children, without

providing for their support and education, the county commissioners
shall have the same authority to act as in case of the parents '
death ; provided, that if the residence of the parents is known , the
county commissioners shall notify them to take away or provide for
their children, and if the parents do not claim such children within
three months after such notice is given, the county commissioners
shall have authority to provide for the children's adoption as in
case of the parents ' death, or to bind them out to suitable persons
under a written agreement for a certain number of years, a copy of
such agreement to be approved and filed with the clerk of the dis
trict court of the county.

(I) (Wy. 3027.) Minor children, adopted as aforesaid, shall as

sume the surname of the persons by whom they are adopted, and
shall be entitled to the same rights of person and property as
children or heirs at law of the persons thus adopting them, unless
the rights of property should be excepted in the agreement of
adoption.

CHAPTER III. POWER OF MARRIED PERSON TO CONVEY BY

WILL .

& 26. CONSENT OF SPOUSE NOT NECESSARY .

( A) ( Ar. 4229.) The husband or wife may , by last will and
testament, give to the survivor of the marriage the power to keep
his or her separate property together, until each of the several heirs
shall become of lawful age, and to manage and control the same
under such restrictions as may be imposed by such will ; provided,
the surviving husband or wife is the father or mother, as the case
may be, of the minor heirs ; and provided, further, that any child or
heir entitled to any part of said property shall, at any time upon
 21 COMPARATIVE CODE. 88 26 , 27

A
becoming of age, be entitled to receive his distributive portion of
said estate.

(B) ( Cal. C. C. 1273 ; Id . 2504 ; Utah, 2733.) A married woman

may dispose of all her separate estate by will, without the consent
of her husband, and may alter or revoke the will in like manner as
if she were single. Her will must be 1 [ executed ] and proved in
like manner as other wills.
2

1 " attested, witnessed . " - Id .

( C) (Mont. C. C. 255.) A married woman may make a will in

the same manner and with the same effect as if she were sole, except
that such shall not, without the written conse of her husband,
3
operate to deprive him of more than two-thirds of her real estate,
or of more than two-thirds of her personal estate .

. (D) (Nev . 3071.) Any married woman may dispose of all her
separate estate by will, absolutely , without the consent of her hus .
band, either express or implied, and may alter or revoke the same
in like manner as a person under no disability may do. Her will
must be attested, witnessed, and proved in like manner as all other
wills.

(E) (Or. 5547.) A married woman may, by will, dispose of any

real estate held in her own right, subject to any rights which her
husband may have as tenant by the curtesy.

(F) (Wy. 2975.) Any woman may, while married, make a will
the same as though she were sole .

CHAPTER IV . MARRIED WOMEN AS SOLE TRADERS.

$ 27. JURISDICTION TO GRANT PRIVILEGE .
(A) (Cal. C. C. P. 1811 ; Id . 3886 ; Mont. C. C. P. 2290.) A mar
ried woman may become a sole trader by the judgment of the 1 [ su
perior) court of the county in which she has resided for six months
next preceding the application,
1 ' district." ' - Id.; Mont.

(B) (Nev. 545.) Married women shall have the right to carry
on and transact business under their own name, and on their own
account, by complying with the regulations prescribed in [ the act
authorizing married women to transact business as sole traders. )
 88 28-30 COMPARATIVE CODE, 22

28. NOTICE TO BE GIVEN - CONTENTS OF.

(A ) ( Cal. C. C. P. 1812 ; Id . 3887 ; Mont. C. C. P. 2291.) A per.
son intending to make application to become a sole trader must
publish notice of such intention in a newspaper published in the
county, or if none, then in a newspaper published in an adjoining
county, for four successive weeks. The notice must specify the
1day upon which application will be made, the nature and place of
business proposed to be conducted by her, and the name of her hus
band.

1 Insert : " term and the . " ' -Id.

(B) (Nev. 546.) Any married woman residing within this state,
desirous to avail herself of the benefit of this act, shall give notice
thereof, by advertising in some public newspaper published in the
county in which she has resided, for four successive weeks preceding
such application ; provided , if no newspaper be published in said
county, said publication shall be made by posting advertisements
in three of the most public places in said county, four weeks prior
to the day of application. Such notice shall set forth that it is her
intention to make application to the district court of said county, on
the day therein named, for an order of said court permitting her to
carry on business in her own name and on her own account; and it
shall especially set forth the nature of the business to be carried
on ....

$ 29. PETITION , WHAT TO STATE .

( Cal. C. C. P. 1813 ; Id. 3888 ; Mont. C. C. P. 2292.) Ten days
prior to the day named in the notice, the applicant must file a verified
petition , setting forth :
1. That the application is made in good faith, to enable the appli
cant to support herself, or herself and others dependent upon her, giv
ing their names and relation;
2. The fact of insufficient support from her husband, and the causes
thereof, if known ;
3. Any other grounds of application which are good causes for a
divorce, with the reason why a divorce is not sought ; and,
4. The nature of the businesg1 proposed to be conducted, and the
capital to be invested therein, if any, and the sources from which it
is derived .
1 Insert : " trade or profession . " - Mont.

$ 30. WHAT COMMUNITY FUNDS MAY BE USED .

( Cal. C. C. P. 1814 ; Id. 3889. ) The applicant may invest in the
business proposed to be conducted a sum derived from the community
property or of the separate property of the husband, not exceeding
five hundred dollars.
23 COMPARATIVE CODE. 89 31-33

§ 31. MANNER OF OPPOSING PETITION .

( A ) (Cal. C. C. P. 1815 ; Id. 3890 ; Mont. C. C. P. 2293.) Any
creditor of the husband may oppose the application by filing in the
court (prior to the day named in the notice) a written opposition,
verified, containing either :
1. A specific denial of the truth of any material allegation of the
petition ; or setting forth,
2. That the application is made for the purpose of defrauding the
opponent ; or,
3. That the application is made to prevent, or will prevent, him
from collecting his debt.

(B) (Nev. 546.) Any creditor of the husband may oppose such
application and may show that it is made for the purpose of
defrauding such creditor, and preventing him from collecting his
debt, or will occasion such result ; and if it shall so appear to the
court, the application shall be denied. On the hearing, witnesses
may be examined on behalf of either party. . .

§ 32. HEARING OF APPLICATION .

( A ) ( Cal. C. C. P. 1816 ; Id. 3891 ; Mont. C. C. P. 2294. ) On
the day named in the notice, or on such other day to which the hear.
ing may be postponed by the court, the applicant must make prouf
of publication of the notice [ in § 28] required, and the issues
of fact joined, if any, must be tried as in other cases ; if no issues
are joined, the court must hear the proofs of the applicant, and find
the facts in accordance therewith.

( B ) ( Nev. 546. ) 2 ... On the day named in the notice, or at

such future time as the court may appoint, on filing proof of publica
tion, the court shall proceed to examine the applicant, on oath, as
to the reasons which induce her to make the application ; and if it
appear to the court that a proper case exists, it shall make an order,
which shall be entered on the minutes, that the applicant be author
ized and empowered to carry on, in her own name and on her own
account, the business, trade, profession, or art named in tthe notice ;
but the insolvency of the husband apart from other causes tending
to prevent his supporting his family, shall not be deemed to be suffi
cient cause for granting this application. .

33. FORM OF DECREE .

(Cal. C. C. P. 1817 ; Id . 3892 ; Mont. C. C. P. 2294* .) If the facts
found sustain the petition, the court must render judgment, author
izing the applicant to carry on, in her own name and on her own
account, the business 1 [ specified ] in the notice and petition,
1 Insert : " trade or profession ." ' - Mont.
$$ 34, 35 COMPARATIVE CODE . 24

$ 34. OATH OF APPLICANT - RECORD OF DECREE .

(A) (Cal. C. C. P. 1818 ; Id . 3893 ; Mont. C. C. P. 2295.) The sole
trader must make and file with the clerk of the court an affidavit, in
the following form :
“ I, A B, do, 1 [in the presence of Almighty God) , solemnly swear
that this application was made in good faith, for the purpose of
enabling me to support myself and any dependent, such as husband,
parent, sister, child, or the like, naming them, if any, and not with
any view to defraud, delay, or hinder any creditor or creditors of
my husband ; 2[ and that of the moneys so to be used by me in
business, not more than five hundred dollars have come either di
rectly or indirectly from my husband. So help me God . ' ' ]
A certified copy of the 3 [ decree ] with this oath indorsed thereon ,
must be recorded in the office of the 4 [ recor r ) of the county where
the business is to be carried on, in a book to be kept for that pur .
pose .

1 Omitted . - Mont.
2 Omitted . - Mont.
3 judgment." ' - Mont.
4 " county clerk .''-Mont.
6 " trade or profession. " ' -Mont.

(B) (Nev. 546*.) .... Before making the order, the court or
judge shall administer to the applicant the following oath :
“ I , A. B., do, in the presence of Almighty God, truly and solemnly
swear, that this application is made in good faith, for the purpose
of enabling me to support myself and my children (if the applicant
have minor children ), and not with any view to defraud, delay, or
hinder any creditor or creditors of my husband ; and that of the
moneye so to be used in said business, not more than five hundred
dollars has come, either directly or indirectly, from my husband.
So help me God. ”
A certified copy of such order, with the said oath indorsed thereon ,
shall be recorded in the office of the recorder of the county where
the business is to be carried on, in a book to be kept for such pur.
poses.

$ 35. RIGHTS AND LIABILITIES OF SOLE TRADER .

( A) ( Cal. C. C. P. 1819 ; Id. 3894 ; Mont. C. C. P. 2296.) When
the judgment is made and entered, and a copy thereof, with the
affidavit provided for in [ $ 34] duly recorded, the person therein
ramed is entitled to carry on the business specified, in her own name,
and the property, revenues, moneys, and credit so by her invested,
and the profits thereof, belong exclusively to her, and are not liable
for any debts of her husband ; and she thereafter has all the priv
ileges of and is liable to all legal processes provided for debtors and
creditors, and may sue and be sued alone, without being joined with
25 COMPARATIVE CODE. 88 35-37

her husband; provided , however, that she shall not be at liberty to

carry on said business in any other county than that named in the
1notice provided for in [ $ 28) , until she has recorded in such other
county a copy of said judgment and affidavit.
1 Insert : " published . " ' - Id .

(B) (Nev. 547.) After the order has been duly made and
recorded, as provided in the [ 8 28, ( D) ] , the person therein named
shall be entitled to carry on such business in her own name, and
the property, revenues, moneys, and credits, so invested, shall be
long exclusively to such married woman, and shall not be liable for
any debts of her husband ; and said married woman shall be allowed
all the privileges and be liable to all legal process , now or hereafter
provided by law , against debtors and creditors, and may sue and be
sued alone, without being joined with her husband. But nothing con
tained in this act shall be deemed to authorize a married woman to
carry on business in her own name when the same is managed or
superintended by her husband.

36. MAINTENANCE OF CHILDREN OF SOLE TRADERS.

(A) ( Cal. C. C. P. 1820 ; Id. 3895 ; Mont. C. C. P. 2297 * . ) A mrar
ried woman who is adjudged a sole trader is responsible and liable
for the maintenance of her minor children .

(B) (Nev. 548.) Any married woman availing herself of the

benefit of this act, shall be responsible for the maintenance of her
ehildren .

37. LIABILITY OF HUSBAND OF SOLE TRADER .

( A) ( Cal. C. C. P. 1821 ; Id . 3896 ; Mont. C. C. P. 2297*.) The
husband as a sole trader is not liable for any debts contracted by
her in the course of her sole trader's business, unless contracted
upon his written consent ; 1 but he must not manage or superintend
for his wife any business, trade, or profession authorized by this
chapter, or act as her agent therein. In case he does so act, the
property of such sole trader is liable for his debts.
1 Balance of section omitted .-- Cal.; Id .

(B) (Nev. 549.) The husband of the wife availing herself of

the benefit of this act shall not be responsible for any debts con
tracted by her in the course of the said business, without the spe
cial consent of her husband, given in writing ; nor shall his sepa.
rate property be taken on execution for any debts contracted by
her .
8 38 COMPARATIVE CODE . 26

TITLE II. EFFECT OF MARRIAGE ON PROPERTY.

CHAPTER ] . NATURE OF OWNERSHIP OF PROPERTY BY
MARRIED PERSONS,

$ 38. SEPARATE PROPERTY DEFINED .

(A ) ( Ar. 3102. ) All property, both real and personal, of the hus
band, owned or claimed by him before marriage, and that acquired
afterward by gift, devise or descent, as also the rents and profits
of the same, shall be his separate property. All property, both real
and personal, of the wife, owned or claimed by her before marriage,
and that acquired afterward by gift, devise or descent, shall be the
separate property of the wife.

(B) ( Cal. Const., art. 20, sec. 8.) All property, real and personal,
owned by either husband or wife before marriage, and that acquired
by either of them afterward by gift, devise, or descent, shall be their
separate property.

( C) ( Cal. C. C. 163 ; Id . 2052; Nev . 510*.) All property owned

by the husband before marriage, and that acquired afterward by
gift, bequest, devise, or descent, 1 (with the rents, issues, and profits
thereof,] is his separate property.
1 Omitted.-Id

( D) ( Cal. C. C. 162 ; Nev. 510*.) All property of the wife, owned

by her before marriage, and that acquired afterward by gift, be
quest, devise, or descent, with the rents, issues, and profits thereof,
is her separate property,1 The wife may, without the consent of her
husband, convey her separate property.
1 Balance of section omitted . - Nev .

(E) (Id. L. 1903, p. 345.) All property of the wife owned hy

bier before marriage, and that acquired afterward by gift, bequest or
descent, or that which she shall acquire with the proceeds of her
separate property, shall remain her sole and separate property, to
the same extent and with the same effect as the property of a hus
band similarly acquired.
(F) (Mont. C. C. 220. ) All the property of the wife owned before
her marriage, and that acquired afterward, is her separate property.
The wife may, without the conseut of her husband, convey her sep
arate property or execute a power of attorney for the conveyance
thereof.

( G) ( Nev. Const., art. IV, sec. 31. ) All property, both real and
personal, of the wife, owned or claimed by her before marriage, and
27 COMPARATIVE CODE. 88 38, 39

that acquired afterward by gift, devise, or descent, shall be her sep

arate property ; and laws shall be passed more clearly defining the
rights of the wife in relation, as well to her separate property as
to that held in common with her husband. Laws shall also be passed
providing for the registration of the wife's separate property.

(H) (Utah Const., art. XXII, sec. 2 ; Utah, 1198.) Real and per
sonal estate of every female acquired before nrarriage, and all prop
erty to which she may afterward become entitled by purchase, gift,
grant, inheritance or devise, shall be and remain the estate and prop
erty of such female, and shall not be liable for the debts, obligations
or engagements of her husband, and may be conveyed, devised or
bequeathed by her as if she were unmarried.

(I) (Wash. 4488. ) Property and pecuniary rights owned by the

husband before marriage, and that acquired by him afterward by
gift, bequest, devise or descent, with the rents, issues, and profits
thereof, shall not be subject to the debts or contracts of his wife,
and he may manage, lease, sell, convey, encumber, or devise, by will,
such property without the wife joining in such management, aliena
tion, or encumbrance, as fully and to the same effect as though he
were unmarried .

(J ) (Wash. 4489.) The property and pecuniary rights of every

married woman at the time of her marriage, or afterward acquired
by gift, devise, or inheritance, with the rents, issues, and profits
thereof, shall not be subject to the debts or contracts of her hus
band, and she may manage, lease, sell, convey, encumber or devise
by will such property, to the same extent and in the same manner
that her husband can, property belonging to him.

(K) (Wy. 2972) . All the property, both real and personal, be
longing to any married woman as her sole and separate property,
or which any woman hereafter married owns at the time of her
marriage, or which any married woman during coverture acquires in
good faith from any person other than her husband , by descent or
otherwise, together with all the rents, issues, increase and profits
thereof, shall, notwithstanding her marriage, be and remain during
coverture, her sole and separate property, under her sole control,
and be held, owned, possessed and enjoyed by her the same as
though she were sole and unmarried , and shall not be subject to the
disposal , control, or interference of her husband , and shall be ex
empt from execution or attachment for the debts of her husband.

§ 39. EARNINGS OF WIFE ALSO SEPARATE PROPERTY .

( A ) ( Ar. 3103 ; Cal. C. C. 169 ; Id. 2058 ; Mont. C. C. 224 ; Nev.
523 ; Wash . 4494.) The earnings and accumulations of the wife, and
$ 8 39, 40 COMPARATIVE CODE . 28

of her minor children living with her or in her custody, while she
1 [ is living] separate from her husband, are the separate property of
the wife.
1 " she has lived or may live. " - Ar.

( B ) (Mont. C. C. 225.) All work and labor performed by a mar.

ried woman for a person other than her husband and children shall,
unless there is a written agreement on her part to the contrary, be pre
sumed to be performed on her separate account.

(C) (Nev. 524.) When the husband has allowed the wife to ap
propriate to her own use her earnings, the same, with the issues and
profits thereof, is deemed a gift from him to her, and is, with such
issues and profits, her separate property.

(D) (Or. 31 ; Wash . 4493.) A wife may receive the wages of

her personal labor, and maintain an action therefor in her own name,
and hold the same in her own right, and she may prosecute and de
fend all actions at law 1 [or in equity,] for the preservation and pro.
tection of her rights and property as if unmarried.
1 Omitted . - Wash .

(E) (Utah, 1201.) A wife may receive the wages for her per.
sonal labor, and maintain an action therefor in her own name, and
bold the same in her own right, and may prosecute and defend all
actions for the preservation and protection of her rights and prop
erty as if unmarried. There shall be no right of recovery by the
husband on account of personal injury or wrong to his wife, or for
expenses connected therewith, but the wife may recover against a
third person for such injury or wrong as if unmarried, and such re
covery shall include medical treatment and other expenses paid or
assumed by the husband.

( F) (Wy. 2976.) Any married woman may carry on any trado

or business and perform any labor or services on her sole and sepa
rate account, and the earnings of any married woman from her trade,
business, labor, or services, shall be her whole and separate prop
erty, and may be used and intrusted by her in her own name, and
she may sue and be sued as if sole in regard to her trade, business,
labor, services and earnings, and her property acquired by trade,
husiness, services and earnings, and the proceeds thereof, may be
taken on any execution against her, except where the same shall be
exempt under the exemption laws of the state.

$ 40. COMMUNITY PROPERTY DEFINED .

(A) (Ar. 3104. ) All property acquired by either husband or
 E
RATIV
29 COMPA CODE . § 40

wife during the marriage, except that which is acquired by gift, de

vise, or descent, or earned by the wife and her minor children,
while she has lived, or may live, separate and apart from her hus
band, shall be deemed the common property of the husband and wife,
and during the coverture may be disposed of by the husband only ;
provided, that the wife joins in all deeds or mortgages to real es
tate .

(B) (Cal. C. C. 687.) Community property is property acquired

by husband and wife, or either, during marriage, when not acquired
as the separate property of either,

(C) ( Cal. C. C. 164.* ) All other property acquired after marriage

by either husband or wife, or both, is community property ; but
whenever any property is conveyed to a married woman by an in
strument in writing, the presumption is that the title is thereby
vested in her as her separate property. And in case the conveyance
be to such married woman and to her husband, or to her and any
other person, the presumption is that the married woman takes the
part conveyed to her, as tenant in common, unless a different in
tention is expressed in the instrument, and the presumption in this
section mentioned is conclusive in favor of a purchaser or encum
brancer in good faith and for a valuable consideration.

( D) (Id. 2053.) All other property acquired after marriage by

either husband or wife, including the rents and profits of the sepa
rate property of the husband or wife, is community property ; un
less by the instrument by which any such property is acquired by
the wife it is provided that the rents and profits thereof be applied
to her sole and separate use ; in which case the management and dis.
posal of such rents and profits belong to the wife, and they are not
liable for the debts of the husband .

( E) (Nev. 511.) All other property acquired, after marriage, by

either husband or wife, or both, except as provided in [ 8 38] is com
munity property.

( F) (Utah, 2826. ) One -third in value of all the legal or equi.

table estates in real property possessed by the husband at any time
during the marriage, and to which the wife had made no relinquish
ment of her rights, shall be set apart as her property in fee simple
it she survive him ; provided, that the wife shall not be entitled
to any interest under the provisions of this section in any such es .
tate of which the husband has made a conveyance when the wife,
at the time of the conveyance, is not or never has been a resident
of the territory or state of Utah. Property distributed under the
provisions of this section shall be free from all debts of the decedent,
$ 8 40, 41 COMPARATIVE CODE. 30

except those secured by mechanics ' or laborers ' liens for work or
labor done or material furnished exclusively for the improvement
of the same, and except those created for the purchase thereof and
for taxes levied thereon. The value of such part of the homestead
as may be set aside to the widow shall be deducted from the dis
tributive share, provided for her in this section. In cases wherein
only the heirs, devisees, and legatees of the decedent are interested,
the property secured to the widow by this section may be set off by
the court in due process of administration.

(G) (Wash. 4490*.) Property, not acquired or owned as pre

scribed in [ $ 38) , acquired after marriage by either husband or wife,
or both, is community property.

CHAPTER II. DOWER AND CURTESY.

§ 41. WHEN , AND WHEN NOT, ALLOWED .
(A) ( Cal. C. C. 173 ; Id. 2062 ; Mont. C. C. 257 ; Nev. 516 ; Wash .
4495.) No estate is allowed the husband as tenant by curtesy upon
the death of his wife, 1 nor is any estate in dower allotted to the
wife upon the death of her husband.
1 Balance omitted. -Mont.

(B ) ( Mont. C. C. 228. ) A widow shall be endowed of the third

part of all lands whereof her husband was seised of an estate of in
heritance at any time during the marriage, unless the same shall
have been relinquished in legal form. . . . . Equitable estates shall
be subject to the widow's dower, and all real estate of every de
scription, contracted for by the husband during his lifetime, the
title to which may be completed after his decease.

( C) (Mont. C. C. 232. ) A widow shall not be endowed of lands

conveyed to her husband by way of mortgage, unless he shall have
acquired an absolute estate during the marriage.

( D) ( Or. 5535. ) A woman being an alien shall not on that ac

count be barred of her dower ; and any woman residing out of the
state shall be entitled to dower of the lands of her deceased husband
lying in this state of which her husband died seised, and the same
inay be assigned to her, or recovered by her, in like manner as if
she and her deceased husband had been residents within the state
at the time of his

( E ) (Or. 5515. ) The widow of every deceased person shall be

entitled to dower, or the use , during her natural life, of one-half
 31 COMPARATIVE CODE. 88 41, 42

part of all the lands whereof her husband was seised of an estate
of inheritance at any time during the marriage, unless she is law.
fully barred thereof.

(F) ( Or. 5544.) When any man and his wife shall be seised in her
right of any estate of inheritance in lands, the husband shall, on the
death of his wife, hold the lands for his life, as tenant thereof by
the curtesy, although such husband and wife may not have had is
sue born alive.

( G) ( Utah , 2832.) There shall be neither dower nor curtesy in

this state.

( H ) (Wash . 4622.) The provisions of ( $ 739 ] , as to the inherit

ance of the husband and wife from each other, apply only to the
separate property of the decedents, and take the place of tenancy in
dower and tenancy by curtesy, which are hereby abolished .

42. MANNER OF ASSIGNMENT OF DOWER .

(A) (Mont. C. C. P. 3070.) It is the duty of the heirs at law, or
other persons in possession or having the next estate of freehold,
or inheritance in any lands or estate of which the widow is entitled
to dower, to lay off and assign such dower as soon as practicable
after the death of the husband of such widow.

( B) ( Mont. C. C. P. 3071. ) If such heirs or other person do not

within one month next after the decease of the husband, assign and
set over to the widow to her satisfaction , her dower in and to all
lands , tenements and hereditaments, whereof by law she is or may be
dowable, then such widow may sue for and recover the same in the
manner prescribed [in § 42 ( C ) to ( H ) ] against such heirs or other
person having the next immediate estate of freehold or inheritance,
or tenant in possession , or other person or persons claiming rights or
possession in said estate.

( C ) (Mont. C. C. P. 3072.) Every widow claiming dower may

file her complaint in the district court of the proper county, against
the parties aforesaid , stating their names, if known, setting forth the
rature of her claim and particularly specifying the lands, tenements
and hereditaments in which she claims dower and praying that the
same may be allowed to her, whereupon the clerk must issue a sum
mons and the pleadings and proceedings must be as in other cases.

( D ) (Mont. C. C. P. 3073.) Where the right of the widow to

dower is contested, the court must try the case or direct an issue
for that purpose , as the circumstances may require.
§ 42 COMPARATIVE CODE . 32

(E) (Mont. C. C. P. 3074. ) When any of the parties defendant

are minors and without guardians the court must appoint guardians
ad litem for such minors.

(F) (Mont. C. C. P. 3075.) When the court adjudges that the

widow is entitled to dower, it must be so entered of record, together
with a description of the land out of which she is to be endowed .

(G) (Mont. C. C. P. 3076.) The court must thereupon appoint

three commissioners not connected with any of the parties by con
sanguinity or affinity, and entirely disinterested, each of whom must
take the following oath : “ I do solemnly swear that I will fairly
and impartially allot and set off to A. B., widow of C. D., her dower
out of the lands and tenements described in the order of the court
for that purpose, if the same can be made consistent with the inter
est of the estate, according to the best of my judgment, so help me
God ' ' ; which must be filed in the proceedings.
(H) (Mont. C. C. P. 3077.) The commissioners, after being so
sworn , must, as soon as may be, set off the dower by metes and
bounds, according to the quality and quantity of all the lands, tene
ments and hereditaments described in said order, and make return
in writing with the amount of their charges and expenses to the
court, and the same being accepted and recorded, and a certified
copy thereof recorded in the office of the county clerk of the county
where the lands are situated, remain fixed and certain unless such
confirmation is set aside and reversed on appeal. The costs of such
proceedings may be awarded in the discretion of the court.

(I) (Mont. C. C. P. 3078.) If the commissioners report that the

lands or other estate is not susceptible of division without great in
jury thereto, a jury must be impaneled to inquire of the yearly value
of the widow's dower therein, and assess the same accordingly.

( J ) (Mont. C. C. P. 3079.) The court must thereupon render a

judgment that there be paid to such widow as an allowance in lieu
of dower, on a day therein named, the sum so assessed as the yearly
value of her dower and the like sum on the same day in every year
thereafter during her natural life. The widow may at any time
consent to a gross sum to be paid to her for her dower in her de
ceased husband's estate, or the jury may find in lieu of a yearly
allowance a gross sum to be paid to the widow , and the court may
award a judgment for the same.

(K) (Mont. C. C. P. 3081.) In all cases where the report of the

commissioners assigning dower is approved, the court must forthwith
33 COMPARATIVE CODE. $$ 42, 43

cause the widow to have possession by a writ directed to the sheriff

for that purpose.

( L ) (Or. 5522. ) When a widow is entitled to dower in the lands

of which her husband died seised, and her right to dower is not dis
puted by the heirs or devisees, or any person claiming under them or
either of them, it may be assigned to her in whatever counties the
lands may lie, by the county court of the county in which the es
tate of the husband is settled , upon application of the widow or any
other person interested in the lands ; notice of which application
shall be given to such heirs, devisees, or other persons, in such man
ner as the county court shall direct.

( M ) ( Or. 5523.) For the purpose of assigning such dower, the

county court shall direct a warrant to issue to three discreet and
disinterested persons, authorizing and requiring them to set off the
dower by metes and bounds, when it can be done without injury to
the whole estate .

(N) ( Or. 5524.) The commissioners shall be sworn by a judge

of any court of record or a justice of the peace faithfully to dis
charge their duties, and shall, as soon as may be, set off the dower
according to the command of such warrant, and make return of their
doings, with an account of their charges and expenses, in writing,
to the county court ; and the same being accepted and recorded ,
and an attested copy thereof filed in the office of the county clerk
of the county where the lands are situated, the dower shall remain
fixed and certain, unless such confirmation be set aside or reversed ;
costs on appeal, and one-half of the costs of such proceedings, shall
be paid by the widow, and the other half by the adverse party .

(0) (Or, 5525.) When the estate out of which dower is to be

assigned consists of a mill or other tenement which cannot be di.
vided without damage to the whole, and in all cases where the es
tate cannot be divided by metes and bounds, the dower may be as
signed out of the rents, issues, and profits thereof, to be had and
received by the widow , as a tenant in common with the other own
ers of the estate ,

43. ADMEASUREMENT OF DOWER AFTER JUDGMENT.

( Or. 341. ) In an action to recover the possession of real prop
erty by a tenant in dower, or his successor in interest, if such estate
in dower has not been admeasured before the commencement of the
action, the plaintiff shall not have execution to deliver the possession
thereof until the same be admeasured, as follows:
Comparative Code - 3
$$ 44, 45 COMPARATIVE CODE. 34

1. At any time after the entry of judgment in favor of the plain.

tiff, he may, upon notice to the adverse party, move the court for
the appointment of referees to admeasure the dower out of the real
property, of which the possession is recovered by the action. The
court shall allow such motion, unless it appear probable on the
hearing that a partition of such property cannot be made without
prejudice to the interests of the other owners. In the latter case
the court shall disallow the motion and thereafter the plaintiff shall
only proceed for partition or sale of such real property as provided
in (other cases) ;
2. If the court allow the motion , thereafter the proceedings shall
be conducted as provided in such title. At any time after the
confirmation of the report of the referees, the plaintiff may have
execution for the delivery of the possession of the property according
to the admeasurement thereof, and for the damages recovered, if
any, for withholding the same, if such damages remain unsatisfied ;
3. If the motion for admeasurement be made at the term at
wbich judgment was given , the notice thereof shall be served on
the adverse party at such time as the court, by general rule or special
order, may prescribe.

§ 44. DOWER IN LANDS ALIENED DURING LIFETIME .

(Mont. C. C. 238 ; Or. 5521. ) When a .widow shall be entitled to
dower out of any land which shall have been aliened by the hus
band in his lifetime, and such lands shall have been enhanced in
value after the alienation , such lands shall have been estimated in
setting forth the widow's dower according to their value at the time
they were so aliened .

§ 45. HOW DOWER BARRED .

(A) (Mont. C. C. 228 * .) . . When a wife joins with her hus
band in the execution of any conveyance of land, she thereby re
linquishes her inchoate right, and shall not thereafter have dower
therein, except in case of sale under mortgage signed and executed
by herself and husband, she shall have a right of dower in the
surplus.

(B) (Or. 5527.) A married woman may bar her right of dower
in any estate conveyed by her husband, or by his guardian, if he be
a minor, by joining in the deed of conveyance, and acknowledging
the same as prescribed [ by law) or by joining with her husband in a
subsequent deed acknowledged in like manner.
( C) ( Mont. C. C. 239 ; Or. 5528. ) A woman may also be barred
of her dower in all the lands of her husband by a jointure settled on
35 COMPARATIVE CODE. 88 45, 46

her with her assent before the marriage ; provided, that such jointure
consists of a freehold estate in lands, for the life of the wife at
least, to take effect in possession or profit immediately on the death
of her husband.

(D) (Mont. C. C. 240 ; Or. 5529. ) Such assent shall be expressed,

if the woman be of the full age of twenty-one, by her becoming a
party to the conveyance by which it is settled , and if she be under
that age, by her joining with ber father or guardian in such con
veyance.

( E) ( Or. 5530.) Any pecuniary provision that shall be made

for the benefit of an intended wife, and in lieu of dower, shall, if
assented to as provided inthe ( 8 45, (D) ] , bar her right of dower in
all the lands of the husband.

( F) (Or. 5542. ) When the widow shall have accepted an assign

ment of dower in satisfaction of her claim upon all the lands of her
husband, it shall be a bar to any further claim of dower against the
heir of such husband, or any grantee of such heir, or any grantee
of such husband, unless such widow shall have been lawfully
evicted of the lands so assigned as aforesaid .

46 . DAMAGES FOR WITHHOLDING - HOW ESTIMATED .

( A) (Mont. C. C. P. 3080* ; Or. 5249.) Whenever, in any action
brought for the purpose, a widow shall recover her dower in lands
of which her husband died seised , she 1 [ shall be entitled also to ]
recover damages for the withholding of such dower.
1 " may also . " ' - Mont.

(B) (Mont. C. C. P. 3080* ; Or. 5539.) Such damage shall be 1 [one

half] of the annual value of the mesne profits of the lands in which
she shall so recover her dower, to be estimated in a suit against
the heirs of her husband from the time of his death, and in suits
against other persons from the time of demanding her dower of such
persons.
1 " one-third part.''-Mont.

( C) (Mont. C. C. P. 3080* ; Or. 5540.) Such damages shall not be

estimated for the use of any permanent improvements made after the
death of her husband by his heirs, or by any other person claiming
title to such lands.

(D) (Or. 5541.) When a widow shall recover her dower in any
lands aliened by the heir of her husband, she shall be entitled to
recover of such heir, in a civil action, her damages for withholding
$$ 46, 47 COMPARATIVE CODE. 36

such dower from the time of the death of her husband to the time
of the alienation by the heir, not exceeding six years in the whole ;
and the amount which she shall be entitled to recover from such
heir shall be deducted from the amount she would otherwise be en
titled to recover from such grantee; and any amount recovered as
damages from such grantee shall be deducted from the sum she
would otherwise be entitled to recover from such heir,

( E) (Or. 5543. ) When a widow not having a right of dower,

shall , during the infancy of the heirs of the husband , or any of them,
or of any person entitled to the lands, recover dower by the default
or collusion of the guardian of such infant heirs or such other per
son, such heir or other person so entitled shall not be prejudiced
thereby, but when he comes of full age he shall have an action
against such widow to recover the lands so wrongfully awarded for
dower.

§ 47. ELECTION — WHEN NECESSARY .

(A) (Mont. C. C. 234.) Every device or bequest shall bar a
widow's dower in lands, or her share in personal estate, unless other.
wise expressed in the will; but she may elect whether she will take
such devise or bequest, or whether she will renounce the benefit of
such devise or bequest, and take her dower in the lands and her
share in the personal estate.

( B ) (Mont. C. C. 235.) When a woman is entitled to an election

[ of her dower ) she shall be deemed to have taken such devise,
unless, within one year after the authentication or probate of the
will, she shall deliver or transmit to the district court of the proper
county a written renunciation, which may be in the following form,
to wit : " I, A B, widow of C D, late of the county of - state
of Montana, do hereby renounce and quit all claims to the benefit
of any bequest or devise mrade to me by the late will and testament
of my said deceased husband, which has been exhibited and proved
according to law ( or otherwise, as the case may be ), and I do elect
to take in lieu thereof my dower, or legal share of the estate of my
said husband," which said letter of renunciation shall be filed in the
office of the clerk of the district court, and shall operate as a com
plete bar against any claim which such widow may afterward set up
to any provision which may have been thus made for her in the will
of any testator, in lieu of dower ; and by thus renouncing all claims
as aforesaid, such widow shall thereupon be entitled to dower in the
lands or share in the personal estate of her husband.

(C) (Mort. C. C. 236.) If a husband die, leaving a widow , but

no children nor descendants of children , such widow may if she
37 COMPARATIVE CODE. $$ 47, 48

elect, have in lieu of her dower in the estate of which her husband
died seised , whether the same shall have been assigned or not, ab
solutely and in her own right, as if she were sole, one-half of all
the real estate which shall remain after the payment of all just
debts and claims against the deceased husband ; provided, that, in
case dower in such estate shall have been already assigned , she shall
make such new election within two nronths after being notified of
the payment of such claims and debts.

( D) (Or. 5531.) If any such jointure or pecuniary provision

be made before marriage, and without the assent of the intended
wife, or if it be made after marriage, she shall make her election
after the death of her husband whether she will take such jointure
or pecuniary provision or be endowed with the lands of her husband,
but she shall not be entitled to both.

( E ) (Or. 5532.) If any lands be devised to a woman, or other

provision be made for her in the will of her husband, she shall make
her election whether she will take the lands so devised or the
provisions so made, or whether she will be endowed by the lands of
her husband ; but she shall not be entitled to both unless it plainly
appears by the will to have been so intended by the testator.

( F) ( Or. 5533. ) When a widow shall be entitled to an election

under either of the [ $ 47, (D ) , ( E ) ] she shall be deemed to have
elected to take such jointure, devise, or other provision unless within
one year after the death of her husband she shall commence pro
ceedings for the assignment or recovery of her dower.

(G) (Mont. C. C. 237 ; Or. 5516. ) If a husband seised of an

estate of inheritance in lands exchange them for other lands, his
widow shall not have a dower of both, but shall make her election1
to be endowed of the lands given or of those taken in exchange ;
and if such election be not evinced by the commencement of pro
ceedings 2 [ to recover ] her dower of the lands given in exchange
within one year after the death of her husband, she shall be deemed
to have elected to take her dower of the lands received in exchange.
1 Insert : " as herein before provided .''-Mont.
2 for the recovery and assignment of.''- Mont.

8 48. EFFECT OF MORTGAGE .

(A) (Mont. C. 229 ; Or. 5517.) When a person seised of an
estate of inheritance in lands shall have executed a mortgage of
such estate beforel marriage, his widow shall2 be entitled to dower
$$ 48, 49 COMPARATIVE CODE. 38

out of the lands mortgaged, as against every person except the

mortgagee and those claiming under him .
1 Insert : " or after . " - Mont.
2 Insert : " nevertheless .''- Mont.

( B ) (Mont. C. C. 230 ; Or. 5518. ) When a husband shall purchase

lands during coverture, and shall 1 [ at the same time mortgage his
estate in such lands) to secure the payment of the purchase money,2
his widow shall not be entitled to dower out of such lands as
against the mortgagee or those claiming under him , although she
shall not have united in such mortgage ; but she shall be entitled
to dower as against all other persons.
1 " mortgage such lands. " ' - Mont.
2 Insert : " thereof. " ' - Mont.

( C ) ( Mont. C. C. 231. ) When , in the cases specified in the

[ $ 48, ( A) , (B) ] the mortgagee, or those claiming under him ,
shall, after the death of such husband, cause the land mortgaged to
be sold, either under a power contained in the mortgage or by
virtue of a judgment or decree of a court, and any surplus shall
remain after the payment of the moneys due on such mortgage, and
the costs and charges of sale, such widow shall be entitled to the
interest or income of one-third part of such surplus for life as her
dower,

( D) (Or. 5519. ) When, in either of the cases mentioned in the

sections [ 5517, 5518] ,1 or in case of a mortgage in which she
shall have joined with her husband, the mortgagee, or those claiming
under hinr, shall, after the death of her husband , cause the mort
gaged premises to be sold by virtue of such mortgage, and if any
surplus shall remain after payment of the moneys due thereon , and
the costs and charges of the sale, such widow shall be entitled to
the interest or income of one-half part of such surplus, for her life,
as dower ,

1 See supra, ( A ) , ( B ) .

( E) ( Or. 5520. ) If, in either of the cases above specified, the

heir or other person claiming under the husband shall pay and sat
isfy the mortgage, the amount so paid shall be deducted from the
value of the land, and the widow shall have set out for her, for her
dower in the mortgaged lands, the value of one-half of the residue
after such deduction,

§ 49. RIGHT OF WIDOW TO OCCUPY DWELLING -HOUSE .

(A) ( Or. 5526.) When a widow is entitled to dower in the lands
of which her husband died seised, she may continue to occupy the
39 COMPARATIVE CODE. 88 49-52

same, with the children or other heirs of the deceased , or may re

ceive one- half part of the rents, issues, and profits thereof, so long
as the heirs or others interested do not object, without having the
dower assigned .

(B ) ( Or. 5537. ) A widow may remain in the dwelling -house of

her husband one year after his death without being chargeable with
rent therefor, and shall have her reasonable sustenance out of the
estate for one year.

& 50. WIDOW LIABLE FOR WASTE .

( Mont. C. C. 242 ; Or. 5536.) No woman 1 [who shall be] endowed
of any lands shall commit or suffer 2[any ] waste on the same; but
3 [ every woman so endowed ) shall maintain the houses and tene
ments, with the fences and appurtenances, in good repair, and shall
be liable to the person having the next immediate 4 inheritance
therein for all damages occasioned by any waste committed or suf
fered by her.
1 Omitted . - Mont.
2 Omitted.- Mont.
3 " she .''- Mont.
4 Insert : " estate of.''-- Mont.

§ 51. WHEN WIDOW MAY BE RE -ENDOWED .

(Mont. C. C. 241 ; Or. 5534.) If a woman be lawfully evicted of
lands assigned to her as dower or settled upon her as jointure, or
be deprived of the provision made for her by the will or otherwise,
in lieu of dower, she may be endowed anew in like manner as if
such assignment, jointure, or other provision had not been made.

CHAPTER III. THE HOMESTEAD .

$ 52. IN GENERAL.
(A)(Ar. 731.) The homestead of a family shall not be sold and
conveyed by the owner, if a married man , without the consent of
bis wife. Such consent shall be evidenced by the wife joining in
the conveyance, and signing her name thereto ; and also by her sep
arate acknowledgment thereof, taken and certified to before the
proper officer.

(B ) ( Ar. 2716. A married man shall not sell or lease the home
stead, or create any lien thereon, without being joined by his wife.

( C) ( Cal. C. C. 1242 ; Id . 2475 ; Mont. 1675 ; Wash . 5219. ) The

homestead of a married person cannot be conveyed or encumbered
 § 52 COMPARATIVE CODE. 40

unless the instrument by which it is conveyed or encumbered is ex

ecuted and acknowledged by both husband and wife.

( D ) (Nev. 551 * .) If the wife be not a resident of this state, her

signature and acknowledgment thereof shall not be necessary to the
validity of any mortgage or alienation of said homestead before it
becomes the homestead of the debtor.

( E) ( Utah, 1155.) If the owner is married, no conveyance or

encumbrance of, or contract to convey or encumber, the premises
selected and recorded as a homestead prior to the time of such con
veyance , encumbrance, or contract, is valid unless both the husband
and wife join in the execution of the same.

(F) (Wash. 5254.) [ The law of homesteads) shall not be so

construed as to prevent any single man, or married man , his wife join
ing him, from waiving, by agreement in writing, the benefit of this
chapter : Provided, that any agreement of waiver made by a husband
and wife shall be witnessed and acknowledged as required in case of
a deed conveying real estate; And provided also, that nothing (in
the law of homesteads) shall be construed to exempt from attachment
or execution the property, real or personal, of non -residents, or a per
son who has left or is about to leave the state with the intent to de
fraud his creditors.

(G) (Wy. 2770.) Every owner of occupant of a homestead as

established herein , may voluntarily sell, mortgage or otherwise dis
pose of, or encumber the same; provided, that every such sale, mort
gage, disposal or encumbrance shall be absolutely void, unless the
wife of the owner or occupant of such homestead, if he have any,
shall, separate and apart from her said husband, freely and volun
tarily sign and acknowledge the instrument of writing, conveying,
mortgaging, disposing of, or encumbering such homestead, and the
officer taking her acknowledgment shall fully apprise her of her
right and the effect of signing and acknowledging such instrument;
provided, that no such deed or other instrument shall be construed
as releasing the right of homestead, unless the same shall contain
a clause expressly releasing or waiving such right. And in such case
the certificate of acknowledgment shall contain a clause substantially
as follows: " Including the release and waiver of the right of home
stead," or other words which will expressly show that the parties
executing the deed or other instrument intended to release such
right. And no release or waiver of the right of homestead by the
husband shall bind the wife unless she join in such release or waiver.
41 COMPARATIVE CODE. § 53

§ 53. CONVEYANCE WHEN EITHER SPOUSE IS INSANE .

( A ) (Cal. L. 1874, p. 582, sec. 1 ; Wash . 5239. ) In case of a
homestead, if either the husband or wife shall become hopelessly in
sane, upon application of the husband or wife not insane to the
superior court of the county in which the homestead is situated, and
upon due proof of such insanity, the court may make an order per .
mitting the husband or wife not insane to sell and convey or mort
gage such homestead.

(B) (Cal. L. 1874, p. 582, sec. 2 ; Wash . 5240.) Notice of the ap

plication for such order shall be given by publication of the same
in a newspaper published in the county in which such homestead is
situated, if there be a newspaper published therein, once each week for
three successive weeks prior to the hearing of such application, and
a copy of such notice shall be served upon the nearest male relative of
such insane husband or wife, resident in this state, at least three
weeks prior to such application, and in case there be no such male
relative known to the applicant, a copy of such notice shall be served
upon the 1 [prosecuting attorney) of the county in which such home
stead is situated; and it is hereby made the duty of such 2 [prosecut
ing attorney ) upon being served with a copy of such notice, to ap
pear in court and see that such application is made in good faith, and
that the proceedings therein are fairly conducted.
1 public administrator. " - Oal.
2 " public administrator. " -Oal.

( C) ( Cal. L. 1874, p. 582, sec. 3 ; Wash. 5241. ) Thirty days be

fore the hearing of any application under the provisions of this
( section], the applicant shall present and file in the court in which
such application is to be heard a petition for the order mentioned,
subscribed and sworn to by the applicant, setting forth the name
and age of the insane husband or wifel ; a description of the prem
ises constituting the homestead ; the value of the same ; the county
in which it is situated ; and such facts in addition to that of the
insanity of the husband or wife relating to the circumstances and
necessities of the applicant and his or her family as he or she may
rely upon in support of the petition.
1 " the number, age, and sex of the children of such insane husband and
wife .''- Cal.

(D) ( Cal. L. 1874, p. 582, sec. 4 ; Wash . 5242. ) If the court shall
make the order provided for in [ 8 53, ( A) ] , the same shall be en
tered upon the minutes of the court, and thereafter any sale, con
veyance or mortgage made in pursuance of such order shall be as
valid and effectual as if the property affected thereby was the ab
solute property of the person making such sale, conveyance or mort.
gage in fee simple.
 $ 53 COMPARATIVE CODE . 42

( E) (Cal. L. 1874, p. 582, sec. 5.) For all services rendered by

any public administrator under the provisions of [ 8 53 ] he shall
be allowed a fee not exceeding twenty dollars, to be fixed by the
court, and the same shall be taxed as costs against the person mak
ing the application for the order herein provided for.

(F) (Nev. 554.) If the wife of any owner of a homestead shall

be insane, and such owner shall desire to convey such homestead, or
any interest therein , he may petition the district court in which
such homestead may be situated for license to convey the same, and
such court, upon reasonable and not less than twenty days ' notice
of such petition to the kindred of such insane wife residing in
this state (which notice may be personal or by publication in some
newspaper in the county, or directed by the court) , may hear and
determine such petition, and may license such owner to convey such
homestead, or any interest therein, by his sole deed; which license
shall be recorded in the office where such homestead is recorded, and
thereupon such sole deed shall have the same operation as if such
wife had been sane and joined in such deed.

(G) (Nev. 555. ) On granting such license, such court may make
such special order as to the investment or disposition of the funds
derived from conveyance, as a court of chancery could do in the case
of the funds of married women.

(H) (Nev. 556.) On the hearing of such petition for license, any
of such kindred may appear and be heard in the premises, and may
appeal from any order made on the subject in the same manner pro
vided for other appeals from decrees of the district court.

( I) (Wy. 4140. ) When the wife is insane, and shall have been
insane continuously for a period of not less than one year, and is
therefore incapable of executing a deed or mortgage and relinquish
ing or conveying her right of homestead in the real property of her
husband, the husband may present his petition to the district court
of the county where he resides or where the real estate to be af
fected is situated, setting forth the facts and particularly describ
ing the real estate sought to be conveyed or mortgaged , and praying
for an order authorizing the husband, or some other person, to exe
cute a deed of conveyance or mortgage for such insane wife, and
thereby relinquish her right of homestead in said real estate.

( J ) (Wy. 4141.) The petition shall be verified by the oath of

the husband, and shall be filed in the office of the clerk of the proper
court. Notice of the filing of such petition shall be given to such
insane wife in the same manner in which notice is required to be
43 COMPARATIVE CODE . $$ 53, 54

given by service of summons, or by publication, to defendants in

civil actions. The court shall appoint some discreet person or at
torney to act as guardian for the wife so alleged to be insane, which
guardian shall ascertain as to the propriety, good faith and necessity
of the petition, and shall have power to resist such application and
subpoena witnesses and take depositions to disprove any of the mat.
ters in the petition , or show the impropriety of granting the same.
(K) (Wy. 4142.) If the court is satisfied upon the hearing that
the petition is made in good faith, and that the prayer thereof ought
to be granted, then the court shall enter a decree granting such
prayer, and authorizing some discreet and proper person to make,
execute, acknowledge and deliver, jointly with said husband, all
such conveyances or mortgages of such parcels of land as shall in
said decree be specified .

54. MANNER OF SUCCESSION - LIABILITY FOR DEBTS.

( A ) ( Ar. 1732. ) If the homestead selected by the husband and
wife, or either of them, during their coverture, was selected from the
community property, it vests, on the death of the husband or wife,
absolutely in the survivor. If the homestead was selected from the
separate property of either husband or wife, it vests, on the death
of the person from whose property it was selected, in his or her heirs,
subject to the power of the probate court to assign it for a limited
period to the family of the decedent. In either case it is not subject
to the payment of any other debt or liability contracted by or ex
isting against the husband and wife, or either of them , previous to
or at the time of the death of such husband or wife, except as pro
vided by law .

( B ) (Cal. C. C. 1265 ; Id . 2498; Wash . 5246.) From and after

the time the declaration is filed for record, the premises therein de
scribed constitute a homestead. If the selection was made by a
married person from the community property, the land, on the death
of either of the spouses, vests in the survivor, subject to no other
liability than such as exists or has been created under the provisions
of [ law ] , in other cases, upon the death of the person whose prop
erty was selected as a homestead, it shall go to his heirs or devisees,
subject to the power of the 1 [ superior] court to assign the same for
a limited period to the family of the decedent ; but in no case shall
it be held liable for the debts of the owner, except as provided [by
law .]
1 " district . " - Id .

(C) (Mont. C. C. 1703.) From and after the time the declaration
is filed for record, the premises therein described constitute a home
$ 54 COMPARATIVE CODE . 44

stead. Upon the death of the person whose property was selected
as a homestead, it shall go to his or her heirs or devisees, subject to
the use of the widow during her life, if the property selected as a
homestead, before selection belonged to the husband ; and subject
to the use of the husband during his life, if the property selected as
a homestead before the selection belonged to the wife. And in no
case shall the homestead be held liable for the debts of the owner, ex
cept as provided [ by law .]

(D) (Nev. 553. ) ' The homestead and all other property exempt
by law from sale under execution, shall, upon the death of either
spouse, be set apart by the court as the sole property of the survive
ing spouse, for his or her benefit and that of his or her legitimate
child or children ; and in the event of there being no surviving
spouse, or legitimate child or children of either, then the property
shall be subject to administration and to the payment of his or her
debts or liabilities, .... and upon the death of such unmarried per
son, the property shall descend to his or her heirs, as in other cases ,
unless disposed of by will, subject to administration and the payment
of debts and liabilities; and, provided further, that no exemption
to the surviving spouse shall be allowed in cases where the home
stead declaration has been filed upon the separate property of either
husband or wife. ...

(E) (Or. 266.) The homestead aforesaid shall be exempt from

sale on any judicial process after the death of the person entitled
thereto for the collection of any debts for which the same could not
have been sold during his lifetime, but such homestead sball de
scend as if death did not exist.

(F) (Utah, 2829. ) A homestead consisting of lands and appur

tenances not exceeding in value the sum of two thousand dollars, and
two hundred and fifty dollars additional for each minor child, to
gether with all the personal property exempt from execution, shall be
wholly exempt from the payment of the debts of the decedent, and shall
be the absolute property of the surviving husband or wife and minor
children, or of the minor children in case there be no surviving hus
band or wife, to be set apart on petition and notice, at any time
after the return of the inventory ; provided, that the homestead se
lected shall be subject to any encumbrances given for the purchase
price or by the consent of both husband and wife, and to mechanics '
liens. This section shall not be construed to prevent the disposition
by will of the homestead and exempt personal property.
(G) (Utah, 2831.) The value of such part of the homestead and
exempt personal property as may be set aside to the surviving wife
45 COMPARATIVE CODE . 88 54, 55

or husband or minor children shall be deducted from the distributive

share provided for such survivors.

(H) (Wy. 3903.) When any person dies seised of a homestead,

leaving a widow or husband, or minor children, such widow or hus
band , or minor children, shall be entitled to the homestead, but in
case there is neither widow, husband or minor children , the home
stead shall be liable for the debts of the deceased.

TITLE III. DISSOLUTION OF MARRIAGE .

$ 55. GROUNDS FOR DIVORCE . †

(A) ( Ar. L. 1903, p. 52.) A divorce from the bonds of matri
mony may be granted by the district court of the county where the
parties, or one of them , reside, on the application of the aggrieved
party, by complaint, in any of the following cases: ( 3. ) When
one of the parties has been convicted of a felony and sentenced to
imprisonment therefor in any prison ; provided, that no suit shall
be sustained because of the conviction of either party for a felony
until one year after final judgment of conviction ; and provided,
further, that the husband has not been convicted on the testimony
of the wife, nor the wife on the testimony of the husband. And
no pardon granted to either party shall take from the other the right
to sue for and procure a decree of divorce for the causes mentioned
in the subdivision. .... ( 7.) When, prior to the marriage, either
party shall have been convicted of a felony or infamous crime in any
state, territory or country, without the knowledge on the part of the
other party of such fact at the time of such marriage.

(B ) ( Cal. C. C. 92 ; Id. 2021 ; Mont. C. C. 132.) Divorces may

be granted for any of the following causes: (5. ) Habitual in.
.

temperance; ( 6.) Conviction of felony.

( C) ( Cal. C. C. 107 ; Id. 2027 ; Mont. C. C. 145.) . . Habitual

intemperance must continue for one year if it is a ground for divorce.
(D) ( Id . L, 1903 p. 332, sec. 1.) That, in addition to the causes
for divorce mentioned [supra (B) ] , a divorce may be granted when
either husband or wife has become permanently insane ; provided,
that no divorce shall be granted ( upon such a ground) , unless such
insane person shall have been duly and regularly confined in the
insane asylum of this state, or of a sister state or territory, for
at least six years next preceding the commencement of the action
* [ The only grounds here considered are those affecting persons un
der disability .]
$ 55 COMPARATIVE CODE . 46

for divorce ; nor unless it shall appear to the court that such insan
ity is permanent and incurable ; and provided, further, that no ac
tion shall be maintained ( for divorce on account of insanity ), unless
the plaintiff shall be an actual resident of this state and shall have re
sided therein for one year next preceding the commencement of such
action.

( E) (Nev. 502*.) Divorce from the bonds of matrimony may be

obtained for the following causes : .... (4. ) Conviction of
felony or infamous crime. ( 5. ) Habitual gross drunkenness, con
tracted since marriage of either party, which shall incapacitate such
party from contributing his or her share to the support of the fam
ily. ...

( F) (Or. 507.) The dissolution of the marriage contract may be

declared at the suit or the claim of the injured party in either of
the following causes: ( 3. ) Conviction of felony ; ( 4. ) Habitual
gross drunkenness contracted since nrarriage and continuing for one
year prior to the commencement of the suit ;

( G ) (Utah, 1208 ; Utah L. 1903, p. 39. ) The court may de

creo a dissolution of the marriage contract between the plaintiff and
defendant in all cases where the plaintiff, for one year next prior
to the commencement of the action, shall have been an actual and
bona fide resident of the county within the jurisdiction of the court,
for any of the following causes , to wit : .... ( 5. ) Habitual drunk
evness of defendant ; ( 6.) Conviction of defendant for felony ;
(8. ) Permanent insanity of defendant ; provided , that no di
vorce shall be granted on the grounds of insanity unless, first, the
defendant shall have been duly and regularly adjudged to be insane
by the legally constituted authorities of this state, or some other
state, at least five years prior to the commencement of the action ;
second, unless it shall appear to the satisfaction of the court, by
the testimony of competent witnesses, that the insanity of the de
fendant is incurable. In all such actions, the court shall appoint
for the defendant a guardian ad litem , who shall take such meas
ures as may be necessary and proper to protect the interests of
the defendant ; and a copy of the summons and complaint must be
duly served on the defendant in person, on his guardian ad litem ,
and on the county attorney for the county in which such action is
prosecuted; it shall be the duty of such county attorney to make
an investigation into the merits of the case , and to attend the court
upon the trial of said cause, and make such defense therein as may
be just and proper to protect the rights of the defendant, and the
interests of the state. In all such actions the court and judge
thereof shall have all the powers relative to the payment of ali
47 COMPARATIV CODE . 88 55, 56
E

mony, the distribution of property, and the custody and maintenance

of minor children, which such courts now have, or may hereafter pos
sess, in other actions for divorce. Either the plaintiff or defendant,
or legal representatives, shall, upon proper notice, be entitled to
have the defendant brought into court upon the trial, or to have an
examination of the defendant by two or more competent physicians,
to determine the mental condition of the defendant, and for such
purpose either party may, upon application, have process from the
court to enter any asylum or institution within the state where such
defendant may be confined. The costs of court in such action shall
be assessed or apportioned by the court according to the equities of
the case , as may be just and proper.

( H ) (Wash. 5716.) Divorces may be granted by the superior court

on application of the party injured, for the following causes : ....
(6.) Habitual drunkenness of either party ; . . . . ( 7. ) The imprison
ment of either party in the penitentiary, if complaint is filed during
the term of such imprisonment ; . ( 8. ) In case of incurable
ebronic mania or dementia of either party , having existed for ten
years or more, the court may, in its discretion , grant a divorce.

( I) (Wy. 2988. ) A divorce from the bonds of matrimony may

he decreed by the district court of the county where the parties, or
one of them , side, on the application of the aggrieved party by
petition, in either of the following cases : .... ( 3.) When one of
the parties has been convicted of a felony and sentenced to impris
cnment therefor in any prison , and no pardon granted, after a di
vorce for that cause, shall restore such party to his or her conjugal
rights ; .... (10.) When, prior to the contract of marriage or the
solemnization thereof, either party shall have been convicted of a
felony or infamous crime in any state, territory or country without
knowledge on the part of the other party of such fact at the time
of such marriage.

(J) (Wy. 2986.) The marriage of a lunatic may also be declared

void upon the application of the lunatic after the restoration of rea
son, but in such cases no decree of nullity shall be pronounced if
it shall appear that the parties freely cohabited as husband and wife
after the lunatic was restored to a sound mind.

§ 56 . PROCEEDINGS IN CASE OF VOID OR UNCERTAIN

MARRIAGES .
(A) (Cal. C. C. 80 ; Mont. C. C. 100. ) Either party to an incestu
cus or void marriage may proceed, by action in the 1 ( superior] court,
to have the same so declared.
1 " district . " - Mont.
$ 56 COMPARATIVE CODE. 48

(B) (Nev. 501.) When a marriage is supposed to to be void, or

the validity thereof is disputed, for any of the causes mentioned in
[ 8 14, ( D ) , ( E ) ] , either party may file a complaint in the probate
court of the county where the parties, or one of them, resided, for
annulling the same ; and such complaint shall be filed, and proceed
ings shall be had thereon , as in the case of proceedings in said court
for a divorce, and upon due proof of the nullity of the wrarriage, it
shall be adjudged null and void.

( C) ( Or. 504. ) A marriage may be declared void from the be

ginning, at the suit of either party, for any of the causes specified in
[ 8 13, (B) ], and whether so declared or not, shall be deemed and
held to be void in any action, suit, or proceeding whatever in which
the same may come in question ; but a marriage once declared to be
valid by the decree of a court having jurisdiction thereof, in a suit
for that purpose, cannot afterward be questioned for the same cause
directly or otherwise.

(D) (Or. 505.) A marriage shall not be declared void for any of
the causes specified in [ 8 13] except at the suit or claim of the
party laboring under the disability, or upon whom the force or fraud
was imposed or practiced ; por at the suit or claim of such party if
it appears that the parties freely cohabited together as husband and
wife after the party had arrived at legal age, acquired sufficient
understanding, been restored to reason , freed from the force, or
discovered the fraud, as the case may be.

( E) ( Or. 506.) When either husband or wife shall claim or pre

tend that the marriage is void or voidable, as provided in [ 88 13,
( B ) , 14 ( F) ] , the same may be declared valid and lawful at the suit
of the other ; and in such suit the court shall have power, if the
pleadings and proofs authorize it, to declare such marriage void
from the beginning or from the time of the decree, or that it is valid
and lawful, and binding on the parties thereto.

(F) (Utah, 1214.) When doubt is felt as to the validity of a

marriage, either party may, in a court of equity, demand its avoid
ance or affirmance, but when one of the parties was within the age
of consent at the time of the marriage, the other party, being of
proper age, shall have no such proceeding for that cause against the
party under ago.

(G) (Wash. 5717.) When there is any doubt as to the facts

rendering a marriage void, either party may apply for, and on proof
obtain , a decree of nullity of marriage.
49 COMPARATIVE CODE . 88 56, 57

( H ) (Wy. 2987.) When the validity of any marriage shall be

denied or doubted by either of the parties, the other party may file
a petition for affirming the marriage, and upon due proof of the val.
idity thereof, it shall be declared valid by a decree of the court,
and such decree, unless reversed on appeal, shall be conclusive upon
all persons concerned.

(I) ( Wy. 2983.) When a marriage is supposed to be void, or

the validity thereof is doubted for any of the causes mentioned in
[ 8 $ 19, 20) , either party, excepting in the cases where a contrary
provision is hereinafter made, may file a petition in the district
court of the county where the parties of one of them reside, for
annulling the same, and such shall be filed, and proceedings shall be
bad thereon, as in the case of a petition filed in said court for
divorce, and, upon due proof thereof, it shall be declared void by
a decree of nullity.

(J) (Wy. 2984. ) An action to annul a marriage, on the ground

that one of the parties was under age of legal consent, may be
exhibited by the parent or guardian entitled to the custody of such
minor, but in no case shall such marriage be annulled on the applica
tion of a party who was of the age of legal consent at the time of
the marriage, nor when it shall appear that the parties, after they
had attained the age of consent, had freely cohabited as man and
wife.

$ 57. PROCEEDING IN CASE OF INSANITY .

(A) ( Id . 3327. ) The district courts of the several judicial dis
tricts of this state shall have jurisdiction of actions for divorce, and
such action shall be brought in the county of this state in which
the plaintiff resides . And the court in which such action is about
to be commenced shall, upon the filing by the plaintiff of a petition
duly verified, showing that a cause of action exists under this act,
appoint some person to act as guardian of such insane person in such
action, and the summons and complaint in such action shall be
served upon the defendant by delivering a copy of such summons
and complaint to such guardian, and by delivering a copy thereof to
the county attorney of the district in which such action is brought.

( B) (Id. 3328.) It shall be the duty of the county attorney upon

whom the summrons and complaint in such action shall be served, to
appear for such defendant in such action and defend the same, and
no divorce shall be granted (upon the ground of insanity) except
in the presence of the county attorney.
Comparative Code
$ 57 COMPARATIVE CODE . 50

( C) ( Id. 3329. ) In any action brought under the provisions of

this act the said courts and the judges thereof shall possess all the
powers relative to the payment of alimony, the distribution of
property , and the care and custody of children of the parties that
such courts now have, or may hereafter have in other actions for
divorce,

( D) ( Id. 3330.) All the costs of the court in such action , as well
as the actual expenses of the county attorney therein, together with
the expenses and fees of the guardian therein, shall be paid by the
plaintiff; such expenses of the county attorney and the expenses
and fees of the guardian shall be fixed and allowed by the court,
and the court, or the judge thereof, may make such order as to the
payment of such fees and expenses as to the court or judge may
seem proper .

(E) (Wy. 2985. ) A petition to annul a marriage on the ground

of insanity or idiocy may be exhibited by any person admitted by
the court to prosecute as the next friend of such idiot or lunatie .
51 COMPARATIVE CODE. $ 58

DIVISION II.
MINORS.

TITLE I. WHO ARE MINORS.

$ 58. WHAT CONSTITUTES MINORITY .

( A ) ( Cal. C. C. 25 ; Id . 1981 ; Mont. C. C. 10. ) Minors ara : 1 .
Males under twenty -one years of age ; 2. Females under eighteen
years of age.

(B) ( Cal. C. C. 26 ; Mont. C. C. 11. ) The periods specified in the

preceding section must be calculated from the first minute of the
day on which persons are born to the same minute of the correspond
ing day completing the period of minority.

( C ) (Nev. 5000.) All male persons of the age of twenty-one

years, and all femrales of the age of eighteen years, and who are
under no legal disability, shall be capable of entering into any con
tract, and shall be, to all intents and purposes, held and considered
to be of lawful age.

( D ) (Or. 5330. ) In this state male persons shall be deemed to

have arrived at majority at the age of twenty -one years, and females
at the age of eighteen years, and thereafter shall have control of
their own actions and business, have all the rights, and be subject
to all the liabilities, of citizens of full age.
( E) (Or. 5332.) All female persons shall be deemed to have ar
rived at the age of majority, upon their being married according to
law .

( F) (Utah, 1541.) The period of minority extends in males to

the age of twenty- one years ; and in females to that of eighteen
years ; but all minors obtain their majority by marriage.

( G) (Wash. 4511.) Males shall be deemed and taken to be of

full age for all purposes at the age of twenty-one years and upwards ;
females shall be deemed and taken to be of full age at the age of
Fighteen years and upwards.
88 58, 59 COMPARATIVE CODE. 52

(H) (Wash . 4512. ) All females married to a person of full age

shall be deemed and taken to be of full age.

(I) (Wash. 6401.* ) .... Males shall be deemed of full and legal
age when they shall be twenty - one years old , and females shall be deemed
of full and legal age when they shall be eighteen years old, or at any
age under eighteen, when, with the consent of the parent or guardian,
or other person under whose care or government they may be, they
shall have been lawfully married .

TITLE II . CONTRACTS BY MINORS .

$ 59. CONVEYANCES AND POWERS .

( A ) ( Cal. C. C. 33 ; Mont. C. C. 16. ) A minor cannot give a dele.
gation of power,1 nor, under the age of eighteen, make a contract
relating to real property, or any interest therein, or relating to any
personal property not in his immediate possession or control.
1 Balance of section omitted .- Mont .

(B) ( Cal. C. C. 34.) A minor may make any other contract than
as above specified in the same manner as an adult, subject only to
his power of disaffirmance under the provisions of [ 8 61 ) , and sub
ject to the provisions of the titles on marriage, and on master and
servant.

( C) (Mont. C. C. 17.) A minor may make a conveyance or other

contract in the same manner as any other person, subject only to
his power of disaffirmance under the provisions of this title, and to
the provisions of the title on marriage.

( D) (Nev. 2723. ) In all cases in this state, since the first day
of July, A. D. eighteen hundred and sixty-seven, where minors over
the age of eighteen years have sold interests acquired by them in
mining claims or locations by virtue of their having located such
claims, or having been located therein by others, and have executed
deeds purporting to convey such interests, such deeds, if otherwise
sufficient in law, shall be held valid and sufficient to convey such in
terest fully and completely, notwithstanding the minority of the
grantor, and without any power or right of subsequent revocation ;
provided, that this section shall not apply to cases where any fraud
was practiced upon such minor, or any undue or improper advantage
was taken by his purchaser or any other person to induce such minor
to execute such deed ; and , provided further, that this section shall
not apply to or affect any suits which may now be pending in any
53 COMPARATIVE CODE. 88 59-61

courts of this state, in which the legality or validity of such deeds

may be involved.

( E) (Nev . 2724.) All minors in this state, over the age of eighteen
years, are hereby authorized and empowered to sell and convey by
deed such interests as they may have acquired, or may hereafter
acquire, in mining claims or mining locations within this state, by
virtue of locating the same, or being located therein, and such deed
shall, if otherwise sufficient in law be held valid and sufficient to
convey such interest fully and completely, and without the right of
subsequent revocation, notwithstanding the minority of the grantor,
subject, however, to the same provisions and limitations contained
in ( $ 59, (D ) ) .

(F) (Or. 5331.) All contracts, conveyances, or other writings

executed heretofore by femrale persons between the ages of eighteen
and twenty-one years, whether married or unmarried, shall be taken,
deemed, and held be of as binding force and effect as if made after
arriving at the age of twenty-one years.

§ 60. WHAT CONTRACTS MAY BE DISAFFIRMED .

( A ) ( Cal. C. C. 35 ; Id . 1983 ; Mont. C. C. 18. ) In all cases other
than those specified in [ $ 61, ( A) , (B) ] , the contract of a minor,
1 [if made whilst he is under the age of eighteen, may] , be disaf.
firmed by the minor himself either before his majority or within a
reasonable time afterwards; or, in case of his death within that
period, by his heirs or personal representatives; 2 and if the contract
be made by the minor whilst he is over the age of eighteen, it may
be disaffirmed in like manner upon restoring the consideration to the
party from whom it was received, or paying its equivalent.
1 " may, upon restoring the consideration to the party from whom it was
received ." -Mont.
2 Omit balance of section.-Mont.

(B) (Utah, 1542 ; Wash . 4581. ) A minor is bound not only by

contracts for necessaries, but also by his other contracts, unless he
disaffirms them 1 [ before or ] within a reasonable time after he at
tains his majority and restores to the other party all money or prop
erty received by him by virtue of said contract and remaining within
his control at any time after attaining his majority.
1 Omitted . - Wash .

§ 61. WHAT CONTRACTS CANNOT BE DISAFFIRMED .

( A ) ( Cal. C. C. 36 ; Id. 1984 ; Mont. C. C. 19. ) A minor 1 cannot
disaffirm a contract otherwise valid, to pay the reasonable value of
things necessary for his support, or that of his family, entered into
88 61-63 COMPARATIVE CODE. 54

by him when not under the care of a parent or guardian able to pro
vide for him or them .

1 Insert : " ' or person of unsound mind. " ' -Mont.

(B) ( Cal. C. C. 37 ; Id . 1985 ; Mont. C. C. 20. ) A minor cannot

disaffirm an obligation, otherwise valid, entered into by him under
tbe express authority or direction of a statute.

( C) (Utah, 1543; Wash . 4582. ) No contract can be thus disaf

firmed in cases where on account of the minor's own misrepresenta
tions as to his majority, or from his having engaged in business as
adult the other party had good reason to believe the minor capable
of contracting

& 62. WHO ENTITLED TO WAGES.

( A) ( Cal. C. C. 212 ; Id . 2073 ; Mont. C. C. 299.) The wages of
a minor employed in service may be paid to him 1 ( until ] the parent
or guardian entitled thereto gives the employer notice that he claims
such wages .

1 " unless within thirty days after the commencement of the service . " - Id .

(B) (Utah , 1544 ; Wash . 4583.) When a contract for the per
sonal services of a minor has been made with him alone, and those
services are afterward performed , payment made therefor to such
minor in accordance with the terms of the contract, is a full satis
faction for those services, and the parent or guardian cannot recover
therefor1 a second time.

1 Balance of section omitted . -Wash .

8 63. GUARDIAN TO ACT FOR.

( Cal. C. C. 42 ; Mont. C. C. 25. ) A minor may enforce his rights
by civil action , or other legal proceedings, in the same manner as a
person of full age, except that a guardian must conduct the same.
 55 COMPARAT CODE . $ 64, 65
IVE

DIVISION III.
INSANE AND INCAPABLE PERSONS .

TITLE I. DEFINITIONS.

$ 64. PERSONS OF SOUND MIND .

( A ) ( Cal. Pen. C. 21 ; Id . 4558 ; Mont. Pen. C. 21 ; Utah, 4069. )
All persons are of sound mind who are neither idiots, nor lunatics,
nor affected with insanity.

( B) (Nev. 4658.) A person shall be considered of sound mind

who is neither an idiot or lunatic, or affected with insanity, and who
hath arrived at the age of fourteen years, or before that age, if
such person knew the distinction between good and evil,

65. WHO ARE OF UNSOUND MIND .

(A ) ( Ar. 2932, subd . 13.) The words " insane person ” shall be
construed to include an idiot, a non compos, lunatic person .

( B) (Cal. C. C. P. 1767.) The phrase " incompetent, " " mentally

incompetent,” and “ incapable,' as used in this chapter, shall be
construed to mean any person who, though not insane, is, by reason
of old age, disease , weakness of mind, or from any other cause, unable,
unassisted, to properly manage and take care of himself or his prop
erty, and by reason thereof would be likely to be deceived or im
posed upon by artful or designing persons.

( C) (Mont. Pol. C. 2282. ) Idiotic persons are considered as insane

persons .

(D) ( Or. 5290. ) The words “ insane person " are intended to in.
clude every idiot, every person not of sound mind, every lunatic and
distracted person ; and the word “ spendthrift ” is intended to in
clude anyone who is liable to be put under guardianship on account
of excessive drinking, gaming, idleness, or debauchery, and these
words shall be so construed in all the provisions relating to guardians
and wards contained in this or any other statute.
 $$ 65-67 COMPARATIVE CODE . 56

(E) (Utah , 2498, subd. 16. ) The words “ insane person " in
clude idiots, lunatics, distracted persons and persons of unsound
mind .

(F) (Wy. 2724*.) The words .... " insane" and " lunatic ' in
clude every species of mental deficiency or derangement. ....

(G) (Wy. 4896.) For the purposes of this chapter, whenever the
words “ person of unsound mind " or " insane person ” occur therein,
said words shall be construed to mean either an idiot , or a lunatic ,
or a person of unsound mind and incapable of managing his own af
fairs, as the case may be, upon proof as aforesaid.

TITLE II. CAPACITY TO CONTRACT.

66. WHAT CONTRACTS BINDING AND WHAT NOT - RE
SCISSION .
( A) ( Cal. C. C. 38 ; Id. 1986 ; Mont. C. C. 21. ) A person entirely
without understanding has no power to make a contract of any kind,
but he is liable for the reasonable value of things furnished to him
necessary for his support or the support of his family.

(B) ( Cal. C. C. 39* ; Id. 1987 ; Mont. C. C. 22*. ) A conveyance

or other contract of a person of unsound mind but not entirely with
out understanding, made before his incapacity has been judicially
determined, is subject to rescission . ..

( C) ( Cal. C. C. 40 ; Id. 1988 ; Mont. C. C. 23. ) After his inca

pacity has been judicially determined a person of unsound mind can
make no conveyance or other contract, nor delegate any power or
waive any right, until his restoration to capacity. But a certificate
from the medical superintendent or resident physician of the insane
asylum to which such person may have been committed, showing that
such person had been discharged therefrom, cured and restored to
reason, shall establish the presunrption of legal capacity in such per.
son from the time of such discharge.

§ 67. SPECIFIC PERFORMANCE OF CONTRACT AFTER IN

SANITY .
( Cal. C. C. 1810 ; Cal. L. 1903, p. 167.) When a person who is
bound by a contract in writing to convey any real estate shall after
ward and before making the conveyance become and be adjudged to
be an incompetent person the court may make a decree authorizing
and directing his guardian to convey such real estate to the person
entitled thereto. Such decree may be made under [ $$ 585 to 597 ] ,
57 COMPARATIVE CODE. 8 68

both inclusive, all of which provisions are hereby incorporated in this

section ; the word incompetent being substituted for the word de
ceased or decedent and the word guardian being substituted for the
words administrator or executor, respectively, wherever said words
occur .

TITLE III . DETERMINATION OF INSANITY.

$ 68. ARREST AND DETENTION JURISDICTION - HEARING .
(A) (Ar. 2768. ) The probate judge of any county in this terri
tory , upon the application under oath, setting forth that a person by
reason of insanity is dangerous, being at large, shall cause such per
son to be brought before him for examination, and shall cause to be
summoned to appear before him at such examination two or more
witnesses acquainted with the accused at the time of the alleged
insanity, who shall be examined on oath as to the conversation, man
ners and general conduct of the accused, upon which such charge of
insanity is based, and shall also cause to appear before him one or
more graduates of medicine, and reputable practitioners thereof, who
shall be present at such examination, and who, upon hearing of the
facts detailed by other witnesses, and a personal examination of the
accused, shall set forth in a written statement to be made upon oath :
First, his or their judgment as to the insanity of the party charged.
Second, whether it be dangerous to the accused, or to the person or
property of others, by reason of said insanity, that said accused go
at large. Third, whether such insanity is, in his or their opinion, likely
to prove permanent or only temporary ; ... and upon such hearing
and statements as aforesaid, if the proofs shall satisfy the judge be
fore whom such hearing is had that such party is insane, and that
by reason of his or her insanity he or she be in danger, if at liberty,
of injuring himself or herself ; or the person or property of others,
he shall, by an order entered of record in a book kept for that pur
pose , direct the confinement of such person in the state insane asy
lum, who shall be confined therein and not discharged therefrom un.
til sufficiently restored to reason.

(B ) ( Cal. Pol. C. 2168 ; Cal. L. 1903 , p. 502. ) Whenever it

appears by affidavit to the satisfaction of a magistrate of a county,
or city and county, that any person therein is so far disordered in
his mind as to endanger health, person , or property, he must issue
and deliver to some peace officer, for service a warrant directing that
such person be arrested and taken before a judge of the superior
court of the county for a hearing and examination on such charge.
Such officer must thereupon arrest and detain such person until a
hearing and examination can be had, as hereinafter provided. At
the time of the arrest a copy of said affidavit and warrant of arrest
$ 68 COMPARATIVE CODE . 58

must be personally delivered to said person. He must be taken be

fore a judge of the superior court, to whom said affidavit and war
rant of arrest must be delivered to be filed with the clerk. The
judge must then inform him that he is charged with being insane,
and inform him of his rights to make a defense to such a charge and
produce any witnesses in relation thereto. The judge must by order
fix such time and place for the hearing and examination in open court
as will give reasonable opportunity for the production and examina .
tion of witnesses . Said order must be entered in the minutes of the
court by the clerk and a certified copy of the same served on such
person . The judge may also order that notice of the arrest of such
person and of the hearing on the said charge of insanity be served
cn such relatives of said person known to be residing in the county,
as the court may deem necessary or proper.

( C) (Cal. Pol. C. 2169 ; Cal. L. 1903, p. 502.) The superior judge

mray, for any hearing, issue subpoenas and compel the attendance of
witnesses and must compel the attendance of at least two medical
examiners, who must hear the testimony of all witnesses, make a
personal examination of the alleged insane person, and testify before
the judge as to the result of such examination , and to any other per
tinent facts within their knowledge. The judge must also cause to
be examined before him as a witness, any other person whom he has
reason to believe has any knowledge of the mental condition of the
alleged insane person or of his financial condition or that of the per
sons liable for his maintenance. The alleged insane person must be
present at the hearing , and if he has no attorney, the judge may ap
point an attorney to represent him .

(D) ( Id. 406 ; Mont. L. 97, p. 163, sec. 1.) Whenever it appears 1
to the satisfaction of a magistrate of the county that any person
within the county is so far disordered in his mind as to endanger
health, person or property, he must issue and deliver to some peace
officer for service a warrant directing that such person be arrested
and taken before any 2district judge in the county for examination,
provided that if the district judge is absent from the county wherein
such person is arrested, then the said insane person shall be taken
before the chairman of the board of county commissioners.
1 Insert : " by affidavit. " ' - Id .
2 Omit balance of section and read instead : " Judge of court of record
within the county , for examination.''-Id.

( E ) ( Id. 407 ; Mont. L. 97, p. 163 , sec. 2. ) When the person is

taken before the judge 1 [ he] must issue subpoenas to two or more
witnesses, best acquainted with such insane person , to appear and
testify before him at such examination .
1 or the chairman of the board of county commissioners, the judge or
the chairman of said board.''-Mont.
59 COMPARATIVE CODE. 8 63

( F) (Id. 771 ; Mont. L. 97, p. 163, sec. 3. ) The judge 1 [or in

case of his absence the chairman of the board of county commission
ers ) , must also issue subpoenas for at least two graduates of medi
cine to appear and attend such examination .
1 Omit.-Id.

( G ) (Id. 409 ; Mont. Pol. C. 2303.) At the examination the

person subpoenaed must appear and answer all questions pertinent
to the matter under investigation.

(H ) (Mont. L. 97, p. 163, sec. 7.) Whenever any insane person

is examined and committed by hearing had before the chairman of
the board of county commissioners it shall be the duty of said chair.
man to have all th evidence reduced to writing, and the same, to
gether with all orders, subpoenas, complaints, warrants and papers
used on said hearing or made by said chairman of the board of county
commissioners, shall be filed in the office of the clerk of the district
court, of the proper county and said clerk shall enter upon the jour.
nal of the minutes of probate proceedings a transcript of all pro
ceedings had by the chairman of the board of county commissioners
at any examinations and committal of an insane person, in the same
manner as proceedings in probate in vacation are entered by the clerk
of the court, and it shall be the duty of the district judge at the first
term of court, after such examination to examine and approve such
proceedings or said insane inquest and committal, in the same man.
ner as probate proceedings transacted by the clerk in vacation are
approved ; and in no case shall the finding of the chairman of the
board of county commissioners be final, in all cases where hearings
are had by the chairman of the board of county commissioners, the
proceedings must be examined and certified and approved or rejected
by the judge of the district court.

(I) ( Id . 410 ; Mont. Pol. C. 2304.) The physician must hear such
testimony and must make a personal examination of the alleged in.
sane person .

(J) ( Cal. Pol. C. 2170 ; Cal. L. 1903, p. 503 ; Id. 411 ; Mont. Pol.
C. 2305.) The physician , after hearing the testimony and making
the examination, must, if they believe such person to be dangerously
iusane, make a certificate under his hand, showing as near as possi
ble :
1. That such person is so far disordered in his mind as to endan
ger health, person or property ;
2. The premonitory symptoms, apparent cause or class of insanity,
tbe duration and condition of the disease ;
3. The nativity, age, residence, occupation, and previous habits
of the person ;
$ 68 COMPARATIVE CODE . 60

4. The place from whence the person came and the length of his
residence in this state.

(K ) (Nev. 1473. ) It shall be the duty of the district judge in

each judicial district of this state, upon the application of any per
son under oath that any person within said district who has been a
bona fide resident of the state for more than five years and of the
county wherein he is at the time residing for one full year next pre
ceding the making of said application, is an idiot or feeble -minded
person, to cause such person to be brought before him at such time
and place as he may direct, and the said judge shall also cause to ap
pear at such time and place such witnesses as he may deem proper and
one or more licensed practicing physicians. Said physicians shall pro
ceed to examine the person and the witnesses so brought before said
judge, the witnesses to be placed under oath, and if said physicians,
after careful examination, shall certify upon oath that the charge is
correct, giving their reasons therefor, and if the district judge is sat
isfied that such person is an idiot or a feeble- minded person and is
incompetent to provide for his or her own proper care and support,
and has no property applicable to such purpose, and no kindred in
the degree of husband or wife, father or mother, child, brother or
sister, living within this state of sufficient means or ability to pro
vide properly for such care and support, and is further satisfied that
it will be for the best interest of said indigent and the county of
which he is at the time a resident, he shall cause the said indigent ,
idiot, or feeble-minded person to be conveyed to the insane asylum
of this state at the expense of the county of which said person was
a bona fide resident during the period of one year next preceding the
making of such application , and placed in charge of the proper per
son having charge of said asylum, together with a copy of the com
plaint, commitment, and physician's certificate, which shall be in
such form as the board of commissioners for the care of the indigent
insane of the state of Nevada may prescribe.

( L) (Or. 3619. ) The county judge of any county in this state

shall, upon application of any citizen, in writing, setting forth that
any person or persons, by reason of insanity or idiocy, as the caso
may be, is suffering from neglect, exposure , or otherwise or is unsafe
to be at large, or is suffering under mental derangement shall cause
such person or persons to be brought before hinr at such time and
place as he may direct, and the said county judge shall also cause
to appear, at the same time and place, one or more competent physi
cians who shall proceed to examine the person or persons alleged to
be insane or idiotic ; and if said physician or physicians , after care
ful examination , shall certify upon oath that said person or persons
are insane or idiotic, as the case may be, then such judge, if in his
opinion such person or persons be insane or idiotic, shall cause said
61 COMPARATIVE CODE. § 68

person or persons to be conveyed to and placed in the insane asylum

of the state of Oregon ; provided, that an appeal shall lie from the
county court in such cases, and in the same manner as is provided
for appeals from the county courts in other cases ; provided further,
that no insane or idiotic person shall be sent to an asylum, under the
provisions of this act, who has friends that desire to provide for
their safekeeping and medical treatment; provided, further, that in
case of the sickness or absence of the county judge, or inability to
act, from any cause, the sheriff shall notify any justice of the peace
in his county to act in place of said county judge and the said jus
tice of the peace shall exercise the power herein conferred upon the
county judge.

( M) (Utah, 2168 ; Utah, L, 1903, p. 142. ) The judges of the

district courts shall have cognizance of all applications for admission
to the hospital, or for the safekeeping of insane persons within their
respective districts, except in cases otherwise provided for. In case
of the absence of the district judge from any county, when an appli
cation as aforesaid should be heard, the judge of any other district
may attend and hear the same upon the written request of the clerk
of the district court of the county wherein the alleged insane person
resides or the chairman of the board of county commissioners may
act upon such application.

( N ) (Utah, 2170 ; Utah, L. 1903, p. 142.) Application for ad

mission to the hospital shall be made in the form of an information,
duly verified, alleging that the person in whose behalf the application
is made is believed by the informant to be insane and a proper per
son for care and treatment at the mental hospital asylum ; that such
person is found in the county and has a residence therein, if such is
known to be the fact, and, if such residence is not in the county, al
leging where it is, if known or where it is believed to be, if the in
formant is advised on the subject.

(0) ( Utah, 2171 ; Utah, L. 1903, p. 142.) On the filing of

such information , the district judge of the county in which such
person resides, if a resident of the state, and, if a non - resident, then
the district judge of the county in wbich such person shall be found,
may examine the informant under oath , and, if satisfied there is
reasonable cause therefor, shall at once investigate the grounds
thereof. For this purpose, he may require the person for whom such
admission is sought, to be brought before him, and may issue his
warrant therefor to the sheriff, or any constable, of the county.

(P ) (Utah, 2172 ; Utah, L. 1903, p. 143.) The sheriff may

provide, at the expense of the county, for the suitable custody of
such person until the investigation shall be concluded. If the judge
8 68 COMPARATIVE CODE. 62

shall be of the opinion from such preliminary inquiries that he mray

make, that the presence of the person in whose behalf the application
is made would probably be inexpedient, he may dispense with his
presence. In the examination, testimony for and against the applica
tion must be heard. Any citizen of the county, or any relative of
the person for whom the application is made, may appear and resist
the application, and the parties may appear by counsel, if they so
elect. The district attorney must represent the state in such exam
ination, and if, in his opinion, the person alleged to be insane is
not a proper person for care and treatment at the hospital, he must
resist the application. The judge shall cause to appear before him
two practicing physicians, before whom he shall examine the charge.
(Q ) ( Utah, 2173 ; Utah, L. 1903, p. 143.) After a careful
hearing of the testimony, and a personal examination of the person
alleged to be insane, the physicians shall certify on oath whether or
not the person is insane, whether the case is of recent or curable
character, whether the person has a homicidal, suicidal, or incendiary
mania, and whether he would be dangerous, if at large, to the prop
erty of the community in which he may live.

( R ) (Utah, 2177.) On the return of the physicians ' certificate,

the judge shall, as soon as practicable, conclude his investigations,
and shall find whether the person alleged to be insane is insane ;
whether, if insane, he is a proper person for treatment and custody
at the mental hospital, and whether the residence of such person
is in such county, and if not in such county, where it is, if ascertain
able. If he finds such person is not insane, he shall order his im
mediate discharge, if in custody. If he finds such person insane, and
a fit subject for custody and treatment in the asylum , he shall
order such person to be committed to the asylum, except ( when he
is a non -resident of the state ) .

(S) (Wash. 2660. ) The superior court of any county in this

state, or the judge thereof, upon the application of any person under
oath, setting forth that any person, by reason of insanity, is unsafe
to be at large, shall cause such person to be brought before him, and
he shall summon to appear at the same time and place two or more
witnesses, who shall testify, under oath, as to conversation, manners,
and general conduct upon which said charge of insanity is based ;
and shall also cause to appear before him, at the same time and place,
two reputable physicians, before whom the judge shall examine the
charge, unless th accused, or anyone in his or her behalf, shall
demand a jury to decide upon the question of insanity. If such
demand be made, the trial shall be by jury. If no jury be demanded ,
and the said physicians, after a careful hearing of the case, and a
 63 COMPARATIVE CODE . $ 68

personal examination of the alleged insane person, shall certify under

eath that the person examined is insane, and the case is of a recent
or curable character, or that the said insane person is of a homicidal,
suicidal, or incendiary disposition, or that from any other violent
symptoms the said insane person would be dangerous to his or her
own life, or the lives and property of the community in which he or
she may live ; and if said physicians shall also certify to the name,
age, nativity, residence, occupation, length of time in this state,
state last from, previous habits, premonitory symptoms, apparent
cause , and class of insanity , duration of the disease, and present
condition, as nearly as can be ascertained by inquiry and examina
tion ; and if the judge shall be satisfied that the facts revealed in the
examination establish the existence of the insanity of the person
accused , and that it is of a recent or curable nature, or of a hom
icidal, suicidal, or incendiary character, or that from the violence of
the symptoms the said insane person would be dangerous to his or
her own life, or to the lives and property of others, if at large, he
shall order such insane person sent to the hospital for the insane.
If the trial has been by jury, and the accused declared insane by
said jury, and the insanity be of the character above described, the
said insane person shall be ordered by the judge to be sent to the
kospital for the insane.

( T ) (Wy. 4879. ) When it is represented to the court or a

judge thereof, upon verified petition of any relative or friend , or
other person , that any person is insane, or from any cause mentally
incompetent to manage his property, such judge or court must cause
a notice to be given to the supposed insane or incompetent person
Gf the time and place of hearing the case , and such person, if able
to attend, must be produced on the hearing.

( U) (Wy. 4880. ) The determination of the insanity or incompe

tency of any person shall be by a jury as in civil actions...When it is
in vacation, to determine the fact of insanity or incompetency of any
person , it shall be done by the judge or court commissioner or clerk,
who shall issue an order to call an open venire to the sheriff, who
shall summon six men to act as a jury, who shall possess the qualifi
cations or jurors, and the proceedings thereafter shall be in all
respects as near as may be in civil actions in term time.

(V) (Wy. 4881.) The jury in addition to finding upon the ques.
tion of the sanity or insanity of the person, shall find the value of
his estate, if any, or whether he is a pauper. If he has an estate,
the judge, commissioner or clerk, presiding over the proceeding shall
appoint a guardian of the person and estate of such person, and such
guardian shall take charge of the estate of such insane person in the
manner provided by law in relation to guardianship.
$$ 68.70 CUMPARATIVE CODE . 64

(W) (Wy. 4883.) The verdict of the jury shall be entered upon
the journals, and have the same effect as if the verdict had been
rendered during a term thereof.

§ 69. EFFECT OF DISCHARGE OF PATIENT.

(A) (Cal. Pol. C. 2189 ; Cal. L. 1903, p. 509.) The superintendent
of a state hospital on filing his written certificate with the secretary
of board of managers, may discharge any patient, except one held
upon an order of a court or judge having criminal jurisdiction in
an action or proceeding arising out of a criminal action or proceeding
arising out of criminal offense, at any time. . . . . When any person
is discharged as recovered from a state hospital, a copy of the certifi
cate of discharge duly certified by the secretary of the board of
managers, may be filed for record with the clerk of the superior court
of the county from which said person was committed. The clerk
shall record the same in a book kept for that purpose, and shall keep
an index thereof. No fees shall be charged by the clerk for per.
forming such duties. Such certified copy of such certificate, and
the record of the same, shall have the same legal effect as the orig
inal, and if no guardian has been appointed for such person as pro
vided by [ 88 172, 174] , such certificate, duly certified copies thereof
and such record thereof shall have the same legal force and effect
as a judgment of restoration to capacity made under the provisions
of [ 870 ] .

(B ) (Or. L. 95, p. 42, sec. 3. ) It shall be the duty of the county

court, upon notification (of the death or discharge) , to at once
enter in the journal of insane commitments, an order showing the
discharge or death of such person, and, if the superintendent of the
asylum shall report any person so committed and discharged as cured,
the entry of such order shall be prima facie evidence of the
removal of all legal disability arising from an adjudication of in
sanity.

§ 70. WHEN PROCEEDINGS FOR RESTORATION MAY BE

INSTITUTED .
( A ) ( Ar. 1987* ; Cal. C. C. P. 1766* ; Id . 4356* ; Mont. C. C. P.
2973 * . ) Any person who has been declared insane 1 [or incom
petent) , or the guardian, or any relative of such person 2 [within
the third degree ), or any friend may apply, by petition, to the
3 [ superior court ) of the county in which he was declared insane, to
have the fact of his restoration to capacity judicially determined.
The petition shall be verified, and shall state that such person is
then sane 4[or competent ). Upon receiving the petition, the
5 [ court) must appoint a day for b [a hearing before the court ), and if
the petitioner request it, shall order an investigation before a jury,
65 COMPARA CODE . $$ 70, 71
TIVE
which shall be summoned and impaneled in the same manner as juries
are summoned and impaneled 7 [ in civil actions.)
1 Omitted.-Ar.
2 Omitted .-Id .
3 "probate judge ' ' -Ar.; " probate court" -Id .; " district court. " ' - Mont.
4 Omitted . -Ar.
5 “ judge '' - Ar. ;. ' ' court or judge . " - Mont.
6 " the hearing. " -Ar.
' ' in other cases in the probate court. " ' - Ar.

(B) (Wy. 4894.) If any person shall allege in writing, verified

by oath or affirmation, that any person declared to be of unsound
mind has been restored to his right mind, the court or judge by
which the proceedings were had shall cause the facts to be inquired
into by a jury ; provided, that before such matter shall be submitted
to a jury it shall be the duty of the court to ascertain and determine
wbether the proceeding mentioned in this section is instituted and
prosecuted in the interest of the person so declared to be of unsound
mind ; and if found not to be so instituted and prosecuted, the court
shall dismiss said proceeding at the cost of the person instituting
the same; but if found to be in the interest of the person declared to
be of unsound mind, the said matter shall be submitted to a jury,
(as in other cases of insanity .) In ascertaining and determining the
interest as aforesaid , the court shall have power to examine under
oath any and all persons, including the person declared to be of
unsound mind.

$ 71. NOTICE OF TRIAL.

( Ar. 1987 * ; Cal. C. C. P. 1766* ; Id. 4356" ; Mont. C. C. P. 2973 * ;
Wy. 4895. ) The 1 [ court ] shall cause notice of the trial to be given
to the guardian of the 2 [ person so declared insane or incompetent ) ,
if there be a guardian, and to his or her husband or wife, if there be
one, and to his or her father or mother if living in the county.
On the trial, the guardian or relative of the 3 [ person so declared
insane or incompetent ), and in the discretion of the 4 [ court ) , any
other person may contest the rights to the relief demanded . Wita
nesses may be required to appear and testify as in 6[ civil] cases,
and may be called and examined by the 7 [ court on its ] own motion.
If it be found that the 8 [person ] be of sound mind, and capable of
taking care of himself and his property, his restoration to capacity
shall be adjudged, and the guardianship of such person , if such
person be not a minor shall cease.
1 " judge ' ' - Ar.; " court or judge. ” - Mont.
2 petitioner ." -Ar,
3 petitioner."' - Ar.
4 " judge '' - Ar.; " court or judge.''- Mont.
5 Insert: " oi the petitioner ." ' -- Ar.
6 " other.''-Ar.
o " judge of his ' ' -- Ar.; " court or judge on its.''-Mont.
" petitioner. " ' -Ar.
Comparative Code - 5
$$ 72-74 COMPARATIVE CODE . 66

§ 72. WRIT OF HABEAS CORPUS MAY BE USED .

( Cal. Pol. C. 2188 ; Cal. L. 1903, p. 508. ) Anyone in custody as an
insane person is entitled to a writ of habeas corpus, upon a proper
application made by a relative or some friend in his behalf to the
superior judge of the county in which the hospital is located. Upon
the return of such writ, the fact of his insanity shall be inquired
into and determined. The medical history of the person as it appears
in the clinical records shall be given in evidence, and the superin
tendent in charge of the state hospital wherein such person is held
in custody, and any other person , must be sworn touching the mental
condition of such person .

TITLE IV. INSANITY AS AFFECTING CRIMINAL

RESPONSIBILITY.

CHAPTER I. INSANITY OF PERSONS ACCUSED OF CRIME .

§ 73. INSANE PERSON CANNOT COMMIT CRIME .

(A ) ( Ar. P. C. 1147 ; Cal. Pen. C. 1367; Id . 5663 ; Mont. Pen. C.
2520 ; Utah, 5052. ) A person cannot be tried, adjudged to punish
ment, or punished for a public offense while he is insane.

(B) (Nev. 4536.) An act done by a person in a state of insanity

cannot be punished as a public offense, nor can a person be tried ,
adjudged to punishment, or punished, for a public offense, while he
is insane.

(C) (Or. 2191. ) A morbid propensity to commit prohibited acts,

existing in the mind of a person , who is not shown to have been
incapable of knowing the wrongfulness of such acts, forns DO
defense to a prosecution therefor.

(D) ( Or. 1393. ) When the commission of the act charged as a

crime is proven, and the defense sought to be established is the in
sanity of the defendant, the same must be proven beyond a reason
able doubt. ...

CHAPTER II. INSANITY OF PERSONS ON TRIAL FOR CRIME.

$ 74. TO BE TRIED AND COMMITTED .

(A) ( Ar. P. C. 982 ; Cal. Pen. C. 1167 ; Id . 5512 ; Mont. Pen. C.
2159. ) If the jury render a verdict of acquittal on the ground of
insanity, the court may order a jury to be summoned from the jury
list of the county to inquire whether the defendant continues to be
67. COMPARATIVE CODE.

insane. The court may cause the same witnesses to be summoned

who testified on the trial, and other witnesses, and direct the district
attorney to conduct the proceedings, and counsel may appear for the
defendant. The court may direct the sheriff to take the defendant
and detain him in custody until the question of continuing insanity
is determined . If the jury find the defendant insane, he shall be
committed by the sheriff to the state insane asylum. If the jury
find the defendant sane, he shall be discharged.

(B) ( Ar. P. C. 1148 ; Cal. Pen. C. 1368 ; Mont. Pen. C. 2521.)

When an action is called for trial. or at any time during the trial, or
when the defendant is brought up for judgment on conviction , if a
doubt arises as to the sanity of the defendant, the court must order
the question as to his sanity to be submitted to a jury ; and the trial
or the pronouncing of the judgment must be suspended until the
question is determined by their verdict ; and the trial jury may be
discharged or retained, according to the discretion of the court,
during the pendency of the issue of insanity.

( C) (Id. 5664. ) When an indictment is called for trial, if a

doubt arises as to the sanity of the defendant, the court must order
the question to be submitted to a jury ; where such doubt arises upon
the defendant being brought up for judgment on conviction, the
court must order a jury to be summoned from the list of jurors
selected by the commissioners for the year, to inquire into the fact ;
and the trial of the indictment or the pronouncing of the judgment
must be suspended until the question of insanity is determined by
the verdict of the jury.

(D) (Nev. 4537.) When an indictment is called for trial, or upon

conviction the defendant is brought up for judgment, if a doubt
shall arise as to the sanity of the defendant, the court shall order
the question to be submitted to the regular jury, or may order a
jury to be summoned to inquire into the fact.

(E) (Nev. 4538.) The trial of the indictment, or the pronounc

ing of the judgment, as the case may be, shall be suspended until the
question of insanity shall be determined by the verdict of the jury.

(F) (Nev . 4540.) The provisions of section ( 4351 ] 1 in respect

to the charge of the court to the jury upon the trial of an indict
ment, shall apply to the trial of the question of insanity.
1 “ In charging the jury, the court shall state to them all such matters
of law as it shall think necessary for their information in giving their
verdict.''- Nev . 4351 .

( G) ( Or. 1424.) If the defense be the insanity of the defend

ant, the jury must be instructed, if they find him not guilty on that
$$ 74, 75 COMPARATIVE CODE . 68

ground, to state that fact in their verdict, and the court must
thereupon, if it deems his being at large dangerous to the publio
peace or safety, order him to be committed to any lunatic asylum
authorized by the state to receive and keep such persons, until ho
become sane, or be otherwise discharged therefrom by authority of
law,

(H) (Utah, 5053.) Whenever a person charged with crime shall

have escaped information or indictment therefor, or shall have been
acquitted thereof on trial, upon the ground of insanity ; or whenever
a person during trial, or when brought up for sentence, or while
confined as a criminal in the state prison or a county jail, shall
become insane, complaint under oath must be made setting forth
the facts in the case, and the district court of the county must pro
ceed as (provided in $ 74, (I) ) .

(I) (Utah, 5054.) The question of such person's sanity may be

submitted to a jury that must þe drawn and selected as in other
cases . All criminal proceedings against him must be suspended until
such question is determined. The trial jury, if one has been im
paneled, may in the meanwhile be discharged or retained, in the
discretion of the court.

(J) (Wash . 2664.) The superior courts of the state shall have
power to commit to the hospital for the insane any person who, hav.
ing been arraigned for an indictable offense, shall be found by the
jury to be insane at the time of such arraignment, and the costs of
such commitment shall be paid in the same manner.

( K ) ( Wash. 6959. ) When any person indicted or informed

against for an offense shall, on trial, be acquitted by reason of in
sanity, the jury, in giving their verdict of not guilty, shall stato
that it was given for such cause ; and thereupon, if the discharge or
going at large of such insane person shall be considered by the court
nianifestly dangerous to the peace and safety of the community, the
court may order him to be committed to prison, or may give him
into the care of his friends, if they shall give bonds, with surety
to the satisfaction of the court, conditioned that he shall be well and
securely kept, otherwise he shall be discharged.

§ 75. ORDER OF PROCEDURE .

( Ar. P. C. 1149 ; Cal. Pen. C. 1369 ; Id. 5665 ; Nev . 4539 ; Utah, 5055. )
The trial of the question of insanity must proceed in the following
order :
1. The counsel for the defendant must open the case, and offer
evidence in support of the allegation of insanity ;
69 COMPARATIVE CODE. 88 75-77

2. The counsel for the people may then open their case and
offer evidence in support thereof ;
3. The parties may then respectively offer rebutting testimony
only, unless the court, for good reason , in furtherance of justico
permit them to offer evidence upon their original cause ;
4. When the evidence is concluded, unless the case is submitted
to the jury, on either or both sides without argument, the counsel
for the people must comprence, and the defendant or his counsel
may conclude the argument to the jury ;
5. If 1 [ the indictment be ] for an offense punishable with death,
two counsel on each side may argue the cause to the jury, in which
case they must do so alternately ; in other cases the argument may
be restricted to one counsel on each side ;
6. The court must then charge the jury, 2 stating to them all
matters of law necessary for their information in giving their verdict.
1 " there are pending proceedings.''- Utah .
2 Instead of balance, read : " if requested by either party.''-Ar.; Nev.

§ 76. WHEN FOUND SANE, TRIAL FOR OFFENSE TO PRO

CEED .
(A ) ( Ar. P. C. 1150 ; Cal. Pen . C. 1370 ; Id. 5666 ; Mont. Pen. C.
2523 ; Nev . 4541 , 4542.) If the jury find the defendant sane, tho
trial must proceed or judgment be pronounced, as the case may be.
If the jury find the defendant insane, the trial or judgment must
be suspended until he becomes sane, and the court 1 must order that
he be in the meantime committed by the sheriff to 2 [ the state in
sane asylum ) , and that upon his becoming sane he be redelivered
to the sheriff.

1 Insert : " if it deem his discharge dangerous to the public peace or

safety .''- Nev.
2 * the custody of some proper person. " ' -Nev.

( B ) (Utah, 5056 , 5057. ) If the jury find the defendant sane,

the trial must proceed , or judgment be pronounced , or he be re
turned to prison , or be discharged, as the case may be. If the jury
find the defendant insane, the judge shall order the sheriff to
forthwith convey him , together with a copy of the complaint, the
commitment, and the physicians ' certificate if any, to the state in
sane asylum , provided the court deems his freedom a menace to
pablic quietude. Proceedings against the defendant must be sus
pended until he becomes sane.

77. EFFECT OF COMMITMENT.

( Ar. P. C. 1151 ; Cal. Pen . C. 1371 ; Id. 5667 ; Mont. Pen . C. 2524 ;
Nev . 4543 ; Utah, 5058. ) The commitment of the defendant, as
88 78, 79 COMPARATIVE CODE. 70

mentioned in [ $ 76 ) , exonerates his bail, or entitles a person au

thorized to receive the property of the defendant to a return of any
money he may have deposited instead of bail.

$ 78. DETENTION AND PROCEEDINGS AFTER RECOVERY .

( A ) ( Ar. P. C. 1152 ; Cal. Pen . C. 1372 ; Id . 5668; Mont. Pen. C.
2525 ; Nev . 4544. ) If the defendant is received 1 [ into the asylum ),
he must be detained 2 [there ] until he becomes sane. When he be
comes sane 3 [the superintendent] must give notice of the fact to
the sheriff and district attorney of the county. The sheriff must
thereupon without delay, 4 [ bring the defendant fromr the asylum ) ,
and place him in proper custody until he is brought to trial or
judgment, as the case may be, or is legally discharged.
1 by the person so appointed ." ' - Nev.
2 “ by him . " ' -Nev .
3 ' ' such person .''-Nev.
4 " take the defendant from the custody of such person . " - Nev.

(B) (Utah, 5059. ) A person received into the asylum in pur

suance of the provisions (of $$ 74-77 ] must be detained there until
he becomes sane. If then the sentence of such person shall have ex .
pired, he must be restored to liberty. But if he is not legally dis
charged, the superintendent must give notice of his recovery to the
sheriff of the county from which he shall have been sent. The sheriff
shall thereupon, without delay, bring the defendant from the asylum,
and either place him in proper custody until he is brought to trial
or judgment, or return him to prison to serve out the remainder of
his term . The defendant shall be entitled to have the time of his
confinement in the asylum deducted from his term .

8 79. EXPENSES OF COMMITMENT - RECOVERY OF.

( A ) (Ar. P. C. 1153 ; Cal. Pen. C. 1373 ; Id . 5669 ; Mont. Pen . C.
2526 ; Nev . 4545. ) The expenses of 1 [sending the defendant to the
asylum ) , of keeping him there,2 are in the first instance chargeable
to the county in which the indictment was found 3 [ or information
filed ); but the county may recover them from the estate co the de
fendant, if he have any, or from a relative, town , city, or county
bound to provide for and maintain him elsewhere.
1 " placing 'and
2 Insert :
the oidefendant in the custody of such proper person.''-Nev.
bringing him back . " - Ar.
3 Omitted.- Nev.

(B) (Utah , 5060.) The expenses of the examination and of the

sending of such persons, save convicts in the state prison , to ana
from the asylum, shall be in the first instance chargeable to the
county from which they shall have been sent. But the county may.
71 COMPARATIVE CODE. 88 80, 81

recover them from the estates of any such persons, or from a relative
legally bound to care for them , or from the county of which such
persons may be resident. Expenses of the examination and of the
sending of an insane convict to and from the asylum must be borne
by the state, if he is impecunious.

CHAPTER III. INSANITY OF PERSON CALLED FOR SENTENCE .

§ 80. MAY SHOW INSANITY IN BAR .
( A) (Ar. P. C. 1008 ; Cal. Pen . C. 1200 ; Id . 5537 ; Mont. Pen. C. 2219 ;
Nev. 4409.) When the defendant appears for judgment he must be
informed by the court, or by the clerk, under its direction, of the
nature of the charge against him, and of his plea, and the verdict, if
any there are, and must be asked whether he has any legal cause
tu show why judgment should not be pronounced against him .

(B) (Ar. P. C. 1009 ; Cal. Pen . C. 1201 ; Id. 5538 ; Mont. Pen. C.,
2220 ; Nev . 4410; Utah, 4914.) He may show for cause against the
judgment: 1. That he is insane ; and if, in the opinion of the court,
there is reasonable ground for believing him to be insane, the question
of insanity must be tried as provided [by law ). If, upon the trial
of that question, the jury find that he is sane, judgment must be pro
nounced ; but if they find him insane, he must be committed to the
[state lunatic asylum ] 1 until he becomes sane; and when notice is
given of that fact, as provided in [ 878 ] , he must be brought be
fore the court for judgment.
1 " custody of some proper and suitable person . " ' - Nev.

CHAPTER IV . INSANITY OF PERSON UNDER SENTENCE OF

DEATH.

& 81. JURY TO BE SUMMONED .

( A) (Ar. P. C. 1027 ; Cal. Pen. C. 1221 ; Id . 5553; Mont. Pen. C.
2248 ; Nev. 4423 ; Utah, 4932.) If, after judgment of death, there
is good reason to suppose that the defendant has become insane,
1 ( the sheriff of the county) , with the concurrence of the judge of the
2 ( court) by which the judgment shall have been rendered, may
summon 3 [from the list of the jurors selected by the proper officers
for the year) , a jury of twelve persons to inquire into the supposed
insanity, and must give immediate notice thereof to the 4 [ county )
attorney or other counsel for the state.

1 “ The warden of the state prison to which he is delivered for retention ."
Nev.
2 " superior court of the county in which such prison is situated." ' - Cal.
3 Omitted - Ar.; " from the list of jurors selected by the county commis.
sioners, for the year." ' - Nev.
4 district.''- Nev .
$$ 81-84 COMPARATIVE CODE. 72

( B) (Wy. 5408.) If any convict sentenced to the punishment of

death, shall appear to be insane, the sheriff shall forthwith give no
tice thereof to a judge of the district court of the judicial district ,
and shall summon a jury of twelve impartial men to inquire into
such insanity, at a time and place to be fixed by the judge, and
shall give immediate notice thereof to the prosecuting attorney.

§ 82. THE INQUISITION - WITNESSES.

( A ) ( Ar. P. C. 1028; Cal. Pen. C. 1222 ; Id . 5554 ; Mont. Pen. C.
2249 ; Nev . 4424 ; Utah, 4933. ) The 1 [ district) attorney must at
tend the inquisition , and may produce witnesses before the jury, for
which purpose he may issue process in the same manner as for wit
nesses to attend before the grand jury, and disobedience thereto may
be punished in like manner as disobedience to process issued by the
court.
1 prosecuting '' - Id.; " county ." ' - Utah .

( B) (Wy. 5409. ) The judge, clerk of the court and prosecuting

attorney shall attend the inquiry. Witnesses way be produced and
examined before the jury. .

& 83. THE CERTIFICATE OR VERDICT.

( Ar. P. C. 1029 ; Cal. Pen . C. 1223; Id . 5555 ; Mont. Pen . C. 2250 ;
Nev. 4425 ; Utah, 4934.) A certificate of the inquisition shall be
signed by the jurors and the 1 ( sheriff ], and filed with the clerk of
the 2 [ court ) in which the conviction was had .
1 " warden .''- Cal.
2 " superior court of the county in which the state prison is situated . " ' - Cal.

& 84. EXECUTION OF JUDGMENT OR COMMITMENT.

(A) ( Ar. P. C. 1030, 1031 ; Cal. Pen. C. 1224 ; Id . 5556 ; Mont. Pen.
C. 2251 ; Nev. 4426, 4427 ; Utah, 4935.) If it be found by the inquisi
tion that the defendant is sane, the 1 [sheriff] shall execute the judg
ment ; but if it be found that he is insane, the 2 [ sheriff ] shall suspend
the execution of the judgment until he receive a warrant from the
3 [ governor) or from the judge of the 4 [ court by which the judg
ment was rendered] , directing execution of the judgment. If the
inquisition find that the defendant is insane, and 5 [ sheriff] shall im
mediately transmit the same to the O [ governor) , who may, when the
defendant becomes sane, issue a warrant appointing a day for the
execution of the judgment.
1 " warden .''- Cal.
" warden . - Cal.
3 " board of pardons. " ' -Utah .
4 ' ' superior court of the county in which such state prison is situated ."
Cal.
5 " warden .''- Cal.
* board of pardons.''-Utah.
13

COMPARATIVE CODE. 88 84, 85

(B) ( Wy. 5409* ) . .... The finding shall be in writing, signed

by the jury. If it be found that the convict is insane, the judge
shall suspend the execution of the convict until a sheriff shall receive
a warrant from the governor of the state directing such execution.
The finding of the jury and the order of the judge, certified by the
judge, shall be by the clerk entered on the journal of the court.

( C ) (Wy. 5410.) The sheriff shall transmit inrmediately, a cer

tified copy of such finding to the governor, who may, as soon as he
shall be convinced that the convict has become of sound mind, issue
a warrant appointing a time for his execution.

CHAPTER V. INSANE CONVICTS.

$ 85. COMMITMENT AND RETURN .

( A ) ( Ar. 3587. ) Whenever the conduct of any prisoner confined
in the prison shows symptoms of insanity, it shall be the duty of
the prison physician to make examination of said prisoner, and if
it be found that such prisoner is so afflicted, the physician shall
once communicate the same in writing to the superintendent,
describing, as near as may be, the conditions as found, with any
suggestions relating thereto. Upon receipt of said communication
by the superintendent, it shall be his duty to communicate at once
with the nearest local authority having jurisdiction under the laws
of the state concerning persons alleged to be insane ; and there
after all proceedings shall conform to the law governing such cases ;
provided , that if said person is found insane by the authority afore
said , the officer conducting such examination shall conrmit the in
sine person to the care and custody of the superintendent of the
prison for immediate transmittal to the asylum for the insane, wher
ever designated by the state ; and all cost arising in the proceeding,
of whatever nature, shall be borne by the state after due presenta
tion and approval by the board of commissioners at any regular
meeting. It shall be the duty of the person having charge of such
insane asylum to which the insane person has been committed to
render quarterly to the superintendent of the prison, a report of
the condition of said person, and whenever it shall appear that such
person has so far recovered as to continue service in the prison
without further risk, he shall be returned to serve any unexpired
time, the period in the insane asylum being counted as though served
in the prison ; should the period of commitment expire, however,
during the time the insane person is confined in the asylum , the
snperintendent shall forward to said person his legal discharge from
the prison.

( B ) ( Cal. Pen. C. 1582.) When the physician , warden and cap

tain of the yard of the prison, after an examination , are of opin
 $ 85 COMPARATIVE CODE . 74

ion that any prisoner is insane, they must certify the fact under
oath to the governor, who may, in his discretion, order the removal
of such prisoner to the insane asylum . As soon as the authorities
of the asylum ascertain that such person is not insane, they must
immediately notify the warden of that fact, and thereupon the
warden must cause such prisoner to be at once returned to the
frison, if his term of imprisonment has not expired.

(C) (Mont. Pol. C. 2290. ) Insane convicts must be received into

the asylum and returned to the state prison again, as provided in
the Penal Code.

( D) (Nev. 1459.) Whenever a convict, while undergoing impris

onment in the Nevada state prison, shall become insane and be so
adjudged by a commission of lunacy appointed by the court as in
other cases of insanity, it shall be the duty of the warden to deliver
such convict to the superintendent of the state insane asylum at
Reno, Nevada, for detention and treatment therein .

(E) ( Nev . 1460.) The superintendent of the insane asylum shall

receive such insane convict and safely keep him , and if such con
vict be restored to sanity before the expiration of his sentence
to said prison, shall deliver him to the warden thereof, who shall
retain such convict therein for the unexpired term of his sentence,
unless said convict shall be released by order of the board of pardons.
An escape from said insane asylum by any convict confined therein
under the provisions of this act, shall be deemed an escape from
the state prison, and be punished as such.

(F) (Or. 3623.) Whenever any convict confined in the state

prison shall in the opinion of the physician of the prison be insane
or idiotic, the physician shall make oath to the same before the
county judge of the county in which the said prison is located ; and
said judge shall summon one or more competent physicians to ex
amine the alleged case of insanity or idiocy, and if in their opinion
the said convict is of unsound mind, the judge shall send the state
ment of said physician, with his own opinion, to the governor, who
is hereby authorized, at his discretion, to remove or cause to be
removed, said convict to the place provided for the insane and
idiotic.

( G) (Wash . 2665.) The governor of the state may, in his dis

cretion, order the removal of any pri er to the hospital for the
insane when the physician, board of penitentiary commissioners, and
wardens of the penitentiary, after examination, are of the opinion
that such prisoner is insane, and shall certify the fact under oath to
the governor. As soon as the superintendent of the hospital for
 75 COMPARATIVE CODE. 8 85

the insane to which such prisoner is sent ascertains that he is not

insane, or has recovered, he shall immediately notify the warden
of the penitentiary of that fact, and thereupon the said warden
shall cause such prisoner to be at once returned to the penitentiary ,
if his term of imprisonment has not expired.

(H) (Wash . 2748 *.) When the warden, and such other officers
as may be designated by the directors to act with him in such cases,
shall be of opinion that any convict is insane, they shall make proper
examination, and if they remain of the opinion that such person is
ipsane , the warden shall certify the fact to the superintendent of
one of the state asylums for the insane, and shall forthwith send
such convict to said asylum for care and treatment . If at the ex
piration of the term of sentence the insane convict is still in the
insane asylum, he shall be allowed to remain there until discharged
cured. It shall be the duty of the warden also to send to the board
a copy of such certificate, and thereafter a statement as to his sub
sequent acts, regarding the said insane convict. And it shall be the
duty of the superintendent of the insane asylum to receive such con
vict , and keep him until cured. It shall be his duty, upon receipt
of such insane convict, to notify the board of the fact, giving name,
date, and where from, and from whose bands received . When in the
opinion of the superintendent such insane convict is cured of in.
sanity, it shall be his duty to immediately notify the board thereof;
and it shall be his duty also to notify the warden of the prison from
whence he was received, who shall immediately send for, take, and
receive the said convict back into the penitentiary, the time passed
at the asylum counting as a part of such convict's sentence. Be
fore discharging any convict who may be insane at the time of the
expiration of his sentence, the warden shall first give notice in writ
ing to a judge of a superior court of the county in which the peni
tentiary is located, of the fact of such insanity, whereupon said
court shall forthwith make an order, and deliver the same to the
sheriff of said county, commanding him to remove such insane con
vict and take him before said court. Upon receipt of such order
it shall be the duty of said sheriff to whom it is directed to exe
cute and return the same forthwith to the court by whom it was
issued, and thereupon the said court shall cause proper examination
to be made by medical experts, and if it shall satisfactorily appear
that such convict is insane, said court shall order him to be confined
in one of the insane asylums. The sheriff shall receive the same
compensation as for transferring a prisoner to the penitentiary, and
to be pai in the same manner. If any judge, after having been
notified by the warden, shall neglect to cause such order to be made
as herein provided, or any such sheriff shall neglect to remove any
such insane convict as required by the provisions of this section,
it shall be the duty of the warden to cause such insane convict to
& S5 COMPARATIVE CODE . 76

be removed before a superior court of a county in which the peni

tentiary is located, in charge of an officer of the penitentiary, or
other suitable person, for the purpose of examination. ..

(I) (Wy. 656.) If any person accused of or convicted of any

crime, misdemeanor or offense against the laws of this state, or
against the laws of the late state of Wyoming, shall be confined in
any penitentiary, county jail of any county, or other place of con
finement , awaiting trial, or who is confined therein under and pure
suant to the sentence or judgment of any court or justice of the
peace in this state, and is of unsound mind, any officer or person
having such person of unsound mind in his charge shall, and any
citizen of this state may, make complaint thereof, and the question
of the sanity of such person shall be inquired of, tried and deter
mined under and according to the law of this state providing for.
and regulating trials, inquisitions and proceedings in cases of in .
quiry into the sanity of other persons of unsound mind.

(J ) (Wy. 657. ) If any such person accused of or convicted of

any crime, misdemeanor or offense shall be found of unsound mind
or insane upon such inquiry, trial or proceeding, he or she shall
be forthwith taken to such place or places for treatment as shall
be provided for or prescribed by the state board of charities and
reform either generally, or for that particular case, and it shall
be the duty of any and all persons, boards, superintendents, of
ficers and employees of the place so designated by such board, to
receive the same person into custody, and to treat him or her ac
cording to the regulations and practice of such place or institution.

(K) (Wy. 658. ) If any such person or patient so confined in any

hospital or asylum or place designated by the said board of chari
ties and reform shall recover his or her reason , he or she shall be
returned to the penitentiary, county jail or other place of confine
ment or imprisonment where such person was confined at the time
of such inquiry, trial or proceeding to determine his or her sanity
or insanity, there to be tried or to serve out or undergo his or her
term of imprisonment, if any part thereof remains, as the nature
of the case shall require.
 COMPARATIVE CODE. § 86

DIVISION IV
INDIGENT PERSONS.

TITLE I. LIABILITY FOR CARE AND SUPPORT.

§ 86. DUTY OF RELATIVES - ORDER OF RESPONSIBILITY .

(A) ( Cal. C. C. 206 ; Mont. C. C. 293.) It is the duty of the
father, the mother, and the children of any poor person who is un.
able to maintain himself by work, to maintain such person to the
extent of their ability. The promise of an adult child to pay for
necessaries previously furnished to such parent is binding.

(B) (Or. 5254.) Parents shall be bound to maintain their

children when poor and unable to work to maintain themselves; and
children shall be bound to maintain their parents in the like circum
stances.

( C ) ( Id. 2071. ) It is the duty of the father, the mother, and

the child or children of any poor person who is unable to main
tain himself or herself by work, to maintain such poor person to
the extent of his or her ability. And whenever any person shall
apply for aid to any county within this state under its indigent
laws, and it shall at any time appear to the county commissioners
that said poor person has a father, mother, child or children, who is
able to maintain him or her, but fails to do so , it shall be the duty of
said commissioners to furnish all necessary aid ; and to bring civil
suit against such father, mother, child or children , to recover the
amount so expended, in the name of the county. The promise of an
adult child to pay for necessaries previously furnished to such
parents is binding.

( D) (Mont. Poi. C. 3201. ) Every person without means, who is

unable to earn a livelihood in consequence of bodily infirmity, idiocy,
lunacy, or other cause, must be supported by the father, grand
father, mother, grandmother, children, grandchildren, brothers, sis.
ters, of such poor person, if they, or either of them , be of sufficient
ability in the order named ; and every person who fails or refuses
to support his or her father, grandfather, mother, grandmother,
child , sister or brother in the order named , when directed by the
$ 86 COMPARATIVE CODE . 78

koard of county commissioners of the county where such poor person

is found, whether such relative reside in the county or not, must
pay to the county for the use of such poor person the sum of thirty dol
lars per month which may be recovered in the name of the county.

( E ) (Mont. Pol. C. 3202. ) When any person becomes poor from

intemperance or other vice, he is not entitled to any support from
relatives, except from parent or child.

( F) (Nev. 2156 ; Or. 2655 ; Utah, 2500 ; Wash. 577.) The children
shall be first called on to support their parents, if there be children
of sufficient ability ; if there be none, the parents of such poor per
sons shall be next called upon, and if there be no parents or children
of sufficient ability, the brothers and sisters shall be next called
ou ; 1 [ and if there be no brothers and sisters, the grandchild of
such poor person shall be called on, and then the grandparents );
2 but married females, whilst their husbands live, shall not be liably
to a suit,3 except that in cases where the grandchildren shall be
come paupers , the grandparents shall not be liable for but one -half
the amount of such charge, or vice versa .
1 Omitted . - Or .
2 Omit balance of section and read : " provided, that a married woman shall
not be liable to a suit for maintenance beyond the interest or income of the
estate of such married woman held in her own right.''-Utah.
3 Balance omitted .-- Or.; Wash .

( G ) (Nev. 2155 ; Or. 2654; Utah, 2499 ; Wash . 376.) Every poor
person who shall be unable to earn a livelihood in consequence of
bodily infirmity , idiocy, lunacy, or otherl cause shall be supported
by the father, grandfather, mother, grandmother, children, grand
children , brothers or sisters of such poor person, if they or cither of
them be of sufficient ability ; and every person who shall fail 2 [or
refuse ] to support his or her father, grandfather, mother, 3 [grand
mother) , child, 4 [grandchild) , sister, or brother,5 when directed by
the 6 [ board of commissioners ] of the county where such poor person
shall be found , whether such relative reside in the county or not ,7
shall forfeit and pay to the county, for the use of the poor of their
county, the sum of thirty dollars per month, to be recovered in the
name of the county commissioners for the use of the poor as afore
said, before any justice of the peace or any court having jurisdiction :
Provided, that when any person becomes a pauper from intemperance
or other bad conduct, he shall not be entitled to any support from
any relation except parent and child.
1 Insert : " unavoidable . " ' - Utah ,
2 Omitted .- Nev.
3 Omitted . - Or.
4 Omitted .-- Or.
5 Insert: “ having the ability so to do " -Utah ; " in the order named ." '
Mont .
6 " county court.''- Or.
79 COMPARATIVE CODE. $ 86

7 Omit all after " not" ' down to the proviso, and read instead : " and
the burden of supporting such poor person shall fall upon the county, such
relative shall forfeit and pay to the board of county commissioners, for the
use of the poor of the county, such sums as may be by the board of county
commissioners deemed adequate and proper to be paid , not exceeding twenty
dollars & month for each and every month during which the county may be
charged with the su port of such poor person, to be recovered in the name
of the county, in an action before any court having jurisdiction. "' - Utah.
 87 COMPARATIVE CODE. 80

DIVISION V.
INTOXICATED PERSONS,

TITLE I. INTOXICATION AS AN EXCUSE FOR

CRIME .

§ 87. MAY BE CONSIDERED AS AFFECTING CRIME .

( A ) (Ar. P. C. 22 ; Cal. Pen , C. 22 ; Mont. P. C. 22 ; Id . 4559 ;
Or. 1393* ; Utah, 4070. ) No act committed by a person while in a
state of voluntary intoxication shall be deemred less criminal by rea
son of his having been in such condition ; 1 but whenever the actual
existence of any particular motive, purpose, or intent is a necessary
element to constitute any particular species or degree of crime, the
jury may take into consideration the fact that the defendant was in.
toxicated at the time, in determining the purpose, motive, or intent
with which he committed the act.
1 Omit balance of section .-Ar.

( B ) ( Nev. 4662 ; Wy. 5369. ) Drunkenness shall not be an excuse

for any crime 1 [ or misdemeanor ), unless such drunkenness be occa
sioned by the fraud, contrivance or force of some other person or
persons, for the purpose of causing the perpetration of an offense, in
which case the person or persons so causing said drunkenness for
such malignant purpose, shall be considered principal or principals,
and suffer the same punishment as would have been inflicted on the
person or persons conrmitting the offense, if he, she, or they have
been possessed of sound reason or discretion.2 Where a crime rests
in intention, the inebriated condition of the defendant at the time
of committing the offense may be proven to the jury, as bearing upon
the question of intention.
1 Omit . -Nev .
2 Omit balance of section .-Nev ,
81 COMPARATIVE CODE . 88 88, 89

TITLE II. HABITUAL DRUNKARDS.

CHAPTER I DEFINITION OF HABITUAL DRUNKARD .

& 88. " HABITUAL ” AND “ COMMON " DRUNKARDS.

(A) (Ar. P. C. 599.) .... Every common drunkard is a vagrant.

( B) ( Cal. C. C. 106 ; Id . 2026 ; Mont. C. C. 144.) Habitual intem

perance is that degree of intemperance from the use of intoxicating
drinks which disqualifies the person a great portion of the time from
properly attending to business, 1 or which would reasonably inflict a
course of great mental anguish upon an innocent party.
1 Omit balance of section . - Mont.

( C) ( Cal. L. 1891, p. 130 ; Utah, 4472.) Every .... common

drunkard is guilty of vagrancy and punishable by imprisonment in
the county jail not exceeding 1 [six months ).
1 " ninety days . " ' - Utah.

(D) (Nev . 4861.) . Every common drunkard is one who is in

the habit of lying around the streets, alleys, sidewalks, saloons, bar.
rooms or other public places in a state of gross intoxication. ....

CHAPTER II . PROCEEDINGS TO ADJUDGE PERSON AN HABIT

UAL DRUNKARD .

$ 89. WHO MAY MAKE APPLICATION - NOTICE - HEARING

ORDER .
(A) ( Id . L. 1890-91, p. 34, sec. 5.) Any wife, mother, father, son,
or daughter, or sister, of a person who is a habitual drunkard or in
the habit of getting intoxicated , or the county commissioners, or
the mayor of any city, or any county officer, may make complaint
to any justice of the peace of the precinct where such person resides,
cr may be staying, or to the probate judge of the county where such
person resides, or may be staying, alleging the name of such person,
the fact of his being a habitual drunkard, or in the habit of getting
intoxicated , and the name or names of the person or persons from
whom the person having such habits obtains his liquor, as such rela
tive or officer believes, which complaint shall be verified by the per.
son making the same ; whereupon said justice of the peace or said
probate judge shall issue a notice in writing to such person or per.
sons 90 named, notifying him or them that no intoxicating liquors
of any kind must be sold or given away by him or them at his or
Comparative Code - 6
$ 89 COMPARATIVE CODE. 82

their place or places of business, to such person having such hahit, and
which notice must at once be served upon such person or such persons,
as summons are served from justice courts.

(B) (Wash. 6487. ) Any person addicted to the use of intoxicat

ing liquors may, upon comrplaint thereof, or upon certificate of a jus
tice of the peace, as provided (in $ 89] , be adjudged an habitual
drunkard.

( C) (Wash. 6488. ) Either the father, husband, mother, wife, son ,

or daughter, of any person addicted to the excessive use of intoxicat
ing liquors, or any person in the interest of the relative aggrieved ,
or of the general public , may make complaint to the superior court
of the county wherein such person so addicted resides, that the per
son complained of is an habitual drunkard, and that in consequence
thereof, such person is squandering his earnings or property, or that
he neglects his business, or that he abuses or maltreats his family,
which complaint must be verified by the oath of the complainant , to
the effect that the same is true. And every justice of the peace in
whose court any person shall have been convicted twice on a charge
of being drunk, or drunk and disorderly, shall certify to the superior
court of the county in which he resides, that said person has thus
twice been convicted .

( D ) ( Wash. 6489.) Upon filing of the complaint , duly verified,

the superior judge shall cause a copy thereof to be served upon the
accused forthwith, and shall summon him to appear and answer, giv.
ing at least ten days ' notice, and if, upon the hearing of the evidence,
the allegations of the conrplaint are sustained , or upon filing a cer
tificate of a justice of the peace, as provided (in $ 89, ( B) ] , such
judge shall, in open court , declare the accused to be an habitual
drunkard, and shall cause the proceeding to be entered in full upon
the records of the court.

( E) (Wash. 6490. ) The same fees shall be allowed to the superior

court, justice of the peace, and the sheriff or constable, in all pro
ceedings under the [ $ 89, ( D ) ] , as are allowed by law for like processes
and services, and like fees for witnesses, as in civil cases before jus
tice of the peace ; and if the complaint is not sustained, the person
making the complaint shall pay the costs; and in case the complaint
is sustained, the person accused shall pay the costs.
(F) (Wash. 6493. ) It shall be the duty of the superior judge of
each county to furnish a list of the names of all persons adjudged
habitual drunkards, to all parties licensed to sell , by retail, intoxi
cating liquors in such county, and such retail dealer shall keep posted
83 COMPARATIVE CODE . $$ 89, 90

up in some conspicuous place in his place of business a list of such

habitual drunkards. A person failing to keep such list so posted
shall forfeit his license, and if he thereafter sells intoxicating liquors,
he shall be punished as if selling without a license.

( G) (Wy. 2166*. ) It shall be lawful for any married woman

whose husband spends his earnings at any game of chance, or for in
toxicating drinks, to the extent that herself or family are deprived
of the common necessaries of life, to serve a written notice by her
self, or by some person authorized by herself, upon the keepers of
places wherein games of chance are played for money, or for any ar
tiele or articles representing money, forbidding them to allow, by
tbemselves or by any person in their employ, the person named
within the notice to participate in any such game ; it shall also be
lawful in the same manner to serve notice upon saloon-keepers and
upon the keepers of bars or other places where intoxicating drinks
are sold to be drunk upon the premises, forbidding the keeper or
keepers of such places to barter, give, sell, or in any manner to fur
nish and vinous, fermented, spirituous, or malt liquors, by himself,
agent, or employee or other person , directly or indirectly, to the per
son named within the notice.

90. RESTORATION OF HABITUAL DRUNKARD.

( Wash . 6494.) Any person so declared to be an habitual drunkard
may, at any time after the expiration of two years from the time
he was so declared to be such, by petition addressed to the judge of
the court in which he was so adjudged, have a hearing in such court ,
upon a day which shall be by such court set, which day shall not be
more than ten days after the filing of such petition in such court,
which petition may contain a statement of facts tending to show
the improved condition and habits of such petitioner and to estab
lish his character for sobriety, and a prayer that the order on record
so declaring him to be such habitual drunkard be vacated and he be
released from the effects thereof which petition shall be duly verified
by the petitioner. And if, upon the hearing of such petition, and
the evidence in support thereof, it appear to the judge that such peti.
tioner is entitled to have such record vacated and be so released,
then he shall make an order so declaring that such record be vacated
and annulled , and that the petitioner be thereafter released from the
effects thereof.
$$ 91, 92 COMPARATIVE CODE . 84

DIVISION VI.
CRIMINALS .

TITLE I. EFFECT OF CRIME ON CIVIL RIGHTS.

CHAPTER I. PERSONS CAPABLE OF COMMITTING CRIME.

8 91. DEFINITIONS.
( Cal. Pen . C. 15 ; Id . 4552 ; Mont. Pen. C. 15 ; Or. 1200 ; Utah, 4061.)
A crime or public offense is an act 1 [ conrmitted or omitted in viola
tion of a law forbidding or commanding it, and to which is annexed,
upon conviction, any] of the following punishments : ( 1. ) Death.
( 5. ) Disqualification to hold and enjoy any office of honor,
trust, or profit 2 [ in ] this state.
1 “ or omission forbidden by law , and punishable upon conviction by either. "
-Or.
2 " under the constitution and laws of. " - Or.

$ 92. WHO MAY COMMIT AND HOW MANIFESTED .

(A) ( Ar. P. C. 24 ; Cal. Pen. C. 26 ; Id. 4560 ; Mont. Pen. C. 30 ;
Utah, 4071. ) All persons are capable of committing crimes except
those belonging to the following classes: (1.) Children under the age
of 1 [soven ) years. ( 2. ) (Children between the ages of seven years and
fourteen years ], 2 in the absence of clear proof that at the time of
committing the act charged against them they knew its wrongfulness.
(3. ) Idiots. (4. ) Lunatics and insane persons. .. ( 8.) Married
women, 3[ unless the crime be punishable with death ] , acting under
the threats, command, or coercion of their husbands. ...
1 " ten ' ' - Ar.; " fourteen . " - Cal.; Id.
2 That portion of this subdivision inclosed in brackets is omitted.
Cal .; Id .
3 " except for felonies .''-Cal.

( B ) ( Ar. P. C. 21 ; Cal. Pen . C. 21 ; Id . 4558 ; Mont. Pen, C. 21 ;

Utah, 4069. ) The intent or intention is manifested by the circum
stances connected with the offense, and the sound mind and discre
tion of the accused.

(C) (Nev . 4568.) An infant under the age of fourteen years ,

shall be deemed incapable of knowing the distinction between good
and evil, unless the contrary be clearly shown.
85 COMPARATIVE CODE. $$ 92, 93

( D) ( Nev. 4661.) A married woman, acting under the threats,

command, or coercion of her husband, shall not be found guilty of
any crime not punishable with death ; provided, it appear, from all
the facts and circumstances of the case, that violent threats, com
mand, or coercion were used ; and, in such case, the husband shall
be prosecuted as principal, and receive the punishment which would
otherwise have been inflicted on the wife, if she had been found
guilty.

( E) ( Or. 1783. ) The [ law relating to arson ) shall extend to

and include a married woman who may commit either of the crimes
therein specified, though the property burned or set on fire may be
long wholly or in part to her husband.

( F) (Wash. 7098.) A married woman who shall commit the crime

of arson , or who shall counsel, aid or abet in the commission of such
erime may be convicted thereof and punished therefor, though the
properly set fire to may belong partially or wholly to the husband.

CHAPTER II. SUSPENSION OF CIVIL RIGHTS-CIVIL DEATH .

$ 93. GENERAL EFFECT OF CONVICTION .

( A ) ( Ar. P. C. 637 ; Cal. Pen. C. 673 ; Id . 5124 ; Mont, Pen. C.
1239 ; Nev. 4789 ; Or. 2163 ; Utah, 4501. ) A sentence of imprison
ment in the state prison for any term less than for life, suspends all
civil rights of the person so sentenced during such imprisonment and
forfeits all private trusts and all public offices, authority, or power.1
1 Add : “ during the term or duration of such imprisonment. " - Or.

(B ) ( Ar. P. C. 638 ; Cal. Pen. C. 674 ; Id . 5125 ; Mont. Pen . C.

1240 ; Nev . 4789* ; Or. 2164 ; Utah, 4502.) A person sentenced to im
prisonment in the penitentiary for life is thereafter deemed civilly
dead .

(C ) ( Ar. P. C. 639 ; Cal. Pen. C. 675 ; Id . 5126 ; Mont. Pen. C.

1241 ; Utah, 4503.) The provisions of the two preceding sections
must not be construed to render the persons therein mentioned (in
competent as witnesses upon the trial of a criminal action or pro
ceeding, or] 1 incapable of making and acknowledging a sale or con
veyance of property , 2 or to make a last will and testament or to do
such other acts as are permitted by law .
1 Omit .-- Mont.
2 Omit balance of section . - Ar.; Cal .; Id .
$$ 93, 94 COMPARATIVE CODE. 86

(D) (Wy. 5192. ) A person sentenced to the penitentiary for a

felony, when sentence has not been reversed or annulled, is incompe
tent to be an elector or juror, or to hold any office of honor, trust or
profit within this state, unless he shall have received a pardon ; 1 but
no pardon shall release a convict from the costs of his conviction
uoless so stated therein ,

& 94. RULE OF SUCCESSION AS AFFECTED BY CRIME .

( A) ( Ar. 2120. ) No conviction shall work corruption of blood
or forfeiture of estate, nor shall there be any forfeiture by reason of
death by casualty, and the estate of those who destroy their own
lives shall descend or vest as in case of natural death.

( B) (Ar. P. C. 641 ; Cal. Pen. C. 677 ; Id . 5128 ; Mont. Pen, C.

1244 ; Utah, 4505.) No conviction of any person for crime works
any forfeiture of any property , except in cases in which a forfeiture
is expressly imposed by law, and all forfeitures to this state in the
nature of a deodand, or where any person shall flee from justice, are
abolished .

( C) ( Or. 2168. ) No conviction of any person for crime works

any forfeiture of any property, except in cases where the same is
expressly provided by law ; but in all cases of the commission or
attempt to commit a felony, the state has a lien, from the time of
such commission or attempt, upon all the property of the defendant,
for the purpose of satisfying any judgment which may be given
against him for any fine on account thereof, and for the costs and
disbursements in the proceedings against him for such crime.

(D) (Utah, 2823. ) No person who has been finally convicted of

feloniously causing the death of another shall take or receive any
property or benefit by succession , will, or otherwise, directly or in
directly, by reason of the death of such person ; but all property of
the deceased and all rights of the defendant upon his death shall
vest and be determined the same as if the person convicted was dead.
87 COMPARATIVE CODE. $$ 95, 96

DIVISION VII.
ALIENS -NON-RESIDENTS .

TITLE I. WHAT CONSTITUTES RESIDENCE.

CHAPTER I. RESIDENCE IN GENERAL,

$ 95. RULES FOR DETERMINING .

( Cal. Pol. C. 52 ; Mont. Pol. C. 72. ) Every person has in law a
residence. In determining the place of residence, the following rules
are to be observed :
1. It is the place where one remains when not called elsewhere
for labor or other special or temporary purpose, and to which he re
turns in seasons of repose ;
2. There can be only one residence ;
3. A residence cannot be lost until another is gained ;
4. The residence of the father during his life, and after his death
the residence of the mother, while she remains unmarried, is the
residence of the unmarried minor 1 ( child ) ;
5. The residence of the husband is the residence of the wife ;
6. The residence of an unmarried minor who has a parent living
cannot be changed by either his own act or that of his guardian ;
7. The residence can be changed only by the union of act and in .
tent.

1 " children .''- Mont.

CHAPTER II. RESIDENCE FOR PURPOSES OF VOTING.

§ 96. WHAT PLACE MUST BE CONSIDERED .

( A ) ( Ar. 2378, subd. 1 ; Cal. Pol, C : 1239, subd. 1 ; Mont. Pol. C.
1211 , subd. 1 ; Or. 2776, subd . 1 ; Utah, 806, subd. 1. ) That place
must be considered and held to be the residence of a person in which
his habitation is fixed, and to which, whenever he is absent, he has
the intention of returning.

(B) (Nev . 1723. ) The legal residence of a person , with reference

to his right of suffrage and eligibility to office, is that place where
his habitation is fixed and permanent, and to which, whenever he is
absent, he has the intention of returning.
88 97-99 COMPARATIVE CODE . 88

$ 97. RESIDENCE OF UNMARRIED MAN .

( Or. 2776, subd. 6. ) The place where an unmarried man sleeps
shall be considered and held to be his residence.

$ 98. RESIDENCE OF MARRIED MAN .

( A ) ( Ar. 2378, subd. 7 ; Cal. Pol. C. 1239, subd. 7.) The place
where a man's family resides must be held to be his residence ; but
if it be a place for tenrporary establishment for his family, or for
transient objects, it is otherwise.

(B) (Mont. Pol. C. 1211, subd. 8; Utah, 806, subd. 8.) The place
where a man's family resides is presumed to be his place of residence,
but any man who takes up or continues his abode with the intention
of remaining at a place other than where his family resides, must be
regarded as a resident where he so abides.

(C) ( Ar. 2378, subd. 8 ; Cal. Pol. C. 1239, subd. 8.) If a man
have a family fixed in one place, and he does business in another,
the former must be considered his place of residence; but any man
having a family, and who has taken up his abode with the intention
of remaining, and whose family does not so reside with him, must
be regarded as a resident where he has so taken up his abode.

(D) ( Nev. 1728. ) If a man have a family residing in one place

and he does business in another, the former must be considered his
place of residence, unless his family be located there for temporary
purposes only; but if his family reside without the state, and he be
permanently located within the same, with no intention of removing
therefrom, he shall be deemed a resident.

( E) (Or. 2776, subd. 5.) The place where a married man's fam
ily reside shall be considered and held to be his residence.

§ 99. INTENTION TO REMOVE AS AN ELEMENT.

( A) ( Ar. 2378, subd. 9 ; Cal. Pol. C. 1239, subd. 9. ) The mere in.
tention to acquire a new residence, without the fact of rem emoval,
avails nothing ; neither does the fact of removal without the inten
tion .

( B ) (Mont. Pol. C. 1211 , subd. 9 ; Utah, 806 , subd . 9. ) A change

of residence can only be made by the act of removal, joined with the
intent to remain in another place. There can only be one residence.
A residence cannot be lost until another is gained .
 E
89 COMPARATIV CODE . 88 99-101

(C) (Nev. 1726.) If a person remove to another state, territory,

or foreign country, with the intention of establishing his domicile
tbere, and making it his home, he shall lose his residence in this
state .

(D) (Ar. 2378, subd. 6; Cal. Pol. C. 1239, subd. 6 ; Mont. Pol. C.
1211, subd . 6. ) If a person removes to another state, with the inten
tion of making it his residence, he loses his residence in this state.

$ 100. TEMPORARY ABSENCE OR REMOVAL.

( A) (Ar. 2378, subd. 3 ; Cal. Pol. C. 1239, subd. 3 ; Mont. Pol. C.
1211, subd. 4 ; Utah, 806, subd. 4.) A person must not be considered
to have lost his residence who leaves his home to go into 1 [a foreign
country , or into ] another state, .... for temporary purposes merely,
with the intention of returning ;2 provided, he has not exercised the
right of the elective franchise in said state.
1 Omitted . - Ar.; Cal.; Mont.
2 Balance omitted .-- Ar.; Cal.

(B ) ( Nev . 1727.) If a person having a fixed and permanent home

in this state, break up such home and remove to another state, ter
ritory or foreign country , the intent to abandon his residence in this
state shall be presumed, and the burden shall be upon him to prove
the contrary ; and the same rule shall obtain when a person, in like
circumstances, and in like manner, shall remove from one county or
precinct to another within the state.

( C ) (Or. 16, subd. 2.) A person shall not be considered or held

to have lost his residence who shall leave his home and go into an
other state or territory or county of this state for a temporary pur
pose only .

( D) ( Wash . 1322. ) Absence from the state on business shall not

affect the question of residence of any person ; provided, the right
to vote has not been claimed or exercised elsewhere.

101. PERMANENT ABSENCE OR REMOVAL .

( A ) ( Ar. 2378, subd. 6 ; Cal. Pol. C. 1239, subd. 6 ; Mont. Pol. C.
1211, subd. 7 ; Utah, 806 , subd. 7. ) If a person remove to another
state with the intention of remaining there for an indefinite time,
and as a place of 1 [present] residence, he loses his residence in this
state notwithstanding he entertains an intention of returning at some
future period.
1 " permanent.''- Utah,

( B) (Nev. 1729.) If a person remove to another state, territory

or foreign country , with the intention of remaining there for an in
$$ 101 , 102 COMPARATIVE CODE. 90
1

definite time, and as a place of present residence, he shall lose his

residence in this state, notwithstanding that he may entertain the
intention of returning at some uncertain future period; and an oce
casional return , either for business purposes or pleasure, to the place
of his former abode, in this state, shall not be sufficient to preserve
his residence therein.

( C ) (Or. 2776, subd. 7.) If a person shall go from this state into
any other state or territory and there exercise the right of suffrage,
he shall be considered and held to have lost his residence in this
state.

( D) ( Or. 2776, subd. 4.) If a person remove to any other state,

or to any of the territories, with the intention of making it his per
nranent home, he shall be considered and held to have lost his resi
dence in this state .

( E) (Mont. Pol. C. 1211, subd. 11 ; Utah, 806, subd. 11. ) Any per
son living upon an Indian or military reservation shall not be deemed
to be a resident of Montana, within the meaning of this chapter, un
less such a person has acquired a residence in some county in Mon
tana prior to taking up his residence upon such Indian or military
reservation ; 1 provided, that if such person shall not be in the em
ploy of the government while residing upon such Indian or military
reservation , such person shall not be considered a resident of the
state of Montana,

1 Omit balance of section -Utah.

§ 102. ABSENCE IN PUBLIC SERVICE .

( A ) ( Ar. 2378, subd. 2 ; Cal. Pol. C. 1239, subd . 2. ) A person must
not be held to have gained or lost his residence by reason of his
presence or al ence from a place while employed in the service of
the United States, or of his state, nor while engaged in navigating,
nor while a student at any institution of learning, nor while kept in
an almshouse, asylum or prison.

( B ) ( Id. Const . , art. 6, sec . 5 ; Id. 788 ; Mont. Const. , art . 9 ,

sec . 3 ; Mont. Pol. C. 1182 ; Nev. Const ., art. 2, sec. 2 ; Nev . 1724 ;
Or. Const ., art. 2, sec. 4 ; Wash . Const., art . 6, sec. 4 ; Wash . 1321. )
For the purpose of voting, no person shall be deemed to have
gained or lost a residence by reason of his presence or absence
while employed in the service of the United States, 1 [or of this
state ) ; nor wbile engaged in the navigation of the waters of
this state, or of the United States 2 [ or of the high seas ) ; nor while
a student of any 3 [seminary ) of learning; nor while kept at any
91 COMPARATIVE CODE. 88 102, 103

almshouse, or other asylum , at public expense 4 [nor while con

fined in any public prison).
1 Omittedl - Wash .
2 Omit.-Id.
3 " institution.''-Id.; Mont.
4. Omit - Id.; " jail :-Nev.; add " excepting when serving out sentence in
penitentiary for an infamous crime. " ' -Wash.

(C) ( Mont. Pol. C. 1211 , subd. 2 ; Utah, 806, subd. 2. ) A person

must not be held to have gained or lost a residence by reason of his
presence or absence while employed in the service of the United
States or of this state, nor while a student at any institution of learn.
ing, nor while kept in any almshouse, or other asylum at the public
expense, nor while confined in any public prison, nor while residing
upon any Indian or military reservation.

(D) (Mont. Pol. C. 1211, subd. 3 ; Utah, 806, subd . 3. ) No sol

dier, seaman, or marine, in the army or navy of the United States,
shall be deemed a resident of this state in consequence of being sta
tioned at any military or naval place within the same.

( E) ( Or. Const., art. 2, sec. 5.) No soldier, seaman, or marine, in

the army or navy of the United States, or of their allies, shall be
deemed to have acquired a residence in the state in consequence of
having been stationed within the same. ....

(F) (Wy. Const., art. 6, sec. 7.) No elector shall be deemed to

have lost his residence in the state , by reason of his absence on busi
ness of the United States, or of this state, or in the military or naval
service of the United States.

TITLE II. PROPERTY RIGHTS.

CHAPTER I. RIGHT TO HOLD AND CONVEY PROPERTY .

§ 103. WHEN ALIENAGE IS AND IS NOT A BAR .

(A) (Ar. 2129. ) In making title to land by descent, it shall be
no bar to a party that any ancestor through whom he derives his de
scent from the intestate , is or hath been an alien ; and every alien,
to whom any land may be devised or may descend, shall have five
years to become a citizen of the state and take possession of such
land, or shall have five years to sell the same before it shall be de
clared forfeited or shall escheat to the government; provided, that
the treaties of the United States with the nation to which such alien
may belong do not otherwise direct ; and provided, further, that
aliens may take and hold any property, real or personal, in this state,
8 103 COMPARATIVE CODE. 92

by devise or descent from any alien or citizen, in the same manner

in which citizens of the United States may take and hold real or
personal estate by devise or descent within the country of such alien.

(B) (Cal. Const., art. 1, sec. 17.) Foreigners of the white race,
or of African descent, eligible to become citizens of the United States,
under the naturalization laws thereof, while bona fide residents of
this state, shall have the same rights in respect to the acquisition,
possession, enjoyment, transmission, and inheritance of property as
native- born citizens.

( C) (Cal. C. C. 671.) Any person , whether citizen or alien , may

take, hold, and dispose of property, real or personal, within this state.

(D) (Cal. C. C. 1404 ; Id . 2552 ; Mont. C. C. 1867.) Resident aliens

may take in all cases by succession as citizens ; and no person capa
ble of succeeding under the provisions of this title is precluded from
such succession by reason of the alienage of any relative ; but no
non-resident foreigner can take by succession unless he appears and
claims such succession within five years after the death of the dece
dent to whom he claims succession,

( E ) ( Id. 2355. ) No person other than a citizen of the United

States, or who has declared his intention to become such , nor any
association or corporation, except railway corporations, whose mem
bers are not exclusively citizens of the United States, or persons who
have declared their intention to become such, shall hereafter acquire
any land, or title thereto, or interest therein, other than mineral
lands, or such as may be necessary for the actual working of mines
and the reduction of the products thereof ; provided, that no person
not eligible to become a citizen of the United States shall acquire title
to any land or real property within this state, except as hereinafter
provided ; provided, further, this act shall not prevent the holders
( whether aliens or non-residents, corporations or associations ) of
liens upon real estate, or any interest therein , heretofore or here
after acquired from holding or taking a valid title to the real estate
in the enforcement of such lien ; nor shall it prevent any such alien ,
association or corporation from enforcing any lien or judgment for
debt or liability now existing, or which may be hereafter created , nor
from becoming a purchaser at any sale made for the purpose of col.
lecting or enforcing the collection of such debt or judgment, nor from
preventing widows or heirs who are aliens, or who have not declared
their intention to become citizens, from holding lands by inheritance ;
but all lands acquired as aforesaid shall be sold within five years
after the title thereto shall be perfected in such alien, association or
corporation, and in default of such sale, within such time, such real
93 COMPARATIVE CODE. § 103

estate shall revert and escheat to the state of Idaho. The provisions
of this (chapter ) shall not be construed to in any way prevent or.
interfere with the ownership of mining lands, or lands necessary for
the working of mines or the reduction of the products thereof.
(F) (Id. 2555.) Any person, whether citizen or alien ( except as
hereinafter provided) , natural or artificial, may take, hold and dis
pose of mining claims and mining property, real or personal, tunnel
rights, mill-sites, quartz-mills and reduction works, used or necessary
or proper for the reduction of ores, and water rights used for mining
or milling purposes, and any other lands or property necessary for
the working of mines or the reduction of the products thereof : Pro
vided, that Chinese, or persons of Mongolian descent, not born in
the United States, are not permitted to acquire title to land or any
real property .

( G) (Mont. Const., art. 3, sec. 25.) Aliens and denizens shall

have the same right as citizens to acquire, purchase, possess, enjoy,
convey, transmit and inherit mines and mining property, and milling,
reduction, concentrating and other works, and the real property
necessary for or connected with the business of mining and treating
ores and minerals : Provided , that nothing herein contained shall
be construed to infringe upon the authority of the United States to
provide for the sale and disposition of its mineral and other public
lands.

(H) (Nev. Const., art. 1, sec. 16.) Foreigners who are, or who
inay hereafter become, bona fide residents of this state, shall enjoy
the same rights in respect to the possession, enjoyment, and inherit
ance of property as native-born citizens.

( I) (Nev. 2725.) Any non-resident alien, person , or corporation ,

except subjects of the Chinese empire, may take, hold, and enjoy any
real property, or any interest in lands, tenemrents , or hereditaments
within the state of Nevada , as fully, freely, and upon the same terms
and conditions as any resident citizen , person, or domestic corpora
tion .

(J) (Nev. 2726, 2727.) The right of eminent domain is hereby

granted to such non-resident or foreign corporations, upon the same
terms and conditions as the same is granted to resident or domestic
corporations. Nothing herein contained shall be so construed as to
confer any other or further rights under the statutes of limitation
tban those at present existing.

(L) (Or. Const., art. 1, sec. 31. ) White foreigners who are or
may hereafter become residents of this state shall enjoy the same
§ 103 COMPARATIVE CODE . 94

rights in respect to the possession, enjoyment, and descent of prop

erty as native born citizens. And the legislative assembly shall have
power to restrain and regulate the immigration to this state of
persons not qualified to become citizens of the United States.

( M) ( Or. Const., art. 15, sec. 8. ) No Chinaman, not a resident

of the state at the adoption of this constitution, shall ever hold any
real estate or mining claim , or work any mining claim therein . The
legislative assembly shall provide by law in the most effectual man
ner for carrying out the above provision.

( N) (Or. 5391. ) Any alien may acquire and hold lands, or any
right thereto, or interest therein , by purchase, devise, or descent,
and he may convey, mortgage, and devise the same, and if he shall
die intestate, the same shall descend to his heirs ; and in all cases
such lands shall be held, conveyed, mortgaged, or devised, or shall
descend in like manner and with like effect, as if such alien were a
native citizen of this state or of the United States ; and any corpora
tion incorporated under the laws of any other state in the United
States, or of any foreign country, not prohibited by the constitution
or laws of this state from carrying on business in this state, may
acquire, hold, use, and dispose of, in the corporate name, all real
estate necessary or convenient to carry into effect the object of the
incorporation and the transaction of its business, and also any in
terest in real estate by mortgage or otherwise, as security for
moneys due to or loans made by such corporation.

( O) ( Or. 5392. ) The title to any lands heretofore conveyed shall

not be questioned , nor in any manner affected, by reason of the
alienage of any person from or through whom such title may have
been derived .

(P) (Utah, 2847. ) Aliens may take in all cases by succession

as well as citizens ; and no person capable of succeeding under the
provisions of this title is precluded from such succession by reason
of the alienage of any relative.

(Q) (Wash. Const., art. 2, sec. 33.) The ownership of lands by

aliens, other than those who in good faith have declared their inten .
tion to become citizens of the United States, is prohibited in this
state, except where acquired by inheritance, under mortgage or in
good faith in the ordinary course of justice in the collection of
debts ; and all conveyances of lands hereafter made to any alien
directly, or in trust for such alien, shall be void : Provided, that the
provisions of this section shall not apply to lands containing valuable
deposits of minerals, metals, iron , coal, or fire clay, and the necessary
95 COMPARATIVE CODE. 8 103

land for mills and machinery to be used in the development thereof

and the manufacture of the products therefrom. Every corporation,
the majority of the capital stock of which is owned by aliens, shall
be considered an alien for the purposes of this prohibition.
( R) (Wash. 4548.) Any alien, except such as by the laws of the
United States are incapable of becoming citizens of the United
States, may acquire and hold lands, or any right thereto or interest
therein , by purchase, devise, or descent, and he may convey, mort
gage, and devise the same, and if he shall die intestate, the same
shall descend to his heirs ; and in all cases such lands shall be held ,
conveyed , mortgaged, or devised, or shall descend, in like manner,
and with like effect, as if such alien were a citizen of this state or
of the United States.

( S) (Wash. 4549. ) Any alien, except such as by the laws of

the United States are incapable of becoming citizens of the United
States, whether a resident of this state or not, shall be and is hereby
permitted to construct, build, equip, lease, use , sell, hold, and dispose
of, or acquire by purchase or otherwise, any railroad , tramway, or
bridge in this state, and shall be and is hereby allowed to work and
operate the same, to acquire and hold lands in connection therewith,
to mortgage the same, or said railroad, tramway, or bridge, and to
transact the business, collect and receive tolls, hold, use, and dispose
of the franchise and rights of any such railroad, tramway, or bridge,
with the same powers and privileges in all respects as now or may
hereafter belong to citizens of this state.

( T ) (Wash. 4550. ) All lands and all estates or interests in lands,

within the state of Washington, which were conveyed or attempted
to be conveyed to, or acquired or attempted to be acquired by, any
alien or aliens, prior to the date of the adoption of the state con
stitution, are hereby confirmed to the respective persons at present
owning or claiming to own the title thereto derived by, through or
under any such alien ownership or attempted ownership, to the extent
that title was vested in or conveyed by said alien or aliens : Provided ,
that nothing in this section shall be construed to affect, adversely
or otherwise, any title to any such lands, or to any interest or estate
therein , held or claimed by any private person or corporation ad
versely to the title hereby confirmed.

( U ) . (Wy. Const., art. 1, sec . 29.) . No distinction shall ever be

made by law between resident aliens and citizens as to the posses
sion , taxation, enjoyment and descent of property.

(V) (Wy. 4861.) The alienage of the descendants shall not

invalidate any title to real estate which shall descend from him or
her.
 88 104-108 COMPARATIVE CODE . 96

DIVISION VIII.
GUARDIAN AND WARD.

TITLE I. QUALIFICATIONS, APPOINTMENT, AND

GENERAL POWERS OF GUARDIAN .

CHAPTER 1. NATURE OF RELATION BETWEEN GUARDIAN

AND WARD .

$ 104. CONFIDENTIAL.
( Ar. 1976 ; Cal. C. C. 250 ; Mont. C. C. 344.) The relation of
guardian and ward is confidential, and is subject to the provisions
of the law on trusts.

$ 105. GUARDIAN DEFINED .

( Cal. C. C. 236; Mont. C. C. 330.) A guardian is a person ap
pointed to take care of the person or property of another,

8 106. WARD DEFINED .

( Cal. C. C. 237 ; Mont. C. C. 331.) The person over whoir or over
whose property a guardian is appointed is called his ward .

§ 107. GENERAL AND SPECIAL.

( Cal. C. C. 238 ; Mont. C. C. 332.) Guardians are either: (1.) Gen
eral ; or, ( 2.) Special .

§ 108. GENERAL GUARDIAN DEFINED .

( Ar. 1965, 1966 ; Cal. C. C. 239 , 240 ; Mont. C. C. 333, 334 ; Utah,
3983.) A general guardian is a guardian of the person or of all
the property of the ward within this state, or of both. Every other
is a special guardian.
97 COMPARATIVE CODE. $ 109

CHAPTER II, APPLICATION AND APPOINTMENT OF GUARD

IANS.

Section 1. Testamentary Guardians.

f 109. APPOINTMENT AND QUALIFICATION .
( A) ( Ar. 1967 ; Cal. C. C. 241 ; Id. 4350 ; Mont. C. C. 335.) A
guardian of the person or estate, or of both, of a child born, or
likely to be born, may be 1 [appointed ] by will or by deed, to take
effect upon the death of the parent 2 [ appointing] :
1. If the child be legitimate, by the father, with the written con
sent of the mother ; or by either parent, if the other be dead or in.
capable of consent ;
2. If the child be illegitimate, by the mother.
1 nominated .''-- Mont.
2 " nominating . " ' - Mont.

( B) ( Ar. 1982 ; Cal. C. C. P. 1758 ; Id. 4351; Mont. C. C. P. 2959 ;

Utah, 3989.) Every testamentary guardian must 1 [give bond and ]
qualify, and has the same powers and must perform the same duties
with regard to the person and estate of his ward as guardians ap
pointed by the 2 [ court) , except so far as their powers and duties
are legally modified, enlarged, or changed by the will by which such
guardian was appointed.3
1 Omitted . - Cal.
2 " probate court ' ' - Ar.; Id.; " court or judge . " ' -Mont.
3 Add : " and except that such guardian need not give bond unless di .
rected
Cal.
to do so by the court from which the letters of guardianship issue.''

( C) (Nev , 571.) .... Nothing contained in this act shall affect

or impair the right of a father, or in case of his decease or divorce,
the mother, of any mrinor child, to appoint by last will and testament,
a guardian or guardians of such child, whether born before or after
the time of making such will.

(D ) ( Or. 5254.) Every father may, by his last will in writing,

appoint a guardian or guardians for any of his children, whether born
at the time of making the will or afterward , to continue during
the minority of the child or for a less time. And every mother may,
by her last will in writing, appoint a guardian or guardians for any
of her children, to continue during the minority of the child, or for
a less time ; provided, that the father of such child or children is
dead , and has not appointed a guardian, or whenever, by decree of
divorce between such father and mother the custody of such child
or children has been awarded to the mother ; and every such testa
mentary guardian shall have the same powers and perform the same
duties with regard to the person and estate of the ward as a guardian
Comparative Code7
$ f 109-111 COMPARATIVE CODE. 98

appointed by the county court ; provided , that nothing in this section

shall be construed to deprive either the surviving father or mother
of the custody of the person of his or her children, such surviving
parent being competent to transact his or her own business.

( E) ( Or. 5255. ) Every such testamentary guardian shall give

bond in like manner and with like conditions as is before required
of a guardian appointed by the county court ; provided , that when
the testator in the will appointing the guardian shall have ordered
or requested that such bonds 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 county court shall
think proper to require it.

( F) ( Utah, 3984. ) A guardian of the person or estate , or of

both, 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 ;
such appointment may be made by the father, with the written con
sent of the mother ; or by either parent, if the other be dead or in
capable of consent.

( G) (Wash. 6409.) The father of every illegitimate child, who

is a minor, may, by his last will in writing, appoint a guardian or
guardians for his minor children, whether born at the time of making
such will or afterward, to continue during the minority of such
child, or for any less time, and every such testamentary guardian
shall give bond in like manner and with like condition as herein
before required, and he shall have the same powers and perform the
same duties with regard to the person and estate of the ward as a
guardian appointed as aforesaid .

Section II. Appointment by Court.

$ 110. WHEN MAY BE APPOINTED .
(Ar. 1969 ; Cal. C. C. 243 ; Mont. C. C. 337. ) 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, other
than those named in [ 8 109, ( A ) ] , by the 1 ( superior] court as pro.
vided in the Code of Civil Procedure.
1 " probate ' ' -Ar.; " district .''- Mont.

§ 111. WHO ENTITLED TO APPOINTMENT.

(A) ( Ar. 1972 ; Cal. C. C. 246 ; Mont. C. C. 340. ) 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 :
99 COMPARATIVE CODE, $ 111

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 he 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 guard
ianship , neither parent is entitled to it as of right; but, other things
being equal, if the child be of tender years, it should be given to the
mother ; if it be of an age to require education and preparation for
labor and business, then to the father ;
3. Of two persons equally entitled to the custody in other respects,
preference is to be given as follows : ( 1. ) To a parent ; ( 2. ) To one
who was indicated by the wishes of a deceased parent ; ( 3. ) To one
who already stands in the position of a trustee of a fund to be
applied to the child's support ; (4.) To a relative.

( B ) (Ar. 1958 ; Mont. C. C. P. 2954 ; Wash . 6399 ; Wy. L. 1901 ,

p. 94 , sec . 1. ) The father of the minor, if living, and in case of his
decease the mother [while she remains unmarried ) , being them
selves respectively competent to transact their own business 2 [ and
not otherwise unsuitable) , must be entitled to the guardianship of
the minor,3
1 Omitted - Mont.; Wash.; " whether remarried or not.''- Wy.
2 Omitted . -Wash .
3 Add : ' A married woman may be appointed guardian , ' ' - Mont.

( C) ( Cal. C. C. P. 1751. ) The father or the mother of a minor

child under the age of fourteen years, if found by the court competent
to discharge the duties of guardianship, is entitled to be appointed a
guardian of such minor child, in preference to any other person. The
person nominated by a minor of the age of fourteen years as his
guardian, whether married or unmarried, may, if found by the court
competent to discharge the duties of guardianship, be appointed as
such guardian. The authority of a guardian is not extinguished
por affected by the marriage of the guardian .

( D) ( Id. 4343.) Either the father or mother of a minor, being

themselves respectively competent to transact their own business,
and not otherwise unsuitable, must be entitled to the guardianship
of the minor.

(E) (Nev . 563. ) The father, if living, and in case of his decease,
tbe mother, being each competent to transact his or her own business,
and not otherwise unsuitable, shall be entitled to guardianship of
the minor.

( F) ( Or. 5258.) Whenever it becomes the duty of the county

court to appoint a guardian for a minor, the relations of such minor,
88 111-113 COMPARATIVE CODE. 100

whether male or female, upon application to the proper county court,

shall in all cases be appointed, the nearest relative having precedence ;
provided, that said applicant shall be of good moral character, and
be otherwise competent to discharge the duties of guardian to such
ward,

( G ) ( Utah, 3995.) In appointing a guardian for a minor, the

court shall be guided by the following considerations : If the minor
is fourteen years of age , he may nominate his guardian, subject to
the approval of the court, but if the court does not approve such
nomination, or if the minor resides out of the state, or if, after
having been duly cited by the court, he neglects for ten days there
after to nominate a suitable person , the court may appoint a guard
ian ; if the minor is not fourteen years of age, the court may appoint
the guardian, giving due consideration to the preference of the
child , if he be of sufficient age to form an intelligent preference, but
in such case, the minor, at any time after attaining the age of four
teen years, may appoint his own guardian , subject to the approval of
the court. Of persons equally entitled to the custody in other
respects, preference shall be given as follows : first, to a parent, but
as between parents adversely claiming the guardianship, neither
parent shall be entitled to it as of right, but, other things being
equal, if the child be of tender age, it shall be given to the mother,
or, if it be of an age to require education and preparation for labor
or business, then to the father ; second, to a person who was indicated
by the wishes of a deceased parent ; third, to the trustee of a fund
applied to the child's support ; fourth, to a relative.

$ 112. WHO CANNOT BE APPOINTED .

(Wash. 6396*.) No judicial officer, excepting justice of the peace,
no person of unsound mind, or a party convicted of a felony, or a
misdemeanor, involving moral turpitude, shall be appointed guardian,
and when a guardian shall incur either of the foregoing disabilities,
he shall be displaced. If a guardian becomes superior judge, the
superior court of the proper adjoining county shall appoint his
successor,

§ 113. POWER TO NOMINATE AND SELECT .

( A ) ( Ar. 1955 ; Cal. C. C. P. 1748 ; Id. 4340 ; Mont. C. C. P. 2951 ;
Or. 2881 ; Wash. 6396 ; Wy. 4867. ) If the minor is under fourteen
years of age, the 1 [ judge ) may nominate and appoint his guardian ;
if said minor be [ over] fourteen years of age, he or she may
nominate the guardian , who, if approved by the 3 [ superior court ) ,
shall be appointed accordingly.
1 " probate judge '' - Ar.; " court ' ' - Cal.; " probate court ' ' - id.; " court or
judge -Mont.; " county court."' - Or.
2 " above the age of'i - Ar.; Id.; Or.; omitted . - Oal.
3 “ judge ' ' - Ar .; Or .; " court or judge.''-Mont.; Wy.
101 COMPARATIVE CODE. 88 113-115

(B) (Nev. 561*.) .... If a minor is above the age of four

teen years, he or she may nominate his or her own guardian, who if
approved by the judge, shall be appointed accordingly, but if the
guardian so nominated by the minor should not be approved by the
judge, or if the minor shall reside out of the state or is not fourteen
years of age, the judge may nominate and appoint the guardian.

$ 114. FAILURE OF MINOR TO NOMINATE VESTS POWER IN

COURT .
(A ) ( Ar. 1956 ; Cal. C. C. P. 1749 ; Id. 4341 ; Mont. C. C. P. 2952 ;
Or. 5260 ; Wash . 6397 ; Wy. 4868. ) If the guardian nominated by
the minor is not approved by the 1 [court ) , or if the minor resides
out of the state, or if, after being duly cited by the 2 [court ) , he
neglects 3 [ for ten days] to nominate a suitable person , the 4 [ court]
or judge may nominate and appoint a guardian in the same manner
as if the minor were under the age of fourteen years.
1 " judge . " - Ar.; Or.; Wash.
2 judge' ' - Ar.; Or.; " court or judge. " -Mont.; Wy.
3 Omit.-Or.
4 " judge '' --Ar.; Or.; " court or judge. " --Mont.; Wy.

( B) ( Nev . 561* .) At the time fixed in the notice for the hear.
ing, or at such other time to which the hearing may be continued,
upon proof of the proper notices having been posted and served, the
court may hear the petition and appoint a guardian or guardians.

(C) (Or. 5261.) When such minor, being above the age of four
teen years, shall reside more than ten miles from the place of hold
ing the county court, his nomination of a guardian may be certified
to the judge thereof by a justice of the peace, which shall have the
same effect as if made in the presence of the court or judge.

$ 115. WHEN MINOR MAY CHOOSE NEW GUARDIAN .

( A ) ( Ar. 1957 ; Cal. C. C. P. 1750 ; Id. 4342 ; Mont. C. C. P. 2953 ;
Wy. 4869. ) When a guardian has been appointed by the 1 [ court]
for a minor under the age of fourteen years, the minor, at any time
after he attains that age, may appoint his own guardian , subject
to the approval of the 2 [ court ) .
1 " probate judge '' - Ar.; probate court. " ' -- 1a .
2 court or judge.''- Mont.; Wy.

( B) (Nev. 562. ) When a guardian of a minor under the age of

fourteen years has been appointed by the judge, such minor, at any
time after attaining to said age, may nominate his or her guardian
who, if approved by the judge, shall be appointed.
 88 115-117 COMPARATIVE CODE. 102

(C) (Wash. 6398. ) When a guardian has been appointed for any
minor under the age of fourteen , such guardian shall not be removed
when such minor arrives at the age of fourteen, except for good
cause shown.

§ 116. WHEN MORE THAN ONE GUARDIAN APPOINTED .

( A) ( Ar. 2033 ; Cal. C. C. P. 1807 ; Id . 4397 ; Mont. C. C. P. 3057 ;
Utah, 3987 ; Wy. 4948.) The 1 [court, in its discretion ) , whenever,
necessary, may appoint more than one guardian of any person sub
ject to guardianship, who must give bond and be governed and liable
in all respects as a sole guardian.
1 " court or judge ' ' -Mont.; Wy.; " court. " ' -Utah.

(B) (Nev. 602.) The court in its discretion may appoint more
than one guardian of any person or estate subject to guardianship.

( C ) ( Nev . 603.) Joint guardians may unite in a bond to the ward

or wards or each may give a separate bond.

§ 117. MANNER OF APPOINTMENT BY COURT - NOTICE .

( A) (Ar. 1954 ; Cal. C. C. P. 1747 ; Id. 4339 ; Mont. C. C. P. 2950 ;
Utah , 3994 ; Wy. 4866. ) The 1 ( superior court ] of each county,
when it appears necessary or convenient, may appoint guardians
for the persons and estates, or either2 of them, of minors who have
no guardian legally appointed by will or deed, and who are inhabi.
tants or residents of the county, or who reside 3 [without] the state
and have estate within the county. Such appointment may be made
on the petition of a relative or other person on behalf of the minor
4 [or on the petition of the minor, if fourteen years of age) . Be
fore making such appointment, the 5 [court] must cause such notice
[ as such court ] deems reasonable to be given to any person having
the care of such minor, and to such relatives of the minor 7 [resid
ing) in the county8 as the ' [court] may deem proper.
1 'probate judge ' ' -Ar.; " probate court ' ' - Id .; " district court . " - Mont.;
Utah ; Wy.
2 Insert : • ' or both.''-Ar.
3 " within . " ' -- Ar.
4 Omitted . - Ar.
5 " judge'' - Ar.; " court or judge ' ' - Mont.; Wy,
6 " he - Ar.; " as the court or judge." - Mont. ; Wy.
7 Omitted . -Mont .
8 Omit balance of section . -Ar.; Wy.
9 " court or judge .''- Mont.

(B) (Nev . 559. ) When necessary or convenient , guardians of the

persons and estate or either, of minors, who are inhabitants of, or.
reside in the county wherein application may be made ; or minors
103 COMPARATIVE CODE. 8 117

who being non -residents of the state, have any estate in such county,
may be appointed as herein provided.

( C) (Nev. 560.) To secure the appointment of a guardian, any

relative of or any person interested in or befriending a minor, may
file in the clerk's office of the district court of the proper county a
petition setting forth the necessary facts and praying for the ap
pointment of some designated person or persons as guardian or
guardians. Upon such petition being filed , the clerk shall give
notice of the hearing thereof by posting in three public places in the
county , one of which shall be at the front door of the courthouse
thereof, a notice containing the name or names of the minor or
minors, the party petitioning, the object, and the time and place
for the hearing, which shall not be later than ten days after sucb
posting. The party petitioning shall also cause notice to be served
upon any person in whose custody or care such minor or minors,
may be ; provided, if any person shall be nominated guardian by will,
the court may on the probate of such will, or at any time thereafter,
appoint such person or persons guardian without any petition or no
tice.

(D ) (Or. 5259. ) The county court for each county , when it

shall appear to it necessary or convenient, may appoint guardians
to minors and others, being inhabitants or residents in such county,
and also such as shall reside without this state and have any estate
within the same.

( E) ( Wash. 6395. ) The superior court of each county, when it

shall become necessary , may appoint guardians to minors resident
in said county, who have no guardian appointed by will ; or who
may reside out of the state, having estate within the county.

( F) (Wash . L. 1903, p. 242, sec. 1. ) When it is represented to

the superior court upon verified petition of any relative or friend
that any person, resident of the county, is a minor or is insane, or is
mentally incompetent to manage his property, and that such person
has property needing care and attention, coupled with an applica
tion for appointment of a guardian for such person, such court must
cause a notice to be given to such minor, insane, or mentally incom.
petent person, of the time and place of hearing the application for
the appointment of a guardian to manage the estate of such person,
not less than ten days before the time so appointed.

( G) (Wash . L. 1903, p. 242, sec. 2.) If such minor, insane or

mentally incompetent person is in the care, custody or control of
any person, officer or body, then notice must be served also on such
person, officer or body in charge of such person ; and such person
8 $ 117, 118 COMPARATIVE CODE. 104

for whom a guardian is sought, if able to attend, must be produced

on the hearing.

(H) ( Wash. L. 1903, p. 243 , sec. 3. ) Personal service must be

made on such minor, insane or mentally incompetent person , if pos
sible, and the laws of the state of Washington relating to the man
ner of service of summons shall apply to the service of the notice
provided herein, as nearly as said statutes can apply.

( I) (Wash. L. 1903 , p. 243, sec . 4. ) It shall be the duty of any

person, officer or body in the custody, charge or control of any
minor under the age of fourteen years, insane person or mentally
incompetent person, when so served with notice of such application,
to forthwith report the service of said notice to the court of the
county in which said application is to be heard. It shall be the duty
of the prosecuting attorney of said county in all cases to appear for
such minor, insane or mentally incompetent person at the bearing
of said application, and in case of the disability of the prosecuting
attorney the court shall appoint a suitable person to represent the
said minor, insane or mentally incompetent person at said hearing :
Provided, nothing herein shall prevent said minor, insane or men
tally incompetent person, or the person, officer, or body having such
person in custody, charge and control, from appearing by attorney
of his own, and in such event it is not the duty of the prosecuting
attorney to appear for such person.

(J) (Wash. L. 1903, p. 243, sec . 5. ) When a minor under the

age of fourteen years, insane person or mentally incompetent person
having property in the state of Washington for whom a guardian is
sought to be appointed resides out of the state of Washington, then
the service of the notice aforesaid shall be had against said minor,
insane person or mentally incompetent person by publishing said
notice for the period of six weeks in some suitable newspaper of
general circulation published in the county in which the application is
to be heard and service shall be deemed to be had at the expiration
of ten days from the completion of such publication of notice,
whereupon such proceedings shall take place as hereinbefore provided
herein.

å 118. BOND TO BE FILED_CONDITIONS.

( A ) ( Ar. 1961 * ; Cal. C. C. P. 1754* ; Id. 4346 *; Mont. C. C. P.
2957 * ; Wy. 4873 *.) Before the order appointing any person guardian
[of minor or insane person ] take effect, and before letters issue the
1 [ court ] must require of such person a bond to the minor, with suffi
cient sureties, to be approved by the judge, and in such sum as he
shall order conditioned that the guardian will faithfully execute the
105 COMPARATIVE CODE. 8 118

duties of his trust according to law, and the following conditions

shall fornr a part of such bond without being expressed therein :
1. To make an inventory of all the estate , real and personal , of
his ward, that comes to his possession or knowledge, and to return
the same within such time as the 2 [ court ] may order ;
2. To dispose of and manage the estate according to law and for
the best interest of the ward , and faithfully to discharge his trust in
relation thereto, and also in relation to the care, custody, and educa
tion of the ward ;
3. To render an account on oath of the property, estate , and moneys
of the ward in his hands, and all proceeds or interests derived there
from , and of the management and disposition of the same, within
three months after his appointment, and at such other times as the
3 [ court ) directs, and at the expiration of his trust to settle his ac
counts with the 4[ court) , or with the ward, if he be of full age,
or his legal representatives, and to pay over and deliver all the es
tate, moneys, and effects remaining in his hands, or due from him on
such settlement, to the person) who is lawfully entitled thereto .
1 " judge ' ' - Ar.; Id.; " court or judge. ” - Mont.; Wy.
2 judge '' - Ar.; Id.; " court or judge. ” - Mont.; Wy .
3 " court or judge . " ' -Mont.; Wy .
4. probate judge '' - Ar:; * court or judge.''- Mont.; Wy.
6 Insert : ' ' or persons.''-Ar.

( B) (Nev. 565*. ) Before the order appointing any person or guar.l

ian [of a minor or insane person takes] effect, and before letters shall
issue, the person or persons so appointed shall take and subscribe the
official oath , to be indorsed on the letters, and shall give bond to the
minor or minors in such sum as the court may order, with at least two
sufficient sureties to be approved by the court or judge, and condi
tioned that the guardian shall faithfully execute the duties of his
or her trust according to law ; and the following conditions shall
be deemed to form a part of such bond without being expressed
tberein :
1. To make a full and true inventory of all the estate , real and
personal, of the ward, and have the same appraised by three disin.
terested persons, to be appointed by the court or judge, and to re
turn and file in the clerk's office, within twenty days after qualifying,
such inventory and appraisement under oath.
2. To manage all such estate according to law and for the
best interest of the ward , and to discharge faithfully his or her
trust in relation thereto, and also in relation to the care, custody and
education of the ward.
3. To render under oath a true account of the property, estate
and moneys of tho ward, and all the proceeds or interest derived
therefrom and of the management and disposition of the same, within
one year after appointment, and annually thereafter and at such
other time as the court mray direct.
 $ 118 COMPARATIVE CODE . 106

4. At the expiration of his trust, to settle his or her final, account

with the court or with the ward if of legal age, or his or her legal
representative and to pay over all moneys, and deliver all the es.
tate and effects remaining in his or her hands or justly chargeable
to the guardian on such settlement, to the person or persons lawfully
entitled thereto .

(C) (Or. 5263.) Every such guardian shall give bond with surety.
or sureties to the state of Oregon , in such sum as the county court
may order, with conditions as follows :
1. To make a true inventory of all the real estate, and of all the
goods, chattels, rights, and credits of the ward that shall come to his
possession or knowledge, and to return the same into the county
court at such time as the judge may order ;
2. To dispose of and manage all such estate and effects accord
ing to law, and for the best interest of the ward ; and faithfully to
discharge his trust in relation thereto, and in relation to the custody,
education, and maintenance of the ward ;
3. To render on oath an account of the property in his hands,
including the proceeds of all real estate sold by him, and of the
management and disposition of all such property, within one year.
after his appointment, and at such other times as the county court
shall direct ;
4. At the expiration of his trust , to settle his accounts with the
county court or with the ward , or his legal representatives, and to
pay and deliver over all the estate and effects remaining in his
bands, or due from him on such settlement, to the person or per
sons who shall be lawfully entitled thereto.

( D) (Wash. 6403.) The court shall take of each guardian ap

pointed [ for a minor ) a bond, with approved security, payable
to the state of Washington, in a sum double the amount of the
minor's estate, real and personal, conditioned as follows : The con
dition of this obligation is such, that if the above-bound A B, who
has been appointed guardian for C D, shall faithfully discharge the
office and trust of such guardian according to law, and shall render
a fair and just account of his said guardianship to the superior
court for the county of - from time to time, as he shall thereto
be required by said court, and comply with all orders of said court,
lawfully made, relative to the goods, chattels, and moneys of such
minor, and render and pay to such minor all moneys, goods, and
chattels, title papers, and effects which may come into the hands
or possession of such guardian belonging to such minor, when such
minor shall thereto be entitled, or to any subsequent guardian, should
such court so direct, this obligation shall be void, or otherwise to
remain in full force and virtue. Which bond shall be for the use
of such minor, and shall not become void upon the first recovery,
 107 COMPARATIVE CODE. $$ 119, 120

but may be put in suit from time to time against all or any one or
more of the obligors, in the name and ( for ) the use and benefit of
any person entitled by a breach thereof, until the whole penalty shall
be recovered thereon.

§ 119. OATH AND LETTERS OF GUARDIANSHIP .

( A ) (Ar. 1961 * ; Cal. C. C. P. 1754* ; Id. 4346* ; Mont. C. C. P.
2957 * ; Wy. 4873*. ) .... Upon filing the bond, duly approved, let
ters of guardianship must issue to the person appointed. In form ,
the letters of guardianship must be substantially the same as letters
of administration , and the oath of the guardian must be indorsed
thereon that he will perform the duties of his office as such guardian
according to law.

( B) (Nev. 565 *.) .... Upon filing such bonds duly approved by
the district judge, and taking the oath of office as aforesaid , the
clerk shall issue letters of guardianship to the person or persons ap
pointed. Letters of guardianship may be substantially in the fol.
lowing form : ( After properly entitling court and cause. ) Whereas
by order of said court herein made and entered on the day
of - 14 , was ( or were, as the case may be) appointed
guardian of the ( person and estate, or either as the case may be )
of , minor ; and, whereas, the said has ( or have, as the
case may be ) duly qualified according to law, these letters are
hereby issued to as such guardian. Witness my hand and
seal of said court, this day of Clerk . Pro
vided, if a person is appointed in a will to be guardian without bonds,
the court may direct letters to issue to such on taking and sub
scribing the oath of office.

$ 120. PRESERVATION OF BOND - ACTION ON.

( A ) (Ar. 2030 ; Cal. C. C. P. 1804 ; Id. 4390 ; Mont. C. C. P. 3054 ;
Wy. 4945. ) Every bend given by a guardian must be filed and
preserved in the office of the clerk of the 1 [ superior ] court 2 [ of the
county) , and in case of a breach of a condition thereof, may be
prosecuted , for the use and benefit of the ward, or of any person in
terested in the estate,

1 " probate '' - Ar.; Id.; " district. " - Mont.

2 Omitted.-Mont.

(B) (Nev. 594. ) Every bond given by a guardian may be to one

or more wards and shall be filed and preserved in the office of the
clerk of the district ccurt of the county ; and in case of the breach
of any condition thereof, an action may be maintained therefor in
behalf of the ward, or wards jointly, if all are interested, or of any
 $ 121 COMPARATIVE CODE. 108

person interested in the estate, and shall not be void on the first
recovery ; and if the action is in behalf of one ward on a bond given
to more than one, the others mentioned in the bond need not be
united in or made parties to such action .

& 121. GENERAL PROVISIONS RELATIVE TO BONDS OF

GUARDIANS .
(A) ( Cal. C. C. P. 1809. ) The provisions of ( $ 471 ] are hereby
declared to apply to guardians appointed by the court, and to the
bonds taken or to be taken from such guardians, and to the sureties
on such bonds.

( B ) ( Ar. 2029 ; Cal. C. C. P. 1803; Id . 4389 ; Mont. C. C. P. 3053 ;

Nev. 593 ; Wy. 4944. ) The 1 [ court ] may require a new bond to be
given by a guardian whenever such court2 deems it necessary and
may discharge the existing sureties from further liability, after
due notice given as such court 3 may direct, when it shall appear,
that no injury can result therefrom to those interested in the estate.
1 " probate judge '' - Ar .; Id.; " district judge ' ' -Nev.; " court or judge."
Mont .; Wy.
2 Insert : “ or judge . " - Mont.; Wy.
3 Insert : or judge .''-Mont.; Wy .

( C ) (Id. 4393. ) The provisions as to qualification and justifica

tion of sureties to undertakings, are hereby declared to apply to
guardians appointed by the court, and to the bonds taken , or to
be taken, from such guardians, and to the sureties on such bonds.

( D ) (Nev. 567. ) At the time designated, or at such other time

as the judge may appoint, he shall proceed upon proof of service
of citation, to investigate the sufficiency of the bond of such guard.
ian, and if satisfied that the security is from any cause insufficient ,
he may by order, require the guardian to give further security or
file a new bond within a reasonable time .

( E) (Nev. 566.) Whenever any guardian's bond shall become in

sufficient by reason of the death, insolvency or removal from the
state of any surety or sureties, it shall be the duty of the guardian
to give further security, and he may be ordered by the court to
do so, within a given time, whenever the court shall be satisfied the
bond has become insufficient. To this end, whenever the district
judge shall be satisfied that the matter requires investigation he
shall direct the clerk to issue a citation to the guardian, requiring
him or her to appear at a given time and place to be therein specified ,
to show cause why he or she should not give further security. Such
citation shall be served personally on the guardian by the sheriff or
109 COMPARATIVE CODE. 88 121, 122

any other citizen of the United States over twenty-one years of

age, at least five days before the return day thereof ; provided, if
the guardian shall have absconded, or cannot be found, it may be
served by leaving a copy thereof at his or her last place of abode.

(F) (Nev. 568. ) If the guardian shall neglect to comply with

the order within the time prescribed, the judge shall by order re
voke his or her letters, and his or her authority shall thereupon
cease ,

( G ) (Or. 5281. ) The county court may require a new bond to

be given by any guardian, and may discharge the existing sureties
from future responsibility, in the like case and upon the like terms
as are prescribed with regard to executors or administrators

( H ) ( Utah , 3991. ) The provisions of the probate code respecting

the oaths of office and bonds of executors and administrators, and
their resignation and removal, so far as applicable, shall apply to
and govern the oaths of office, bonds, resignation, and removal, re
spectively, of guardians.

( I) (Wash. 6408.) All the provisions (of law relative to letters

testamentary and of administration ) relative to bonds given by
executors and administrators shall apply to bonds taken of guardians.

( J ) (Wash . 6420. ) Sureties on the bond of any guardian may

be discharged from liability therein, under the same rule and regu
lation prescribed for the discharge of the sureties on the bond
of executors and administrators, and the provisions of [ law] regu
lating the same shall apply to guardians, and guardians' bonds
aud sureties.

CHAPTER III. DUTIES AND POWERS OF GUARDIANS.

Section 1. Control of Guardian.

$ 122. JURISDICTION TO CONTROL .
(A ) (Ar. 1971 ; Cal. C. C. 245 ; Mont. C. C. 339 ; Utah, 3986.) In
all cases the court1 making the appointment of a guardian has ex
clusive jurisdiction to control him.
1 ' first. " ' -Ar.; Utah .

(B) (Ar. 1977 ; Cal. C. C. 251 ; Mont. C. C. 345.) In the manage

ment and disposition of the person or property committed to him,
a guardian may be regulated and controlled by the court,
98 123, 124 COMPARATIVE CODE. 110

§ 123. GENERAL POWER TO IMPOSE CONDITIONS.

(Ar. 1962 ; Cal. C. C. P. 1755 ; Id. 4347 ; Utah, 3988 ; Wy. 4874.).
When any person is appointed guardian 1 [ of a minor ) , the 2 [court ]
may , with the consent of such person , insert in the order of appoint
ment conditions not otherwise obligatory, providing for the care,
treatment, education, and welfare of the 3 [ minor) , The perform
arce of such conditions shall be a part of the duties of the guardian,
for the faithful performance of which he and his sureties on his bond
shall be responsible.
1 Omitted.-Utah .
2 probate judge'' - Ar. ; . " probate court' - Id. ; . ' ' court or judge."' - Wy.
3 " ward' instead of minor'' -- Utah ; after “ minor'' insert : and for the
care and custody of his property .''- Cal.

§ 124. GUARDIAN OF THE PERSON .

(A) ( Ar. 1974 ; Cal. C. C. 248 ; Mont. C. C. 342 ; Utah, 4005.) 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 ward at any place within the state, but not else
where, without permission of the court.

( B) ( Ar. 1959 ; Cal. C. C. P. 1752 ; Id . 4344 ; Mont. C. C. P. 2955 ;

Wy. 4871. ) If the minor has no father or mother living, competent
to have the custody and care of his education, the guardian appointed
shall have the same,

(C ) ( Cal. C. C. P. 1753. ) Every guardian appointed has the

custody and care of the education of the minor, and the care and
management of his estate, until such minor arrives at the age of
niajority or nrarries, or until the guardian is legally discharged.

(D) ( Ar. 1960 ; Id. 4345 ; Mont. C. C. P. 2956 ; Wy. 4872. ) . Every
guardian appointed shall have the custody and care of the 1 [ educa
tion of the] minor, and the care and management of his estate, until
such minor arrives at the age of majority, 2 [and in case of a girl,
until she marries, or arrives at the age of majority] , or until the
gnardian is legally discharged.
1 Omitted .-Ar.
2 Omitted . -Ar.; Cal .; Id.; Mont.

( E) (Nev. 564.) Every guardian appointed as aforesaid, shall

have the custody and tuition of the minor, and the care and manage .
ment of the estate, of which appointed, until such minor shall attain to
the age of twenty-one years, if a male, or eighteen years, if a female,
unless sooner discharged according to law.
111 COMPARATIVE CODE. 88 124-126

( F) ( Or. 5262.) Every guardian so appointed shall have the

eustody and tuition of the minor, and the care and management of
his estate, and shall continue in office until the minor shall have
arrived at the age of twenty-one years, or until the guardian shall
have been discharged according to law ; provided , however, that the
father of the minor, if living, and in case of his death, the mother,
while she remains unmarried, being themselves respectively com
petent to transact their own business, shall be entitled to the custody
of the person of the minor, and to the care of his education.

( G ) (Wash. 6400. ) 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.

$ 125 , GUARDIAN OF THE PROPERTY .

( A) ( Ar. 1975 ; Cal. C. C. 249 ; Mont. C. C. 343 ; Utah, 4006. ) A
guardian of the property must keep safely the property of his ward.
He must not permrit any unnecessary waste or destruction of the real
property, nor make any sale of such property without the order of
the 1 [ superior) court , but must, so far as it is in his power, maintain
the same, with its buildings and appurtenances, out of the income or
other property of the 2[ estate ) and deliver it to the ward at the
close of his guardianship in as good condition as he received it.3
1 " probate ' ' - Ar.; " district' ' - Mont.; omitted .- ('tah.
2 \ 'ward .''- Mont.
3 Add : " natural wear and tear excepted .''-- Utah.

(B ) ( Ar. 1968 ; Cal. C. C. 242 ; Mont. C. C. 336 ; Utah, 3985. ) No

person, whether a parent or otherwise, has any power as guardian
of property, except by appointment.

126. GUARDIAN OF PERSON AND PROPERTY .

( A) (Ar. 1793 ; Cal. C. C. 247 ; Mont, C. C. 341 ; Utah, 4014.) A
guardian appointed by a court has power over the person and prop
erty of the ward, unless otherwise ordered.

(B) (Utah, 4003. ) Every general guardian has the care and
custody of the person of his ward , and the management of all his.
estate until such guardianship is legally terminated .

(C ) (Wash . 6401 * .) Every guardian appointed as aforesaid shall

have the custody and tuition of the minor , and the care and manage
ment of the estate of such minor , except as hereinafter provided,
until he or she shall have attained the age of majority . . .
 $$ 127 , 128 COMPARATIVE CODE. 112

Section II. Maintenance, Support and Education of Ward.

§ 127. INCOME AND PROFITS OF ESTATE TO BE APPLIED
FOR SUCH PURPOSE - SALES.
(A) ( Ar. 1990 ; Cal. C. C. P. 1770 ; Id . 4359 ; Mont. C. C. P. 2982 ;
Nev. 576* ; Or. 5276 ; Utah, 4007 ; Wy. 4900. ) Every guardian must
manage the estate of his ward frugally and without1 waste, and
apply the income and profits thereof, as far as may be necessary ,
for the comfortable and suitable maintenance 2 [and support] of the
ward 3 [ and his family, if there be any) ; and if such income and
profits be insufficient for that purpose, the guardian may sell 4the
real estate , upon obtaining 3 [an order) of the 6 [court ) therefor, as
provided , 7 and must apply the proceeds of such sale, as far as may be
necessary, for the maintenance and support of the ward and his
family,s if there be any.
1 Insert : " unreasonable .''- Nev .
2 Omitted . - Mont.
3 Omitted . - Nev.
45 Insert: “ by law for such purpose . " ' - Nev.
" ' a license .''- Or.
6 “ court or judge."' - Mont.; Wy.
7 Insert: ' ' personal or' ' -Nev .; " mortgage or lease . " - Utah.
8 Omit balance and read instead as follows: " or the guardian may, upon
authority granted therefor by the proper county court , mortgage said real
estate for such amount as may be necessary for the maintenance and support
of the ward and his family, or the care of said property, and shall apply the
proceeds from the same to those purposes. " ' -Or.

( B ) (Wash . 6405*.) It shall be the duty of the guardian: .

( 2. ) To manage the estate for the best interest of his ward ; ( 3. ) To
render on oath to the proper court an account of his receipts and of his
expenditures, with vouchers therefor, at least once in every two years,
and whenever cited so to do, and failing so to do, he shall receive no
allowances for services, and be liable to said ward on his bond in danr
ages for ten per cent of the whole amount of the estate, both real and
personal, in his hands belonging to such ward ; ( 4. ) At the expiration
of his trust fully to account for and pay over to the proper person
all the estate of said ward remaining in his hands; .... When any
ward has no father or mother, or such father or mother is unable
or fails to educate such ward, it shall be the duty of his guardian to
provide for him such education as the amount of his estate may
justify.

§ 128. IN WHAT CASE PARENT NOT LIABLE FOR MAINTE

NANCE .
( Ar. 1964 ; Cal. C. C. P. 1757 ; Id. 4349 ; Mont. C. C. P. 2958 ; Nev.
570 ; Utah, 3999 ; Wy. 4876. ) If any minor having a 1 [father) living
has property, the income of which is sufficient for his maintenance
and education in a manner more expensive than his 2 [ father] can
a [reasonably] afford, regard being had to the situation of the
 113 COMPARATIVE CODE. 88 129, 130

4[ 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 judged reasonable, and must be directed by the 5 [court) ; and the
charges therefor may be allowed accordingly in the settlement of
the accounts of his guardian.
1 ' ' parent. " ' - Wy.
2 " parent ." - Wy.
3 Omitted.-Ar.
4 " parent .''- Wy.
5 probate court' ' - Ar.; Id.; " court or judge ' ' -Mont.; Wy.; " district
court.''- Nev .
6 Insert : " the guardian of such minor in the settlement of his accounts . " '.
Nev.

$ 129. ENFORCEMENT OF MAINTENANCE .

( Ar. 1991 ; Cal. C. C. P. 1771 ; Id . 4360 ; Mont. C. C. P. 2983 ; Utah ,
4013 ; Wy. 4901. ) When & guardian has advanced , for the necessary
maintenance, support or education of his ward, an amount pot dis
proportionate to the value of his estate or his condition of life, and
the same is made to appear to the satisfaction of the 1 [court) , by
proper vouchers and proofs, the guardian must be allowed credit
therefor in his settlements. Whenever a guardian fails, neglects,
or refuses to furnish suitable and necessary maintenance , support,
or education for his ward, the 2[ court] may order him to do so, and
enforce such order by proper process. Whenever any third person ,
at his request, supplies a ward with such suitable and necessary
maintenance, support, or education, and it is shown to have been
done after refusal or neglect of the guardian to supply the same,
the 3 [ court ] may direct the guardian to pay therefor out of the
estate, and enforce such payment by due process.
1 " court or judge ." - Mont.; Wy.
2 court or judge . " - Mont .; Wy.
3 " court or judge . " ' -- Mont.; Wy.

Section III. Management and Control of Property.

§ 130. INVENTORY OF ESTATE .
(A ) ( Ar. 1993 ; Cal. C. C. P. 1773 ; Id. 4362 ; Mont. C. C. P. 2985 ;
Wy. 4903.) Every guardian must return to the 1 [ court) an inventory
of the estate of his ward within three months after his appointment,
and annually thereafter.2 When the value of the estate exceeds the
sum of one hundred thousand dollars, semi-annual returns must be
made to the court . The 4 [ court ) may, upon application made for
that purpose by any person, compel the guardian to render an
account to the 5 [ court ) of the estate of his ward. The inventories
and accounts so to be returned or rendered must be sworn to by the
guardian. All the estate of the ward described in the first inventory.
must be appraised by appraisers appointed, sworn , and acting in the
Comparative Code—8
 $ 130 COMPARATIVE CODE, 114

manner provided for regulating the settlement of the estates of

decedents. Such inventory, with the appraisement of the property
tberein described, must be recorded by the clerk of the 6 [ court ) in
a proper book kept in his office for that purpose. Whenever any
other property of the estate of any ward is discovered, not included
in the inventory of the estate already returned , and whenever any
other property has been succeeded to or acquired by the ward, 7 [or]
for his benefit, the like proceedings must be had for the return and
appraisement thereof that are provided [by law] in relation to the
first inventory and return.
1 “ probate court." - Ar.; Id.
2 Insert : " ' account therefor. "' - Wy.
3 Insert : " probate.''- Ar.
4 probate court' ' -Ar.; Id.; " court or judge ." - Mont .; Wy.
6 probate court' - Ar.; Id.; " court or judge. " ' -Mont.; Wy.
6 " probate court' ' - Ar.; Id.; " court or judge.''-Mont.; Wy.
7 Omitted.-Ar.

(B) ( Nev. 578.) Every guardian shall return to the district

court an inventory of the estate of his or her ward within twenty
days after his or her qualification , and annually, or at such other
times as the court may order, present to, and have settled, by said
court, his account as guardian , and shall return to said court addi
tional inventories whenever any further property belonging to the
ward not included in any previous inventory shall come to his
hands or knowledge. If there be no estate, he shall return that fact.
The provisions of law regulating the settlement of the estates of
deceased persons regarding inventories, shall apply to the inventories
herein required in all respects, except as to time of filing.

( C ) (Or. 5277. ) Upon the taking of any inventory as required

by this title, the estate and effects comprised therein shall be ap
praised by three suitable persons, to be appointed and sworn in like
manner as is required with respect to the inventory of a deceased
testator or intestate ; and every other guardian shall account for
and dispose of the personal estate of his ward in like manner as is
directed with respect to executors and administrators.

( D) (Utah, 4010.) Every guardian must return to the court,

within three months after his appointment, an inventory and ap
praisement of the estate of his ward, which shall be made by the
guardian and appraisers in the manner and form hereinbefore pro
vided for the making of the inventory and appraisement of the
estate of a decedent. Annually thereafter, or semi-annually, if the
value of the estate exceeds twenty thousand dollars, every guardian
must present to the court for settlement and allowance an itemized
account and inventory, duly verified as to correctness and complete
ness by himself or by another with the express permission of the
court, containing a full and true statement of all the guardian's
115 COMPARATIVE CODE. $$ 130, 131

receipts and disbursements on account of his ward ; and for all

money and other personal property of the ward, which have come
to the hands of the guardian, or have been received by any other.
person by his order or authority, or for his use, since his appoint
ment, or since the filing of the last annual inventory and account,
as the case requires; and of the value of all such property ; together.
with a full and true statement and account of the manner in which.
he has disposed of the same, and of all the property remaining in,
his hands, at the time of filing the inventory and account ; and a
full and true description of the amount and nature of each invest
ment made by him since his appointment, or since the filing of the
last annual inventory and account, as the case requires.

( E) (Utah, 4011. ) The court may, upon application made for

that purpose by any person, compel the guardian to render an .
account to the court of the estate of his ward. All the estate of
the ward described in the first inventory must be appraised by
appraisers appointed, sworn , and acting in the manner provided for
regulating the settlement of the estates of decedents ; such in
ventory, with the appraisement of the property therein described,
must be recorded by the clerk of the court in a proper book kept in
his office for that purpose. Whenever any other property of the
estate of any ward is discovered, not included in the inventory of the
estate already returned, and whenever any other property has been
succeeded to, or acquired by any ward or for his benefit, the like
proceedings must be had for the return and appraisement thereof
that are provided [by law] in relation to the first inventory and
return .

( F) (Wash. 6405*.) It shall be the duty of the guardian of any

minor,-1. To make out and file, within three months after his
appointment, a full inventory, verified by oath, of the real and
personal estate of his ward, with the value of the same, and failing
so to do, it shall be the duty of the court to remove him and appoint
a successor . ....

$ 131. PAYMENT OF DEBTS.

(A) ( Ar. 1988 ; Cal. C. C. P. 1768 ; Id: 4357 ; Mont. C. C. P. 2980 ;
Utah, 4008 ; Wy. 4898. ) Every guardian appointed under the pro
visions of [law] 1 [ whether for a minor or any other person ) , must
pay all just debts due from the ward out of his personal estate and
the income of his real estate, if sufficient; if not, then out of his real
estate,2 upon obtaining an order for the sale thereof, and disposing of
the same in the manner provided for the sale of real estate of de
cedents.
1 Omitted . -Utah.
2 Balance of section omitted . - Utah .
 $$ 131, 132 COMPARATIVE CODE. 116

( B) (Nev. 575.) Every guardian appointed under the provisions

of this act, whether for a minor or any other person, shall pay all
just debts due from the ward out of the personal estate and the
income from the real estate of the ward, if sufficient, and if not,
then from the proceeds of the sale of the personal or real estate, upon
obtaining an order for such sale according to law.

(C) ( Or. 5275*.) Every guardian appointed under the provisions

[ relating to insane and intoxicated persons) , shall pay all just debts
due from his ward out of his personal estate, if sufficient, and if not,
out of his real estate, upon obtaining a license for the sale thereof,
as provided by law ;

(D) (Wash. 6405 *, subd. 5.) It shall be the duty of a guardian

of any minor. 5. To pay all just debts due from such ward
out of the estate in his hands, and to collect all debts due such
ward, and in case of doubtful debts, to compound the same, and
to appear for and defend, or cause to be defended, all suits against
such ward. ..

$ 132. COLLECTION AND PAYMENT OF CLAIMS.

(A) (Ar. 1989 ; Cal. C. C. P. 1769 ; Id. 4358 ; Mont. C. C. P. 2981 ;
Utah, 4009 ; Wy. 4899. ) Every guardian must settle all accounts of
the ward , and demand , sue for, and receive all debts due to him, or may,
with the approbation of the 1 [court) , compound for the same and
give discharges to the debtor, on receiving a fair and just dividend
of his estate and effects; and he must appear for and represent his
ward in all legal suits and proceedings, unless another person be
appointed for that purpose.2
1 " probate judge .''-Ar.; Id.
2 Add : " as guardian or next friend. " ' -Ar.

(B) (Nev. 577.) Every guardian shall settle all accounts of the
ward, and demand, sue for and receive all and every debt or prop
erty due the ward ; or may, with the consent of the district judge,
compound for the same, and give a discharge to the debtors on
receiving a fair and just dividend of his or her estate and effects;
and he shall appear for and represent his ward in all legal proceed
ings, unless when another person shall be appointed for that purpose
as guardian ad litem, or next friend.

(C ) (Or. 5275. ) Every guardian .... shall also settle all ac

counts of the ward, and demand, sue for, and receive all debts due to
him , or may, with the approbation of the county court, compound
for the same, and give a discharge the debtor upon receiving a
fair and just dividend of his estate and effects; and he shall appear
 117 COMPARATIVE CODE . 8 $ 132-135

for and represent his ward in all legal suits and proceedings, unless
when another person is appointed for that purpose as guardian or
Text friend.

( D) (Wash. L. 1903, p. 153, sec. 1.) Every minor, imbecile or

insane person, having a cause of action against him, or in his favor,
shall be bound by any compromise or settlement thereof to the same
extent as a person not under legal disability would be bound ; provid.
ing that such compromise is made by the guardian of such minor,
imbecile, or insane person, by and with the advice of the court, by
whom such guardian was appointed. Before making a compromise,
the guardian shall file in the court wherein he is appointed, and to
which he is accountable , a petition briefly stating the nature of the
claim, together with the reasons for the making of such compromise.
ln case the ward is a minor more than fourteen years of age, a
copy of the petition , with a notice of the time of hearing, shall be
served upon the ward. The guardian shall call to the attention of the
court all facts pertaining to said matter, and, if the court, after such
hearing, directs a compromise , to be made, the guardian is hereby
authorized to make and accept acquittances which shall be forever
binding upon his ward.

( E) ( Wash. 6402 Guardians, by virtue of their office as such,

shall be allowed in all cases to prosecute and defend for their wards.

133. PRESENTATION OF CLAIM .

(Wash. 6405a.) No holder of a claim, demand or judgment against
an estate of a person under guardianship shall maintain an action
thereon or enforce the same, unless the claim, demand or judgment
shall have been first presented to such guardian and by him rejected
in whole or in part. A failure or neglect to allow a claim for thirty
days after the same is presented, shall be deemed a rejection thereof.

§ 134. CONTESTING CLAIMS.

(Wash. 6329. ) If there be any minor interested in the estate who
has no legally appointed guardian, the court shall appoint some dis
interested person to represent him, who, on behalf of the minor, may
contest the account as any other person interested might contest it,
and who shall be allowed by the court a reasonable compensation for
his services.

$ 135. CLAIMS ESTABLISHED BY JUDGMENT.

(Wash . 6405b ) No judgment entered against the estate or per
son of a ward, except for the foreclosure of a mortgage or lien, shall
 $$ 136, 137 COMPARATIVE CODE. 118

be a lien against or upon the estate of such ward, but such judgment
shall be presented and paid as other claims of the same class or
grade.

$ 136. LIFE OF LEASE .

(Cal. C. C. 718 ; Cal. L. 1903, p. 247.) .... The property of
... any minor or incompetent person, shall not be leased for a
longer period than ten years.

Section IV. Sales of Property of Ward.

$ 137. WHEN MAY BE SOLD .
(A) (Ar. 1997 ; Cal. C. C. P. 1777 ; Id. 4366 ; Mont. C. C. P. 3000;
Wy. 4907. ) When the income of an estate under guardianship is in.
sufficient to maintain the ward and his family, or to maintain and
educate the ward when a minor, his guardian may sell his real or
personal estate for that purpose, upon obtaining an order therefor.

(B ) (Nev. 579.) When the income of the estate of any person

under guardianship shall not be sufficient to maintain the ward and
his or her family, if any, or to educate his or her family, or the
ward, if a minor, the guardian may sell the personal or real estate
of the ward, or such portion as may be necessary for such purpose,
upon obtaining an order therefor.

(C) ( Or. 5592.) When the income of the estate of any person
under guardianship, whether as a minor, insane person , or spend
thrift, shall be insufficient to maintain the ward and his family, his
guardian may sell his real estate for that purpose, upon obtaining a
license therefor.

( D) (Utah, 4015 * .) When the sale of the property of a ward is

necessary to maintain him or his family, or to maintain or educate
the ward when a minor, or to pay the debts and expenses of guard
ianship, or when it appears to the satisfaction of the court that it
is for the best interests of the estate that the real or personal prop
erty, or some part thereof, be sold, mortgaged, or leased , the
guardian may sell, mortgage, or lease the same, upon an order of
the court ; provided, that if a ward be insane and confined in the
state insane asylum, and have a family in this state, the property of
such ward exempt from execution shall not be sold nor used for his
care and maintenance in the asylum.

( E ) (Wash. 6411. ) Whenever necessary for the education, sup

port or payment of the just debts of any minor, or for the discharge
119 COMPARATIVE CODE. 8 138

of any liens on the real estate of such minor, or whenever the real
estate of such minor is suffering unavoidable waste, or a better in
vestment of the value thereof can be made, the court may, on the
application of such guardian, order the same or a part thereof to be
sold.

§ 138. WHO MAY APPLY FOR AND HOW.

( A) ( Ar. 2001 ; Cal. C. C. P. 1781 ; Id . 4370 ; Mont. C. C. P. 3004 ;
Wy. 4911.) To obtain an order for such sale, the guardian must
present to the 1 [court) in which he was appointed guardian2 a
verified petition therefor, setting forth the condition of the estate of
his ward, and the facts and circumstances on which the petition is
founded, tending to show the necessity or expediency of a sale.
1 “ probate court of the county '' - Ar.; " probate court " -Id .; " district
court or judge of the county . " - Mont.
2 Insert : or judge thereof. " ' -Wy.

(B) ( Nev . 583.) To obtain an order for the sale of a ward's

estate, or any part thereof, the guardian must file in the clerk's office
of the district court having jurisdiction, a petition therefor, setting
forth the condition of the estate of the ward, with the facts and cir
cumstances on which the petition is founded, tending to show the
necessity or expediency of a sale, which petition shall be verified
by the oath of the petitioner, whereupon the clerk shall issue a
citation to the next of kin to the ward, if any, in the county, and to
all persons interested in the estate who may be in the county, to
appear before the court at a time and place therein to be specified ,
not less than twenty days after the date of the citation, to show
cause why an order for the sale of such estate should not be granted.
(C) (Or. 5597.) In order to obtain a license for such sale, the
guardian shall present to the county court of the county in which he
was appointed guardian, a petition therefor, setting forth the con
dition of the estate of his ward, and the facts and circumstances
under which it is founded, tending to show the necessity or ex
pediency of such a sale, which petition shall be verified by the oath
of the petitioner.

( D) (Wash. 6412.) Such application shall be by petition, veri.

fied by the oath of the guardian, and shall substantially set forth :
1. The value and character of all personal estate belonging to
such ward that has come to the knowledge or possession of such
guardian ;
2. The disposition made of such personal estate ;
3. The amount and condition of the ward's personal estate, if any,
dependent upon the settlement of any estate, or the execution of any
trust ;
88 139, 140 COMPARATIVE CODE. 120

4. The annual value of the real estate of the ward ;

5. The amount of rent received, and the application thereof;
6. The proposed manner of reinvesting the proceeds of the sale,
if asked for that purpose ;
7. Each item of indebteriness, or the amount and character of the
lien , if the sale is prayed for the liquidation thereof ;
8. The age of the ward, where and with whom residing ;
9. All other facts connected with the estate and condition of the
ward necessary to enable the court fully to understand the same.
If there is no personal estate belonging to such ward, in possession
or expectancy, and none has come into the hands of such guardian ,
and no rents have been received, the fact shall be stated in the
application.

139. MANNER OF GIVING NOTICE .

( A ) ( Ar. 2002 ; Cal. C. C. P. 1782 ; Id. 4371 ; Mont. C. C. P. 3005 ;
Or. 5598 ; Wy. 4912. ) If it appears to the 1 [ court , or a judge there.
of] , from the petition , that it is necessary or would be beneficial to
the ward that the real estate, or some part of it, should be sold,
2 [ or that the real and personal estate should be sold ] , the court
3must thereupon make an order directing the next of kin of the
ward, and all persons interested in the estate, to appear before the
court,4 at a time and place therein specified, not less than four nor
more than eight weeks from the time of making such order, to show
cause why 5 [ an order ) should not be granted for the sale of such
estate.6 If it appear that it is necessary , or would be beneficial to
the ward , to sell the personal estate, or some part of it, the 7 [ court )
must order the sale to be made.

1 " court or judge ' ' -Ar.; Id.; Mont.; " court .''-Or.
2 Omitted .-- Or.
3 Insert : “ ' or judge." '-- Ar.; Id.; Mont.; Wy.
4 Insert : " ' or judge.''- Wy.
6 " a license .''- Or.
6 Balance omitted.-Or.
7 " court or judge .''- Mont .; Wy.

( B) (Wash. 6413. ) If it shall appear to the court from such petl.

tion , and from the hearing thereon, that it is necessary or would be
beneficial to the ward that such real estate or some part of it should
be sold, the court may authorize the said guardian to sell the same at
public sale, on the same terms and notice required for sales of real
estate by executors and administrators,

§ 140. MANNER OF SERVICE OF NOTICE .

( A ) ( Ar. 2003 ; Cal. C. C. P. 1783 ; Id . 4372 ; Mont. C. C. P. 3006 ;
Or. 5599 ; Wy. 4913. ) A copy of the order must be personally served
cu the next of kin of the ward, and on all persons interested in the
121 COMPARATIVE CODE. 88 140-142

estate, at least 1 [ fourteen] days before the hearing of the petition 2

or must be published at least 3 [ once a week for] three successive
weeks in4 a newspaper printed in the county, or if there be none
printed in the county , then in such newspaper as may be specified
by the courts in the order.6 If written consent to making the order
of sale is subscribed by all persons interested therein , and the next
of kin , notice need not be served or published.
i ' ten.''- Or.; Wy.
2 Omit all words between notes 2 and 6.-Wy.
3 Omitted . -Ar.; Id.; Or.
4 Omit balance of section and read instead : " such newspaper circulating
in the county as the court shall specify in such order. " - Or.
5 Insert : " or judge." ' -- Ar.; Id.; Mont.
6 Omit all words between notes 2 and 6.-Wy.

(B) ( Nev. 584.) The citation shall be served personally on the

rext of kin, and all persons interested in the estate within the county
at least ten days before the return day thereof, or, if thought ad
visable, the court instead may order the service of the citation to be
made by the publication thereof, for fifteen days before the return
day, in some newspaper in the county, but if there be no newspaper
in the county, then in such newspaper as the court or judge may
designate .

$ 141. HEARING OF APPLICATION .

(A) ( Ar. 2004 ; Cal. C. C. P. 1784 ; Id. 4373 ; Mont. C. C. P. 3007 ;
Wy. 4914.) The 1 [ court] at the time and place appointed in the
crder, or such other time to which the hearing is postponed, upon
proof of the service 2 [or publication) of the order, must hear and
examine the proofs and allegations of the petitioner, and of the
next of kin , and of all other persons interested in the estate who
oppose the application.
1 " probate court '' - Ar.; Id.; " court or judge . "' - Mont.; Wy.
2 Omitted . - Wy.

( B) (Nev. 585. ) At the time designated in the citation , or at

such other time as the hearing may be adjourned to, upon proof of
the due service or publication of the citation, the court shall proceed
to hear the petition, and any objections that may be made to such
sale. Any person may object to an order being made to sell a ward's
estate .

§ 142. EXAMINATION OF WITNESSES.

( Ar. 2005 ; Cal. C. C. P. 1785 ; Id . 4374 ; Mont. C. C. P. 3008 ; Nev.
586; Wy. 4915. ) On the hearing, the guardian may be examined
on oath , and witnesses may be produced and examined by 1 [ either ]
party, and process to compel their attendance, and testimony pray2
8 $ 143, 144 COMPARATIVE CODE. 122

be issued by the 3 [ court) , in the same manner and with like effect
as in other cases .
1 " 'any ." - Nev .
2 Omit balance of section and read instead : “ issue as in other cases and
with like effect ." -Nev .
3 ' ' probate court, or judge ' ' -Ar.; Id.; " court or judge. " ' -Mont .; Wy.

§ 143. COSTS AWARDED IN CERTAIN CASES .

(Ar. 2006 ; Cal. C. C. P. 1786 ; Id . 4375 ; Mont. C. C. P. 3009 ; Nev .
587 ; Or. 5609 ; Wy. 4916. ) If any person appears and objects to
the granting of any 1 [order] prayed for, and it appears to the
2 [ court ] that either the petition or the objection thereto is 3 [ sus
tained ), the 4 [court ] may 5 [in granting or refusing the order) ,
award cost to the party prevailing,6 and enforce the payment thereof.
1 " license . " - Or.
** court or judge." ' - Mont. ; Wy.
3 " unreasonable.''-Nev .; Or.
4 " court or judge.''- Mont.; Wy.
6 " in its discretion.''- Nev .; Or.
6 Omit balance of section and read : " in the case . " - Or.

$ 144. CONTENTS OF ORDER OF SALE .

( A ) ( Ar. 2007 ; Cal. C. C. P. 1787 ; Id. 4376 ; Mont. C. C. P. 3010 ;
Wy. 4917. ) If, after a full examination , it appears necessary, for
the benefit of the ward , that his real estate, or some part thereof ,
should be sold, the 1 [ court ] may grant an order therefor, specifying
therein the causes or reasons why the sale is necessary or beneficial,
and may, if the same has been prayed for in the petition, order such
sale to be made either at public or private sale.
1 " court or judge.''- Mont .; Wy.

( B) (Nev. 588. ) If , after a full examination , it shall appear

to the court either that it is necessary or would be for the benefit
of the ward , for any purpose mentioned in [ 88 137 , ( B ) , 151 , ( B ) ) .
that his or her real estate, or some part of it should be sold , such
court may grant an order therefor, specifying therein whether neces
sary or proper, and the object for which made. The order may also
direct the sale to be at public auction or private sale, upon like pro
ceedings and in the manner as prescribed by law in case of the sale
of real estate by an executor or administrator, and subject to the
same proceedings in relation to the report, confirmation, or rejection,
of the sale or the resale thereof.

(C ) ( Or. 5600.) No such license shall be granted for the sale

of any real estate of a ward , excepting that of a minor, unless the
county court of the county of which the ward is an inhabitant shall
certify in writing its approbation of the proposed sale.
123 COMPARATIVE CODE. 88 145, 146

145. BOND .
(A) ( Ar. 2008 ; Cal. C. C. P. 1788 ; Id. 4377 ; Mont. C. C. P. 3011 ;.
Wy. 4918. ) Every guardian authorized to sell real estate must, be
fore the sale, give bond to the 1 [ward ) , with sufficient surety, to
be approved by 2[the court or judge thereof] , with condition to sell
the same in the manner, and to account for the proceeds of the sale
as provided for in other cases requiring bonds of guardians.
1 " probate judge . " - Ar.
2 " him ' ' -- Ar.; * court or judge.''-Mont.

( B ) ( Nev. 589.) Every guardian authorized to sell real estate

as aforesaid, shall, before the sale, give an additional bond to the
ward, in an amount to be fixed by the court or judge, with sufficient
security, to be approved by the judge, and conditioned to sell the
property as prescribed by law, and to account for and dispose of the
proceeds of the sale in the manner provided by law .

( C) (Or. 5601. ) Every guardian licensed to sell real estate as

aforesaid shall, before the sale, give bond to the county judge for
the county in which he was appointed, with sufficient surety or
sureties, with condition to sell the same in the manner prescribed
for sales of real estate by executors or administrators , and to account
for and dispose of the proceeds of the sale in the manner provided
by law .

f 146. RULE GOVERNING MANNER OF SALES BY GUARD

IANS.
(A) ( Ar. 2009 ; Cal. C. C. P. 1789 ; Id. 4378 ; Mont. C. C. P. 3012 ;
Wy. 4919. ) All the proceedings under petition of guardians for
sales of property of their wards, giving notice and the hearing of
such petitions, granting or refusing the order of sale, directing the
sale to be made at public or private sale, reselling the same property,
return of sale and application, for confirmation thereof, notice and
hearing of such application, making orders, rejecting or confirming
sales and reports of sales, ordering and making conveyances of
property sold, accounting and the settlement of accounts, must be
had and made as required by the provisions concerning estates of
decedents, unless otherwise specially provided.

(B) (Or. 5602.) Such guardian shall also, before fixing on the time
and place of sale, take and subscribe an oath before the county
judge, or some other officer competent to administer the same, in
substance as follows : That in disposing of the estate which he is
licensed to sell, he will use Lis best judgment in fixing the time and
place of sale, and that he will exert his utmost endeavors to dis
pose of the same in such manner as will be most for the advantage
of all persons interested therein.
88 146-148 COMPARATIVE CODE. 124

( C) ( Or. 5603.) He shall also give public notice of the time and
place of sale, and shall proceed therein in like manner as is pre.
scribed for executors and administrators, and the evidence of giving
such notice may be perpetuated in the same manner and with the
jame effect as is provided in the case of real estate by executors
and administrators ,

( D) (Utah, 4015*.) .... The provisions of this title respecting

the sale, mortgaging, and leasing of the property of decedents, and
the powers, duties, rights, and obligations thereby conferred and
imposed shall, as far as applicable, govern the sale, mortgaging, and
leasing of property under guardianship.

( E) (Wash. 6414.) All the provisions of [law] regulating sales

by executors and administrators shall be applicable to sales made by
guardians.

( F) (Wash. 6416.) The court, in confirming such sale and

directing a conveyance, shall be governed by the law regulating the
confirming of sales of real estate made by executors or adnrin .
istrators, and the making of conveyances on such sales.

8 147. REPORT OF SALE - WHEN MADE - PROCEEDS.

(Wash. 6415. ) Within thirty days after such sale, such guardian
shall make report thereof to the court, and produce the proceeds of
such sale, and the notes or obligations or other securities, taken to
secure the payment of the purchase money.

$ 148. TERMS OF SALE .

( A ) (Ar. 2011 ; Cal. C. C. P. 1791 ; Id. 4380 ; Mont. C. C. P. 3014 ;
Wy. 4921. ) All sales of real estate of wards must be for cash , or for
part cash and part deferred payments 1 [ the credit in no case to
exceed three years from date of sale ) , as in the discretion of the
2 [ court] is most beneficial to the ward. Guardians making sales
must demand and receive from the purchasers, 3 [ in case of doferred
payments, notes, and a mortgage ] on the real estate sold, with such
additional security as the 4 [court) deenrs necessary and sufficient to
secure the 5 [ prompt] payment of the amounts so deferred, and the
interest thereon.
1 " not to exceed three years, bearing date from date of sale .''-Ar.; Id .
2 " probate judge ' ' - Ar.; Id .; " court or judge.''- Mont .; Wy.
3 “ bond and mortgage.''- Ar.; Id.
judge.''- Ar.; Id.; " court or judge.''-Mont.; Wy.
faithful.''- Ar,; Id.

(B ) (Nev . 605. ) All sales of real estate of minor heirs, made

in accordance with the provisions of this act, shall be for cash, or on
 125 COMPARATIVE CODE. 88 149-151

credit, or part cash and part on credit, as in the discretion of the

court or judge may be most beneficial for such heirs. When credit is
given, the court or judge shall fix the credit, and the purchaser or
purchasers shall execute anil deliver to the guardian or guardians
promissory notes for deferred payments, bearing interest, and
secured by mortgage on the real estate sold, with such additional
security as the judge may deem necessary and sufficient to secure the
payment of the deferred payments, and the interest thereon.

$ 149. LIMITATION OF ORDER OF SALE .

( A ) ( Ar. 2010 ; Cal. C. C. P. 1790; Id. 4379 ; Mont. C.'C. P. 3013 ;
Wy. 4920. ) No order of sale continues in force more than one year
after granting the same, without a sale being had, 1 and said order
of sale may be recalled at any time before sale by the court or judge.
1 Omit balance of section.-Cal .; Ar.; Mont.

(B) (Or. 5604.) No license granted [for the sale of property of

the estate ] shall be in force for more than one year after the time of
granting the same.

§ 150. PRIVATE SALES OF ESTATES OF PERSONS UNDER

DISABILITY AND DECEDENTS.
(Wash. 6460, 6469. ) Real property belonging to the estates of de
cedents, minors, idiots, and insane persons, may be sold at private
sale according to the provisions of [ 88_773, 779, 780, 781, 784, 786,
787 ) . In all other respects such sale shall be governed by the laws
of the state of Washington now in force governing the sale of real
property belonging to such estates.

Section V. Changing Assets - Investments.

$ 151. APPLICATION AND ORDER .
( A ) ( Ar. 1998 ; Cal. C. C. P. 1778 ; Id . 4367 ; Mont. C. C. P. 3001 ;
Wy. 4908. ) When it appears to the satisfaction of the 1 [court ) , upon
the petition of the guardian , that for the benefit of his ward his real
estate, or some part thereof, should be sold 2 and the proceeds thereof
put out at interest , or invested in some productive stock, or in the
improvement or security of any other real estate of the ward , his
guardian may sell the same for such purpose, upon obtaining an or
der therefor.
1 " conrt or judge . " '- Mont.
2 Insert : " or, his ward being an insane married woman , and it is necessary
for all the parties interested, that her dower should be sold.''-Mont.

( B ) ( Nev. 580. ) Whenever it shall be made to appear that it

would be for the benefit of the ward that his or her real estate, or
 $ S 151-153 COMPARATIVE CODE. 125

some portion thereof should be sold in order that the proceeds thereof
may be put out at interest, or invested in some productive security,
or in the improvement or security of other real estate of the warc..
or to be reinvested in other real estate, the same may be sold.

( C) (Or. 5593. ) When it shall appear, upon the representation

of any such guardian, that it would be for the benefit of his ward
that his real estate, or any part thereof, should be sold, and the pro
ceeds thereof be put out on interest, or invested in some productive
stock, his guardian may sell the same accordingly, upon obtaining
a license therefor.

§ 152. DISPOSITION OF PROCEEDS OF SALES.

( A ) ( Ar. 1999 ; Cal. C. C. P. 1779 ; Id . 4368 ; Mont. C. C. P. 3002 ;
Or. 5594 ; Utah, 4016 ; Wy. 4909.) If the estate is sold for the 1 [pur
poses mentioned) , the guardian must apply the proceeds of the sale
to such purposes, as far as necessary, and put out the residue , if any,
on interest, or invest it in the best manner in his power, until the
capital is wanted for the maintenance of the ward and his family,
2 [or the education of his children , or for the education of the war i
when a minor ) , in which case the capital may be used for that pur
pose, as far as may be necessary, in like manner as if it had been
personal estate of the ward .
1 " for the maintenance of the ward and his family, as provided in section
5592 .''- Or.
2 Omitted.-Or.

(B) (Nev. 581.) If the estate shall be sold for maintenance or

education, the guardian shall apply the proceeds of the sale to such
purposes, so far as necessary, and shall put out the residue, if any,
at interest, or invest it to the best advantage, under the direction
of the court, until the capital may be required for the maintenance
of the ward and his or her family, or the education of the family, if
any, or for the education of the ward, if a minor, in which case the
capital may be used as far as necessary for such purpose.

§ 153. INVESTING PROCEEDS OF SALE .

( A ) ( Ar. 2000 ; Cal. C. C. P. 1780 ; Id . 4369 ; Mont. C. C. P. 3003 ;
Utah, 4017 ; Wy. 4910.) If the estate is sold for the purpose of putting
out or investing the proceeds, the guardian must make the investment
according1 to his best judgment, or in pursuance of any order that
may be made by the 2 [ court ).
1 Omit balance of section and read : " to law. " ' -Wy.
2 " probate court ' ' - Ar.; Id.; " court or judge.''-Mont.

(B) ( Nev. 582. ) If the estate be sold for the purpose of putting
out the proceeds on interest, or investing, or reinvesting, the same
127 COMPARATIVE CODE. 88 153, 154

as in this act provided, the guardian shall, with the approval of the
district judge, so dispose of such proceeds to the best advantage pos
sible.

( C) (Or. 5595.) If the estate is sold in order to put out and in

vest the proceeds as provided in [ $ 151, ( C) ] , the guardian shall make
the investment, according to his best judgment, or in pursuance of
any order of the county court relating thereto.

( D) ( Or. 5596.) In every case of the sale of real estate [by a

guardian for his ward] , the residue of the proceeds, if any remain upon
the final settlement of accounts of the guardianship , shall be consid
ered as real estate of the ward, and shall be disposed of among the
same persons and in the same manner as the real estate would have
have been if it had not been sold.

§ 154. MANNER OF INVESTMENT OF ASSETS OF ESTATE .

(A) (Ar. 2012 ; Cal. C. C. P. 1792 ; Id. 4381 ; Mont. C. C. P. 3015 ;
Utah, 4018 ; Wy. 4922. ) The 1 [court] , on the application of a guard
ian, or any person interested in the estate of any ward, after such
rotice to persons interested therein as the 2[ court) shall direct, may
authorize and require the guardian to invest the proceeds of sales,
and any other of his ward's money in his hands, in real estate, or
in any other manner most to the interest of all concerned therein ;
and the 3 [ court ] may make such other orders and give such direc
tions as are needful for the management, investment, and disposition
of the estate and effects as circumstances may require.
1 " probate court. " ' -Ar.; Id .
2 " court or judge .''-- Mont.; Wy.
3 " probate court '' - Ar.; Id.; " court or judge." - Mont. ; Wy.

(B ) (Nev . 590. ) The district court, on the application of a

guardian , or of any other person interested in the welfare of
the ward, after such notice to the next of kin and all persons inter
ested therein as the judge shall direct, may authorize and require the
guardian to invest the proceeds of sales, and also any other money
in his hands, in real estate or in any other manner, [ provided by
law) ; and the district 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.

( C) (Or. 5278. ) The county courts in the respective counties, on

the application of a guardian or of any person interested in the es
tate of any ward, after notice to all other persons interested, may
$ 8 154-156 COMPARATIVE CODE. 123

authorize or require the guardian to sell and transfer any stock in

the public funds, or in any bank , insurance company, or other cor
poration, or any other personal estate or effects held by him as
guardian, and invest the proceeds of such sale, and also all other
moneys in his hand in real estate, or in any other manner that shall
he most for the interest of all concerned therein ; and such court may
make such further order 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 .

(D) (Wash . 6406. ) The court may, on the application of a

guardian or any other person, said guardian having due written no
tice thereof, order and decree any change to be made in the invest
ment of the estate of any ward that may to such court seem advan
tageous to such estate.

Section VI. Accounting and Settlement by Guardians.

& 155. WHEN MUST BE RENDERED - ANNUAL ACCOUNTS .
( A ) (Ar. 1994 ; Cal. C. C. P. 1774 ; Id . 4363 ; Mont. C. C. P. 2986 ;
Wy. 4904.) The guardian must, upon the expiration of a year from
the time of his appointment, and as often thereafter as he may be re
quired, present his account to the 1 [ court ] for settlenrent and allow
ance.

1 " probate '' - Ar.; Id.; " court or judge. " ' -Mont.

( B) (Ar. 1995 ; Cal. C. C. P. 1775 ; Id . 4364; Mont. C. C. P. 2987 ;

Nev . 604 ; Or. 5289 ; Wy. 1905. ) When an account is rendered by
two or more joint guardians, the 1 [court may, in its ) discretion, al
low the same upon the oath of any of them.
1 " probate judge may in his ' '-- Ar.; Id.; " court or judge may in its or his
-Mont.; " district court or judge may allow .''- Nev .

( C) ( Wash . 6404.) Superior courts shall have power, in their re

spective counties, with or without previous complaint, by an order
duly made and served, to oblige all guardians of minors, from time
to time, to render their respective accounts, upon oath, touching their
guardianship, to said courts for adjustment and shall have power to
compel such guardian to give supplementary security, whenever it
shall judge proper, and in default thereof, to remove such guardian .

Section VII. Termination of Guardianship.

§ 156. MANNER OF TERMINATION .
( A ) ( Ar. 1980; Cal. C. C. 254 ; Mont. C. C. 348. ) The power of a
guardian appointed by a parent is superseded: ( 1. ) By his removal,
129 COMPARATIVE CODE, $$ 156, 157

as provided by [ 8 157] ; ( 2. ) By the solemnized marriage of the ward ;

or, (3.) By the ward's attaining majority.

( B) ( Ar. 2028 ; Cal. C. C. P. 1802 ; Id. 4395 ; Mont. C. C. P. 3052 ;

Wy. 4943. ) The marriage of a minor ward terminates the guardian.
ship 1 [of the person of such ward, but not the estate ); and the
guardian of an insane or other person may be discharged by the
2 [ court ] when it appears, 3 ou the application of the ward or other.
wise, that the guardianship is no longer necessary .
1 Omitted . - Ar.; Id.
2 " probate judge ' ' -Ar.; " probate court ' ' -Id.; " court or judge. "'
Mont.; Wy.
3 Insert : “ to him.''-Ar.; Id.

( C ) ( Nev. 592. ) The guardian of any person may be dis

charged by the district court or judge when upon the application of
the ward or otherwise, it shall appear that such guardianship is no
longer necessary.

(D) ( Or. 5280.) The marriage of any female who is under guard
ianship as a minor shall operate as a discharge of her guardian ; and
the guardian of any insane person or spendthrift may be discharged
by the county court when it shall appear, on the application of the
ward or otherwise, that such guardianship is no longer necessary.

( E) (Utah, 3996.) The power of a guardian shall be terminated :

first, by the order of the court ; second, by the ward's attaining ma
jority ; third, by the marriage of the ward ; provided, that the guard
ianship of the estate of the ward may be continued, at the discretion
of the court, after the guardianship of his person has been terminated
by marriage, and until he reaches the age of majority.

157. GROUNDS FOR REMOVAL .

( Ar. 1979 ; Cal. C. C. 253 ; Mont. C. C. 347.) A guardian may be
removed by the 1 (superior] 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,
Comparative Code - 9
$ 158 COMPARATIVE CODE . 130

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

guardianship.
1 " probate ' ' - Ar.; " district. "' - Mont.

§ 158. REMOVAL OF GUARDIAN .

( A ) (Ar. 2027 ; Cal. C. C. P. 1801 ; Id. 4394 ; Mont, C. C. P. 3051 ;
Wy. 4942. ) When a guardiau appointed either by the testator or 1 [ a
court ] becomes insane or otherwise incapable of discharging his trust ,
or unsuitable therefor , or has wasted or mismanaged the estate, or
failed for thirty days2 to render an account or make a return, the
3 [ superior ] court may, upon such notice to the guardian as the
4 [ court] may require, remove him and compel him to surrender the
estate of the ward to the person found to be lawfully entitled
thereto...

1 " the probate judge' ' - Ar.; Id.; " court or judge. " '-Mont.; Wy.
2 Insert : " after being required . " - Id .
3 probate court' ' -Ar.; Id.; " court or judge. " — Mont.
4 " probate court '' - Ar.; Id.; " court or judge.''- Mont.

(B) (Nev. 591.) Whenever any guardian, either testamentary or

otherwise, appointed ( as provided by law) , shall become insane, re
move from the state, or otherwise become incapable of discharging the
trust, or evidently unsuitable therefor, or shall have wasted or mis
managed the estate, the district judge, after notice served as pro
vided for service of citation, may remove him or her. ...

( C) (Or. 5279*.) When any guardian appointed either by a tes

tator or by the county court shall become insane or otherwise inca
pable of discharging his trust, or evidently unsuitable therefor, the
county court, after notice to such guardian, and to all others inter
ested, may remove him.

( D ) (Utah, 3992. ) The guardian of an insane or other person

may be discharged by the court , when it appears, on the application
of the ward or otherwise that the guardianship is no longer necessary .

( E) (Wash . 6407. ) The court in all cases shall have power to re

move guardians for good and sufficient reasons , which shall be entered
rf record, and to appoint others in their place or in the place of those
who may die , who shall give bond and security for the faithful dis
charge of their duties as prescribed in other cases ) ; and when
any guardian shall be removed or die, and a successor he ap
pointed , the court shall have power to compel such guardian to de
liver up to such successor all goods, chattels, moneys , title papers , or
other effects belonging to such minor which may be in the possession
of such guardian so removel, or of the executors or administrators
131 COMPARATIVE CODE. 88 159-162

of a deceased guardian, or of any other person or persons who have

the same, and upon failure, to commit the party offending to prison,
until he, she, or they comply with the order of the court.

$ 159. RESIGNATION OF GUARDIAN - APPOINTMENT OF

SUCCESSOR .
(A ) (Ar, 2027 * ; Cal. C. C. P. 1801 * ; Id . 4394* ; Mont. C. C. P.
3051 * ; Wy. 4942*.) Every guardian may resign when it ap
pears proper to allow the saine ; and upon the resignation or removal
of a guardian, the 1 [court ] may appoint another in the place of the
guardian who resigned.
1 “ probate court or the judge thereof ' ' -Ar.; Id.; " court or judge."
Mont.; Wy.

( B) (Nev. 591*.) .... Every guardian may, upon request, be

allowed to resign his or her trust, when it shall appear to the dis
trict judge proper to allow the same, and proper accounts have been
settled and allowed. And upon every such resignation or removal,
or upon the death of any guardian, the court or judge may appoint
another .

(C) ( Or. 5279*. ) .... Every guardian, upon his request, may be
allowed to resign his trust when it shall appear to the county court
proper to allow the same; and upon every such resignation or re
moval, and also upon the death of any guardian, the county court
may appoint another in his stead .

$ 160. RELEASE OF GUARDIAN BY WARD .

( A ) ( Cal. C. C. 256 ; Mont. C. C. 350 ; Utah, 3997. ) After a ward
has come to his majority, he may settle accounts with his guardian,
and give him a release, which is valid if obtained fairly and without
undue influence .

( B ) ( Cal. C. C. 257 ; Mont. C. C. 351 ; Utah, 3998. ) A guardian

appointed by a court is not entitled to his discharge until one year
after the ward's majority.

$ 161. DEATH OF GUARDIAN .

( Ar. 1978 ; Cal. C. C. 252 ; Mont. C. C. 346 ; Utah , 3987. ) 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.

f 162. WHEN POWERS SUSPENDED .

(A) ( Ar. 1981 ; Cal. C. C. P. 1760 ; Mont. C. C. 349. ) The power
of a guardian appointed by a court is suspended only :
88 162-165 COMPARATIVE CODE. 132

1. By order of the court ; cr,

2. If the appointment was made solely because of the ward's
minority, by his attaining majority ; or,
3. The guardianship over the person of the ward, by the marriage
of the ward . 1
1 Subd. 3, omitted .-- Ar,

( B) (Nev. 569.) Any person may file a petition , under oath , for
the removal of a guardian by reason of incapacity, or that the
guardian is mismanaging or wasting the estate, or that the best in
terests of the ward require it, and upon filing such a petition a cita
tion shall issue and be served as provided in section eight of this
act, and until the same can be heard and determined the court or
judge may suspend the guardian , and on the hearing enter such judg
ment and order as the facts may warrant.

Section VIII . Compensation of Guardians.

$ 163. MANNER OF ALLOWANCE .
(Ar. 1996 ; Cal. C. C. P. 1776; Id. 4365 ; Mont. C. C. P. 2988 ; Nev.
601 ; Or. 5288 ; Utah, 4014 ; Wash . 6418 ; Wy. 4906. ) Every guardian
must be allowedi the amount of his reasonable expenses incurred in
the execution of his trust, and he must also have such2 compensation
for his services as the 3 [ court ) in which his accounts are settled
deems just and reasonable.
1 Insert : " by the court . " - Wash .
2 Insert : " other.''-Ner.
3 " court or judge. " ' --Mont. Omit balance of section and read : " court
shall deem reasonable. "

f 164. COSTS IN GUARDIANSHIP .

( Nev. 606.) The total fees and charges of the clerk where any es
tate in guardianship shall not exceed in value two thousand dollars
shall not exceed fifteen dollars.

Section IX. Misconduct of Guardian , and Penalty.

& 165. EMBEZZLEMENT, ETC., OF WARD'S ESTATE .
( A) (Ar. 2026 ; Cal. C. C. P. 1800 ; Id . 4396; Mont. C. C. P. 3050 ;
Utah, 4019 ; Wy. 4941.) Upon complaint made to him by any guard
ian, ward, creditor, or other person interested in the estate or having
a prospective interest therein as heir or otherwise, against anyone
suspected of having concealed, embezzled , or conveyed away any of
the nroney, goods, or effects, or an instrument in writing belonging
to the ward or his estate, the 1 [ superior court, or a judge thereof ],
niay cite such suspected person to appear before 2 [such court ) , and
 133 COMPARATIVE CODE . 88 165, 166

may examine and proceed with him on such charge in the manner
provided with respect to persons suspected of and charged with con
cealing or embezzling the effects of a decedent.
1 " probate judge ' ' -Ar.; Id .; " court or judge.''-Mont.; Wy.
" court or judge . " ' -Mont.; Wy.

( B ) ( Nev. 596. ) Upon complaint made to the district judge by

any guardian, ward, creditor of, or any other person interested in
the ward, or his or her estare, against anyone, charging such an one
with having concealed, converted, having in possession or conveyed
away any of the money, goods or effects, or any instrument in writ
ing belonging to the ward, the judge may cause such person, by cita
tion , to appear before him for examination , and proceed in the same
manner as is provided with respect to persons suspected of conceal
ing, converting or conveying away the effects of a deceased person.

( C) ( Or. 5283.) Upon complaint made to the county court by

any guardian or by the ward , or by any creditor or other person in
terested in his estate, or by persons having claims thereto in expec
taney, as heir or otherwise, against anyone suspected of having con
cealed , embezzled, or conveyed away any of the money, goods , or
effects of the ward , the judge may cite and examine such suspected
person, and proceed with him as to such charge, in the same manner
as is provided respecting persons suspected of concealing or embez
zling the effects of a deceased testator or intestate.

TITLE II. APPOINTMENT, POWERS AND DUTIES OF

GUARDIANS IN SPECIAL CASES.

CHAPTER I. GUARDIAN OF NON -RESIDENT WARD.

Section 1. When May Be Appointed.

{ 166. WHEN AND BY WHOM MAY BE APPOINTED .
( A ) (Ar. 1970 ; Cal. C. C. 244 ; Mont. C. C. 338. ) 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 1 ( superior ]
court .
1 “ probate '' - Ar.; " district. "' - Mont.

( B ) Ar. 2018 ; Cal. C. C. P. 1793 ; Id . 4382 ; Mont. C. C .P. 3030 ;

Or. 5284 ; Wy. 4923. ) When 1 [ a ] person liable to be put under
guardianship, according to the provisions (of law] , resides with
out this state and has estate therein, any friend of such person,
88 166-168 COMPARATIVE CODE. 134

or anyone interested in his estate, in expectancy or otherwise, may

apply to the 2 [ superior court ) of any county in which there is any
estate of such absent person 3 [ for the appointment of a guardian ,
and if] , after notice given to all interested, in such manner as 4 [ such
court orders by publication or otherwise) , and a full hearing and ex
amrination, it appears proper, a guardian for such absent person may
be appointed.
1 " any minor or other . " - Or.
2 " probate judge ''-- Ar.; " probate court '' - Id.; " district court" -Mont.;
" county court ' - Or.; " court or judge.''-Wy.
3 Omit.- Or.
4 " the judge orders ' ' -Ar.; Id.; " such court or judge orders, by publication
or otherwise.''- Mont .; Wy.

( C) ( Nev. 597.) When any minor or other person liable to be

placed under guardianship, according to the provisions of [ law ] ,
shall reside out of this state, and shall have estate therein , any
friend of such person , or anyone interested in his or her estate, in
expectancy or otherwise, may apply to the district court of any
county in which there may be any estate of such absent person , in
expectancy or otherwise, for letters of guardianship of such estate,
as in case of a resident ward, and the court may proceed in like man
ner to appoint a guardian .

$ 167. POWER AND DUTIES OF SUCH GUARDIAN .

( Ar. 2019 ; Cal. C. C. P. 1794; Id. 4383 ; Mont. C. C. P. 3031 ; Nev .
598 ; Or. 5285 ; Utah, 4020 ; Wy. 4924. ) Every guardian, appointed
under [ $ 337 ) , has the same powers and performs the same duties,
with respect to the estate of the ward found within this state, and
with respect to the person of the ward , if he shall come to reside
therein, as are prescribed with respect to any other guardian ap
pointed under this chapter.

$ 168. BOND AND CONDITIONS.

( Ar. 2020 ; Cal. C. C. P. 1795 ; Id. 4384 ; Mont. C. C. P. 3032 ; Nev.
599 ; Or. 5286 ; Utah, 4021 ; Wy. 4925.) Every 1 ( such ] guardian shall
give bond to the 2 [ ward ] in like manner and with like condition
as is provided with respect to other guardians, excepting that
the provisions respecting the inventory, the disposal of the estate
3 [ and effects ), and the account to be rendered by the guardian , shall
be confined to such estate and effects which shall come to his hands
in this state.4

1 Omitted . - Ar.; Cal . Id .; Mont.

2 “ ward and qualify ' ' -Nev.; " state of Oregon.''- Or.
3 Omitted . -Or .
4 Add : " and that the provisions respecting the custody of the ward shall
not be applicable unless the ward shall come to reside in this state. " ' - Or.
 135 COMPARATIVE CODE. 88 169, 170

169. GUARDIAN FIRST APPOINTED HAS EXCLUSIVE JURIS.

DICTION .
(A) ( Ar. 2021 , Cal. C. C. P. 1796 ; Id. 4385 ; Mont. C. C. P. 3033 ;
Or. 5287 ; Utah, 4022 ; Wy. 4926. ) The guardianship which is first
lawfully granted of any person residing without this state extends
to all the estate of the ward within 1 [ this state ) , and excludes the
jurisdiction of the 2[ court ] of every other county.
1 " the same. " ' - Ar.; Id.; Or.
2 " probate court'' - Ar.; Id.; " district court' ' - Mont.; " county court."
-Or.

( B ) ( Nev. 600.) The guardianship , which shall be first lawfully

granted of the estate of any person residing without this state shall
extend to all the estate of the ward within this state, and shall in
clude the jurisdiction of every other district court.

§ 170. WHEN AND HOW WARD'S PROPERTY MAY BE RE

MOVED OUT OF THE STATE .
(A ) ( Ar. 2022 ; Cal. C. C. P. 1797 ; Id . 4386 ; Mont. C. C. P. 3034 ;
Utah , 4023 ; Wy. 4927. ) When the guardian and ward are both non
residents, and the ward ist entitled to property in this state , which
may be removed to P [another state] or foreign country3 without con
flict with any restriction or limitation thereupon, 4 [ or impairing]
the right of the ward thereto, such property may be removed to the
stateö or foreign country of the residence of the ward,6 upon the
application of the guardian to the 7 ( superior court ) of the county
in which the estate of the ward, or the principal part thereof is sit
uated .

1 Insert : " the owner of or . " - Mont.

2 " a state , and other territory ' ' -Id.; " another state or territory . " ' - Mont.
3 Insert : " or sold .''- Mont.
4 Insert : “ and without injuring . " - Mont.
5 " or territory . " ' - Mont.
6 Insert : " or and the proceeds of the sale thereof removed to the state
or territory , or foreign country.''- Mont.
7 “ probate judge '' - Ar.; probate court' ' - Id .; “ district judge ' ' -Mont.;
court '' and omit balance of section - Utah ; " court .''- Wy.

( B) ( Ar. 2023 ; Cal. C. C. P. 1798 ; Id. 4387 ; Nev . L. 1901, p. 54,

secs. 2, 3 ; Utah, 4024 ; Wy. 4928. ) The application must be made
upon ten days ' notice to the resident executor, administrator ,' or
guardian, if there be such ,1 and upon such application the non-res
dent guardian must produce and file a certificate, under the hand of
the clerk and seal of the court, from which his appointment was de
rived, showing :
1. A transcript of the record of his appointment ;
2. That he has entered upon the discharge of his duties ; 2
3. That he is entitled , by the laws of the 3 [ state ) of his appoint
ment, to the possession of the estate of the ward ; 4 [ or must pro
$ 170 COMPARATIVE CODE. 136

duce and file a certificate, under the hand and seal of the clerk of
the court having jurisdiction in the country of his residence, of the
estates of persons under guardianship, or of the highest court of such
country3 — attested by a minister, consul, or vice-consul of the United
States, resident in such country — that, by the laws of such country,
the applicant is entitled to the custody of the estate of his ward,
without the appointment of any court] . Upon such application , un
less good cause to the contrary is shown, the 6 [ court ] must make an
order granting to such guardian leave to take and remove the prop
erty of his ward to the state or place of his residence , which is au .
thority to him to sue for and receive the same in his own name, for
the use and benefit of his ward.
1 Insert : " otherwise without notice .''-Utah .
2 Insert new subd . : ' A description of the property of the ward with its
estimated value. " -Utah .
3 ' ' state or territory '' _ Id .; " state, territory, possession, or country ''
Nev.; " state, territory, or foreign country . " -Utah.
4 All in brackets omitted . - Id .
5 Omit part between the dashes. - Ar. Instead of " vice-consul," read : " any
consular officer .''- Nev.
6 “ probate judge ' ' -Ar.; " probate court'' - Id .; " the court may in its dis
cretion upon satisfactory proof that the interests of such ward are fully pro
tected by sufficient security .” - Nev.

( C) (Nev. L, 1901 , p. 54, sec. 1. ) If a ward be a non -resident of

this state, and entitled to property in this state , and have a guardian
by authority of the laws of the state, or territory, or possession, of
the United States, or of a foreign country in which such ward re
sides, such property may be removed to such state or territory , or
possession, or foreign country in which such ward resides, upon the
application of such guardian to the district court of this state, in
the county which the property of such ward, or any part of such
property is situated.

( D) (Mont. C. C. P. 3035. ) The application must be made upon

ten days ' notice to the resident executor, administrator or guardian ,
if there be such , otherwise without notice, and upon such application
the non-resident guardian must produce and file a certificate under
the hand of the clerk or judge and seal of the court from which his
appointment was derived, showing :
1. A transcript of the record of his appointment.
2. That he has entered upon the discharge of his duties.
3. That he is entitled by the laws of the state or territory or for
eign country of his appointment to the possession of the estate of
his ward , or must produce and file a certificate, under the hand of the
clerk or judge and seal of the court having jurisdiction in the state
or territory or foreign country of his residence, of the estate of per
sons under guardianship , or of the highest court of such state or ter
ritory or foreign country, showing that by the laws of such state or
territory or foreign country, the applicant is entitled to the custody
of the estate of his ward without the appointment of any court.
137 COMPARATIVE CODE. $ 170

The said application shall also contain a description of the property

of such ward, together with an estimate of its value. Upon such
application, unless good cause to the contrary is shown, the judge
must make an order granting such guardian leave to take and re
nuove the property of his ward to the state or territory or foreign
country of his residence, or to sell the same as may be requested or
prayed for in said application which order shall be authority to such
guardian to sue for and receive the property therein described in
his own name, for the use and benefit of his ward.

( E ) (Mont. C. C. P. 3036. ) Property authorized to be sold un

der the provisions of the preceding section, may be sold at public or
private sale with or without notice, as the order of the district judge
may direct, and upon such terms as such order may prescribe, but
before any sale thereunder, the property must be appraised by three
appraisers to be appointed by the judge granting such order, either
before or after the issuance of the order of sale, and that the property
must not be sold for less than ninety per cent of the appraised value
thereof.

( F ) (Mont. C. C. P. 3037. ) Upon making the sale of such prop

erty, or any part thereof, the guardian shall make a report thereof
to the judge, showing the person or persons to whom and the price
or prices for which the said property, or any part thereof, was sold.
Thereupon the judge shall proceed to hear such report, and if the
sale appears to have been fairly conducted, and the price or prices
obtained appear to be the reasonable market value of the property
sold, the judge shall make an order confirming such sale or sales, and
directing a proper deed or deeds of real property or a proper bill
of sale or other transfer conveying the property sold to the purchaser
or purchasers.

(G) ( Mont. C. C. P. 3038. ) A certified copy of each order confirm

ing the sale of real property must be recorded in the office of the
county clerk of the county where such real property is situated. The
guardian shall make and deliver to the purchaser or purchasers the
deed or other conveyance authorized by the said order and in con
formity thereto, and thereupon all right, title, interest, and estate of
such ward shall be fully vested in such purchaser or purchasers.

(H ) ( Mont. C. C. P. 3039.) Any guardian mentioned in this and

the preceding section may, by power of attorney, executed and ac
knowledged in the manner provided by law for the execution and
acknowledgment of conveyances of real property, empower and au
thorize any person capable in law of executing a power of attorney
for the sale of real estate, as attorney in fact to do any or all of the
things that the guardian himself might otherwise do, and in such case
$$ 170, 171 COMPARATIVE CODE. 138

the acts and proceedings of such attorney in fact shall have the same
force and effect as the acts and proceedings of such guardian.

(I) (Wash . 6419.) When the guardian and ward are both non-res.
idents, and the ward is entitled to property in this state, which may
bo removed to another state or territory, without conflict to any re
striction or limitation thereupon, or impairing the right of the ward
thereto, such property may be removed to the state or territory in
which such ward may reside, upon the application of the guardian to
the judge of the superior court of the county in which the estate of
the ward, or the principal part thereof, may be, in the manner follow
ing : The guardian so applying must produce a transcript from the rec
ords of a court of competent jurisdiction, certified according to the
laws of this state, showing his appointment as guardian of the ward
in the state or territory in which he and the said ward reside ; that
he has qualified as such according to the laws thereof, and given
bond, with sureties, for the performance of his trust ; and must also
give thirty days ' notice to the resident executor, administrator,
guardian, agent, or trustee, if there be such of the applications.
Thereupon, if no objection be made, or if no good cause be shown to
the contrary, the judge of the court shall make an order granting
such guardian leave to remove the property of said ward to the
state or territory in which he or she may reside ; which order shall
be full and complete authority to said guardian, to sue for and re
ceive the same in his own name, for the use and benefit of said ward.

$ 171. EFFECT OF ORDER AS DISCHARGE OF PERSON IN POS

SESSION OF PROPERTY .
(A) ( Ar. 2025 ; Id. 4388 ; Mont. C. C. P. 3040 ; Wy. 4929. ) Such
order 1 is a discharge of the executor, administrator, local guardian,
or other person in whose possession the property may be at the time
the order is made, on filing with the 2 [court ] the receipt therefor
of the 3 [foreign] guardian of such absent ward .
1 See supra, $ 170 ( B ) .
2 “probate court . " ' -Ar.; Id .
3 Omitted.-Ar.

(B) ( Cal. C. C. P. 1799 ; Utah, 4025. ) Such order1 is a discharge

of the executor, administrator, local guardian , or other person in
whose possession the property may be at the time the order is made ,
on filing with the clerk of the court a receipt therefor of a foreign
guardian of such 2 [ absent] ward, and transmitting a duplicate re
ceipt , or a certified copy of such receipt, to the court from which such
non-resident guardian received his appointment.
1 See supra, § 170 ( B ) .
2 Omitted .-- Utah .
139 COMPARATIVE CODE. 88 171 , 172

(C) (Nev. L. 1901, p. 55, sec. 4. ) Such order1 is a discharge of

the executor, administrator, local guardian, or other person in whose
possession the property may be at the time the order is made, on
filing with the court the receipt therefor of the foreign guardian of
such absent ward ; said receipt shall be recorded in the records of
said court, and the court shall make an order discharging said exec
utor, administrator or local guardian from all further duties and
responsibilities as such executor, administrator or guardian, and that
bis letters of administration or guardianship are vacated, and that
the sureties upon the bond of such executor, administrator or local
guardian are released from any liability thereafter incurred.
1 See supra , $ 170 ( B ) .

CHAPTER II. GUARDIAN OF INSANE AND INCOMPETENT

PERSONS.

Section 1. When and How Appointed .

§ 172. WHO MAY MAKE APPLICATION .
(A ) (Ar. 1984 ; Cal. C. C. P. 1763 ; Id . 4353 ; Mont. C. C. P. 2970 ;
Wy. 4879. ) When it is represented to the 1 (superior court ] upon
verified petition of any relative or friend, 2 that any person is in
sane, or from any cause mentally incompetent to manage his prop
erty, 3 ( such c.jurt or judge ] must cause a notice to be given to the
supposed insane or incompetent person of the time and place of hear
ing the case, 4 [not less than five days before the time so appointed] ,
and such person, if able to attend, must be produced 5 on the hearing.
1 " probate judge ' ' -Ar.; Id.; " district court, or a judge thereof ' ' -Mont.;
" court ' ' -Wy.
2 Insert : " or other person .''-Wy.
3 " before him .''-Ar.; Id.
4 Omitted . - Wy.
3 Insert : " the judge.''-Ar.; Id.

(B) (Nev. 572.) Any relative or friend of any insane person,

or of any person who, by reason of extreme old age, or for any
other cause, is mentally incompetent to manage his or her property,
may present a petition under oath, setting out the necessary facts,
to the district judge, praying that a guardian for the person and
estate, or either, be appointed. Such judge shall direct the clerk
to issue a citation, requiring such supposed insane or incompetent
person to be and appear at a time and place to be therein specified
to show cause why a guardian should not be appointed. Such cita
tion shall be served as provided in [ $ 121, ( E ) ] on such person and
also on such person , with whom or in whose custody, such insane
or incompetent may be, not less than five days before the return day
thereof; and if able to attend , the judge shall cause such insane
or incompetent person to be produced before him on the hearing.
 COMPARATIVE CODE. 140
88 172, 173

( C) ( Or. 5267 ; Wash . 6424.) The several 1 [ county] courts, in

their respective counties in this state, shall have power to appoint
guardians to take care, custody, and management of the estates,
real and personal, of all insane persons, idiots, and all who are in
capable of conducting their own affairs, and the maintenance of
2 [ their ] families, and the education of their children.
1 ' ' superior.''-Wash.
2 " themselves and .''- Wash .

(D) (Or. 5270. ) When any person by excessive drinking, gam

ing, idleness, or debauchery of any kind, shall so spend, waste, or
lessen his estate as to expose himself or his family to want or
suffering, or the county to charge and expense for the support of
himself and family, the county court for such county of which such
spendthrift is a resident or an inhabitant shall present a complaint
to the county judge setting forth the facts and circumstances
of the case, and praying to have a guardian appointed for him.

( E ) (Utah, 4000. ) The district court of each county, when it

appears necessary, may appoint guardians for the persons and es
tates of persons who are insane or from any cause mentally incom
petent to manage their property, and who are inhabitants or resi
dents of the county, or who reside without the state and have
estate within the county. Such appointment may be made on the
petition of a relative or friend, after such potice of the time and
place of hearing as the court may direct , to the person supposed
to be insane or incompetent and to such other persons as the court
may designate.

(F) (Wy. 4897. ) If any information in writing be given to

the court or judge of any county that any person in its county
is so addicted to habitual drunkenness as to be incapable of nran
aging his affairs, and praying that an inquiry thereinto be had, the
court shall proceed therein in all respects as herein provided in re
spect to an idiot, lunatic or person of unsound mind ; and if a guard
ian is appointed on such proceedings he shall have the same pow
ers and be subject to the same control as the guardian mentioned
in this chapter.

§ 173. NOTICE OF APPLICATION AND HEARING .

( A ) (Or. 5271. ) The county judge shall cause notice to be given
to such supposed spendthrift of the time and place appointed for
hearing the case , not less than ten days before the time so appointed ;
and if, after a full hearing, it shall appear to the judge that the
person complained of comes within the description contained in
the preceding section, he shall appoint a guardian of his person
and estate, with the powers and duties (in this chapter ] specified .
 141 COMPARATIVE CODE. $$ 173, 174

( B) ( Or. 5272. ) After the order of notice has been issued, the
complainants shall cause a copy of the complaint, with the order
of notice, to be filed in the office of the county clerk for the county,
and if a guardian shall be appointed on such application , all con
tracts, excepting for necessaries, and all gifts, sales , or transfers
of real or personal estate made by such spendthrift, after such filing
of the complaint in the county clerk's office, and before the termina
tion of the guardianship, shall be null and void.

§ 174. APPOINTMENT.
(A ) ( Ar. 1985 ; Cal. C. C. P. 1764 ; Id. 4354 ; Mont. C. C. P. 2971.)
If, after a full hearing and examination upon such petition, it ap
pear to the 1 [court] that the person in question is incapable of
taking care of himself and managing his property, 2 [such court ]
must appoint a guardian of his person and estate, with the powers
and duties in this chapter specified.
1 " probate judge '' - Ar.; " probate court ' ' -Id .; " court or judge.''- Mont.
2 " the court' ' - Id.; " such court or judge . " ' - Mont .

(B) (Nev. 573.) If, after a full hearing and examination upon
such petition, it shall appear to the district judge that the person
in question is incapable of taking care of himself or herself, and
managing his or her property, he shall appoint a guardian of the
person and estate or either of such person.

(C) ( Or. 5268. ) When the relations or friends of any insane

person, or any other persons, inhabitants of the county in which
such insane person resides, shall apply to the county court by peti
tion in writing, to have a guardian appointed for him, the judge
shall cause notice to be given to the supposed insane person of the
time and place appointed for hearing the case, not less than ten
days before the time so appointed ; and if, after a full hearing, it
shall appear to the judge that the person in question is incapable
of taking care of himself, the judge shall appoint a guardian of
his person and estate, with the powers and duties [in this chapter]
specified.

(D ) (Utah, 2178 ; Utah, L. 1903, p. 146. ) In case a person com

mitted to the mental hospital shall be possessed of property sufficient
to pay any part of the costs incurred by reason of his commitment
and his treatment in the hospital, the judge shall appoint a guardian
for such person .

(E) (Wash. 6425.) If it be found by the court that the person

so brought before the court is of unsound mind and incapable of
managing his own affairs, the court shall appoint a guardian for
the estate of such insane person.
 8 $ 175, 176 COMPARATIVE CODE. 142

$ 175. NOTICE OF APPOINTMENT TO BE GIVEN .

(Wash. 6428. ) It shall be the duty of every such guardian, within
twenty days after his appointment, to cause notice thereof to be
published in some newspaper printed in this state, or otherwise
publish such notice, at such time and place and in such manner
as the court shall decide.

Section II. General Powers and Duties of Such Guardians.

$ 176. CARE AND CUSTODY OF WARD - BONDS .
( A ) ( Ar. 1986 ; Cal. C. C. P. 1765 ; Id . 4355 ; Mont. C. C. P. 2972 ;
Or. 5269 ; Wy. 4890. ) Every guardian appointed, as provided in
[ $ 174 ] has the care and custody of the person of his ward, and
the management of all his estate, until such guardian is légally.
discharged ; and he must give bond to 1 (such ward] , in like manner
and with like conditions as before prescribed with respect to the
guardian of a minor.2
1 “ State of Oregon .''- Or.
2 Add : " excepting that the provision relating to the education of the ward
shall be omitted in the condition of the bond .''- Or.

(B) (Nev. 574. ) Every guardian appointed under the provisions

of [ $ 175, ( B) ] shall have the care and custody of the person or
estate of the ward, until such guardian shall be discharged according
to law ; and he shall give bond and qualify in like manner and with
like conditions as prescribed [by law] with respect to the guardian
of a minor.

(C ) (Or. 5274. ) Every guardian so 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 dis
charged ; and he shall give bond to the state of Oregon , in like man
ner and with like condition as is before directed with respect to the
guardian of an insane person .

(D) (Wash. 6427. ) Every such guardian so appointed shall, be

fore entering upon the duties assigned him , enter into bond to the
state of Washington , in such sum and with such security as the
court shall approve, conditioned that he will take proper care of
such insane person , and manage and minister his effects to the best
advantage, according to law ; and that he will faithfully discharge
all duties as such guardian which may by law, or by the order, sen
tence, or decree of any court of competent jurisdiction, devolve upon
bim ; which bond shall be filed in the office of the clerk of the superior
court. A copy thereof duly certified, shall be evidence in all re
spects as the original.
143 COMPARATIVE CODE. 88 176-178

(E ) (Wash. 6429.) It shall be the duty of such guardian to col

lect and take into his possession the goods, chattels, moneys, effects,
and other evidences of debt , and all writings touching the estate,
real and personal, of the person under his guardianship.
( F) (Wash . 6433.) Every such guardian is authorized and re
quired to collect all debts due to his ward, and give acquittances
and discharges thereof, and adjust, settle, and pay all demands due
and becoming due from his ward, so far as his estate and effects
will extend.

(G ) (Wash. 6432.) It shall be the duty of every such guardian

to prosecute all actions commenced at the time of his appointment, or
thereafter to be commenced , by or on account of his ward , and to
defend all actions [ pending or] which may be brought against such
ward ,

( H ) (Wash . 6439.) Every such guardian , as often as required

by the court appointing him, shall render a true and perfect account
of his guardianship.

8 177. INVENTORY TO BE FILED — FORM .

(A) (Wash. 6430.) Within forty days after his appointment,
such guardian shall make out, and file in the office of the clerk of
the superior court by which he was appointed , a just and true in
ventory of the real and personal estate of his ward , stating the in
come and profits thereof, and the debts, credits and effects, as the
same shall have come to his knowledge. And if, after having filed
such inventory, it shall be found that there is other property belong
ing to said estate, it shall be the duty of such guardian to make out
and file an additional inventory, containing a just and full account
of the same, from time to time, as the same may be discovered .
(B) (Wash . 6431. ) All such inventories shall be made in the
presence of and attested by two credible witnesses in the neighbor
hood, and shall be verified by the oath of the guardian.

$ 178. TO WHOM COSTS OF HEARING TO BE TAXED .

( A ) ( Or. 5273. ) When a guardian shall be appointed for an in
sane person or spendthrift, the judge shall make an allowance, to
be paid by the guardian , for all reasonable expenses incurred by the
ward in defending himself against the complaint.

( B ) (Wash. 6426.) If the person alleged to be insane shall be

discharged, and it shall be thought by the court that there were no
$$ 179-181 COMPARATIVE CODE . 144

grounds for such impression of insanity, then the cost shall be paid
by the person at whose instance the proceeding was had, and execu
tion may issue for the same.

Section III. Rights of Ward .

$ 179. PERSONAL PRIVILEGE OF WARD .
(Wash. 6440. ) No such ward shall be held to bail, or his body
be taken in execution, in any civil action ; and in all actions com
menced against him the process shall be served upon his guardian,
and in all judgments against such ward ( or his guardian as such )
the execution shall be against the property of the ward only, and
in no case against his body, nor against that of his guardian, nor the
property of said guardian , unless he shall have rendered himself lia
ble thereunto.

Section IV. Support of Ward and Family.

$ 180. HOW ENFORCED .
( Wash. 6434.) The superior court shall have power to make or
ders for the restraint, support and safekeeping of such person , for
the management of his estate, and the support and maintenance
of his family, and education of his children, out of the proceeds
of his estate ; to set apart and reserve , for the use of such family,
all property, real or personal, not necessary to be sold for the pay.
ment of debts ; and to let, sell, or mortgage any part of such estate ,
real or personal, when necessary for the payment of debts, the
maintenance of such insane person or his family, or the education
of his children ,

Section V. Sales of Real Estate of Ward.

§ 181. MANNER AND GROUNDS OF SALE .
( A ) (Wash. 6435.) Whenever the personal estate of such per .
son shall be found to be insufficient to meet the requisitions, [ of
$ 180 ) it shall be the duty of such guardian to lay the same before
the superior court by whom he was appointed, setting forth the
particulars relative to the estate, real and personal, of such person,
and the debts by him owing, accompanied by a correct and true ac
count of his doings therewith ; whereupon it shall be the duty of
such court to make an order directing the mortgage , lease, .or sale ,
at his discretion , of the whole or such part of the real estate as
may be necessary.

( B ) ( Wash . 6436. ) The court making such order shall direct the
time and terms of such sale, mortgage, or lease of such estate, and
 145 COMPARATIVE CODE, 88 181-183

the manner in which the proceeds shall be applied ; and shall give
due notice thereof, together with a full description of the property
to be thus disposed of, at which time and place it shall be the duty
of the guardian to execute the order of said court, and to make a full
report of his doings therein , which report shall be accompanied by
the affidavit of the guardian verifying the report, and stating that
such guardian did not directly or indirectly become the purchaser
thereof; or if otherwise disposed of, that he is not directly or in
directly interested personally in the agreement.

( C ) ( Wash. 6437.) When any such sale, mortgage, or lease is

approved by the court ordering the same, as having been performed
according to law, and not under such circumstances as to operate
prejudicial to the interest of such ward, it shall be the duty of
the guardian to execute a deed, mortgage, or other instrument
of writing, which shall be as valid and effective in law as if exe
cuted by such ward when of sound mind and discretion .

(D) (Wash . 6438.) If such proceedings be disapproved by said

court, the court may set them aside, and proceed in like manner as
if no sale had been made.

182, 07 DOWER RIGHT.

( Mont. C. C. P. 2974.) The right of dower of an insane married
woman may be sold by her guardian, and the title to the real estate
transferred to the purchaser, under the direction of the court or
judge, in the same manner and with like effect as the property of
any insane person may be sold and transferred.

183. SALES OF REAL ESTATE OF INSANE WIFE .

( A) (Utah , L. 1903, p. 114, sec . 1. ) Whenever the wife of any
person shall have become insane, idiotic or otherwise mentally in
competent to join her husband in the conveyance of real estate, and
shall have remained in that condition for more than two years, or
when it shall be made to appear to the court that such married
woman is incurably insane, idiotic or otherwise mentally incompe
tent, her inchoate interest in the real estate of her husband may be
relinquished and cut off as (provided in (B) , (C) , (D) , and ( E) of
$ 183 ) .

(B) (Utah, L. 1903, p. 114, sec. 2.) The husband or any person
interested in such real estate may apply to the district court of
the county in which such insane, idiotic or otherwise mentally
incompetent wife shall be an inhabitant or resident, by petition under
oath, for the appointment of a guardian and for leave to sell the
Comparative Code - 10
 8 183 COMPARATIVE CODE . 146

inchoate interest of such insane, idiotic or otherwise mentally id

competent wife in the real estate of her husband. Said petition shall
set forth the name, age and residence of such married woman, and
the name, age, and residence of her husband, as near as may be as
certained ; the nature of the disability of such married woman, and
the length of time it has existed ; a full description of the real
estate in this state to be affected by such proceedings, the value
of each piece of real estate, and the amount of encumbrance upon
it, if any, not affected by or prior to her claim to such inchoate
interest. If the real estate is to be sold by the husband, or has
been sold by him, the amount of the consideration of such sale
as made or agreed upon, and the reason why such sale is desirable
to such husband or petitioner.

(C) ( Utah, L. 1903, p. 115, sec. 3.) Upon the filing of such pe
tition, the said district court shall enter an order that the petition
be heard on a certain day, and that notice thereof, such as the
court may direct, stating the time and place of such hearing, be
given to the person supposed to be insane, idiotic or otherwise
mentally incompetent, and to such other persons as the court may
designate.

(D) ( Utah, L. 1903, p. 115, sec. 4. ) At such hearing the said wife
may appear by counsel, or in person, or by guardian ad litem , ap
pointed as in other cases, and may answer such petition in the time
and manner such court shall direct, and upon the filing of an an
swer, the case shall be deemed at issue , or if the said wife shall
fail to appear as herein provided, the court shall appoint some com
petent attorney at law to represent the interests of said wife, who,
in her behalf, shall be granted time in which to answer or other
wise plead therein, and said cause shall be brought to issue as nearly
as may be in the same manner as civil actions. When the case is
at issue, the court shall hear and determine the same, and make
findings and decree therein , or in its discretion may refer the mat
ter to a referee, to be appointed by the court for that purpose, to
take the proofs and report the same to the court with his findings
thereon as follows : 1st. As to the sanity, idiocy, or mental incom
petency of such wife; 2d. As to the necessity or propriety of sell
ing said real estate and relinquishing said wife's inchoate interest
therein ; 3d. The cash value, at the time, of such inchoate interest ,
taking into consideration the respective ages of such husband and
wife, and the likelihood of survival. Upon the coming in of said
report the court shall consider the same, and may change or modify
said findings, in case, in the court's opinion, they do not conform
to the reported testimony, and shall make such decree pursuant to
the said findings as may be just and equitable.
 147 COMPARATIVE CODE. 8 $ 183, 184

( E ) (Utah, L. 1903, p. 115, sec. 5.) If said court shall decide

that said wife is insane or idiotic, or otherwise mentally incompe
tent , and that it is desired that her inchoate interest should be re
linquished, it shall fix the then present value of such inchoate in
terest, and shall thereafter appoint a special guardian of such in
sane, idiotic or otherwise mentally incompetent wife, who shall be
some person other than her husband, who shall give bond in a sum
to be fixed by the court, with sureties to be approved by the court,
conditioned to receive and invest any money that may come into
his hands, and reserve the same until it shall be disposed of under
the order and direction of the court.

(F) (Utah, L. 1903, p. 116, sec. 6.) Upon the approval of such
bond said special guardian may, upon the payment to him of the
amount fixed by the court as the value of such inchoate interest,
convey the said inchoate interest, and relinquish the same to the
parchaser of such real estate, or to his heirs or assigns, but to no
other person. Such conveyance shall be effective as a relinquish
ment of such inchoate interest in like manner as though the said
wife, being of sound mind, had executed such conveyance by join
ing her husband in a deed to such preprises.

( G ) (Utah, L. 1903, p. 116, sec . 7.) Such guardian shall allow

said money to accumulate and shall dispose thereof as the court
shall direct , and upon the restoration of said married woman to
sound mind, shall, upon the order of the court, transfer said money
to said wife, in the event she shall survive her said husband, or to
her heirs if she shall not be restored to sound mind before her death .
In the event said wife shall not survive her said husband, then
upon her death the said money, together with the interest accruing
thereon, less the expenses of special guardian as allowed by the
court shall be transferred to said husband .

Section VI. Discharge or Removal of Guardian.

184. WHEN AND HOW RELEASED .
( A ) (Wash. 6441. ) Whenever the court shall receive informa
tion that such ward has recovered his reason, he shall immediately
inquire into the facts, and if he finds that such ward is of sound
mind, he shall forthwith discharge such person from care and
custody ; and the guardian shall immediately settle his accounts and
restore to such person all things remaining in his hands belonging
or appertaining to such ward.
(B) ( Wash. 6442.) In case of the death of any such ward while
under guardianship , the power of the guardian shall cease, and the
88 184, 185 COMPARATIVE CODE. 143

estate descend and le disposed of in the same manner as if said

ward had been of sound mind; the guardian shall immediately set
tle his accounts and deliver the estate and the effects of such ward
to his legal representatives.

(C) (Wash. 6443.) The several superior courts shall have the
power to remove any such guardian at any time, for neglect of duty,
mismanagement, or of disobedience to any lawful order, and appoint
another in his place, whereupon such guardian shall immediately
settle his account and render to his successor the estate and effects
of his ward,

(D) (Wy. 4893.) If any guardian shall publish for four weeks
in some newspaper published in the county where the proceedings
are had, if there be one, and if not in the nearest newspaper to such
county, a notice of his intention to apply to the court or judge,
to resign his guardianship, and the court or judge on proof of such
publication, shall believe that he should be permitted to resign, the
court or judge shall so order, and appoint other guardians, who may
assume the maintenance of the patient at the state insane asylum ;
in the event of the patient being at the time an inmate of said
asylum, the court shall have authority to provide for the safekeep
ing and medical treatment, in the state insane asylum , of such
lunatic, idiot, or person of unsound mind, in the manner provided by
law in relation to such like persons, residents of the several counties.

CHAPTER III. GUARDIAN FOR NON -RESIDENT INSANE

PERSON .

Section 1. Appointment and Letters.

§ 185. WHEN AND HOW APPOINTED .
( A ) (Or. 5605. ) When any minor, insane person, or spendthrift
residing out of this state shall be put under guardianship in the
state or county in which he resides, and shall have no guardian ap
pointed in this state, the foreign guardian nray file an authenticated
copy of his appointment in the county court of any county in which
there may be real estate of the ward ; after which he may be li .
censed by the county court for the same county to sell the real
estate of the ward in any county in the same manner and upon
the same terms and conditions as are prescribed in [ $ 191 ] in the
case of a guardian appointed in this state except in the particulars
therein mentioned .

( B) (Wash . 6447.) Whenever any insane person or person non

compos mentis who resides without this state, and who shall have
149 COMPARATIVE CODE. 83 186, 187

Do guardian within this state, or, if he or she has a foreign guardian,

the said guardian may file an authenticated copy of his letters of
guardianship in the office of the clerk of the superior court of any
county in this state in which there may be property of his ward,
and upon the filing of such authenticated copy of his letters of
guardianship as aforesaid, the court shall order him to enter into
a good and sufficient bond, in such sum as the court may require,
conditioned and subject to all the provisions of law concerning the
bonds of guardians of minors in this state, with sufficient freehold
surety resident in said county. After said bond is duly approved
by the court said guardian shall be considered for all purposes as
a domestic guardian .

i 186. LIMITATION OF TIME FOR APPLICATION .

(Wash. 6448.) Should the said foreign guardian fail to file a
duly authenticated copy of his said letters of guardianship and
the bond required by [the preceding] section within ninety days
after his appointment as such foreign guardian, or within ninety
days after such insane person or person non compos mentis shall
become the owner of any real estate or personal property within
this state, or, should said insane person or person non compos
mentis have no guardian without this state, any creditor or other
person interested in the property or estate of such insane person or
person non compos mentis may apply by petition, to the superior
court of any county in this state where any of the real estate or
personal property of such insane person or person non comrpos mentis
may be situated, for letters of guardianship for the estate and
property of such insane person or person non compos mentis.

& 187. HEARING - APPOINTMENT – BOND .

(A ) (Wash. 6449.) Upon the hearing of such petition, on a day
to be fixed by the court, and upon proof of the insanity of such
person , or that such person is non compos mentis, the court may
appoint the petitioner or some other suitable person possessing all
of the qualifications necessary or requisite for the guardianship of
a minor of this state as such guardian, who, upon the filing and
approval of a bond as is provided herein for foreign guardians,
shall be the duly constituted guardian of the estate of such ward in
this state : Provided, nothing herein shall annul the appointment of
any ancillary guardians heretofore appointed by any court of this
state, which appointments are hereby ratified, and all such ancillary
guardians shall hereafter be subject to all the provisions of this
chapter.

(B) (Wash. 6455.) The sureties on the bond of any such guard
ian appointed in this state may be discharged from all liability
$$ 188-190 COMPARATIVE CODE. 150

thereunder under the same rules and regulations as are prescribed for
the discharge of the sureties upon the bonds of executors and ad.
ministrators in this state.

$ 188. NOTICE TO CREDITORS .

(Wash . 6450. ) It shall be the duty of the guardian who has been
appointed as provided ( in this chapter] to cause to be published in a
newspaper published in the county in which he was appointed , if any
there be, and if there be no newspaper published in said county, then
in a newspaper to be designated by the court, a notice to the cred .
itors of the said ward requiring them to present their claims, with
the necessary vouchers, within a time to be fixed by the court , at
a place of residence or business of such guardian, to be specified
in the notice ; such notice shall be published as often as the court
shall deem necessary , not less than once a week for four successive
weeks.

Section II. Duties of Such Guardians.

$ 189. INVENTORY_ESTATE - ACCOUNTS - DEBTS, ETC.
(Wash. 6451.) It shall be the duty of every such guardian,
1. To make and file within thirty days after his appointment a
full inventory, verified by his oath, of all the real or personal prop
erty of such ward, with the value of the same, and on failure so
to do it shall be the duty of the court to remove him and appoint a
successor ;
2. To manage the personal and real estate of his said ward to
the best interest of said ward ;
3. To render under oath to the said court an account of his
receipts and expenditures as such guardian, verified by vouchers
or proofs, at least once in every two years, or whenever cited by the
court to do so . On failure to so account he shall be in contempt
of court and subject to such penalties as the court may fix ;
4. To pay all just debts due fronr said ward and collect all debts
due said ward by action or otherwise and in case of doubtful debts,
under the order of the court, to compound the same, and to appear
for and defend or cause to be defended all suits against said ward.

§ 190. DISCHARGE OF GUARDIAN - DISPOSITION OF FUNDS .

( Wash . 6454. ) When it shall appear to the court that all the
real and personal property of such ward has been sold and the debts
herein authorized to be paid have been satisfied , and that there are
moneys and property in the hands of such guardian, upon the for
eign guardian of such ward filing with the clerk of said court a
duly certified copy of his appointment as such guardian , by a court
 151 COMPARATIVE CODE. $ $ 191, 192

of competent jurisdiction in any state or territory where said ward

resides with a copy of his bond, the sufficiency of which shall be
certified by the said court , the court shall order all money and
property in the hands of the said guardian in this state to be paid
and turned over to the said foreign guardian upon his receipting
therefor, and upon the filing of the said receipt by the said guardian
with the clerk of the court, said guardian and his sureties shall
be released from all liabilities for all money and property so paid
and turned over, and should said guardian fail or refuse to pay
or turn over such money or property as provided in said order, the
said foreign guardian is hereby empowered as such guardian to sue
for and recover the same.

Section III. Sales of Real Estate.

§ 191. NOTICE - VENUE_DISPOSITION OF PROCEEDS.
( A ) (Or. 5606.) Every foreign guardian so licensed to sell real
estate shall take and subscribe the oath in the like case of guardians
appointed in this state, and shall give notice of the time and place
of sale, and conduct the same in the same manner prescribed for
guardians appointed in this state, and may perpetuate the evidence
of the notice in the same manner.

( B ) ( Or. 5607.) All the proceedings required to be had in any

county court in this state respecting such sale by a foreign guardian
shall be had in the court for the county in which the authenticated
copy of his appointment is filed .

( C ) (Or. 5608.) Upon every such sale by a foreign guardian,

the proceeds of sale, or as much thereof as may remain upon the final
settlement of the accounts of guardianship, shall be considered as
real estate of the ward, and shall be disposed of among the same
persons and in the same proportions as the real estate would have
been according to the laws of this state if it had not been soid ;
and the foreign guardian shall, in every case, before making the
sale, give bond to the county judge, with sufficient surety or sureties,
with condition to account for and dispose of the same according to
law ,

192 , SALE OF COMMUNITY PROPERTY .

(A) (Wash. 6452.) In all cases where guardians have been or
may hereafter be appointed for insane persons or persons non
compos mentis, under the provisions of [law] , and who own or
may hereafter own community real estate, the husband or wife
of such insane person or person non compos mentis, under the order
of the court, may join with the guardian in the execution of deeds
 8 192 COMPARATIVE CODE. 152

or mortgages for the disposition or encumbrance of such estate, and

the guardian shall, upon application to the court for that purpose, be
authorized to sell or mortgage the estate or interest of the said insane
person or person non compos mentis for the purpose of paying the debt
or providing for the support or maintenance of such ward or the
wife of such ward or for the better investment of the proceeds of
such estate .

(B) (Wash . 6453.) In all cases where community debts exist

and the husband or wife of any insane person or person non compos
mentis, under guardianship, shall fail or refuse for sixty days after
an order of the court, to join the said guardian in a sale or con.
veyance or mortgage of the said community property of the said in
sane person or person non compos mentis, found necessary by the
court for the payment of such community debts, any creditor may
commence his action by attachment against any such insane person
or person non compos mentis, and the husband or wife of the said
insane person or person non compos mentis and the guardian pra
vided for [by law] : Provided, That any suit or suits which
may have heretofore or may hereafter be brought for the purpose of
subjecting the property of such insane person or person non compos
mentis to the payment of the debts of such insane person or person
non compos mentis, shall be consolidated, and in case the writs of
attachment levied in such actions shall not have been levied upon
all community property of such insane person or person non compos
mentis, alias writs of attachment may issue and successive levies
may be made of them to cover and bring into court all of the prop
erty of such insane person or person non compos mentis and the
husband or wife of either. Such action may be brought only in the
court granting the letters of guardianship, and writs of attachment
nray issue to any county in this state where the said insane person
or person non compos mentis may have any property. All known
creditors, whether secured by mortgage or otherwise, shall be made
parties to such action, and all suits or actions brought for the pur
pose of enforcing any mortgage or lien shall be consolidated with
said action. All creditors shall be made parties to such action and
the same shall be prosecuted for the benefit of all creditors, whether
they may be made parties or not , and the person so bringing the
action herein provided for shall share pro rata with all other cred
itors, and upon the trial of such action the court may, upon proofs,
render such judgment as may be necessary for the protection of
all parties, and shall settle and decree the priorities between cred
itors. The guardian may employ counsel in any such action, and
the compensation of such counsel shall be fixed by the court and
taxed as a part of the cost in such action. After judgment the court
shall order the community property of such insane person or person
non compos mentis sold, and under the order of sale in such action
153 COMPARATIVE CODE. $ 193

the separate property of such insane person or person non compos

mentis shall also be sold if the same shall be found by the court
to be necessary to pay the debts of such insane person or person
non compos mentis, and the proceeds of such sale shall be paid into
court for distribution according to the priorities as decreed by the
court , and any residue or overplus remaining in the court after pay.
ing all the debts found due shall be paid over to the guardian.
[ 8 192 ] shall not suspend or abrogate the existing liens of any
attachment, mortgage or other lien, and all such liens shall merge
into the judgment of the court rendered in such action according to
the priority of each. The court may order all or such part of the
community and separate property of the said insane person or per
son of unsound mind, as it may deem necessary for the payment
of the judgment rendered, to be sold, and successive sales may be
inade under such judgment until an amount sufficient to pay such
judgment is realized . All such sales shall be confirmed by the court
as in cases of mortgage or other sales, and the court may, if it
deem the amount bid at any sale inadequate, order a resale of any
property sold under said order.

CHAPTER IV. GUARDIAN AD LITEM AND NEXT FRIEND.

$ 193. POWER TO APPOINT OTHER GUARDIANS NOT EXCLU
SIVE .
(A) (Ar. 1983 ; Cal. C. C. P. 1759 ; Id. 4352 ; Mont. C. C. P. 2960 ;
Utah , 3990 ; Wash . 6410 ; Wy. 4878. ) Nothing contained in [the
law for appointment of general guardians ] affects or impairs the
power of any court 1 to appoint a guardian to defend the interests
of any minor interested in any suit or matter pending therein.2
1 Insert : " or judge. " - Mont.
2 Add : " ' or to commence and prosecute any suit in his behalf.''- Wash .

(B ) (Nev. 571.) Nothing contained in this act 1 shall affect

or impair the power of the court to appoint a guardian to defend
the interest of any minor, in any suit or matter pending therein ,
or to appoint or allow any person as the next friend of a minor to
commence and prosecute any suit in behalf of a minor.
1 Relating to appointment of general guardians.

(C ( Or. 5266. ) Nothing contained in this titlel shall impair

the power of the supreme court, the circuit court, the county court,
or courts of a justice of the peace to appoint a guardian to de
fend the interests of any minor impleaded in such courts, or inter
ested in any suit or matter therein 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.
1 Relating to the appointment of general guardians.
 194 COMPARATIVE CODE. 154

& 194. WHEN AND HOW MAY BE APPOINTED .

(A) ( Ar. 1310.) Whenever it shall appear to any court in any
proceeding or matter being had before such court, that the inter
ests of minors are involved in such proceeding or matter, and that
said minors have not appeared therein by a general guardian, it
shall be the duty of such court to forthwith appoint in writing some
suitable person, who shall be an attorney at law, to act as special
guardian for such minor or minors, in said proceeding or matter, for
the purpose of protecting said minor or minors ' interest in such
proceeding or matter,

(B) ( Ar. 1311.) No person shall be appointed as special guardian

except upon his written consent, and no special guardian shall be
liable personally for costs, unless by special order of the court for
some misconduct therein .

(C ) (Cal. C. C. P. 372 ; Id . 3160 ; Mont. C. C. P. 574.) When an

infant, or an insane or incompetent person is a party, he must ap
pear either by his general guardian or by a guardian ad litem ap
pointed by the court, in which the action is pending in each case.1
A guardian ad litem may be appointed in any case, when it is deemed
by the court in which the action or proceeding is prosecuted, or by
a judge thereof, expedient to represent the infant, insane or incom
petent person in the action or proceeding, notwithstanding he may
have a general guardian and may have appeared by him.
1 Insert : “ or by a judge thereof or a probate judge. " - Id.

(D) (Cal. C. C. P. 373 ; Id . 3161 ; Mont. C. C. P. 575 ; Utah, 2908. )

When a guardian ad litem is appointed by a court, 1 [ or the judge
thereof] , he must be appointed as follows :
1. When the infant is plaintiff, upon the application of the in
fant, if he be of the age of fourteen years, or if under that age ,
upon the application of a relative or friend of the infant.
2. When the infant is defendant, upon the application of the
infant, if he be of the age of fourteen years and apply within
2 [ twenty] days after the service of the summons, or if under that
age, or if he neglect so to apply, then upon the application of a
relative or friend of the infant, or of any other party to the action.
3. 3 [ When an infant defendant resides out of this state, the
plaintiff, upon motion therefor, shall be entitled to an order desig
nating some suitable person to be guardian ad litem for such infant
defendant, unless the defendant or someone in his behalf, within
twenty days after service of notice of such motion shall procure
to be appointed a guardian for such infant. Service of such no
tice may be made upon the general or testamentary guardian of
such defendant, if he have one in this state ; if not, such notice,
 155 COMPARATIVE CODE. 8 194

together with the summons in the action , shall be served in the

manner provided by law for publication of summons upon such in
fant if over fourteen years of age, or if under fourteen years of
age, by such service on the person with whom such infant resides.
The guardian ad litem for such nonresident infant defendant shall
have twenty days after his appointment in which to plead to the
action .)
4. Whep an insane or incompetent person is a party to an action
07 proceeding, upon the application of a relative or friend of such
insane or incompetent person, or of any other party to the action
or proceeding.
1 Omitted . - Cal.
2 " ten ' ' - Cal.; Id.; Mont.
3 Subd . 3 omitted .-- Cal.; Id.; Mont.

(E ) ( Nev. 3104 ; Or. 32.) When an infant is a party, he shall

appear by guardian, who may be appointed by the court in which
the action is brought; or by a judge thereof, 1 (or a county judge.]
1 Omitted . - Nev .

( F) (Wash. 4832*.) When an infant is a party, he shall appear

by guardian, or if he has no guardian, or in the opinion of the
court the guardian is an improper person , the court shall appoint
one to act.

( G ) ( Nev . 3105 ; Or. 33 ; Wash . 4832*.) The guardian shall

be appointed as follows:
1. When the infant is plaintiff, upon the application of the in
fant , if he be of the age of fourteen years ; or if under that
age, upon the application of a relation or friend of the infant.
2 . When the infant is defendant, upon an application of the
infant, if he be of the age of fourteen years , and apply within
1 [ fifteen ) days after the service of the summons ; if he be under
the age of fourteen, or neglect so to apply, then upon the applica
tion of any other party to the action, or of a relation or friend of the
irfant,

1 " ten " -Nev .; " thirty ." - Wash .

( H) (Utah, 2907.) When an infant, or an insane or incompetent

person is a party, he must appear either by his general guardian, or
by a guardian ad litem appointed by the court, or judge thereof, in
which the action is pending in each case. A guardian ad litem may
be appointed in any case, when it is deemed by the court in which the
action or proceeding is prosecuted, or by the judge thereof, expedient
to represent the infant, insane, or incompetent person in the action
or proceeding, notwithstanding he pray have a general guardian, and
may have appeared by him .
 $ 194 COMPARATIVE CODE . 156

(I) (Wash. L. 1899, p. 144, sec. 1.) When an insane person is a

party to an action in the superior courts, he shall appear by guardian ,
or, if he has no guardian , or in the opinion of the court the guardian
is an improper person the court shall appoint one to act as guardian
ad litem . Said guardian shall be appointed as follows:
1. When the insane person is plaintiff, upon the application of a
relative or friend of the insane person .
2. When the insane person is defendant, upon the application of
a relative or friend of such insane person, such application shall be
nade within thirty days after the service of the summons if served
in the state of Washington, and if served out of the state, or service
is made by publication, then such application shall be made within
sixty days after the first publication of the summons or within sixty
days after the service out of the state. If no such application be
niade within the time above limited , application may be made by any
party to the action.

(J) (Wy. 3472, 3473.) The action of an insane person must be

brought by his guardian; the action of an infant must be brought by
his guardian or next friend ; and when the action is brought by his
next friend, the court may dismiss it, if it is not for the benefit of
the infant, or substitute the guardian, or any person as the next
friend. The next friend shall be liable for the costs of the action
brought by him, and when a next friend is insolvent, the court pray,
on motion, require security therefor."

(K) (Wy. 3474.) The defense of an insane person must be by his

legally appointed guardian, or, if there is no guardian, or the guardian
has an adverse interest, by a trustee for the suit, appointed by the
court ; and if the insanity of a party be discovered, or he become
insane after the action is brought, it shall be thereafter prosecuted
or defended by his guardian or trustee, appointed as provided in this
section .

( L) (Wy. 3477, 3478.) The defense of an infant must be by a

guardian for the suit, who may be appointed by the court in which
the action is prosecuted or by a judge thereof, or by a probate judge.
The appointment may be made upon the application of the infant, if,
being of the age of fourteen years, he apply within twenty days after
the return of the summons, or service by publication ; and in case of
his being under said age, or of his neglect so to apply, the appoint
ment may be made on the application of the plaintiff or a friend of
the infant ; but the appointment cannot be made until after a service
of summons or publication ,
 157 COMPARATIVE CODE . $ 195

§ 195. POWER OF COURT OVER SUCH GUARDIAN .

( A ) (Wy. 3475.) The court shall require a guardian ad litem,
or a trustee appointed under [ $ 194, (J) ) , faithfully to discharge his
duty, and upon his failure so to do may remove him, and appoint
another in his stead ; and the court may fix a compensation for his
services, which shall be taxed in the costs against the minor or
insane person .

( B) (Wy. 3476.) When the insanity of a person is not manifest

to the court, and the fact of insanity is disputed by a party or an
attorney in the action, the court may try the question or impanel
& jury to try the same.
$ 196 COMPARATIVE CODE . 158

DIVISION IX .
CHANGE OF NAMES OF PERSONS .
$ 196. APPLICATION FOR JURISDICTION .
( A ) ( Ar. 442.) When any person shall desire to change either
bis Christian or surname, or both, and to adopt another name instead
thereof, he shall file his application in the district court of the county
of his residence, setting forth the causes which induce him to desire
a change of name and to adopt another ; whereupon the judge of the
said court, if in his opinion, it should be for the interest or benefit
of the applicant to change his name and to adopt another, shall by
a judgment of said court order that the adopted name of the party
shall be substituted for the original name.

(B) ( Ar. 443. ) Whenever it shall be to the interest of any minor

under the age of twenty-one years to change his name and to adopt
another name instead of the original name, the guardian or next
friend of said minor shall file his application in the district court of
the county of the said minor's residence, setting forth the causes
which induce the minor to desire to change the original name, ac
companied with the full name which the minor wishes to adopt ;
whereupon the judge of said court, if the facts contained in the
application shall satisfy him that it will be for the benefit and
interest of the minor to change his name and to adopt another,
shall grant authority to change his original name, and to adopt
another instead thereof.

( C) ( Cal. C. C. P. 1275 ; Id. 3872 ; Mont. C. C. P. 2260 ; Or. 5326 * . )

Applications for change of names 1must be heard and determined by
the 2 [ superior ] courts.3
1 Insert : " of persons." ' -- Or.
2 " district ' ' - Id.; Mont .; " county . " -- Or.
3 Add : " in the several counties.''- Or.

(D ) ( Cal. C. C. P. 1276 * ; Id. 3873 * ; Mont. C. C. P. 2261 * . ) All

applications for change of names must be made to the 1 [ superior ]
court of the county where the person whose name is proposed to be
changed resides, by petition signed by such person ; and if such per
son is under twenty-one years of age, if a male, and under the age of
eighteen years of age, if a femrale, by one of the parents, if living,
or if both be dead, then by the guardian ; and if there be no guard
 159 COMPARATIVE CODE . § 196

ian, then by some near relative or friend . The petition must

specify the place of birth and residence of such person, his or her
present name, the name proposed, and the reason for such change of
liame, and must, if the father of such person be not living, name,
as far as known to the petitioner, the near relatives of such person ,
and their place of residence.
1 " district ' ' - Id.; Mont.

( E ) (Nev. 5001.) Any person desiring to have his or her name

changed, may file with the clerk of the district court of the district
in which he or she may reside, a petition, verified by his or her oath,
addressed to said court, stating his or her present name, the name
which he or she desires to bear in future, and the reason for desir
ing such change .

(F) ( Utah, 1545. ) Any person .... desiring to change his

name, may file a petition therefor in the district court of the
county where located, setting forth :
1. The cause for which the change of name is sought.
2. The name proposed .
3. .... That he has been a bona fide citizen of the county for
the year immediately prior to the filing of the petition. ...

( G ) ( Wash. 5733. ) Any person desiring a change of his name or

that of his child or ward may apply therefor to the superior court of
the county in which he resides , by petition setting forth the reasons
for such change ; thereupon such court, in its discretion , may order
a change of the name, and thenceforth the new name shall be in
place of the former,

( H) (Wy. 4191. ) Any person desiring to change his or her name,

may present a petition to that effect, verified by affidavit, to the
üstrict court of the county of the petitioner's residence, which
petition shall set forth the petitioner's full name, and the name
desired, and a concise statement of the reason for such desired
change. He or she shall also state in such petition , the place of his
or her birth, his or her residence, and the length of time he or she
has been an actual bona fide resident of the county in which the
petition is filed. If the court shall be satisfied that the desired
change would be proper and not detrimental to the interests of any
other person , it shall order such change to be made, and the records
of the proceedings thereof to be spread upon the records of the
court.

( I) (Wy. 4192.) A person petitioning for a change of name as

aforesaid, shall have been for the last two years next preceding the
 $ 8 197, 198 COMPARATIVE CODE. 160

time of filing such petition, an actual bona fide resident of the county
in which such petition is made.

$ 197. NOTICE OF APPLICATION .

(A) ( Cal. C. C. P. 1277 ; Id . 3874 ; Mont. C. C. P. 2262.) A copy
of such petition must be published for four successive weeks in some
newspaper 1 [printed ] in the county, if a newspaper be printed
therein ; but if no newspaper be printed in the county, a copy of
such petition must be posted at three of the most public places
in the county for a like period, and proofs must be made of such
publication before the petition can be considered.
1 " published. " -Mont.

(B) (Nev. 5002.) Upon the filing of said petition, the applicant
shall make out and procure to be published in some newspaper of
general circulation in the county, for the period of thirty dlays, a
notice, stating the fact of the filing of the petition, its object, his
or her present name, and the name which he or she desires to bear
in future.

( C) (Or. 5327*.) Before decreeing a change of name, except as

provided in [ 8 198, (D) ], the court shall require public notice of the
application thereof to be given , that all persons may offer and
show cause, if they have any, why the same should not be granted.

(D) (Wy. 4193.) Public notice of such petition for a change of

name shall be given in the same manner as service by publication
upon nonresidents in civil actions.

$ 198. HEARING OF APPLICATION .

(A) ( Cal. C. C. P. 1278 ; Id. 3875 ; Mont. C. C. P. 2263. ) Such ap
plication must be heard at such timel as the court2 may appoint,
and objections may be filed by any person who can, in such objec
tions, show to the court3 good reason against such change of name.
On the hearing, the court4 may examine on oath any of the peti.
tioners, remonstrants, or other persons, touching the