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