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[2 R. S. 1852, p. 321. In force May 6, 1853.) 2531. Oath of appraisers. 17. Said appraisers shall take an oath to truly and impartially appraise said premises at their fair cash value; which oath shall be indorsed on the certificate of their appointment.
2532. Appraisement - Additional bond. 18. Upon the appraisement of said real estate being filed in writing, signed by said appraisers, the Court shall require such guardian to execute bond, with sufficient freehold sureties, payable to the State of Indiana in double the appraised value of such real estate, with condition for the faithful discharge of his duties and the faithful payment and accounting for of all moneys arising from such sale, according to law.
1. An additional bond given hereunder is not void because the order obtainəd is changed from public to private sale of the land.-Stevenson v. State, 71 Ind. 52.
2. The original bond need not be exhausted, or alleged to be so, before suit upon the additional bond required herein.-- Shook v. State, 53 Ind. 403.
2533. Order of sale. 19. Upon such bond being filed and approved by the Court, the Court shall order the sale of such real estate, providing in the order for reasonable notice of such sale, the credits to be given for the payment of the purchase-money, and the mode of securing the same: Provided, however, that if the appraised value of the real estate ordered to be sold shall not exceed one thousand dollars, the court may order said real estate to be sold at private sale without notice. (As amended, 1891 S., p. 80. In force March 4, 1891.
(1891 S., p. 81. In force March 4, 1891.] 2533a. Sales legalized – Limitation of act. 2. That all sales of real estate heretofore made by guardians at private sale without notice of sale having been given, but in all other respects in accordance with said section 2533 of the Revised Statutes of 1881, be and the same are hereby legalized and conveyances heretofore made by guardians, under orders of sales providing for private sales without notice, shall be valid, and shall estop all parties or their heirs from hereafter claiming any interest in the real estate so conveyed: Provided, however, that this act shall not in any wise affect any suit or suits now pending in any of the courts of this state or the rights of any parties thereto.
[2 R. S. 1852, p. 321. In force May 6, 1853.] 2534. Who may sell. 20. The Court may empower such guardian make sale of such real estate, or may appoint a commissioner or commissioners for that purpose.
1. Whether the sale be made by guardian or commissioner, the guardian must file an additional bond to secure proceeds.-- McKeever v. Ball, 71 Ind. 398.
2. A guardian can not buy at his own sale.- Lane v. Taylor, 40 Ind. 495. 3. Such sales are without warranty.--State v. Clark, 28 Ird. 138.
2535. Report of sale. 21. At the term of the Court next after such sale, such guardian or commissioner shall make report thereof to such Court, and produce the proceeds of sale, and the notes or obligations or other securities taken to secure the payment of the purchase-money.
1. The guardian, not the Clerk of the Court, is the proper custodian of the proceeds of the sale of the ward's lands.--- State v. Steele, 21 Ind. 207, State v. Fleming, 46 id. 206.
2. A sale may be valid made after the ward's majority. – Webster v. Bebinger, 70
2536. Price the property must bring. 22. Whenever such real estate is ordered by the Court to be sold at private sale, the same shall not be sold for less than its appraised value ; and, when ordered to be sold at public auction, for not less than two-thirds of its appraised value.
1. When the land or interest therein is worth less than one thousand dollars, the Court may authorize a private sale without notice of the time, place, and conditions thereof, if it appear to the Court that the interests of the ward will be promoted there by.
2. Only money can be received by the guardian as the price of a ward's lands sold by him. -- Fox v. Kerper, 51 Ind. 148; Bevis v. Heflin, 63 id. 129. A purchaser in good faith, without notice, is not affected by the guardian's fraud.- Worthington 7. Dunkin, 41 Ind. 515.
2537. Confirmation and conveyance. 23. The Court, in confirm- . ing such sale and directing a conveyance, shall be governed by the law regulating the confirming of sales of real estate made by executors or administrators and the making of conveyances on such sales.
1. Section 2364 provides when sales by guardians shall not be avoided for irregu. larities or defects.
(1853, p. 75. In force February 14, 1853.] 2538. Foreign guardian may sell. 1. When any minor or other person shall be under guardianship without this State, and shall have no guardian in this State, the foreign guardian may file an authenticated copy of his appointment in the office of the Clerk of the Circuit Court of the county in which there may be real estate of his ward; after which, he may proceed to sell the real estate of his ward in this State as if he were a resi. dent guardian, except as is provided in the next section. 2539. Bond.
2. When it shall appear to the Courts of this State that such foreign guardian is bound with sufficient sureties in the State or county where he was appointed to account for the proceeds of such sale, and an authenticated copy of such bond shall be filed in such Court, no further bond shall be required: otherwise, he shall give bond as in case of sales by a guardian appointed in this State.
[1869 S., p. 72. In force May 3, 1869.] 2540. Suits by foreign guardian. 1. When any minor or other person shall be under guardianship without this State, the foreign guardian may file an authenticated copy of his or her appointment in the office of the Clerk of the Circuit Court of the county in which there may be personal estate or assets of his or her ward; after which he or she may proceed to take possession of said personal property or assets, and may sue for and recover possession thereof in the Circuit Courts of this State, and execute all proper and necessary receipts.
2541. New bond by foreign guardian. 2. When it shall appear to the Courts of this State that such foreign guardian is bound in sufficient sureties in the State or county where he or she is appointed to account for the proceeds of such personal property or assets, and an authenticated copy of such bond shall be filed in such Court, no further bond shall be required: otherwise, he or she shall give bond as in case of guardians appointed in this State.
[2 R. S. 1852, p. 321. In force May 6, 1853.] 2542. Partition. 24. The guardian of any minor may join in and assent to a partition of the real estate of such minor under the direction of the Court, upon a petition for partition.
1. Guardians of infants may sue for partition, as well as assent thereto.-- Schee v. McQuilken, 59 Ind. 269.
2 But neither the guardian nor the infant can maintain an action to review proceed. ings in partition, during the infant's minority.- Bundy v. Hall, 60 Ind. 177.
2543. Expenses and pay. 25. Every guardian shall be allowed by the Court settling his accounts the amount of all his reasonable expenses incurred in the execution of his trust; and also such compensation for his services as the Court shall deem reasonable.
1. On final settlement, a guardian's claim for services can not be denied because he does not show that he has not used the money in hands for his own purposes.- Net. tleton, ex parte, 10 Ind. 352.
ARTICLE 2-OF THE INSANE.
SEC. 2544 2545.
Who are of unsound mind.
2550. Temporary guardianship. Proceedings to establish unsound mind.
Duties and powers of guardian. 2546. Appointment of guardian – Insane pauper. 2552. Termination of guardianship. 7547. Production of party.
2553. Trial of fact of return to sanity. 2548. Expenses and costs.
2554. 2549. Non-resident insane.
2555. Dangerous insane. [2 R. S. 1852, p. 333.
In force May 6, 1853.) 2544. Who are of unsound mind. 1. The words, “person of un. sound mind," as used in this Act or any other statute of this State, shall be taken to mean any idiot, non compos, lunatic, monomaniac, or distracted person.
2545. Proceedings to establish unsound mind. 2. Whenever any person shall, by statement in writing, represent to the Court having probate jurisdiction in any county, that any inhabitant of such county is a person of unsound mind and incapable of managing his own estate, such Court shall cause such person to be produced in Court, and shall cause an issue to be made by the Clerk of such Court, denying the facts set forth in such statement; which issue shall be tried as the issues in civil actions are tried, by the court, or by a jury, to be impaneled under the direction of said court. It shall be the duty of the prosecuting attorney to appear for the person alleged to be of unsound mind, in such proceeding, and by proper defense to protect the interests of such person. [As amended, 1895 S., p. 205. In force July 1, 1895.
2546. Appointment of guardian -- Insane pauper. 3. If such court or jury shall find that such inhabitant is a person of unsound mind, such court shall appoint a guardian for such person, who shall have the custody of his person and the management of his estate; and before entering upon his duties as such, he shall give bond and security, and take an oath as such guardian, in like manner as is required of the guardian of a minor: Provided, If such insane person is a pauper, he shall be provided for under the laws regulating the relief of the poor; but if such person, being a pauper, shall be dangerous if permitted to run at large, he shall be provided for under the regulations prescribed in section twelve (section 2555). [As amended, 1895 S., p. 206. In force July 1, 1895.
2547. Production of party. 4. If the Court shall be satisfied that such person, alleged to be of unsound mind, can not, without injury to his health, be produced in Court, such personal appearance may be dispensed with.
2548. Expenses and costs. 5. Whenever a guardian shall be appointed for any person of unsound mind, he shall pay the expenses of such trial; but if the court or jury find that such person is not of unsound mind, then the court shall give judgment against the person making the complaint for the costs. [As amended, 1895 S., p. 206. In force July 1, 1895.
2549. Non-resident insane. 6. Whenever any person not an inhabitant of this State, but having property in this State, shall, by inquest held and determined according to the laws of the State where such person may reside, be found to be a person of unsound mind, the Court having probate jurisdiction in any county of this State where any of such property may be found, may appoint a guardian for such person, who shall have the management of such person's estate in this State; and the guardianship so first granted shall exclude all others.
2550. Temporary guardianship. 7. Whenever any person of unsound mind shall be the owner of property in any county of the State other than the one in which such person resides (or being an inhabitant of another State), upon satisfactory proof thereof, verified by oath or affirmation of at least two competent witnesses that such person is believed to be incapable of transacting his or her business, and that such property is going to waste or likely to go to waste, the Court having probate jurisdiction in such county shall appoint a guardian for such person, who shall have the management of such estate until a guardian be legally appointed in the county where such person of unsound mind may reside, or until the same be restored.
2551. Duties and powers of guardian. 8. The same duties are required of and the same powers granted to guardians of persons of unsound mind as are required of and granted to guardians of minors, so far as the same may be applicable.
2552. Termination of guardianship. 9. Such guardianship shall terminate with the restoration to reason or the death of the ward.
2553. Trial of fact of return to sanity. 10. Whenever it is alleged that such person of unsound mind has become of sound mind again, the fact may be tried and determined in the same manner as the allegation of the unsoundness of mind; and the expenses of such trial shall be paid by such guardian out of the estate of the ward.
2554. Contracts void. II. Every contract, sale, or conveyance of any person while of unsound mind shall be void.
2555. Dangerous insane. 12. If it shall appear to the Court that there is danger to the community in permitting such person of unsound mind to run at large, the Court shall make such order for his safe-keeping as may be necessary, and direct the expenses thereof to be paid out of the estate of such person; or, if that be insufficient, or necessary for the support of his family, then out of the county treasury.
[2 R. S. 1852, p. 308. In force May 6, 1853.] 2556. Who may make a will. 1. All persons, except infants and persons of unsound mind, may devise, by last will and testament, any interest, descendible to their heirs, which they may have in any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same.
1. A married woman, hereunder, may devise her separate property without any concurrence of the husband.- Noble v. Enos, 19 Ind. 72.
2. An Indian not a citizen may make a will. -- Parent v. Walmsly 20 Ind. 82.
3. The fundamental principle in testamentary construction is that the intention of the testator must prevail.– Jackson v. Hoover, 26 Ind. 511; Schori v. Stevens, 62 id. 441.
4. A person of unsound mind can not make a valid will.— Willett v. Porter, 42 Ind. 250; Eggers v. Eggers, 57 id. 461.
5. A construction resulting in partial intestacy is to be avoided, is possible.- Spurgeon v. Scheible, 43 Ind. 216; Waugh v. Riley, 68 id. 482.
6. Words and phrases may be transposed, supplied, or rejected, when the scheme of the will will warrant it, but not upon mere conjecture.— Grimes v. Harmon, 35 Ind. 198; State v. Joyce, 48 id. 310; Cruse v. Axtell, 50 id. 49.
7. A promise to another of a legacy or testamentary provision to be made in his favor upon a valuable consideration, may, if not complied with, be enforced against the testator's estate.- Frost v. Tarr, 53 Ind. 390.
8. Children may be wholly disinherited by a will.– Addington v. Wilson, 5 Ind. 137: Dean . Lyon, 8 id. 71.
9. For the construction of "trusts and powers" in wills, see Locke v. Barbour, 62 1o. For the manner of executing power of sale under a will by the executor, see Moncrief v. Moncrief, 73 Ind. 587.
11. As to the explanation of ambiguities by parol testimony, see Grimes v. Harmon, 35 Ind. 198; Fesler v. Simpson, 58 id. 83.
(1859, p. 245. In force March 3, 1859.) 2557. Married women may. 1. The first section of said Act ($ 2556) was intended to empower, and does empower, married women, as well as all other persons, except infants and persons of unsound minds, to