CHAPTER V.

MINORS AND GUARDIANSHIP.

[Sidenote: Majority.]

The period of minority extends in males to the age of twenty-one years, and in females to that of eighteen, but all minors attain their majority by marriage. [--3428.] The disability of minority may also be terminated by death.

[Sidenote: Contracts.]

[Sidenote: Disaffirmance.]

A minor is bound not only by contracts for necessaries, but also for his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority.

[--3429.] The rule respecting the contract of an infant is, that when the court can p.r.o.nounce 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 circ.u.mstances of each case.

In case of the marriage of a minor the time for disaffirmance will commence from the date of the marriage. The intention of this law is to limit the time in which a minor may take advantage of his minority and disaffirm his contracts, but the disaffirmance may be either before or after majority, if within a reasonable time after becoming of age. The minor is under no obligation to restore money or property, unless it is the identical money or property received by virtue of the contract, and he may therefore disaffirm his contract without rendering back the consideration, if such consideration is no longer under his control.

[Sidenote: Misrepresentations. Engaging in business.]

No contract can be thus disaffirmed in cases, where on account of the minor's own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reason to believe the minor capable of contracting. [--3430.] If the fact of minority is known to the other party, the minor will not be bound by his contracts, although he may be engaged in business as an adult. The fact that he is engaged in business on his own account will alone be sufficient evidence to authorize others to conclude that he has attained his majority and will make all contracts to which he is a party, binding upon him.

[Sidenote: Natural guardians.]

The parents are the natural guardians of their minor children and are equally ent.i.tled to the care and custody of them. [--3432.] While a parent is the natural guardian of his child, this guardianship is not absolute, and may be lost by any misconduct on the part of the parent which would render it not best for the child to remain in his care and under his control. The duty of furnishing support to minor children rests equally upon both parents, but neither one is legally liable for the support of their adult children. An adult child living at home in the family of the parent, being supported as a member of the family, and performing services in the household, cannot recover payment for such services in the absence of an express contract on the part of the parent to pay for them. A stepfather stands in the position of a parent to the children of his wife by a former husband, _provided_, he receives them into his family. He is ent.i.tled to their services and is responsible for their education and maintenance. The parents can at any time consent to surrender the custody of their minor children and transfer this custody to another by agreement. Articles of adoption properly executed according to the requirements of the law upon that subject, are necessary to invest another with the rights and responsibilities of a parent.

[Sidenote: Surviving parent, Guardian appointed.]

Either parent dying before the other, the survivor becomes the guardian.

If there be no parent or guardian qualified and competent to discharge the duty, the district court shall appoint a guardian. [--3488.]

[Sidenote: Of property.]

If the minor has property not derived from either parent, a guardian must be appointed to manage such property, which may be either parent, if suitable and proper. [--3434.]

[Sidenote: Minor may choose.]

If the minor be over the age of fourteen years and of sound intellect, he may select his own guardian, subject to the approval of the district court of the county where his parents, or either of them resides; or, if such minor is living separate and apart from his parents, the district court of the county where he resides has jurisdiction. [--3435.]

[Sidenote: Powers.]

Guardians of the persons of minors have the same power and control over them that parents would have if living. [--3440.]

[Sidenote: Duties.]

Guardians of the property of minors must prosecute and defend for their wards. They must also in other respects manage their interests under the direction of the court. They may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the ward. [--3441.] All power of the guardian over the estate of his ward is derived from the appointment of the court, but an appointment as guardian will not authorize a sale of property, nor an investment or disposal of money belonging to the ward, without a special order of the court. All expenses for the education and maintenance of the ward must be kept within the income of his estate. If this should not be sufficient the princ.i.p.al may be resorted to, but not without an order of the court. All transactions between guardian and ward, where the former has secured an apparent advantage, by way of gift, or contract or settlement, will be presumed to have been the result of undue influence, and will be set aside by a court of equity, unless it can be shown that they were made in good faith and for a fair and valuable consideration.

[Sidenote: Property in state.]

The foreign guardian of any non-resident minor, may be appointed the guardian in this state of such minor, by the district court of the county wherein he has any property, for the purpose of selling or otherwise controlling that and all other property of such minor within the state, unless a guardian has previously been appointed under the preceding section. The foreign guardian of any non-resident idiot, lunatic or person of unsound mind may be appointed the guardian of such ward by the district court in like manner and with like effect in all cases where the foreign guardian of a non-resident minor could be appointed the guardian of such minor in this state. Such guardian shall have the same powers and be subject to the same liabilities as guardians of resident minors. [--3457.]

[Sidenote: Guardians of drunkards, spendthrifts and lunatics.]

When a pet.i.tion 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 pet.i.tion have been satisfactorily proved upon the trial, such court may appoint a guardian of the property of any such person, who shall be the guardian of the minor children of his ward, unless the court otherwise orders. Such court may also appoint the guardian of the property of an habitual drunkard as the guardian of his person. If the person adjudged to be an habitual drunkard has no property, the court may appoint a guardian of his person. [--3463 Sup.]

[Sidenote: Order for restraint of drunkard.]

The district court or any judge thereof, may, from time to time, enter such orders as may be necessary, authorizing the guardian of the person of such habitual drunkard to confine and restrain him in such manner and in such place within the state as may, by the court or judge, be considered best for the purpose of preventing such drunkard from using intoxicating liquors, and as may tend to his reformation. [--3468a Sup.]

When it is sought to have a guardian appointed for a person of unsound mind, the test of his mental capacity is not the degree of prudence and foresight he manifests in the management of his affairs, for "the law does not a.s.sume to measure the different degrees of power of the human intellect, or to distinguish between them where the power of thought and reason exists," but the question to be determined is whether or not he possesses sufficient ability to understand in a reasonable manner the nature and effect of his acts, or the business he is transacting.

"Although the mind of an individual may be to some extent impaired by age or disease, still, if he is capable of transacting his ordinary business, if he understands the nature of the business in which he is engaged and the effect of what he is doing and can exercise his will with reference thereto, his acts will be valid," and he will not be adjudged to be of unsound mind and incapable of managing his business affairs.

[Sidenote: Real estate sold. Allowance to family.]

Whenever the sale of the real estate of such ward is necessary for his support or the support of his family or the payment of his debts, or will be for the interest of his estate or children, the guardian may sell the same under like proceedings as required by law to authorize the sale of real estate by the guardian of a minor. The court shall, if necessary, set off to the wife and children under fifteen years of age, of the insane person or to either sufficient of his property of such kind as it shall deem appropriate to support them for twelve months from the time he was adjudged insane. [--3467.]

[Sidenote: Custody]

The priority of claim to the custody of any insane person, habitual drunkard, or spendthrift aforesaid, shall be:

1. The legally appointed guardian.

2. The husband or wife.

3. The parents.

4. The children. [--3470.]

CHAPTER VI.

APPRENTICING AND ADOPTION OF CHILDREN.

[Sidenote: Minors.]

Any minor child may be bound to service until the attainment of the age of legal majority as hereinafter described. [--3471.]

[Sidenote: Indenture.]

Such binding must be by written indenture, specifying the age of the minor and the terms of agreement. If the minor is more than twelve years of age and not a pauper, the indenture must be signed by him of his own free will. [--3472.]