[Sidenote: Consent of parent or guardian.]

A written consent must be appended to or endorsed upon such agreement, and signed by one of the following persons, to-wit:

1. By the father of the minor; but if he is dead or has abandoned his family, or is for any cause incapacitated from giving his a.s.sent, then

2. By the mother; and if she be dead or unable, or incapacitated for giving such a.s.sent, then,

3. By the guardian; and if there be no guardian, then by the clerk of the district court. [--3473.]

[Sidenote: Natural guardian removed.]

Upon complaint being made to the district court of the proper county, verified by affidavit, that the father or mother of a minor child is from habitual intemperance and vicious and brutal conduct, or from vicious, brutal and criminal conduct toward said minor child, an unsuitable person to retain the guardianship and control the education of such child, the court may, if it find the allegations in the complaint manifestly true, appoint a proper guardian for the child, and may if expedient, also direct that said child be bound as an apprentice to some suitable person until he attains his majority. But nothing herein shall be so construed as to take such minor child if the mother be a proper guardian. [--3492.]

The same proceedings may take place and a like order be made, when the mother, who for any cause became the guardian of her minor child, is in like manner found to be manifestly an improper person to retain such guardianship. [--3493.]

[Sidenote: Schooling and treatment of minors.]

The master shall send said minor child, after the same be six years old, to school at least four months in each year, if there be a school in the district, and at all times the master shall clothe the minor in a comfortable and becoming manner. [--3497.]

[Sidenote: Adoption of children. Who may adopt.]

Any person competent to make a will is authorized in manner hereinafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting, in lawful wedlock. [--3498.]

[Sidenote: Consent of parents or officer.]

In order thereto, the consent of both parents if living and not divorced or separated, and if divorced or separated, or, if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child, or if either parent is dead, then the consent of the survivor, or if both parents be dead, or the child shall have been and remain abandoned by them, then the consent of the mayor of the city where the child is living, or if not in a city, then the clerk of the district court of the county where the child is living, shall be given to such adoption, by an instrument in writing signed by the parties or party consenting, and stating the names of the parents, if known, the name of the child, if known, the name of the person adopting such child, and the residence of all, if known, and declaring the name by which such child is hereafter to be called and known, and stating also that such child is to be given to the person adopting, for the purpose of adoption as his own child. [--3499]

[Sidenote: Instrument acknowledged and recorded.]

Such instrument in writing shall be also signed by the person adopting and shall be acknowledged by all parties thereto in the same manner as deeds affecting real estate are required to be acknowledged; and shall be recorded in the recorder's office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantors and the child as grantee, in its original name if stated in the instrument, [--3500.] A strict compliance in every particular with the provisions of the statutes is essential to const.i.tute a legal adoption and to confer upon the adopted child rights of inheritance. If a minor child has a guardian his consent must be obtained before the child can be legally adopted.

[Sidenote: Effect.]

Upon the execution, acknowledgment and filing for record of such instrument, the rights, duties and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance, be the same that exists by law between parent and child by lawful birth. [--3501]. The right of a child by adoption to inherit from the parents by adoption, depends upon a strict compliance with the requirements of the law in every particular, including the acknowledgment and recording of the articles of adoption. It is also essential that the instrument shall be filed for record before the death of the adopted parent and while the child is a minor. A child by adoption does not lose the right to inherit from his natural parents, but is ent.i.tled to all rights of inheritance from both natural and adopted parents.

[Sidenote: Maltreatment.]

In case of maltreatment committed or allowed by the adopted parent, or palpable neglect of duty on his part, toward such child, the custody thereof may be taken from him and entrusted to another at his expense, if so ordered by the district court of the county where the parent resides; or the court may, on showing of the facts, require from the adopted parent, bond with security, in a sum to be fixed by him, the county being the obligee, and for the benefit of the child, conditioned for the proper treatment and performance of duty towards the child on the part of the parent; but no action of the court in the premises shall affect or diminish the acquired right of inheritance on the part of the child, to the extent of such right in a child of natural birth. [--3502.]

[Sidenote: Home for the friendless Powers.]

Any home for the friendless incorporated under the laws of this state, shall have authority to receive, control and dispose of minor children, under the following provisions. In case of the death or legal incapacity of the father, or in case of his abandoning or neglecting to provide for his children, the mother shall be considered their legal guardian for the purpose of making surrender of them to the charge and custody of such corporation; and in all cases where the person or persons legally authorized to act as the guardian or guardians of any child are not known, the mayor of the town or city where such home is located, may, in his discretion, surrender such child to said home. [--3503.]

[Sidenote: Surrender of child.]

In case it shall be shown to any judge of a court of record, or to the mayor, or to any justice of the peace, within such city or town, that the father of any child is dead, or has abandoned his family, or is an habitual drunkard, or imprisoned for crime, and the mother of such child is an habitual drunkard or is in prison for crime, or the inmate of a house of ill-fame, or is dead or has abandoned her family, or that the parents of any child have abandoned or neglected to provide for it, then such judge, mayor, or justice of the peace may, if he thinks the welfare of the child requires it, surrender such child to said home. [--3504]

[Sidenote: Home becomes guardian.]

When a child has been surrendered to any home for the friendless according to the provisions of these sections, such home becomes the legal guardian of such child, and may exercise the rights and authority of parents over such children and may apprentice or provide for the adoption of the same. [--3505.]

CHAPTER VII.

WILLS AND LETTERS OF ADMINISTRATION.

[Sidenote: Who may make wills.]

[Sidenote: Of what property]

Any person of full age and sound mind may dispose, by will, of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. [--3522.] The validity of a will depends upon the mental capacity of a testator and the fact that he was uninfluenced in making the disposition of his property. If it appears that the testator was incapable of exercising discretion and sound judgment and of fully realizing the effect and consequences of the will, though he may not be absolutely insane, he will not be in such mental condition that he can make a legal will. If he is of weak mind and it appears that he was imposed upon or unduly influenced, such facts will invalidate the will.

A testator having testamentary capacity may dispose of his property in any manner, and to any person he may choose, and may deprive his heirs of any share in his estate, without any explanation or any express declaration of disinheritance. The fact that a will is unjust and unreasonable, in the absence of proof of undue influence, or insufficient capacity, will not render the will void.

[Sidenote: Subsequent property.]

Property to be subsequently acquired may be devised when the intention is clear and explicit. [--3523.] If the intention to convey property acquired after the execution of the will is apparent or may be inferred from a fair construction of the language used, it will be sufficient, although the intention may not be directly expressed.

[Sidenote: Verbal wills.]

Personal property to the value of three hundred dollars may be bequeathed by a verbal will, if witnessed by two competent witnesses.

[--3524.]

[Sidenote: Soldier or mariner.]

A soldier in actual service, or a mariner at sea, may dispose of all his personal estate by a will so made and witnessed. [--3525.]

[Sidenote: In writing. Witnessed. Signed.]

All other wills, to be valid, must be in writing, witnessed by two competent witnesses and signed by the testator, or by some other person in his presence and by his express direction. [--3526.] It is necessary that the witnesses shall subscribe the will, but not that they shall have any knowledge of its contents, nor that they shall see the testator sign it. It is sufficient if the signature is adopted or acknowledged in their presence. If a will is made with the intention of disposing of real property it must be executed according to the requirements of the laws of the state where the real property is situated.

[Sidenote: Interest of witness.]

No subscribing witness to any will can derive any benefit therefrom, unless there be two disinterested and competent witnesses to the same.

[--3527.] But if, without a will, he would be ent.i.tled to any portion of the testator's estate, he may still receive such portion to the extent in value of the amount devised. [--3528.]

[Sidenote: Revocation.]

Wills can be revoked in whole or in part, only by being canceled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills. [--3529.] The birth of a child after the execution of a will but before the death of the testator, operates as a revocation of the will, and the birth and recognition of an illegitimate child has the same effect. Declarations of the testator to the effect that he intended to revoke the will, will not be sufficient to prove a cancellation.

[Sidenote: Cancellation.]

When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will. [--3530.]

[Sidenote: Executors.]