CHAPTER XXIX.

 

OF GUARDIANS AND WARDS.

 

§1342. Any judge of the Supreme Court of Law and Equity, when it shall appear to him necessary or convenient, may ap­point guardians to minors and others, being inhabitants of or resi­dents in any part of this Kingdom, or who may reside without this Kingdom, and have any estate within the same.

 

§1343. Any circuit judge of this Kingdom may, when it shall appear to him necessary or convenient, appoint guardians to minors and others, being inhabitants of or residents in the circuit in which he is a judge.

 

§1344. If the minor is under the age of thirteen years, the judge of probate may nominate and appoint his guardian, and if he is above the age of thirteen years, he may nominate his own guardian, who, if approved of by the judge, shall be appointed accordingly, and if the guardian nominated by such minor shall not be approved by the judge, or if the minor shall-reside without the Kingdom, or if after being cited by the judge he shall neglect to nominate a suitable person, the judge may nominate and ap­point the guardian, in the same manner as if the minor~ were under the age of thirteen years.

 

§1345. Every guardian appointed as aforesaid, shall have the custody and tuition of the minor, and the care and management of his estate, and shall continue in office until the minor shall arrive at the age of twenty years, or until the guardian shall be 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 competent to transact their own business, shall be entitled to the custody of the person of the minor, and to the care of his education.

 

§1346. Every such guardian shall give a bond, with surety or sureties, to the judge of probate, in such sum, as the judge shall order, with conditions as follows:

 

First—To make a true inventory of all the real estate, and 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 probate court at such times as the judge shall order:

 

Secondly—To dispose of and manage all such estate and effects 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 custody, education and maintenance of the ward:

 

Thirdly—To render an account, on oath, 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 judge of probate shall direct:

 

Fourthly—At the expiration of his trust, to settle his accounts with the judge of probate, or with the ward, or his legal repre­sentatives, and to pay over and deliver all the estate and effects remaining in his hands, or due from him on such settlement, to the person or persons who shall be lawfully entitled thereto.

 

§1347. 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 afterwards, to continue during the minority of the child, or for any less time, and every such testa­mentary guardian shall have the same powers, and shall perform the same duties, with regard to the person and the estate of the ward, as a guardian appointed by the judge of probate.

 

§1348. Every such testamentary guardian shall give a bond in like manner, and with like condition, as is before required of a guardian appointed by the judge of probate, provided that when the testator, in the will appointing the guardian, shall have ordered or requested that such bond 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 judge of probate shall think proper to require it.

 

§1349. Nothing contained in this chapter shall impair or affect the power of any judge of the Supreme Court or Circuit Court to appoint a guardian to defend the interests of any minor impleaded in such court, or interested in any suit or matter there 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.

 

§1350. When the relations or friends of any insane person shall apply to any of the judges hereinbefore mentioned, 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 fourteen days before the time so appointed, and if after a full bearing, 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 hereinafter specified

 

§1351. Every guardian so appointed for an insane person, shall have the care and custody of the person of the ward, and management of all his estate, until the guardian shall be legally discharged, am he shall give a bond to the judge appointing him, in like manner, and with the like condition, as is before pre­scribed with respect to the guardian of a minor, excepting that the provision relating to the education of the ward, shall be omitted in the condition of the bond.

 

§1352. When any person by excessive drinking, gaming, 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, his friends or relations may present a complaint to any of the judges hereinbefore mentioned, setting forth the facts and circumstances of the case, and praying to have a guardian appointed for him.

 

§1353. The judge shall cause notice to be given to such sup­posed spendthrift, of the time and place appointed for hearing the case, not less than fourteen days before the time so appointed; anti if, after a full hearing, it shall appear to the judge that the person complained of comes within the description contained in Section 1352, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified.

 

§1354. After the order of notice has been issued, the com­plainants may cause a copy of the complaint, with the order of notice, to be filed in the office of the registrar of conveyances, and if a guardian shall he appointed upon such application, all con­tracts, excepting for necessaries, and all gifts, sales or transfers, of real or personal estate, made by such spenthrift after such filing of the complaint in the registry of conveyances, and. before the termination of the, guardianship, shall be null and void.

 

§1355. When a guardian shall be appointed for an insane 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

 

§1356. 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 discharged, and he shall give bond to the judge appointing him, in like manner and with the like condition, as is before directed with respect to the guardian of an insane person.

 

§1357. Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, shall pay all just debts due from the 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 hereinafter provided; he shall also settle the accounts of the ward, and demand, sue for, and receive all debts due to him, or may, with the approbation of any of the judges hereinbefore specified, compound for the same, and give discharge to the debtor, upon receiving a fair and just dividend his estate and effects, and he shall appear for and represent his ward, in all legal suits and proceedings, unless where another person is appointed for that purpose, as guardian or next friend.

 

§1358. The guardian shall also manage the estate of the ward frugally, and without waste, and apply the income and profits thereof, so far as maybe necessary, for the comfortable and suitable maintenance and support of the ward and his family, if there be any; and if the income and profits shall be insufficient for that purpose, the guardian may sell the real estate, upon obtaining a license therefor as provided by law, and shall apply the proceeds of such sale, so far as may be necessary, for the maintenance and support of the ward and his family.

 

§1359. The guardian may join in and assent to a partition of the real estate of the ward, either upon a petition for partition, or otherwise; and he may assign and set out dower in the said estate to any widow entitled thereto, and may appoint an appraiser of real estate on any execution, either against or in favor of his ward.

 

§1360. Upon the taking of any inventory required by this chapter, the estate and effects comprised therein stall, if the judge deem it necessary, be appraised by from one to three suitable persons, to be appointed and sworn by the judge, and every guardian shall account for and dispose of the personal estate of the ward as directed by the judge.

 

§1361. When any guardian appointed either by a testator or by any of the judges hereinbefore mentioned, shall become insane or otherwise incapable of discharging his trust, or evidently unsuitable therefor, any of said judges, after notice to such guard­ian, and to all others interested, may remove him; and every guardian may, upon his request, be allowed to resign his trust, when it shall appear to the judge proper to allow the same; and upon every such resignation or removal, and also upon the death of any guardian, the judge of probate may appoint another in his stead.

 

§1362. The marriage of any female who is under guardian­ship as a minor, shall operate as a legal discharge to her guardian; and the guardian of any insane person, or spendthrift, may be discharged by any judge of probate, when it shall appear to him, on the application of the ward, or otherwise, that such guardian­ship is no longer necessary.

 

§1363. Any court of probate may require a new bond to be given by any guardian, and may discharge the existing sureties from future responsibility, whenever such court may deem it proper so to do.

 

§1364. Any bond given by a guardian, may be put in suit by order of a judge of probate, for the use and benefit of .the ward, or of any person interested in his estate.

 

§1365. No action shall be maintained against the sureties in any bond, given by a guardian, unless it be commenced within four years from the time when the guardian shall be discharged, provided that if at the time of such discharge, the person entitled to bring such action shall be out of the Kingdom, the action may be commenced at any time within four years after his return to the Kingdom.

 

§1366. Upon complaint made to a judge of probate by any guardian, or by the ward, or by any creditor or other person inter­ested in the estate, or by any persons having claims thereto in ex­pectancy as heir or otherwise, against any one suspected of hav­ing concealed, 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 with persons suspected of concealing, or em­bezzling, the effects of a deceased testator or intestate.

 

§1367. When any minor, or other person liable to be put under guardianship, according to the provisions of this chapter, shall reside without this Kingdom, and shall have any estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to any judge of the Supreme Court of law and equity, and after notice to all persons interested, to be given in such a manner as the judge shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person.

 

§1368. Every guardian appointed according to the provisions of the last preceding section, shall have the same powers and duties, with respect to any estate of the ward, that shall be found within the Kingdom, and also with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian, appointed under this chapter.

 

§1369. Every such guardian shall give bond to the judge appointing him, in like manner and with the like conditions, as is above provided with respect to other guardians; excepting that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardians, shall he confined to such estate and effects as shall come to his hands in this Kingdom, and that the provisions respecting the custody of the ward shall not be applicable, unless the ward shall come to reside within this Kingdom.

 

§1370. Every guardian shall be allowed the amount of all his reasonable expenses incurred in the execution of his trust, and he shall also have such compensation for his services as the court in which his accounts are settled shall consider to be just and reason­able.

 

§1371. When an account is rendered by two or more joint guardians, the court may, in its discretion, allow the same, upon the oath of any one of them.

 

§1372. The words “insane person,” are intended to include every idiot, non-compos, lunatic and distracted person, and the word “spendthrift” is intended to include every one 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.

 

§1373. When the income of the estate of any person under guardianship, whether as a minor, insane person or spendthrift, 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, and proceeding therein in the manner herein­after provided.

 

§1374. 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 proceeds thereof be put on interest., or invested in some produc­tive stock, his guardian may sell the same accordingly, upon ob­taining a license therefor, and proceeding therein as hereinafter provided.

 

§1375. If the estate is sold for the maintenance of the ward and his family, as provided in Section 1358, the guardian shall apply the proceeds of the sale to that purpose, as far as necessary, and shall put out the residue, if any, on interest or invest it in the best manner in his power, until the capital shall be wanted for the maintenance of the ward and his family, in which case the capital may be used for that purpose, as far as ma3 be neces­sary, in like manner as if it had been personal estate of the ward.

 

§1376. If the estate is sold, in order to put out and invest the proceeds, as provided in Section 1374, the guardian shall make the investment according to his best judgment, or in pursuance of any order that may he made relating thereto, by the court grant­ing him the license to sell.

 

§1377. In every case of the sale of real estate, as provided in this chapter, the residue of the proceeds, if any, remaining upon the final settlement of the accounts of the 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 state would have been if it had not been sold.

 

§1378. Such license, in either of the cases aforesaid, may be granted by any judge of the Supreme Court of law and equity, or by any circuit judge of the island in which the estate intended to be sold lies; but in cases where the ward resides without this Kingdom, such license shall be granted only by a judge of the Supreme Court of law and equity.

 

§1379. In order to obtain such license, the guardian shall present to the court a petition, setting forth the condition of the estate, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale; and if after a full examination, on the oath of the petitioner, or otherwise, it shall appear to the court, either that it is necessary, or that it would be for the benefit of the ward that the real estate or any part of it should be sold, the court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or in order that the pro­ceeds may be put out and invested as aforesaid.

 

§1380. No such license shall be granted until notice by public advertisement or otherwise, as the court shall order, shall have been given to the next of kin of the ward, and to all persons inter­ested in the estate, to appear and show cause why the same should not be granted.

 

§1381. Every guardian licensed to sell real estate as aforesaid, shall, before the sale, give bond to the judge granting the license, with sufficient surety or sureties, with condition to sell the same in the manner prescribed by the judge, and to account for and dispose of the proceeds of the sale in the manner provided by law.

 

§1382. Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath in substance as fol­lows: That in disposing of the estate which he is licensed to sell, he will use his best judgment in fixing on the time and place of sale, and that he will exert his utmost endeavors to dispose of the same, in such manner as will he most for the advantage of all per­sons interested therein.

 

§1383. He shall also give public notice of time and place of sale, by causing notifications thereof to he posted up in the most public places on the island where the estate to be sold is, and if it be on the island of Oahu, he shall also cause a notice of such sale to be published in such newspaper, as the judge of probate shall order, at least fourteen days previous to the day of sale. And upon return sales shall obtain from the judge of probate an order of confirmation of such sales before making conveyances thereof.

 

§1384. A copy of such notification certified by the oath of the guardian, or of the person employed by him to give such notice, being made before any judge of probate, and filed in his office, within one year after the sale, shall be admitted as evidence of the time, place, and manner of giving notice.

 

§1385. No license granted in pursuance of this chapter shall be in force for more than one year after the time of granting the same.

 

§1386. When any minor, insane person, or spendthrift, re­siding without the Kingdom, shall be put under guardianship in the country in which he resides, and shall have no guardian ap­pointed in this Kingdom, the foreign guardian may file an authen­ticated copy of his appointment in the Supreme Court of law and equity, after which he may be licensed by any judge of the said court, to sell the real estate of the ward, in any part of this King­dom, in the same manner and on the same terms and conditions as are prescribed in this chapter, in the case of a guardian ap­pointed in this Kingdom, excepting in the particulars hereinafter mentioned

 

§1387. Every foreign guardian so licensed to sell real estate, shall take and subscribe the oath required in like case of guardians appointed in this Kingdom, and shall give notice of the time and place of sale, and conduct the same in the manner prescribed for guardians appointed here, and may perpetuate the evidence of the notice in the same manner.

 

§1388. All the proceedings required to be had in any probate court in this Kingdom, respecting such sale by a foreign guardian, shall be had in the Supreme Court of law and equity.

 

§1389. Upon every such sale by a foreign guardian, the pro­ceeds of the sale, or as much thereof as may remain upon the final settlement of the guardianship shall be considered as real estate of the ward, and shall be disposed of among the same per­sons as the real estate would have been according to the laws of this Kingdom, if it had not been sold; and the foreign guardian shall in every case, before making the sale, give bond, with sufficient surety or sureties, to the judge granting the license to sell, with condition to account for and dispose of the same accord­ingly.

 

§1390. If any person shall appear and object to the granting of any license, prayed for under the provisions of this chapter, and if it shall appear to the court or judge that either the petition, or the objection thereto, is unreasonable, they may in their dis­cretion award costs for the party prevailing in the case.

 

§1391. No action for the recovery of any estate, sold by a guardian under the provisions of this chapter, shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five years next after the termination of the guardianship; and no entry shall be made, unless by judgment of law, upon any lands sold as aforesaid, with a view to avoid the sale, after the expiration of the said five years: excepting only that persons out of the Kingdom, and minors and others under any legal disability to sue at the time when the right of action or of entry shall first accrue, may commence their action or make their entry at any ‘time within five years after the removal of the disability, or after their return to this Kingdom.

 

§1392. In case of an action relating to any estate sold by a guardian, under the provisions of this chapter, in which the ward, or any person claiming under him, shall contest the validity of the sale, the same shall not he avoided on account of any irregularity in the proceedings, provided it shall appear:

 

First—That the guardian was licensed to make thee sale by a judge of competent jurisdiction.

 

Secondly—That he gave a bond, which was approved by the judge of probate, in case any bond were required by the court upon granting the license.

 

Thirdly—That he took the oath prescribed in this chapter.

 

Fourthly—That he gave notice of the time and place of the sale, as prescribed herein.

 

Fifthly—That the premises were sold accordingly by public auction, and are held by one who purchased them in good faith.

 

§1393. If in relation to such sale, there should be any neglect or misconduct in the proceedings of the guardian, by which any person interested in the estate shall suffer damage, such aggrieved party may recover compensation therefor in a suit on the guardian­ship bond, or otherwise, as the case may require.

 

§1394. If the validity of any sale made by a guardian under the provisions of this chapter shall be drawn in question by any person claiming adversely to the title of the ward, or claiming under any title, that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings, provided it shall appear that the guardian was licensed to make the sale by a judge of competent jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.

 

§1395. All sales, exchanges, transfers, gifts and conveyances of any estate or portion of an estate, of any ward of this Kingdom, which may have been made by any guardian of such ward, previous to the fourth day of August, A.D. 1851, shall be, and the same are hereby confirmed as legal and valid.

 

 

Return to Civil Code Table of Contents