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Sales by non-resident guardians are as valid as those by resident guardians.
“All sales of real estate under the provisions of this act, are hereby declared to be good and valid; and all deeds executed by such guardian to the purchaser shall convey all the estate, right, title, and interest, in law and equity, of said infant or other in and to the land so sold.”5
The Indiana legislature has conferred upon the guardian the authority to dispose of the ward's land on the following grounds:
“Whenever necessary for the education, support, or payment of the just debt of any minor, or for the discharge of any lien on the real estate of such minor, or whenever the eal estate of such minor is suffering unavoidable waste, or a better investment of the value thereof can be made, the proper court may, on the application of such guardian, order the same, or a part thereof to be sold."51
The courts are inclined to place a strict construction upon the statutory rights of the guardian, and any deviation from the letter of the law on his part will impair the conveyance of the ward's real estate.
In Hempstead v. Broad, where an infant's title to realty was involved, the guardian agreed to relinquish the ward's right to review a decree against the ward concerning his title to certain lands. In consideration of this agreement, the guardian received six thousand dollars (the fair value of the ward's interest in the lands) which was paid to the ward on his arrival at age. The court held the guardian's agreement to be void. 52
“The right to a review of the decree,” stated the court, "was a right to a final and conclusive determination by this court whether the plaintiff in error had a vested remainder in the real estate in question; and neither at common law nor by our statute was a guardian authorized to convey or surrender any interest in the real estate of his ward without the approval of the probate court."
Section 28 of Chapter 164 of the Illinois Revised Statutes permits the guardian to apply to the court for leave to sell such real estate of his ward, and a guardian has no power to make a sale of such real estate unless authorized by the court. A sale made by a guardian without the directions and sanction of the court is void.53 The guardian has no power to sell his ward's land without an order of the proper court for the purposes of raising funds for the ward's
50. (1921) Cahill Ill. Rev. St. Ch. 64 sec. 50. 51. Burns Ind. Rev. St. Sec. 3078. 52. 275 111. 358. 53. Mason v. Wait 4 Scam. 127.
support and education; and such a sale by a guardian is absolutely void.5
The power to mortgage and lease the ward's lands under certain restrictions are given the guardian.
"The guardian may lease the real estate of the ward upon such terms and for such length of time, not extending beyond the minority of the ward, as the county court shall approve.”56 "The guardian of the ward may by leave of the county court mortgage the real estate of the ward for a term of year not exceeding the minority of the ward.”
The Indiana legislature permits the guardian to mortgage the ward's realty for a "period not extending beyond the ward's minority by more than one year
provided it is advantageous to the estate. And under the “change of form of investment" statute, the guardian may sell and convey the ward's lands. “The proper court may on application of a guardian ... order and decree any change to be made in the investment of the estate of the ward that may to such court seem advantageous to such estate."59 The courts construe this latter statute so as to make the guardian liable for any loss, where the ward's assets are converted into other real property, if the conversion takes place without an order of court.60 The ward on arrival at age may accept or reject the title to the land thus acquired.61
For reasons of public policy, in eminent domain matters a guardian ad litem's representation of the ward, where the ward's
54. Cooter v. Dearborn 115 I11. 509.
55. Judicial Sales of Realty (1921) Cahill Ill. Rev. St. Ch. 64 sec. 53 provides, “Whenever real estate is about to be sold by virtue of the decree of any court in this state, in which any minor has an estate of homestead, dower, or other interest whatever, the guardian of the estate of such minor may petition the court wherein such proceedings are or may be pending, appointing such guardian for authority to assent in behalf of his ward to the sale of such minor's interest
In the real estate so sought to be sold, and if the court shall find that the interest of such minor will be conserved thereby, or that it is to the best interest of said minor that the said interest in said real estate be sold, it shall be lawful for the court to enter an order so authorizing said guardian to assent to the sale of said minor's interest .
and said guardian shall then so assent in writing in the proceeding for such sale, whereupon it shall be lawful for the court to enter an order
directing such real estate be sold free and clear of said minor's homestead .; and the conveyance pursuant to such decree, shall, be valid and effectual to convey to the purchaser the homestead estate. so conveyed.”
56. (1921) Cahill Ill. Rev. St. Ch. 64 sec. 23.
land is the subject of condemnation proceeding, is conclusive on the ward, save and except for palpable fraud and mistake.
"When it shall appear from said petition (for condemnation) or otherwise, at any time during the proceedings upon such petition, that any infant or insane or distracted person is interested in any property that is to be taken or damaged, the court shall appoint a guardian ad litem for such infant ... to defend the interest of such infant in such property, or the compensation which shall be awarded.”62
Executors are given statutory powers similar to those conferred upon guardians in reference to leasing and mortgaging of real estate of decedent's estates.
"Real estate may be mortgaged in fee, or for a term of years, or leased by executors: Provided, that the term of such lease, or the time of the maturity of such indebtedness secured by such mortgage, shall not extend beyond the time when the heirs entitled to such estate shall attain the age of twenty-one years, if a male, or eighteen years, if a female.”
It will be noted from this brief examination of a guardian's authority to sell and convey the real property of his ward, that the guardian's powers are more closely regulated than those of the executor. And that, as the guardian's authority is derived directly from the statute, and not from a testamentary instrument as in the case of the executor-trustee, the former's conveyances of his ward's real estate gives a valid title which is not as open to attack as the latter's conveyances.
To ascertain the intent and effect of those sections of the statute in reference to the contest of a will, one may delve into the past for possible rays of light. At the common law there were two forms of probate—the common and the solemn form. In the solemn form of probate, which was the more effective, the will was proved on petition of the proponent for a hearing, and all persons having an interest involved were cited to be present on the day of controversy. The probate of the will even in the solemn form was ineffective so far as real estate was concerned, for the validity of the will must be proved in every contest in which title to the real estate was concerned. The devisee produced the will, and in all controversies relating to the land involved had to prove the will in the same manner as any other paper, as well as to prove the testamentary capacity of the testator. This must be done on every trial.64 The English statute of Henry VIII limited the period of contest to thirty years.65 The Virginia statute of 1748 adopted, with modifications, the English chancery remedy. The Virginia statute provided for the probate of wills upon due notice, and contained provisions as to contests by persons under no disability; but did
62. (1921) Cahill Ill. Rev. St. Ch. 24 sec. 152. 63. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 122.
64. Šneed v. Ewing 5 J. J. Marsh 460; Coalter's Exr's v. Bryan 1 Gratt 18; 10 Bacon's Abrdg. p. 540 Wilson ed.
provide that a contest by persons under certain disabilities, such as being under age, or non compos mentis, must be brought within ten years after their several disabilities and incapacities were removed.66 The later Virginia statute of 1785 specified that any contest must be brought within seven years after the probate of the will, whether such contest was brought by one under legal disabilities or not. 67 In 1789 Virginia provided that foreign wills could be "contested in the same manner as the original might have been."68 Sections eleven and fifteen of the Kentucky statute of 1797, relating to wills, were based upon the Virginia act of 1785, and formed the substance of the original Illinois statute on this subject.69
In 1778 Illinois (namely, what now constitutes the state of Illinois) became a county of Virginia. And a few years later, the Ordinance of 1787 created the Northwest Territory which included the present states of Illinois and Indiana. There were no provisions in the territorial laws of Indiana in reference to will contests.
During the existence of the Northwest Territory there were no laws passed providing for will contests. There was adopted, however, by the governor and judges of the Northwest Territory, the Pennsylvania code. This code contained the following reference to wills:
"Whereof copies or probate of wills shall be so as aforesaid produced and given in evidence, shall within seven years after the testator's death appear to be disapproved or annulled before any judge ... then the parties who may have been aggrieved by the former proceedings might have certain remedies. Thus there existed some method for contesting every will.
“No specific provisions for contesting wills having been made by the authorities of the Northwest Territory, the common law of a general nature, and applicable to our conditions and all statutes in aid thereof, and to supply defects prior to the year 1607 were in force in the Northwest Territory at that time."72
65. Henry VIII S. at Large p. 454. 66. Va. Statutes 1748. 67. Va. Statute 1785. 68. Public Laws of Virginia (1796) Sec. 14 p. 395. 69. Ken. St. Feb. 24 1797. 70. Maxwell's Laws of the N. W. Terr. p. 3. 71. Maxwell's Laws of the N. W. Terr. p. 148.
It will be noticed there were no provisions in the territorial laws of Indiana while Illinois was a part of that territory, nor in the laws of Illinois while it was a territory by itself, in any way providing for or referring to the contest of wills, except the general reference in the adopted Pennsylvania code (above quoted) as to wills which should be "disproved or annuled.”73
The first specific provisions as to contesting wills in the laws applying to what is now Illinois was a statute passed February 10, 1821, creating a probate court and providing among other things"that any person or persons interested may contest any will, but in all such cases all such persons interested shall have notice by summons at least twenty days before the day assigned for trial."74 Beyond question, says the court in Dibble v. Winter, this section included, not only domestic wills probated in the state, but foreign wills that were filed for record. Evidently the contest was very similar to the probate in solemn form required by the common law. By the Illinois statute of 1829 (modeled largely after the Kentucky statute of 1797) those under disabilities must begin the contest, if at all, within five years after their disabilities were removed.75 The act of 1845 continued the time at five years.76 By the statute of 1872, one must file the contest proceeding within three years;" by the act of 1895 within two years ;78 and finally in 1903 the time was decreased to one year after the removal of the disability, and this is the law today in Illinois.79
The history of the Indiana legislature's attitude toward that section of the will's statute relating to the contest of testamentary instruments is parallel with the attitude taken by the Illinois general assembly. In each state there has been a gradual lessening of the time within which such contests could be brought. Thus by the Indiana statute of 1852, persons laboring under legal disabilities were given five years after the removal of their disabilities to file a petition to contest a will.80 This section did not apply to foreign
72. Lavalle v. Strobel 89 111. 370. 73. Dibble v. Winter 247 III. 243. 74. (1821) Ill. Laws p. 119. 75. (1829) III. Laws p. 193 Sec. 5. 76. (1845) III. Laws p. 537 Ch. 109. 77. (1872) Ill. Laws. 78. (1895) Ill. Laws. 79. (1903) Ill. Laws. 80. (1852) Ind. Laws p. 308.