created by death, removal, or resignation, may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years without the special direction of the court, obtained upon proceedings taken for that purpose. as prescribed in title seventh of this chapter. From ch. 446 of 1874, tit. 2, § 27. § 2340. Committee of property may maintain actions, etc. A committee of the property, appointed as prescribed in this title, may maintain, in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made. From part of § 5, tit. 2, of Act of 1874. § 2341. Id.; to file inventory and account. The provisions of article two of title seven of chapter eighteen of this act, requiring the general guardian of an infant's property, appointed by a surrogate's court, to file in the month of January in each year an inventory, account and affidavit, and prescribing the form of the papers so to be filed, apply to a committee of the property appointed, as prescribed in this title. For the purpose of making that application the committee is deemed a general guardian of the property; the person with respect to whom he is appointed is deemed a ward and the papers must be filed in the office of the clerk of the court by which the committee was appointed, or if he was appointed by the supreme court, in In every the clerk's office where the order appointing him is entered. case where a committee has used or employed the services of an incom- From 2 R. S., Part 2, ch. 5, tit. 2, §§ 8 and 9 (2 Edm. 54). § 2342. Id.; may be compelled to file the same or render an additional account, etc. In the month of February of each year, the presiding judge of the court, by which the committee of the property was appointed, or if he was appointed by the supreme court, the county judge of the county where the order appointing him is entered, must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year. If it appears, upon the examination, that a committee. appointed as prescribed in this title, has omitted to file his annual inventory or accounting, or the affidavit relating thereto, as prescribed in the last section; or if the judge is of the opinion that the interest of the person, with respect to whom the committee was appointed, requires that he should render a more full or satisfactory inventory or account, the judge must make an order requiring the committee to supply the deficiency, and also, in his discretion, personally to pay the expense of serving the order upon him. An order so made may be entered and enforced, and the failure to obey it may be punished, as if it were made by the court. Where the committee fails to comply with the order, within three months after it is made, or, where the judge has reason to believe that sufficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person special guardian of the incompetent person with respect to whom the committee was appointed, for the purpose of filing a petition in his be PR half for the removal of the committee and prosecuting the necessary proceedings for that purpose. The committee may be compelled in the discretion of the court, to pay personally the costs of the proceedings so instituted. The committee of the property of an incompetent person appointed as prescribed in this title, may at any time in the discretion of the court making such appointment, render to such court an intermediate judicial account of all his proceedings affecting the property of the incompetent person to the date of the filing thereof; and said account shall be then judicially adjusted, determined and filed; and the same shall be in all respects a final judicial account of the proceedings of said committee affecting said property to that time. Notice of the application for such intermediate accounting shall be given in the manner in which and to the persons to whom notice of application for the appointment of a committee of the person or property of an alleged lunatic, idiot or habitual drunkard is required to be given by title six of chapter seventeen of the code of civil procedure. The court shall have power and it shall be its duty to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceeding. From 4 of tit, 2 of the Act of 1874. Am'd by chs. 746 and 946 of 1895 and ch. 350 of 1899. § 2343. Property; when to be restored. Where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order, discharging the committee of his property, or the committee of his person, or both, as the case requires; and requiring the former committee to restore to him the property, remaining in the committee's hands. Thereupon the property must be restored accordingly. From Id., § 28. § 2344. Id.; disposition in case of death. Where a person, of whose property a committee has been appointed, as prescribed in this title, dies during his incompetency, the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed. From Id., remainder of § 29 and § 25 of the R. S., as amended by ch. 724 of 1865 (6 Edm. 581) TITLE VII. Froceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard. SEC. 2345. Action to compel conveyance. 2346. Who may maintain action. 2347. Judgment; effect thereon. 2348. Application to dispose of real property; in what cases. 2349. Id.; by whom. 2350. Contents of petition. 2351. Bond of committee of lunatic, etc. 2352. Id.; of guardian of infant 2353. Bond; how prosecuted. 2354. Reference to inquire into the application. 2356. Report of sale, etc. 2357. Certain sales, etc., prohibited. 2358. Effect of conveyance, etc. 2359. Proceeds of sale deemed real property. 2360. Infant deemed a ward of court. 2364. Debts of infant, etc., to be paid equally. § 2345. Action to compel conveyance. In either of the following cases, an action may be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a conveyance of real property, or of an interest in real property. 1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another. 2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made: but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested. From 2 R. S. 55, Part 2, ch. 5, tit. 2, §§ 20, 22 (2 Edm. 56); ch. 446 of 1874, tit. 2, §§ 9, 23-26 (9 Edm. 931, 933), as amended by ch. 574 of 1875, §§ 7 and 8. relating to a lunatic, etc., and 2 R. S. 194, Part 3, ch. 1, tit. 2, §§ 167, 169 (2 Edm. 202). See rules 55, 56, 57, 58 (Sup. Ct.). § 2346. Who may maintain action. An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and also in a case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant. From Id. Am'd by ch. 399 of 1882. PR § 2347. Judgment; effect thereof. A judgment, directing such a conveyance, shall not be rendered, unless the court, after hearing the parties, is satisfied that the conveyance ought to be made. Upon rendering final judgment to that effect, the court has power to direct the guardian of the infant's property, or the committee of the property of the lunatic or other incompetent person, or a special guardian appointed in the action, to execute any conveyance, or to do any other act, which is necessary, in order to carry the judgment into effect. From 2 R. S. 194, Part 3, ch. 1, tit. 2, part of § 169; 2 R. S. 55, Part 2, ch. 5, tit. 2, §§ 19 and 22 (2 Edm. 56). § 2348. Application to dispose of real property. In either of the following cases real property, or a term, estate or other interest in real property, or an inchoate right of dower in real property, belonging to an infant in being or the contingent interest therein of an infant not in being, or a person incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness, may be sold, conveyed, mortgaged, released, or leased, as prescribed in the following sections of this title: 1. Where the personal property, and the income of the real property, of the infant or incompetent person, are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family. 2. Where the interest of the infant in being or the contingent interest of an infant not in being, or the interest of an incompetent person require or will be substantially promoted by such disposition, on account of the real property or term, or estate, or other interest in real property being exposed to waste or dilapidation; or being wholly unproductive, or for the purpose of raising funds to preserve or to improve the same, or for other peculiar reasons, or on account of other peculiar circum stances. 3. Where an action might be maintained against the infant or incompetent person, to procure a judgment, directing the conveyance of the real property, or interest in real property, as prescribed in sections twenty-three hundred and forty-five and twenty-three hundred and forty-six of this act. From 2 R. S. 194, 195, Part 3. ch. 1, tit. 2, §§ 167, 170, 175 (2 Edm. 202, 203); 2 R. S. 53-55. Part 2. ch. 5, tit. 2, 88 11, 16, 19, and 22 (2 Edm. 55-56); ch. 417 of 1864. §§ 1, 5 (6 Edm. 291); ch. 627 of 1869 (7 Edm. 463; ch. 37 of 1870 (7 Edm. 584); ch. 446 of 1874, tit. 1, § 38 and Id., tit. 2, §§ 6, 9, 17 and 23 (9 Edm. 929, 933), as amended by ch. 574 of 1875. § 6 and ch. 267 of 1876, § 2. Am'd by ch. 237 of 1890 and ch. 639 of 1893. § 2349. Id.; by whom. An application, in either of the cases prescribed in the last section, must be made by the petition of the general guardian, or the guardian of the property of the infant; or by the committee of the property of the lunatic or other incompetent person; or by any relative, or other person, in behalf of either. Where the application is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein. Where the application is made to the supreme court, the petition must be presented at a term held within the judicial district, in which the property, or a part thereof, is situated. From Id. § 2350. Contents of petition. The petition must be verified in like manner as a verified pleading in an action in the supreme court. It must set forth the grounds of the application; and in a case specified in subdivisions first and second of the last section but one, other than a case where the application is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his co-tenants, it must also state the particulars and value of the real and personal property, and the amount of the income of the infant or incompetent person; the disposition which has been made of his personal property, and an account of the debts or demands, if any, existing against his estate. In the case above specified where the application is made for the sale of an undivided interest of the infant or incompetent person, the petition must state the particulars and value of the real property in respect to which a sale is desired. From 2 R. S. 53, Part 2, ch. 5, tit. 2, §§ 11 and 16 (2 Edm. 55); ch. 446 of 1874, tit. 2, § 17. Am'd by ch. 311 of 1893. See rule 55 (Sup. Ct.). § 2351. Bond of committee of lunatic, etc. An application to sell, mortgage, or lease real property, or an interest in real property, of a lunatic, idiot, or habitual drunkard, cannot be granted, unless a committee of his property has been appointed. Upon such an application, if it is made by the committee, the court must make an order, directing him to file with the clerk a bond, in such a form, in such an amount, and with such sureties, as it directs, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all moneys received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the trust. If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of opinion, that there is probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the proceedings; who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed, except that application may be made by the committee of the property of the lunatic, idiot, or habitual drunkard in any case where, at the time of the application, the property to which the inchoate right of dower attaches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower. When the application is made by the husband the court may appoint him special guardian, and he must file a bond as herein provided. From Id., § 14; ch. 417 of 1864, § 2 (6 Edm. 291), and ch. 446 of 1874, tit. 2, §§ 7 and 20 (9 Edm. 930, 933). § 2352. Id.; of guardian of infant. Upon an application to sell, mortgage or lease real property or an interest in real property of an infant, the court must appoint a suitable person to be the special guardian of the infant with respect to the proceedings, who must thereupon file with the clerk a bond as prescribed in the last section. Any trust company authorized by the laws of this state to act as general guardian of the estate of an infant without giving security may be appointed such special guardian and in such case the court in the order of appointment may dispense with the giving and filing of any such bond. From 2 R. S. 194, Part 3, ch. 1, tit. 2, §§ 171, 172 (2 Edm. 202). Am'd by ch. 268 of 1893. See § 475 PR |