Part 5 (1/2)

CHAPTER V.

MINORS AND GUARDIANs.h.i.+P.

[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 guardians.h.i.+p 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 furnis.h.i.+ng 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.]