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made wholly without jurisdiction, and the record so discloses 11 the proceedings resting thereon, including the sale of the lands of the minor, are void.

§ 179. Appointment of guardians for incompetent and insane persons. A guardian may be appointed by the county court for an incompetent or insane person, resident of the county. Upon the filing of a verified petition by any relative or friend alleging that the person is insane, or from any cause mentally incompetent to manage his property, the judge of the court must cause notice 12 to be given to the supposed insane or incompetent person of a time and place of hearing the application, not less than five days before the time so appointed, and such person, if able to attend, must be produced before him on the hearing.1 If, on examination of such petition and full hearing, it appears to the judge that the person in question is incapable of taking care of himself and managing his property, the court must appoint a guardian of his person and estate, with the powers and duties of a guardian of a minor.14

The two sections mentioned were in the original Probate Code as adopted in 1890, and have appeared in the article entitled "Guardian and Ward" in each successive authorized edition of the laws of the state. They appear in article 14 of chapter 64, Revised Laws of 1910, entitled "Guardian and Ward."

It was no doubt the purpose to make the jurisdiction, powers and authority of a guardian for insane and incompetent persons identical with the power and authority given him in dealing with the estate of minors.

§ 180. Bond of guardian.-The statute requires 15 that before an order appointing a guardian becomes effective,

11 In re Eikerenkotter's Estate, 126 Cal. 54, 58 Pac. 370.

12 In re Lambert, 134 Cal. 626, 66 Pac. §51, 55 L. R. A. 856, 86 Am. St. Rep. 296; In re Sullivan, 143 Cal. 462, 77 Pac. 153; McGee v. Hayes, 127 Cal. 336, 59 Pac. 767, 78 Am. St. Rep. 57.

13 Rev. Laws 1910, § 6538.

14 Rev. Laws 1910, § 6539.

15 Rev. Laws 1910, § 6532.

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and before letters shall issue, the judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, in such amount as he shall order, conditioned that the guardian will faithfully execute the duties of his trust. The statute also prescribes other conditions of the bond. The execution and approval of the bond, though apparently a jurisdictional prerequisite to the effectiveness of the letters, has been held not to be so.16 In a prior case the same court had held that the giving of a bond was a conditon precedent to the issuance of such letters. No proceeding should be had in a guardianship matter until it has been first ascertained that the bond required by the statute has been given and approved and the oath executed and filed. The statute also requires that every guardian authorized to sell real estate must, before selling the same, give bond to the judge of the county court, with sufficient sureties, to be approved by such judge, conditioned that he will sell the same as ordered and account for the proceeds of the sale. The failure to give such a bond would perhaps not invalidate the title of a purchaser at such sale in good faith and without notice of such defect in the proceedings, but notwithstanding this may be true the statutory provision should be complied with.18

§ 181. Partition of real estate.-Under the revision of the statutes of 1910 19 the guardian may join in and assent to a partition of the real estate of the ward with the written approval of the county judge whenever such assent may be given by any person. Prior to the revision of 1910 the guardian could join in and assent to a partition of the real estate of a ward whenever such assent could be given by any person, and without the approval of the probate court.

16 In re Chin Mee Ho, 140 Cal. 263, 73 Pac. 1004.

17 Murphy v. Superior Court, 84 Cal. 592, 24 Pac. 311.
18 Smith v. Biscailuz, 83 Cal. 344, 21 Pac. 15, 23 Pac. 314.
19 Rev. Laws 1910, § 6546.

The requirement found in the revision of 1910 that the guardian must secure the written approval of the county judge before assenting to a partition brings the Oklahoma statute in line with those of other states, which usually require such approval as a condition precedent to the guardian's assent to the partition of the estate of the minor.20

§ 182. Sale of the real estate of a minor-When authorized by statute.-The sale of the real estate of a minor is authorized: (1) When the income of the estate under guardianship is not sufficient to maintain the ward and his family, or to maintain and educate the ward, when a minor,21 (2) when it appears to the satisfaction of the court, upon the petition of the guardian, that it is for the benefit of his ward that his real estate or some part thereof should be sold and the proceeds put out at interest or invested in some productive stock, or in the improvement or security of any other real estate of the ward.22 Such sale can be made for either of such purposes upon obtaining an order of the probate court therefor.23 The Dakota statute reads: "When the income of an estate under guardianship is insufficient to maintain the ward," etc. In the transplanting of the statute from Dakota to Oklahoma the syllable "in" was omitted, and prior to the revision of 1910 the Oklahoma statute read: "When the income of an estate under guardianship is sufficient to maintain the ward," etc. The revision inserts the syllable "in" before the word "sufficient." The dropping of the syllable "in" in the extension of the Dakota Code over the territory of Oklahoma was clearly a technical error. The provision as it existed

20 San Fernando Farm Homestead Ass'n v. Porter, 58 Cal. 81; Richardson v. Loupe, 80 Cal. 490, 22 Pac. 227; Kromer v. Friday, 10 Wash. 621, 39 Pac. 229, 32 L. R. A. 671.

21 Rev. Laws 1910, § 6542.

22 Rev. Laws 1910, § 6554.

23 Fitch v. Miller, 20 Cal. 352; Smith v. Biscailuz, 83 Cal. 344, 21 Pac. 15, 23 Pac. 314; Dennis v. Winter, 63 Cal. 16; Asher v. Yorba, 125 Cal. 513, 58 Pac. 137; Brenham v. Davidson, 51 Cal. 352.

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prior to the revision of 1910 should be considered, because of the manifest error, as though it had been in the form in which it appears in the revision.

§ 183. Necessary steps in proceedings to sell. To avoid overlooking a compliance with any of the statutory provisions authorizing or regulating the sale of the real estate of a minor by order of a county court, it perhaps is advisable to enumerate the various steps required to be taken in the order fixed in the statute. The following action should be taken and the following proceedings had:

1. There should be filed a petition for an order of sale. 2. A hearing should be had and an order procured, directing the next of kin of the minor and all persons interested in the land, to appear and show cause why the order should not be granted as prayed for.

3. There should be service of the order to show cause as required by the statute.

4. Proof of service of the notice of application for the order to sell should be made by affidavit, filed on or before the day on which the hearing is to be had.

5. There should be a full and complete hearing on the petition for the order to sell.

6. An order of sale should be entered, complying with the statutory provisions.

7. A special bond should be filed and approved in such sum as may be ordered by the court.

8. Notice of the sale of the real estate should be given as required by the statute.

9. Proof of the giving of the notices as required by the statute to be filed with the return on the sale.

10. The sale should be made at the time and place prescribed in the order, and of which notice is given, and if there is a postponement of the sale notice of such postponement should be given as required by statute.

11. A return should be made of the sale on or before the

first day of the next term of the court succeeding the day on which the sale is made.

12. Hearing should be had upon such return, and if such hearing is on the first day of the succeeding term no notice is necessary.

13. If the hearing upon the return be not had upon the first day of the next succeeding term, an order should be entered fixing the date of such hearing and requiring notice to be given thereof.

14. Notice should be given as required by the statute of the hearing on the return.

15. Proof of service of the notice should be procured and filed prior to the day of the hearing.

16. An order of confirmation should be duly entered, and the court should find in said order a compliance with all of the statutory provisions authorizing the sale of the real estate of a minor and regulating the proceedings

thereon.

17. The order of confirmation should be recorded as required by the statute.

18. A deed should be executed by the guardian, conveying the interest of the minor to the purchaser at the sale.

If a private sale is desired, the following additional statutory provisions must be complied with:

a. The petition must pray an order authorizing a private sale.

b. The order must authorize a private sale.

c. There must be an appraisement of the real estate ordered sold.

d. Notice must be given of the sale as required by

statute.

e. There must be proof of service of the notice as required by the statute, before the sale is presented for confirmation.

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