Husband not liable for wife's torts.
For all civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist [§3396.] This statute abrogates the rule of the common law, making a husband responsible for civil injuries committed by his wife. The common law presumption that criminal acts done in the presence of the husband were by compulsion, is still recognized in this State but may be overcome by proof to the contrary.
Conveyances to each other valid.
A conveyance, transfer or lien executed by either husband or wife, to or in favor of the other shall be valid to the same extent as between other persons [§3397.] When the rights of creditors might be prejudiced by transfers of property between husband and wife, such transactions will be closely scrutinized, and the utmost good faith must plainly appear, but where no fraudulent intention is shown they will be upheld if based upon an adequate consideration. If a conveyance is made by the husband to the wife when the husband is largely indebted and insolvent, such conveyance is presumptively fraudulent, but a conveyance to a wife in payment of a valid claim, even though made at a time when the husband is largely indebted to others, will not be considered fraudulent the wife having the same right as other creditors to obtain payment. All contracts between husband and wife where no other consideration appears than an agreement to perform some duty already incumbent upon the parties, because of their relations as husband and wife, are against public policy, and will not be enforced in law. Such, for example, as a promise by the husband to pay money to the wife to induce her to live with him, when she has no legal ground for not living with him; or an agreement to allow the husband to obtain a divorce when he has no legal cause for divorce, or a conveyance of property in consideration of future care and support because the husband is growing old; or a contract between husband and wife by which the husband agrees to pay the wife at stated intervals, sums of money, in consideration of the faithful performance by the wife of the obligations incident to the marriage relation. But our courts have held that exempt property may be transferred by the husband to the wife without any consideration; that a deed from husband to wife in consideration of a dismissal by the latter, of a proceeding for divorce, is valid; that a contract between husband and wife by which the wife, for a consideration, after a decree of divorce, agrees to release all her dower interest in the real estate of the husband, is binding. Voluntary conveyances,Conveyances to third parties.in favor of third parties, by a man or woman in contemplation of marriage, and with the evident intention of defeating the marital rights of the other party, in such property, will be held fraudulent, and may be set aside in an action by the injured party after marriage. Contracts and conveyances made before marriage and duly recorded, will not be set aside on account of the marriage relation, as the fact of recording is sufficient to charge the wife with notice of the transactions. Ante-nuptial contracts, if free from fraud and imposition, are valid, and such a contract stipulating that each is to have the untrammeled and sole control of his or her own property, real and personal, as though no marriage had taken place, will be enforced. The dower right of each in the other's property is completely waived by such contract.
Abandonment of either.
In case the husband or wife abandons the other and leaves the state, and is absent therefrom for one year without providing for the maintenance and support of his or her family, or is confined in jail or the penitentiary for the period of one year or upward, the district court of the county where the husband or wife, so abandoned or not confined, resides, may, on application by petition setting forth fully the facts, authorize him or her, to manage, control, sell and encumber the property of the husband or wife for the support and maintenance of the family and for the purpose of paying debts. Notice of such proceedings shall be given as in ordinary actions, and anything done under or by virtue of the order of the court, shall be valid to the same extent as if the same was done by the party owning the property. [§3398.] A wife who is abandoned by her husband without her fault, may pledge his credit for necessaries, and if left in the management of his business may make all contracts incident to such management. She may also sell exempt property and apply the proceeds towards the support of the family before absolutely forced to do so by the destitution of the family.
Contracts and sales binding.
All contracts, sales or incumbrances made by either husband or wife by virtue of the power contemplated in the preceding section, shall be binding on both, and during such absence or confinement, the person acting under such power, may sue and be sued thereon, and for all acts done, the property of both shall be liable. No suit or proceeding shall abate or be in anywise affected by the return or release of the person confined, but he or she may be permitted to prosecute or defend jointly with the other. [§3399.]
Decree set aside.
The husband or wife affected by the proceedings contemplated in the preceding sections, may have the order or decree of the court set aside or annulled, but the setting aside of such decree or order shall in nowise affect any act done thereunder. [§3400.]
Attorney in fact.
A husband or wife may constitute the other his or her attorney in fact, to control and dispose of his or her property for their mutual benefit, and may revoke the same to the same extent and manner as other persons. [§3401.] The fact of the marital relation does not, of itself, establish the presumption that the husband is the agent of the wife, for the transaction of business for her, but in order to bind her, he must be expressly authorized to act as agent, or she must, after knowledge of the act, expressly or impliedly ratify it. Such agency or ratification may be established by circumstances, and the degree of evidence required in such cases, is less than is necessary to establish an agency between independent parties, or the ratification by the husband, of acts done by the wife or his agent.
Wages of wife.
A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property as if unmarried. [§3402.] The husband is entitled to the wife's labor and assistance in the duties and obligations growing out of the marriage relation, and to her earnings, if she is not engaged in a separate business on her own account; but her earnings for services performed for others than her husband or acquired in carrying on an independent business, belong to her alone. Such earnings may be invested in property and it will be exempt from seizure for debts of her husband.
She may bring actions for injuries to herself, whether of person, property or reputation in the same manner as if she were unmarried. If she suffers personal injury by which the husband is deprived of her services or society he has a right of recovery for such loss and for expenses for medicine and medical treatment. The wife cannot recover in such case, unless it appears that she has expended her own money in payment of such expenses. If, at the time of the injury she is engaged in a separate business, and death results, the husband may still recover for loss of society and expenses, but an action for damages can be brought only by the administrator of her estate. Although husband or wife may maintain an action against the other for the recovery of property, neither has a right of action for damages sustained by the infliction of personal injury, and this is true even though the one inflicting the injury has been criminally convicted and fined for the assault.
Property of one not liable for debts of the other.
Neither husband or wife is liable for the debts or liabilities of the other incurred before marriage, and except as herein otherwise declared, they are not liable for the separate debts of each other; nor are the wages, earnings, or property of either, nor is the rent or income of such property liable for the separate debts of the other [§3403.] The husband is liable for necessaries furnished the wife, upon an implied obligation to provide for her a reasonable support. The term "necessaries," is not confined to the supply of things actually demanded for her sustenance, such as food, clothing and medicine, but includes all that may be needful for her comfort and happiness according to her rank and station in society. In determining the extent of the husband's liability, it is always proper to consider the wife's social position and the circumstances and condition of the family, and these will, of course, vary in each particular case. It has been held that jewelry is included in the term necessaries and that attorney's fees in divorce proceedings by the wife, can be recovered from the husband. If the wife is compelled to leave her husband because of cruel and improper conduct on his part, the husband is still presumed to have extended to her a general credit for necessaries, such as meat, drink, clothes, medicine, etc., suitable to his degree and circumstances.
Contracts of wife.
Contracts may be made by a wife and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried [§3404.] By this provision a wife is clothed with the same rights enjoyed by her husband, and must, therefore, assume the same liabilities. She has the same freedom to contract in reference to her property, or other matters, and will be held to the same strict accountability. The law will enforce her obligations with the same impartiality, whether such obligations are express or implied. She may contract with reference to all kinds of property, including real estate, and may mortgage her property as security for the debt of another, in precisely the same manner that her husband could do in similar cases.
Family expenses.
The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately. [§3405.] Both husband and wife are personally responsible for family expenses. The credit may be extended to the husband and the contract made with him alone, and the wife will be liable though she may have no knowledge of the purchase and has given no consent thereto. It is sufficient to show that the articles were used, or kept for use in the family, and a judgment may be rendered against the wife alone. But the husband cannot subject the property of his wife to any liability for articles for family use when it appears that such articles were not a necessity, if the wife has objected to the purchase and notified the seller that she will not pay for the same. "Expenses of the family," are not limited to necessary expenses, but whatever is kept or used in the family is included in the term. A piano, an organ, a watch and other jewelry, a cook stove and fixtures, have all been held to come within the term "family expense," for which the property of the wife is liable. But a reaping machine, though used by the husband in the business by which he supports his family, is not a legitimate item of family expense, nor can a plow be included therein. The expense of treatment of a wife at a hospital for the insane, has been held not to be a family expense. Money borrowed by the husband and used in the purchase of articles which, if obtained on credit, would constitute items of family expense, cannot itself form such an item of family expense, that the wife may be held liable, unless the money was furnished at her request, and the account assigned to the party furnishing the money. If a merchant with whom the husband has no account is notified in writing, not to sell goods to the wife and charge them to him, the merchant cannot hold the husband responsible, unless it appears that the latter fails to provide necessaries otherwise for his family. If the family is supported in whole, or in part, by the wife, she cannot recover back the money thus expended, from her husband or his estate, as the law places such duty equally on both.
Removal from homestead.
Neither husband nor wife can remove the other, nor their children from their homestead without his or her consent, and if he abandons her, she is entitled to the custody of their minor children, unless the district court, upon application for that purpose, shall, for good cause, otherwise direct [§3406.]
Conveyance of property.
When either the husband or wife is insane, and incapable of executing a deed, and relinquishing or conveying his or her right to the real property of the other, the sane person may petition the district court of the county where such petitioner resides, or of the county where said real estate is situated, setting forth the facts and praying for an order authorizing the applicant or some other person to execute a deed of conveyance and thereby relinquish the interest of either in the real property of the other [§3407.]
Proceedings and decree.
Upon such application the court has power to appoint some person or attorney guardian of the person alleged to be insane, who shall ascertain as to the propriety, good faith and necessity of the prayer of the petitioner, and who shall have power to resist said application. If the court is satisfied that the petition is made in good faith, and that the petitioner is the proper person to exercise the power and make the conveyance, and that such power is necessary and proper, said court shall enter up a decree authorizing the execution of all such conveyances, for and in the name of such husband or wife, by such person as the court may appoint [§§3408-3409.]
Appointment, Revocation.
All deeds executed by the person thus appointed shall be valid in law, and shall convey the interest of such insane person in the real estate so conveyed; said power shall cease and become void as soon as he or she shall become sane and of sound mind, and apply to the court to revoke said power, and the same shall be evoked; but such revocation shall in nowise affect conveyances previously made. [§3410.]
DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
Jurisdiction.
The district court where either party resides, has, jurisdiction of the subject matter of this chapter. [§3411]. State legislatures have power to grant divorces in all cases where such power has not been conferred on the courts of the state by some constitutional provision or legislative enactment. The legislature of this state has been deprived of the power to grant divorces for any cause by Article 3, §27, of the constitution, which provides that "no divorce shall be granted by the general assembly." A divorce obtained from a court not having jurisdiction is absolutely void. The residence necessary to give the court jurisdiction must be permanent, or at least of a sufficient period of time to indicate an intention of continued residence and citizenship. The general rule is that the domicile of the wife and children is to be considered the same as that of the husband, but in a proceeding for divorce the law recognizes that husband and wife have separate domiciles, and a valid divorce may be granted where only one of the parties resides, but if they reside in different states, the court having jurisdiction of the party making application for the divorce may grant the decree, but it has no authority to make a decree as to the custody of the children, if they are non-residents of the state where the decree of divorce is rendered. A decree of divorce can always be set aside for fraud in obtaining it.
Petition.
When the application for divorce is against a party not residing in this state, the petition, in addition to the facts on account of which the applicant claims the relief sought, must state that such applicant has been for the last year a resident of the state, stating the town and county in which he has resided, and the length of his residence therein, after deducting all absences from the state; that he is now a resident thereof; that such residence has been in good faith and not for the purpose of obtaining a divorce only; and it must in all cases state that the application is made in good faith and for the purpose set forth in the petition. [§3412.]
Verification. Evidence. Hearing.
All the allegations of the petition must be verified by oath and proved by competent evidence. No divorce shall be granted on the evidence of the applicant alone, and all such actions shall be heard in open court on the testimony of witnesses or depositions. [§3413.] No divorce can be granted by consent of parties unless grounds therefor can be shown by competent evidence, and if collusion or conrivance on the part of the defendant can be shown, such fact will be a valid defense.
Causes.
Divorce from the bonds of matrimony may be decreed against the husband for the following causes:
A previous law of our state provided that when it was fully apparent to the court that the parties could not live in peace and happiness together, and that their welfare required a separation, a decree of divorce might be granted, but no valid divorce can now be granted for any other cause than for some one of those enumerated above; and this is true, although it may plainly appear that a party has wholly disregarded his marriage vows and obligations in various other ways.
Adultery.
As the direct fact of adultery can seldom be proved, when a divorce is asked on this ground, it will be sufficient if the fact can be shown by circumstances which would be inconsistent with any rational theory of innocence, and such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. The disposition of the parties may be shown, with the fact of their being together and having an opportunity to commit the act.
Desertion.
A reasonable cause for desertion must be some wrongful conduct on the part of the other party, and must be of such a serious nature that it wouldprima facieentitle the party deserting to a divorce. If husband and wife mutually agree to separate, such separation will not constitute ground for divorce, unless the party applying for the divorce, in good faith expresses a desire to live with the other. Where the wife is compelled to leave her husband on account of inhuman treatment, such as would entitle her to a divorce, such desertion cannot be made the basis of proceedings for divorce by the husband, for in such case he and not she is guilty of desertion, and this may be alleged by the wife, with other causes, in seeking a divorce. A wife may be justified in leaving her husband because of his failure to protect her from insult and abuse, and when she leaves him for this cause, her desertion will not be grounds for divorce.
Felony.
A conviction for felony which may be subject to reversal does not constitute ground for divorce, but such conviction must be final and absolute.
Drunkenness.
If a woman marries a man knowing him to be intemperate, though she does so in the hope of reforming him, the courts will not interfere after marriage to grant her relief from the result of her misplaced confidence, but where the habit has been acquired subsequent to the marriage and has become fixed and the husband is habitually drunk, though not in such condition during business hours, it is such habitual drunkenness as will entitle the wife to a divorce.
Cruel treatment.
Cruel and inhuman treatment, to constitute ground for divorce must be of such a nature as to endanger life, but need not necessarily consist of physical violence. Even where no single act or number of acts can be shown which might cause reasonable apprehension of harm to life, if the ill treatment as an entirety is of a nature to affect the mind and undermine health to such a degree that the life will be ultimately endangered, it will entitle the injured party to a divorce. Ungovernable outbursts of rage, the use of profane and obscene language, applying insulting epithets to the wife in the presence of others, acts of cruelty and neglect in sickness, coupled with failure to provide suitable food and clothing, have all been held to be such cruelty, which, if long continued, would result in danger to life. Condonation is always a valid defense in proceedings for divorce. If the wrong is once forgiven, it cannot afterwards be made a ground for divorce, but the mere fact that a wife continues to live in the same house with her husband, and does the household work, is not such condonation as will defeat her action.
Husband from wife.
The husband may obtain a divorce from his wife for like causes, and also when the wife at the time of the marriage was pregnant by another than her husband, unless such husband had an illegitimate child or children then living, which was unknown to the wife at the time of the marriage. [§3415.] In many other states, divorce will be granted to the husband, for the cause here named, but in no other state is it provided that in such case, a husband who had an illegitimate child at the time of the marriage, unknown to the wife, cannot take advantage of this fact to obtain a divorce.
Cross petition.
The defendant may obtain a divorce for the causes as above stated, by filing a cross petition. [§3416.]
Maintenance during litigation.
The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action. [§3417.] In applying for an order granting temporary alimony it is not necessary to show that the party making the application is entitled to a divorce. It is sufficient if it appears that such party is without means of support and unable to prosecute the action without such allowance. The fact of marriage must be either admitted or proved. The court may allow attorney's fees in proceedings for divorce and alimony, but the party against whom the action is brought, is not liable, if the other party is unsuccessful. Where the applicant for divorce is ordered to pay a certain sum of money to enable the defendant to defend, it he fails to obey this order, the action may be dismissed.
If it appears that the father is an unfit person to have the custody of the children, pending a proceeding for divorce, the court has power to provide for their custody and maintenance as may be for the best interest of the children.
Attachment.
A judgment or order for temporary alimony is a lien upon the property of the person against whom the order is directed, and such property may be levied upon by attachment and held to satisfy the decree of the court. [§3418.] Attachment may be allowed without bond and it may be granted in a suit to annul an illegal marriage as well as in one for divorce. It may be levied on the homestead as well as other property. The disposition of property by the defendant may also be restrained by injunction.
Showing.
In making such orders, the court or judge shall take into consideration the age, condition, sex and pecuniary condition of the parties, and such other matters as are deemed pertinent, which may be shown by affidavits in addition to the pleadings or otherwise, as the court or judge may direct. [§3419.]
Alimony, Custody of children, Changes.
When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right and proper. Subsequent changes may be made by the court, in these respects when circumstances render them expedient. [§8420.] In granting a divorce, full power is given the court over the questions of permanent alimony and custody of children, and the amount of alimony will be determined by a careful consideration of the circumstances of the parties. The allowance is usually for a certain sum of money, but the court may set apart a specific portion of property as alimony. Only in rare cases and under peculiar circumstances will alimony be granted to the party in fault. A judgment for alimony may be made a lien upon specific property, and the court may declare it a lien on the homestead. The court granting a divorce and alimony retains jurisdiction of the same, and upon a subsequent change in the circumstances of the parties, may modify or change the decree in relation to alimony and custody of children as may seem just and proper and for the best interests of all parties. A suit for alimony without divorce may be brought, where the wife has been compelled to leave her husband on account of misconduct on his part justifying the separation. The disposition of the children is entirely within the discretion of the court, and the custody may be given to either party or may be taken from both and given to a guardian, if it can be shown that neither parent is a proper person to care for them. The best good of the child will be the first and most important consideration in determining to whom the custody shall be given.
Forfeiture.
When a divorce is decreed the guilty party forfeits all rights acquired by the marriage. [§3421.] After a decree of divorce neither party can have any interest in the property of the other except that which is granted by the decree, and this applies to claim for dower in case of survival.
Annulling illegal marriages.
Marriages may be annulled for the following causes:
Petition.
A petition shall be filed in such cases as in actions for divorce, and all the provisions of this chapter shall apply to such cases except as otherwise provided. [§3423]
Validity determined.
When the validity of a marriage is doubted, either party may file a petition and the court shall decree it annulled or affirmed according to the proof. [§3424]
Children. Legitimacy.
When a marriage is annulled on account of the consanguinity or affinity of the parties, or because of impotency, the issue shall be illegitimate, but when on account of non-age, or insanity, or idiocy, the issue is the legitimate issue of the party capable of contracting marriage. [§3425]
Prior marriage.
When a marriage is annulled on account of a prior marriage, and the parties contracted the second in good faith, believing the prior husband or wife to be dead, that fact shall be stated in the degree of nullity; and the issue of the second marriage, begotten before the decree of the court, is the legitimate issue of the parent capable of contracting. [§3426.]
Alimony.
In case either party entered into the contract of marriage in good faith, supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree, and the court may decree such innocent party compensation as in cases of divorce. [§3427.]
MINORS AND GUARDIANSHIP.
MINORS AND GUARDIANSHIP.
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.
Contracts.
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 pronounce 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.Disaffirmance.As to what will be "a reasonable time," within which a minor must disaffirm his contract, must depend upon the peculiar circumstances 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.
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.
Natural guardians.
The parents are the natural guardians of their minor children and are equally entitled to the care and custody of them. [§3432.] While a parent is the natural guardian of his child, this guardianship 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 furnishing 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 entitled 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.
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.]
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.]
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.]
Powers.
Guardians of the persons of minors have the same power and control over them that parents would have if living. [§3440.]
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 principal 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.
Property in state.
The foreign guardian of any non-resident minor, may be appointed the guardian in this state of such minor, by the district court of the county wherein he has any property, for the purpose of selling or otherwise controlling that and all other property of such minor within the state, unless a guardian has previously been appointed under the preceding section. The foreign guardian of any non-resident idiot, lunatic or person of unsound mind may be appointed the guardian of such ward by the district court in like manner and with like effect in all cases where the foreign guardian of a non-resident minor could be appointed the guardian of such minor in this state. Such guardian shall have the same powers and be subject to the same liabilities as guardians of resident minors. [§3457.]
Guardians of drunkards, spendthrifts and lunatics.
When a petition is presented to the district court, verified by affidavit, that any inhabitant of the county is:
Order for restraint of drunkard.
The district court or any judge thereof, may, from time to time, enter such orders as may be necessary, authorizing the guardian of the person of such habitual drunkard to confine and restrain him in such manner and in such place within the state as may, by the court or judge, be considered best for the purpose of preventing such drunkard from using intoxicating liquors, and as may tend to his reformation. [§3468a Sup.] When it is sought to have a guardian appointed for a person of unsound mind, the test of his mental capacity is not the degree of prudence and foresight he manifests in the management of his affairs, for "the law does not assume to measure the different degrees of power of the human intellect, or to distinguish between them where the power of thought and reason exists," but the question to be determined is whether or not he possesses sufficient ability to understand in a reasonable manner the nature and effect of his acts, or the business he is transacting. "Although the mind of an individual may be to some extent impaired by age or disease, still, if he is capable of transacting his ordinary business, if he understands the nature of the business in which he is engaged and the effect of what he is doing and can exercise his will with reference thereto, his acts will be valid," and he will not be adjudged to be of unsound mind and incapable of managing his business affairs.
Real estate sold. Allowance to family.
Whenever the sale of the real estate of such ward is necessary for his support or the support of his family or the payment of his debts, or will be for the interest of his estate or children, the guardian may sell the same under like proceedings as required by law to authorize the sale of real estate by the guardian of a minor. The court shall, if necessary, set off to the wife and children under fifteen years of age, of the insane person or to either sufficient of his property of such kind as it shall deem appropriate to support them for twelve months from the time he was adjudged insane. [§3467.]
Custody
The priority of claim to the custody of any insane person, habitual drunkard, or spendthrift aforesaid, shall be:
APPRENTICING AND ADOPTION OF CHILDREN.
APPRENTICING AND ADOPTION OF CHILDREN.
Minors.
Any minor child may be bound to service until the attainment of the age of legal majority as hereinafter described. [§3471.]
Indenture.
Such binding must be by written indenture, specifying the age of the minor and the terms of agreement. If the minor is more than twelve years of age and not a pauper, the indenture must be signed by him of his own free will. [§3472.]
Consent of parent or guardian.
A written consent must be appended to or endorsed upon such agreement, and signed by one of the following persons, to-wit:
Natural guardian removed.
Upon complaint being made to the district court of the proper county, verified by affidavit, that the father or mother of a minor child is from habitual intemperance and vicious and brutal conduct, or from vicious, brutal and criminal conduct toward said minor child, an unsuitable person to retain the guardianship and control the education of such child, the court may, if it find the allegations in the complaint manifestly true, appoint a proper guardian for the child, and may if expedient, also direct that said child be bound as an apprentice to some suitable person until he attains his majority. But nothing herein shall be so construed as to take such minor child if the mother be a proper guardian. [§3492.]
The same proceedings may take place and a like order be made, when the mother, who for any cause became the guardian of her minor child, is in like manner found to be manifestly an improper person to retain such guardianship. [§3493.]
Schooling and treatment of minors.
The master shall send said minor child, after the same be six years old, to school at least four months in each year, if there be a school in the district, and at all times the master shall clothe the minor in a comfortable and becoming manner. [§3497.]
Adoption of children. Who may adopt.
Any person competent to make a will is authorized in manner hereinafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting, in lawful wedlock. [§3498.]
Consent of parents or officer.
In order thereto, the consent of both parents if living and not divorced or separated, and if divorced or separated, or, if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child, or if either parent is dead, then the consent of the survivor, or if both parents be dead, or the child shall have been and remain abandoned by them, then the consent of the mayor of the city where the child is living, or if not in a city, then the clerk of the district court of the county where the child is living, shall be given to such adoption, by an instrument in writing signed by the parties or party consenting, and stating the names of the parents, if known, the name of the child, if known, the name of the person adopting such child, and the residence of all, if known, and declaring the name by which such child is hereafter to be called and known, and stating also that such child is to be given to the person adopting, for the purpose of adoption as his own child. [§3499]