unsatisfactory; and they were considerably improved by § 3 of tit. 2 of the act of 1874, which was intended to take their place. In §§ 2842 and 2843, post, to which this section refers, the provisions of L. 1837, ch. 460, § 57, 58 (3 R. S., 5th ed., 247; 4 Edm., 497), relating to the annual accounts of guardians, have been very carefully revised. Those provisions will be found, upon examination, to be even more efficient than the provisions of the act of 1874; and it was, accordingly, determined to retain this section, as it was originally prepared, although it requires an annual, instead of a semi-annual account. I was the TITLE 6. be compelled to file the same or render an additional is account, etc. § 2342. In the month of February of each year, the presiding Id.; may judge of the court, by which the committee of the property appointed; or, if he was appointed by the supreme court, county judge of the county where the order appointing him entered; must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the 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 account, or the affidavit relating thereto, as prescribed in the last section; or if the judge is of 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 was 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 behalf, 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. [Substituted for the last sentence of 4 of tit. 2 of the act of 1874, being in close conformity to § 2844, post, prepared by the commissioners as a substitute for parts of §§ 58 and 60 of the act of 1837, relating to guardians, which is referred to in the note to the last section.] TITLE 7. Property; when to be § 2343. Where a person, with respect to whom a committee is restored. 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. Id.; disposition in Dase of death. [Tit. 2, § 28 of the act of 1874, amended, by making it apply to habitual drunkards, as well as lunatics, etc., in accordance with the corresponding provision of the R. S.; also, by conforming its phraseology to that of § 2320, ante; and to the construction given to the corresponding provision of the R. S., by the adjudicated cases. See 2 Barb. Ch. Pr., 239, 240.] § 2344. 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. [The substance of id., § 29, and § 25 of the R. S., as amended by L. 1865, ch. 724 (6 Edm., 581).] TITLE VII. Proceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard. PRELIMINARY NOTE.-The former statutory provisions, relating to the disposition of the real property of infants, are contained in 2 R. S., 194, 196, Part 3, ch. 1, tit. 2, art. 7 (3 R. S., 5th ed., 274-276; 2 Edm., 202-204), entitled, "Of proceedings in relation to the conveyance of lands of infants, and the sale and disposition of their estates". They constituted a portion of the enactments relating to the jurisdiction of the court of chancery, and regulating the proceedings in that court; and remained, till they were repealed in 1880, unaltered in terms, although, of course, incidentally modified by constitutional and statutory changes, effected since they were enacted. The title of the R. S., of which the greater portion is revised in title 6 of this chapter, contained various provisions relating to the disposition of the real property of lunatics, idiots, persons of unsound mind and habitual drunkards. 2 R. S., 53-55, Part 2, ch. 5, tit. 2, §§ 11-23 (3 R. S., 5th ed., 135-137; 2 Edm., 55-57). These provisions practically coincided with some of the provisions of the title relating to the disposition of the real property of infants; but the latter contained many provisions, of which there were no counterparts in the former. But by L. 1864, ch. 417 (6 Edm., 291–293), the legislature supplied most of the provisions lacking, in order to assimilate the statutes relating to the disposition of the real property of lunatics, to those relating to the disposition of the real property of infants; and by L. 1869, ch. 627 (7 Edm., 463), and L. 1870, ch. 37 (7 Edm., 584), the provisions of the act of 1864 were made applicable to the real property of idiots, persons of unsound mind, and habitual drunkards. So much of these acts as related to lunatics, idiots, and persons of unsound mind, was revised in L. 1874, ch. 446, tit. 1, § 38, and tit. 2, §§ 6-29 (9 Edm., 929-934). In the following title, these various enactments have been consolidated, so as to provide, as far as practicable, uniform rules, and a uniform mode of proceeding, for the disposition of the real property of those different classes of persons, who are under an incapacity to dispose of their property, without the aid of the court. In a very few instances, the difference in the character, and particularly in the duration, of the incapacity of an infant, and that of a lunatic, etc., or in the mode by which the guardian of the former, and the committee of the latter, are appointed, has required the retention of a special provision. applicable exclusively to one class of cases. But, in the few instances. where the former statutes recognized a distinction, for the existence of which there was no such reason, the provisions applicable to either have been extended to both classes of cases; as it is more than probable that the distinction was inadvertent. Indeed, it was often only verbal. The statute, L. 1872, ch. 524 (9 Edm., 381), ratifying certain sales of infants' property, effected before January 1, 1852, is not of such a character, that it is entitled to a place in this revision; but it was omitted from the repealing act. SEC. 2345. Action to compel conveyance. 2346. Who may maintain action. 2347. Judgment; effect thereof. 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. 2355. Final order. 2356. Report of sale, etc. TITLE 7. 2357. Certain sales, etc., prohibited. 2358. Effect of conveyance, etc. 2359. Proceeds of sale deemed real property. Action to compel convey. ance. Who may maintain action. 2361. Disposition of proceeds; accounting. § 2345. 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. [Substituted for portions of the following statutes, which gave a remedy against the infant, lunatic, etc.: 2 R. S., 55, Part 2, ch. 5, tit. 2 §§ 20, 22 (3 R. S., 5th ed., 137; 2 Edm., 56), and L. 1874, ch. 446, tit. 2, §§ 9, 23-26, as amended by L. 1875, ch. 574, §§ 7 and 8, relating to a lunatic, etc.: and 2 R. S., 194, Part 3, ch. 1, tit. 2, §§ 167, 169 (3 R. S., 5th ed., 275; 2 Edm., 202), relating to an infant. As the two sections last cited contemplated that the relief should be obtained by action, it was thought preferable, to abolish the more summary remedy contemplated by the other sections cited; in other respects, all these provisions have been consolidated and abbreviated in language, without substantial change of meaning. In subd. 1 the words, "by way of mortgage or", have been retained, in order to provide for the case, where the infant, lunatic, etc., holds under a deed absolute in form, but with a' collateral defeasance. L. 1880, ch. 423, is substantially embodied in the amendment to § 2246, made in 1882.1 § 2346. 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. [The italicized words added by L. 1882, ch. 399.] [So much of the same sections, as relates to the person entitled to maintain the action, amended, in like manner; also, by adding the words following "who made the contract"; and by extending, to an action against a lunatic, etc., the provision contained in Part 3, ch. 1, tit. 2, § 169, of the R. S., whereby the executor or administrator of the deceased party to the contract, is entitled to maintain an action against an infant.] TITLE 7. effect § 2347. A judgment, directing such a conveyance, shall not be Judgment; rendered, unless the court, after hearing the parties, is satisfied that thereof. 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. [The first sentence has been taken from Part 3, ch. 1, tit. 2, § 169, of the R. S., relating to an action against an infant; and Part 2, ch. 5, tit. 2, § 19, relating to an action against a lunatic, etc. The second sentence has been taken from Part 2, ch. 5, tit. 2, § 22, relating to an action against a lunatic, etc.; it has been extended to an action against an infant, and amended, by adding the clause. allowing a special guardian to be appointed.] tion to of real property in what § 2348. In either of the following cases, real property, or a Applica term, estate, or other interest in real property, belonging to an dispose infant, or to a person incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness, may be sold, conveyed, mortgaged, 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 interests of the infant or incompetent person require, or will be substantially promoted by, such disposition, on account of the real property, or term, 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 improve the same; or for other peculiar reasons, or on account of other peculiar circumstances. [This subd. am'd by L. 1890, ch. 237.](") 3. Where an action might be maintained, against the infant or (a) The amendment of 1890, taking effect Sept. 1, 1890, added the italicized words. cases. |