$2332. The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inquisition must be returned by the commissioners, and filed with the clerk. 2333. The commissioners are entitled to such compensation for their services, as the court directs. The jurors are entitled to the same compen sation, as jurors upon the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioners, sheriff, and jurors. § 2334. Where an order is made, directing the trial, by a jury, at a trial term or at a circuit court, of the questions of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, the order must state, distinctly and plainly, the questions of fact to be tried; which may be settled as where an order for a similar trial is made in an action. The court may, in that or in a subsequent order, direct that notice of the trial be given to such persons, and in such a manner, as it deems proper. The trial must be reviewed in the same manner, and with like effect, and, except as otherwise directed in the order, the proceedings thereupon are, in all respects, the same, as where questions of fact are tried, pursuant to an order for that purpose. The court may make inquiry, by means of a reference or otherwise, as it thinks proper, with respect to any matter, not involved in the questions tried by the jury, the determination of which is necessary in the course of the proceedings. The expenses of the trial, and of such an inquiry, must be paid by the petitioner. § 2335. Where the petition alleges, that the person, with respect to whom it prays for the appointment of a committee, is incompetent, by reasor of lunacy, the inquiry with respect to his competency, upon the execution of a commission, or the trial at a circuit court or trial term, as prescribed in this title, must be confined to the question, whether he is so incompetent, at the time of the inquiry; and testimony, respecting any thing said or done by him, or his demeanor or state of mind, more than two year before the hearing or trial, shall not be received as proof of lunacy, unless the court otherwise specially directs, in the order granting the commission or directing the trial by jury. § 2336. Upon the return of the commission, with the inquisition take thereunder, or the rendering of the verdict of the jury, upon the questions submitted to it by the order for a trial by a jury, the court must either direct a new trial or hearing, or make such a final order upon the petition, as justice requires. Where a final order is made, dismissing a petition, the court may, in its discretion, award in the order a fixed sum, as costs, not exceeding fifty dollars and disbursements, to be paid by the petitioner to the adverse party. Where a committee of the property is appointed, the court must direct the payment by him, out of the funds in his hands, of the necessary disbursements of the petitioner, and of such a sum, for his costs and counsel fees, as it thinks reasonable; and it may, in its discretion, direct the committee to pay a sum, not exceeding fifty dollars and disbursements, to the attorney for any adverse party. § 2337. [am'd 1887.] The provisions of article 1 of title 7, and section 2595 of article 5 of title 2 of chapter 18 of this act, respecting the security to be given by the guardian of the person or of the property of an infant, appointed by a surrogate's court, apply to a committee of the person or of the property, appointed as prescribed in this article. A committee of the property cannot enter upon the execution of his duties, until security is given as prescribed by the court. A committee of the person cannot enter upon the execution of his duties until security is given, if required by the court. § 2338. [am'd 1890.] A committee of the property is entitled to the same compensation as an executor or administrator. But in a special case where his services exceed those of an executor or administrator, the supreme court or a superior city court or a county court within the county may allow him such an additional compensation for such additional services as it deems just. The compensation of a committee of the person must be fixed by the court and paid by the committee of the property if any, out of the funds in his hands. The additional compensation authorized by this section may be allowed to the committee upon any judicial settlement made by him, and shall be for such additional services up to and including such settlement. § 2339. A committee, either of the person or of the property, is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; and he may be suspended, removed, or allowed to resign, in the discretion of the court. A vacancy 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. § 2340. 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 repect to whom he is appointed, might have maintained, if the appointment had not been made. $2341. [am'd 1894]. Committee of Property; filing of inventory and account by.-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 the clerk's office where the order appointing him is entered. In every case where a committee has used or employed the services of an incompetent person, with respect to whom he has been appointed a committee, or where moneys have been earned by or received on behalf of such incompetent person, the committee must account for any moneys so earned or derived from such services, the same as for other property or assets of the incom. petent person. § 2342. 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 property, since the first day of February of the preceding year. If it appears, upon the examination, that a committee, appointed as prescriber 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 com mittee was appointed, requires that he should render a more full or satis factory 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 arder within three months after it is made; or, where the judge bas 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. § 2343. 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. § 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. TITLE VII. Proceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard. 2345. Action to compel conveyance. 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. 2357. Certain sales, etc., prohibited. 2360. Infant deemed a ward of court. 2362. Particular estates; when included in sale. 2363. Id.; when belonging to infant, etc. 2364. Debts of infant, etc., to be paid equally. § 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. 2346. [am'd 1882.] 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 possesssed 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. § 2347. 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. § 2348. [am'd 1890, 1893]. 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 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 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. 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 2345 and 2346 of this act. § 2349. 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. $2350. [am'd 1893]. 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 ore or more parcels of land in order to avoid an action of partition on the part of his cotenants, 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. § 2351. 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 ecounting for, all money received by him in the special proceeding. accord ing 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 probably 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. [Added 1893]. 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. The court may appoint the husband special guardian, and he must file a bond, as herein provided. § 2352. [am'd 1893]. 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. $2353. Upon a breach of the condition of the bond, given as prescribed in either of the last two sections, the court must direct it to be prosecuted for the benefit of the person injured. $2354. [am'd 1893]. Upon the presentation of the petition, and the filing of the bond, where the filing of such a bond shall be necessary, the court must make an order appointing a suitable person a referee to inquire into the merits of the application. The referee must examine into the truth of the allegations of the petition; hear the allegations and proofs of all persons interested in the property, or otherwise interested in the application; and report his opinion thereupon, together with the testimony with all convenient speed. $ 2355. [am'd 1893]. Upon the filing of the referee's report, and after examining into the matter, the court must make a final order upon the application. In a proper case, a final order confirming the referee's report must direct that the real property, or term estate, or other interest in real property, or a part thereof, or an inchoate right of dower therein, as is necessary, or as justice requires, be mortgaged, let for a term of years, sold, released or conveyed by the special guardian appointed as prescribed in this title, or by the committee of the property of the lunatic, or other incompetent person. The final order must also contain such directions respecting the time, manner and conditions of the sale, release or conveyance directed thereby as the court thinks proper to insert therein. $2356. [am'd 1893]. Before a sale, mortgage, release or lease can be made, pursuant to the final order, the special guardian or the committee must enter into an agreement therefor, subject to the approval of the court, and must report the agreement to the court, under oath. Upon the confirmation thereof by the order of the court, he must execute, as directed by the court, a deed, mortgage, release or lease. Where the final order directs the execution of a conveyance in the first instance, for the purpose of fulfilling a contract, or because the property is held by way of mortgage, or in trust only, the guardian or committee executing the conveyance must report the conveyance to the court. 2357. Real property, or an interest in real property, shall not be sold, leased, or mortgaged, as prescribed in this title, contrary to the provisions of a will, by which it was devised, or of a conveyance or other instrument, by which it was transferred, to the infant or incompetent person. $2358. [am'd 1893]. A deed, mortgage, release of an inchoate right of dower, or lease made in good faith, as prescribed in this title, either upon an application in behalf of the infant or an incompetent person, or pursuant to the directions contained in a judgment rendered against him, has the same validity and effect as if executed by the person in whose behalf it was executed, and as if the infant was of full age, or the lunatic, idiot or habitual drunkard was of sound mind and competent to manage his or her affairs; and a release of an inchoate right of dower, as authorized by this title, shall have the same effect as if the wife had joined with the husband in a deed or conveyance of the property affected thereby, and had duly acknowledged the same in the manner required by law to pass the estate of married wome |