§ 118. A guardian of the person or estate, or both, of a minor, or of any other person who is incapable of managing his affairs, such ward being resident within this state, may be appointed in all cases by the supreme court, and by a surrogate in the cases provided in the CODE OF CIVIL PROCEDURE. In the case of a non-resident minor, or other such person, having property within the state, a guardian of the estate may be appointed. In all cases, the court first making the appointment has exclusive jurisdic

tion.'

Guardians of the persons and estates of insane persons may be appointed in the manner prescribed by the Code of Civil Procedure.

§ 119. In awarding the custody of a minor, or in choosing a general guardian, the court or officer is to be guided by the following considerations:

1. First and chiefly, by what appears for the best interest of the child in respect both to its temporary and its mental and moral welfare. And if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question;"

2. As between parents adversely claiming the custody or guardianship, neither parent is entitled as of right, but, other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor or business, then to the father;

3. Of two persons equally eligible in other respects, one who is a relative is to be preferred to a stranger. One who was indicated by the wishes of a deceased parent is to be preferred to others. One who already stands in position of a trustee of a fund to be applied to the child's support, is to be preferred to others."

Power of court to ap point guardians.

the supreme

Rules for ing on the

determin

custody of a minor.

Powers of guardian.

Guardian

not dis

§ 120. A guardian appointed by the court has power over the person and the estate, except where it is otherwise ordered.

§ 121. A person appointed, by the court, guardian of a charged by minor, continues as such until another is appointed, or he is discharged, according to law.

ward coming 14.

Death of a joint guardian.

Duties of guardian of estate.

A guardian of the estate under the direction of court.

Duties of a guardian of

of a minor.

2 R. S., 151, § 10

§ 122. On the death of one or two joint guardians, the power continues to the survivor, until a further appointment is made by the court.

People a. Byron, 3 Johns. Cases, 53.

§ 123. It is the duty of the guardian of the estate to keep safely the property of his ward and not to suffer any waste, sale or destruction of the real property, but to maintain the inheritance, its buildings and appurtenances out of the moneys of the estate, and to deliver the same to the ward at his majority, in as good condition as the guardian received them, inevitable decay and injury only excepted, under penalty of forfeiting to the ward treble damages. 2 R. S., 153, § 20.

§ 124. In the management and disposition of the estate committed to him, the guardian may be regulated and controlled by the court.

This section is new. It is intended to qualify the common law rules which empower him to dispose of per

sonalty in his discretion, and of the realty during the term of his guardianship.

125. A guardian of the person is charged with the The person custody of the minor, and must look to his support, health and education,' and must not change the residence of the minor to a place without the state, but may, in his discretion, fix the place of residence within the state.

Discharge

from guardianship.

'Ex parte Bartlett, 4 Bradf., 221.

§ 126. After a ward has come of age he may settle with his guardian and release him, and the release is valid if obtained fairly and without undue influence; but the guardian, if appointed by the court, is not entitled to his discharge until one year after the ward's majority, in order that the ward may have time to investigate the accounts.

DIVISION SECOND.

PROPERTY.

PART I. Property in General.

II. Property in Things Real, or Immovable. III. Property in Things Personal, or Movable IV. Acquisition of Property.

PART I.

OF PROPERTY IN GENERAL; THE THINGS IN WHICH IT MAY EXIST; AND THE MODIFICATIONS THEREOF.

TITLE I. Subjects of Property.

II. Distinction of Property.

III.

Owners.

IV. Enjoyment of Property.

The following memorandum will show where the provisions of the Revised Statutes relating to property are inserted in this Division.

Sections 1, 3, and 4 of article 1st, in the 2d part of the Revised Statutes, have been, in substance, embodied in the Constitution, and are therefore omitted here. Seotion 2 is embodied in the title on Succession. Sections 5-7 are superseded by title 4 of part III of Division I.

The provisions of article 2 of the same statute, entitled "Of the persons capable of holding and conveying land," are thus disposed of; section 8 is extended to the case of all persons, and the provisions of the subsequent sections, and other statutes, extending the right of aliens, are omitted. This is in accordance with the recommendation of the governor, in his message of January, 1862.

The capacity of Indians is fixed by section 22 of Part I of Division I, on Persons, and reference to them is omitted in this part of the Code. Section 9 (like other saving clauses

Property defined.

elsewhere) is omitted as being sufficiently provided for by the general clause of the provision at the end of the Code, saving vested rights; and section 10 is omitted as provided for in Part I on PERSONS.

Article 1 of title 2 of the same part of the Revised Statutes, entitled "Of the Creation and Division of Estates," is embodied in title 2 of part II, infra, excepting section 39, which, to avoid unnecessary repetition of the same, under a subsequent article relating to personal property, is inserted as section 143.

Article 2 of that title, entitled "Of Uses and Trusts," is embodied in title 4 of part II, infra.

Article 3, entitled "Of Powers," is embodied in title 5 of the same.

Article 4, "Of Alienation by Deed," is embodied in the title on Transfers.

Title 3 (p. 740), "Of Dower," is omitted, it being proposed to abolish Dower and Curtesy.

The provisions of title 4 (p. 744) are inserted in title 3 of part II, infra, except sections 1, 2, 3, and 26, which are in the chapter on The Hiring of Lands, and sections 4-6, which are to be inserted in the Code of Civil Procedure.

The provisions of title 5 (p. 748) are disposed as follows: Section 1 is inserted in the chapter on Transfers, and on Wills.

Section 2 is stated in the Division relating to Obligations, as a general principle of interpretation.

Section 3, with important modifications, is embodied in the title on Succession.

Sections 4 and 5 are inserted in the chapter on Mortgages. Section 6 is embodied in the Code of Civil Procedure, as reported complete, p. 750.

Sections 7-9, are embodied in title 3 of part II, infra. Chapter 2 (p. 751), of Descent, is superseded by the chapter on Succession.

Chapter 3 (p. 756) is embodied in the article on Recording Transfers.

TITLE I.

SUBJECTS OF PROPERTY.

SECTION 127. Property defined.

128. Subjects of Property.

§ 127. Property in a thing is the right of one or more persons to use it to the exclusion of others. And, by a figure of speech, the thing, in which the property exists, is itself also called property.

property.

§ 128. Property may exist in all inanimate things which Subjects of are capable of manual delivery, or appropriation; in all domestic animals; in all obligations; in such products of labor or skill, as the composition of an author, the goodwill of a business, trade-marks and signs, and in rights created or granted by statute.

Animals wild by nature are not the subjects of property while living, unless on the land of the proprietor, or tamed, or taken and held in possession, or disabled and immedi ately pursued.

TITLE II.

DISTINCTION OF PROPERTY.

§ 129. Property is of two kinds:

1. Real or immovable;

2. Personal or movable;

Which are defined by the parts of this Code on REAL PROPERTY and PERSONAL PROPERTY.

TITLE III.

OWNERS.

Real and personal

SECTION 130. Owners.

131. Property of the state.

132. Who may own property.

§ 130. All property has an owner, whether that owner Owners be the state, and the property public, or the owner an individual, and the property private. The state may also hold property as a private proprietor.

the state

§ 131. The state is the owner of all land, below high Property of water mark, bordering upon tide-water; of all property lawfully appropriated by it to its own use; of all property dedicated to the state, and of all property of which there is no other owner.

The ultimate right of the state to all other property is declared by chapter 2 of title II of part III of the POLITICAL CODE. (§§ 249, 250.)