1756. Failure to operate for two years vacates grant. Any person, company or corporation who shall fail to dig, mine or remove phosphate rock or deposit from any such stream of water to which he or it may be entitled under any patent or grant issued under the provisions of this subchapter for the period of two years from the date of said patent, or after beginning digging, mining or removing the same, shall fail to continue to so dig, mine or remove the same for the period of two years, shall forfeit any and all rights therein granted, and said territory shall immediately thereupon become subject to entry under the provisions of this subchapter without making the affidavit of the discovery of any such deposits or rocks.

1891, c. 476, s. 6.

1757. May be mined without grant, how. Any person or corporation resident of this state shall have the right to mine, dig or remove phosphate rock or deposits from any of the navigable streams or waters in this state to which no exclusive patent or grant may have been issued, upon such person or corporation first entering into bond in the penal sum of five thousand dollars, payable to the treasurer of the state, for the payment of the same royalty, in the same manner and under the same regulations as are prescribed in section one thousand seven hundred and fifty-three; but nothing in this section shall be construed to give to any such person or corporation any exclusive franchise or privilege to dig, mine or remove any such phosphate rock or deposit from any stream or water of this state. 1891, c. 476, s. 7.

1758. How appointed; tenure. There may be in every county a public guardian to be appointed by the clerk of the superior court for a term of eight years.

Code, s. 1556; 1874-5, c. 221.

1759. Oath of office. The public guardian shall take and subscribe an oath (or affirmation) faithfully and honestly to discharge the duties imposed upon him; the oath so taken and subscribed shall be filed in the office of the clerk of the superior court.

1760. When letters issued to. The public guardian shall apply for and obtain letters of guardianship in the following cases:

1. When a period of six months has elapsed from the discovery of any property belonging to any minor, idiot, lunatic, insane person or inebriate, without guardian.

2. When any person entitled to letters of guardianship shall request in writing the clerk of the superior court to issue letters to the public guardian: Provided, it shall be lawful and the duty of the clerk of the superior court to revoke said letters of guardianship at any time after issuing the same upon application in writing by any person entitled to qualify as guardian, setting forth a sufficient cause for such revocation.

Code, s. 1561; 1874-5, c. 221, ss. 6, 7.

The powers and

1761. Powers, duties, liabilities, compensation. duties of said public guardian shall be the same as other guardians, and he shall be subject to the same liabilities as other guardians under the existing laws; and shall receive the same compensation as other guardians.

Code, s. 1561; 1874-5, c. 221, ss. 6, 7. As to bond of public guardian, see sections 321, 322.

II. APPOINTED BY PARENT.

1762. Father, and if dead, mother may appoint. Any father, though he be a minor, may, by deed executed in his lifetime or by his last will and testament in writing, dispose of the custody and tuition of any of his infant children, being unmarried and whether born at his death or in ventre sa mere, for such time as the children may remain under twenty-one years of age, or for any less time. Or in case such father shall be dead and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, may do so.

Code, s. 1562; R. C., c. 54; 1762, c. 69; 1868-9, c. 201; 1881, c. 61. Where testator by will directs that children should be placed with certain person until their majority, of whose circumstances testator was aware, such person entitled to their custody in absence of finding of unfitness: re Young, 120-151.

In

Father entitled to custody of children against claims of everyone: Newsome v. Bunch, 144-16; Latham v. Ellis, 116-30-except those to whom he may have committed their custody and tuition by deed, Latham v. Ellis, 116-30 or unless found to be unfitted for their care and custody, Ibid. Testator can not appoint testamentary guardian except to his own children: Camp v. Pittman, 90-615.

Court intimates that mother can not make disposition of her child so as to confer upon another the right to its custody and control: In re Lewis, 88-31.

62

Provisions of section allowing father to appoint testamentary guardian for children does not embrace grandchildren: Williamson v. Jordan, 45-46.

Father can not appoint guardian for children, nor impose upon anyone the duties and obligations of that office, except by deed executed in his lifetime, or by last will and testament executed in writing: Peyton v. Smith, 22-325-but where it can be clearly collected from will of father that certain persons are thereby appointed to have custody of person and estate of children until they arrive at age, such appointment will constitute them guardian, Ibid.

No one has right to guardianship of an infant, except as testamentary guardian, or as appointed by father by deed, or by the court: Long v. Rhymes, 6-122.

1763. Effect of such appointment. Every such appointment shall be good and effectual against any person claiming the custody and tuition of such child or children.

Code, s. 1563; R. C., c. 54; 1762. c. 69, s. 2; 1868-9, c. 201, s. 2. Testamentary guardian entitled to custody of child: In re Young, 120-151.

1764. Powers and liabilities of other guardians. Every guardian by deed or will shall have the same powers and rights and be subject to the same liabilities and regulations as other guardians. Code. s. 1564; R. C., c. 54; 1762, c. 69; 1868-9, c, 201, s. 3.

1765. Mother natural guardian, father dead. In case of the death of the father of an infant, the mother of such child surviving such father shall immediately become the natural guardian of such child to the same extent and in the same manner, plight and condition as the father would be if living; and the mother in such case shall have all the powers, rights and privileges, and be subject to all the duties and obligations of a natural guardian. But this shall not be construed as abridging the powers of the courts over minors and their estates and to the appointment of guardians.

Code, s. 1565; 1883, c. 364. Mother, if suitable person, entitled to care and custody of infant child, even if there be others more suitable: Ashby v. Page, 106-328. Court intimates that mother can not make a disposition of child so as to confer upon another right to its custody and control: In re Lewis, 88-31. As to mother's duty to support her child, see Ibid.

III. JURISDICTION OF CLERK OF SUPERIOR COURT OVER.

1766. May appoint, for infants, idiots, lunatics and inebriates. The clerks of the superior court within their respective counties shall have full power, from time to time, to take cognizance of all matters concerning orphans and their estates and to appoint guardians in all cases of infants, idiots, lunatics and inebriates, except where otherwise prescribed by law.

Code, s. 1566; R. C., c. 54, s. 2; 1762, c. 69, ss. 5. 7; 1868-9, c. 201, s. 4. See section 1890. Powers which court of equity formerly exercised in regard to orphans and their estates now conferred upon clerk: Duffy v. Williams, 133-197.

Jurisdiction of clerk in appointment of guardians of infants does not extend to a case where petitioner asks for custody of child who had been placed by mother under control of another: In re Lewis, 88-31. Appointment of guardian is matter of discretion: Battle v. Vick, 15-294; Long v. Rhymes, 6-122; Grant v. Whitaker, 5-231; Mills v. McAllister, 2-303— exercise of which can not be reviewed by supreme court, Battle v. Vick, 15-294.

Court not bound to confirm choice of guardian made by infant of fourteen years of age and upwards: Grant v. Whitaker, 5-231; Wynne v. Always, 5-38.

For old case dealing with jurisdiction of courts under section, see Harriss v. Richardson, 15-279.

1767. May commit custody to one, estate to another. Instead of granting general guardianship to one person, the clerk of the superior court may commit the tuition and custody of the person to one and the charge of his estate to another, whenever and at any time during minority, inebriety, idiocy or lunacy, it appears most conducive to the proper care of the orphan's, inebriate's, idiot's or lunatic's estate, and to his suitable maintenance, nurture and education.

Code, s. 1567; R. C., c. 54, s. 3; 1840, c. 31. Section merely referred to in Duffy v. Williams, 133-197.

1768. May allow yearly sum for support and education. In such cases the clerk must order what yearly sums of money or other provisions shall be allowed for the support and education of the orphan, or for the maintenance of the idiot, lunatic or inebriate, and must prescribe the time and manner of paying the same; but such allowance may, upon application and satisfactory proof made, be reduced or enlarged, or otherwise modified, as the ward's condition in life and the kind and value of his estate may require.

Code, s. 1568; R. C., c. 54, s. 3; 1840, c. 31; 1868-9. c. 201, s. 6. As to maintenance and education of ward generally, see Duffy v. Williams, 133-195; Tharrington v. Tharrington, 99-118.

1769. What disbursements and commissions allowed. All payments made by the guardian of the estate to the tutor of the person, according to any such order, shall be deemed just disbursements and be allowed in the settlement of his accounts; but for the payment thereof by the one and the receipt thereof by the other merely, no commissions shall be allowed to either, though commissions may be allowed to the tutor of the person on his disbursements only.

Code, s. 1569; R. C., c. 54, s. 3; 1840, c. 31, s. 3; 1868-9, c. 201, s. 7. See section 1808. As to commissions generally, see section 1809.

1770. Appointed by, in case of divorce. When parents are divorced and a child is entitled to any estate, the court granting the divorce must certify that fact to the clerk of the superior court to the end that he may appoint a fit and proper person to take the care and management of such estate, whose powers and duties shall be the same in all respects as other guardians, except that a guardian so appointed shall not have any authority over the person of such child, unless the guardian be the father or mother.

Code, s. 1571; R. C., c. 54, s. 4; 1838, c. 16; 1868-9, c. 201, s. 9. 1771. May appoint when father is alive. The clerk of the superior court may appoint a guardian of the estate of any minor, although the father of such minor be living. And the guardian so appointed shall be governed in all respects by the laws relative to guardians of the estate in other cases, but shall have no authority over the person of such minor.

Code, s. 1572; R. C., c. 54. ss. 4, 7; 1806, c. 707; 1868-9, c. 201, s. 10. 1772. Proceedings on application for. On application to any clerk of the superior court for the custody and guardianship of any infant, idiot, inebriate or lunatic, it is the duty of such clerk to inform himself of the circumstances of the case on the oath of the applicant or of any other person; and if none of the relatives of the infant, idiot, inebriate or lunatic are present at such application, the clerk must assign, or, for any other good cause, he may assign a day for the hearing; and he shall thereupon direct notice thereof to be given to such of the relatives and to such other persons. if any, as he may deem it proper to notify. On the hearing he shall ascertain, on oath, the amount of the property, real and personal, of the infant, idiot, inebriate or lunatic, and the value of the rents and profits of the real estate, and he may grant or refuse the application, or commit the guardianship to some other person, as he may think best for the interest of the infant, idiot, inebriate or lunatic.

Code, s. 1620; C. C. P., s. 474. Failure to notify relative who has custody of child of proceedings to appoint guardian is irregularity under section, which does not render appointment of guardian void, though not conclusive upon such relative: In re Parker, 144-170.

Except as between parents, under section 1853, right of custody of child can not be determined under writ of habeas corpus: Ibid.

As to who may take proper steps to set aside appointment of guardian, see Ibid.

1773. Must issue letters. The clerk of the superior court must issue to every guardian appointed by him a letter of appointment, which shall be signed by him and sealed with the seal of his office. Code, s. 1621; C. C. P., s. 475.