garded, prima facie, as correct. They are, however, as a rule, within the control of the court making them until final settlement of the trusteeship. At any time before final settlement and the discharge of the guardian such orders may be set aside, corrected or modified; they can not, however, be assailed collaterally- as in an action, on the guardian's bond, for a misapplication of the trust fund. The only attack that can properly be made on such orders is in a direct proceeding in the court which had and has control of them; State, ex rel. v. Wheeler, 127-454.

The fourth subdivision of this section makes it the duty of a guardian, at the expiration of his trust, fully to account for and pay over to the proper person, all of the estate of said ward remaining in his hands." When the ward becomes of age, he is "the proper person" for the guardian to account to, and pay over the fund in his hand to and, on his failure so to do, the ward may maintain an action against such guardian, personally or on his bond. At that period of time the fiduciary relation of the guardian ceases, and he becomes simply the debtor of the late ward for the balance of his property in his hands not accounted for. No demand is necessary by the ward, when he arrives at the age of twenty-one years, before bringing suit against the guardian for failing to account and pay over. It follows that the right of the ward to maintain an action is barred in six years from the ward's attainment of his majority; Lambert v. Billheimer, 125-520.

2523. Death of ward.. An order having been made, by the proper court, empow ering a guardian to sell real estate of his ward to pay debts incurred in the support and education of the ward, and the ward having died before sale made, the proceedings are properly continued in the matter of the guardianship-the guardian proceeding, as such-to the settlement and distribution of the estate. The provisions of this section being complied with, a sale made by the guardian, under the order already obtained and duly confirmed by the court, is a valid sale; Wingate v. James, 120-73. 2527. Who may sue on bond. Construing this section, in connection with section 2458, the necessary inference is that a creditor of a ward's estate, when his interests have been injuriously affected by the misconduct of the guardian, may sue on the guardian's bond for any of the causes for which an executor or administrator may be sued, as specified in section 2458; State, ex rel. v. Fitch, 113-482. This section, in connection with sections 1221 and 2459, can not be so construed as to extend the liability of sureties on a guardian's bond; Meadows v. State, ex rel., 114-538.

2528. Sale of real estate. In an action by heirs for breach of a contract to convey certain real estate, the contention of the defendant was, that no statute authorizes a guardian to exchange the lands of such ward for other lands, wherefore, a certain petition, presented to the circuit court, did not confer jurisdiction on the court to make an order to sell for cash, and that the order was void. It was held that the petition was sufficient to confer jurisdiction, and to authorize the order which was made. The facts stated in the petition were, in substance, these. The guardian entered into a contract for the conveyance of the interest of his ward in certain real estate in part payment for a conveyance to the ward of a piece of land. Thereupon he filed a petition, in the circuit court, setting forth that it would be to the ward's interest to make the exchange. The interest of the ward was duly appraised, the guardian furnished the additional bond required, it was approved and filed, and the court entered an order requiring the guardian to sell said interest for cash. The guardian, thereupon, signed, acknowledged and tendered to the co-contracting party a deed, purporting to convey the ward's interest, which was refused; Nesbit v. Miller, 125-107.

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2532. Appraisement-Additional bond. The failure of a guardian to give the adavailable in a collateral attack to defeat the sale. The utmost that can be said of such failure to file such bond is that for such a failure the sale might have been avoided, under section 2364, in a direct proceeding instituted for that purpose within the proper time; Davidson v. Bates, III-401.

This section requires a guardian after filing a petition to sell a ward's real estate on the return of the appraisement thereof to execute a bond, "with sufficient freehold sureties," conditioned for the faithful discharge of the duties of the trust. The following section provides that on such bond being filed and approved by the court an order for the sale of the real estate may be made etc. Conceding that the filing of an additional bond is necessary to confer complete jurisdiction over the subject matter, so as to authorize the court to make an order of sale, it does not follow, in case a bond

is actually filed and approved and an order is thereupon made, in pursuance of which real estate is bought and paid for by a purchaser at a sale so ordered, that the sale will be set aside even though the court committed an error and the guardian may have failed to account for the proceeds. The presentation of a bond with but one surety thereon invoked the judgment of the court as to its sufficiency, the court had power to pass on that question and, whether it decided right or wrong, the court had jurisdiction. All that a purchaser who has paid his, money is bound to do in such a case is to see that the court acquired jurisdiction to make the order; Marquis v. Davis, 113-220.

2542. Partition. This section and section 1194 clearly authorize a guardian to institute an action for the partition of lands in which his ward has an interest and to prosecute it in his own name; Bowen v. Wander, 121-167.

ARTICLE 2-OF THE INSANE.

2547. Production of party. Proceeding in the nature of a commission de lunatico inquirendo and for the appointment of a guardian. This section requiring the per, son alleged to be of unsound mind to be produced in open court where possible, was enacted for the prevention of frauds in procuring verdicts and judgments of insanity, without an actual opportunity to the party supposed to be insane of being heard. Therefore, the statute makes this requisition of personal presence. It is not the design of the statute to permit the jury to make up a verdict based on the appearance and conduct of the person alleged to be insane. The only lawful mode of determining an issue of the kind presented is by the evidence in the cause — as any other issue in a given case must be determined. If, however, a person alleged to be insane testifies on the hearing of the cause, his conduct is to be considered by the jury — as the conduct of any other witness is considered. Wherefore an instruction to the jury, "What the facts in this case are you are to determine from the evidence, and that alone," is not erroneous when construed in connection with other instructions in the case which correctly define the condition of insanity, within the contemplation of the statute-as that if the party before the court is so far deprived of reason that she is no longer capable of understanding and acting with discretion in the ordinary affairs of life, she is insane within the meaning of the law; Fiscus v. Turner, 125–148.

2554. Contracts void. Action by the guardian of a person of unsound mind to rescind a contract entered into by the latter for the sale of and to recover a tract of land. The complaint alleged, in substance, that the defendant having knowledge of the facts as to the mental condition of grantor, for the fraudulent purpose of procuring a conveyance of land, ingratiated himself into the confidence of an aged, infirm and weak minded lady and that, by feigning an affection for her and by falsely representing to her that he was a man of means, he obtained the land, worth from $4,000 to $5,000, which by a condition in the mortgage given back can not be collected within ten years. In such a case the grantee, having knowledge of the unsoundness of mind of the other party to the contract, and taking a conveyance from her, it became his duty to restore the title to her on demand, while the allegation is that on demand made in that behalf, he refused to do so and claimed the land as his own. In such a case defendant will not be allowed to defeat the action by setting up, as a fact, that no deed was tendered to him to sign at the time of his refusal to reconvey and his assertion of title to the land. Under the state of case made, such a tender would have been vain and useless. Fraud is sufficiently shown and a judgment for reconveyance is proper; Peck v. Vinson, 124-122.

AN ACT providing for the appointment of probate commissioners, by judges of the circuit courts, in all Counties of the state containing a voting population of over 30,000, as shown by the vote for secretary of state at the last preceding election, defining the duties of such commissioners and their terms of office; providing for their removal and in what manner their salaries shall be fixed and paid and how and when their services may be dispensed with; empowering the judges of said Courts to make and enforce certain rules in relation to probate business and invest such commissioners with certain powers and declaring an emergency. [Approved and in force March 7, 1891; S., 1891, p. 344.

6834. Probate commissioners - Appointment - Salary. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That in all Counties of this state containing a voting population of over 30,000, as shown by the vote cast for secretary of state at the last preceding election, the judge of the circuit court of each of said counties, when he shall find that the probate business of his court requires it and that the interest of minor heirs and other beneficiaries of estates, guardianships or other trusts pending in said court will be protected and subserved thereby and that the same is demanded for the proper protection of such interests, shall cause such finding to be entered of record, and thereupon shall appoint some competent person, resident of the county, as probate commissioner of such court, and in such finding and order of appointment, on proof first heard in open court, shall fix and specify the annual salary of such commissioner and the times of the payment thereof, and shall thereupon cause to be certified to the auditor of such county a copy of such finding and order, which shall be sufficient authority for said auditor to draw his warrant for the payment thereof at the times and in the amounts in said record

set forth.

6835. Oath- Term - Perquisites, none. § 2. Said commissioner shall take and subscribe an oath for the faithful discharge of his duties and shall hold his office for the term of four years, subject to the provisions of this act, and for his services as such commissioner shall receive or be allowed no fees, emoluments or compensation whatever, other than the salary fixed by said court; and, required to be paid out of the treasury of said county, as aforesaid, and which salary shall not be increased during his said term of office.

6836. Oaths, administer-Duty-Removal. § 3. Said commissioner shall have power to administer oaths, take acknowledgments and do all other acts legally pertaining to said office and necessary to carry into effect the rules or orders of said court; and, he may, at any time, be removed by the court for failure to properly discharge the duties of his trust.

6837. Duties, court define. § 4. At the time of the appointment of said commissioner, or as soon thereafter as may be practicable, the court shall define the duties of such commissioner and cause a record thereof to be made upon the order book of said court.

6838. Rules to protect trusts-Vesting of power to enforce. 5. Such court shall have power to make and enforce all necessary rules for the protection of the several trusts pending therein, and the requiring of delinquent guardians, administrators or other trustees to make reports, give new or additional bonds, or discharge any other duty required of them by law or the rules of said court, and may vest such commissioner with all necessary power in the premises looking to the protection of such trusts and enforcement of the law and rules of said court in reference thereto, and the proper and speedy transaction of the probate business of such court, as the court in its discretion may deem advisable and necessary. 6839. Services dispensed with, when. § 6. At any time after the appointment of such commissioner when such court shall deem that his services may be dispensed with, either for a certain or indefinite length of time, without detriment to the business of said court or the interests of the trusts therein pending, the court shall enter of record its finding to that effect and cause the same to be certified to the auditor of such county, and thereupon during the time so specified in such finding the salary of such commissioner shall cease and his services during said time be dispensed with; the said commissioner to again assume his duties and receive his salary therefor only when the court shall so order.

6840. Emergency. § 7. An emergency is declared to exist for the immediate taking effect of this act; therefore, the same shall be in force from and after its passage.

NOTES TO CHAPTER 9.

WILLS.

2556. Who may make a will. The law does not undertake to measure the exact quality of mind and memory which a person shall possess to authorize him to make a will. It does, however, require him to possess mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty; their deserts, with reference to their conduct and treatment toward him; their capacity and necessity; and that he shall have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and executed. If he is in the possession of mental faculties to this extent he is not of unsound mind or insane within the meaning of the law. On the other hand, if he has not the degree of mental power above indicated, he is of unsound mind. When unsoundness of mind is once shown to exist, generally, it is presumed to continue until the contrary is shown. A person may be possessed of delusions and yet be capable of making a valid will; not so, however, if his mind is impaired to that degree which is recognized as amounting to insanity or unsoundness of mind. It was held in this case that where the evidence, in an action to set aside a will, tended to prove that the testator was addicted to the excessive use of intoxicating liquor, was insanely jealous of his wife, a woman of good reputation for chastity; that he persistently denied the paternity of two of his children, and charged that one of them was a child of one of his sons-in-law; that he charged his wife with being too intimate with all his sons-in-law, as well as with other men, and frequently abused and beat her on account of her supposed infidelity; that, finally, he shot her to death and then committed suicide, leaving a written statement proving that he took her life on account of her supposed infidelity, there being no foundation for his charges against her, the testator's unsoundness of mind at the time of his death is sufficiently shown; Burkhart v. Gladish, 123-342.

2559. Revocation and re-publication. Where a subsequent will by a clause of the instrument, as an independent proposition, expressly revokes all wills then recently made by the testator, and the instrument is duly subscribed and attested, the instrument will constitute a valid revocation in writing of the former will, within this section, whether it is or is not effectual as a testamentary disposition of property; Burns v. Travis, 117-49.

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2560. When birth of child revokes. To revoke a will the requirements of the statute must be strictly pursued (see § 2559). To hold that the adoption of a child revokes a will it is necessary to interpolate into this section, after the words "legitimate issue," the words or shall adopt a child," or words to the same effect. The words in the statute are "if after the making of the will the testator shall have born to him legitimate issue." These words can not be so construed as to mean the same as, or include, an adopted child; or that by the adoption of a child a parent has born to him, or her, legitimate issue. Therefore the adoption of a child does not operate to revoke an antecedent will of the adopting father, although he has made no provision, by the will or otherwise, for such adopted child; Davis v. Fogle, 124-45.

2596. Complaint to contest. A complaint under this section, setting up a later will, may join in its prayer (1) that the probate of the former will may be set aside and annulled; (2) that letters testamentary granted on such probate may be revoked, and (3) that the instrument presented as the later will may be admitted to probate as the last will and testament of the testator; Burns v. Travis, 117-49.

The probate of a former will can not be pleaded in estoppel of an application to admit a later will to probate, unless the proponent has had such a connection with the former will as to estop him from denying its validity; Burns v. Travis, 117–18. 2596, 2597. Complaint to contest - Bond. A revoked will is an invalid will. It follows that the revocation of a will affords good cause for contesting the validity of such an instrument, as well as for resisting or setting aside the probate of it, under section 2596. So, when after a will has been admitted to probate a verified complaint is filed, alleging that the will had been revoked by the execution of a later will and