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PDF versionCOMPILER'S NOTE: The provisions of Private Acts of 1935, Chapter 181, are identical to this act, except for date of passage.
SECTION 1. That Chapter 86 of the Acts of the General Assembly of 1870 be and the same is hereby amended by adding the following thereto, to-wit:
(1) The Probate Court of Shelby County is granted jurisdiction to hear and determine applications for, and to consent to, confirm and decree, the sale of the real property or any part thereof, located within said County, of persons under the disability of minority and/or unsoundness of mind, when such sale is in the case of minors, for the purpose of support, maintenance, education, or reinvestment and, in the case of persons of unsound mind, is for the purpose of support, maintenance, reinvestment or payment of his lawful obligations; and the jurisdiction here conferred may be exercised whether the interest or estate of the person under disability is in possession, remainder, reversion or expectancy or is held jointly, or in common with another or is an equitable interest or is subject to any limitation, restriction, condition or contingency whatsoever.
(2) Property so limited that persons not in being may have an estate or interest therein may also be sold under the provisions of this Act if all those interested then in being, are before the Court and it is satisfactorily shown to be necessary or manifestly for the interest of such persons then in being, having a common interest with those who may come into being.
(3) The application for such sale may be made by petition or bill filed by the regular guardian or by next friend, accompanied by a cost bond, the person under disability being made a defendant thereto, and also the guardian, if any, where the proceeding is brought by next friend.
(4) In all such cases the pleadings shall set forth fully and particularly the property sought to be sold and all other property, if any, owned by the person under disability or to which he is in any way entitled, with approximate values; also his age, circumstances and conditions, the purpose for which such sale is sought and the reasons for the necessity or advisability of such sale. Every such pleading shall be in duplicate and be sworn to by the party by whom filed.
(5) Summons shall be issued for and served upon each resident defendant and return thereof made as in other cases.
(6) If it appears from an affidavit attached to the pleading or separately filed in the cause or from the officer's return on any summons:
(a) That any party defendant is a non-resident of the State, or
(b) That upon inquiry at his usual place of residence he cannot be found and there is just ground to believe that he has gone beyond the limits of the State, or
(c) That the place of his residence is unknown and cannot be ascertained upon diligent inquiry; and if such defendant has not caused his appearance to be entered, the Clerk of the Court shall enter an order requiring the defendant to appear at a certain day, being not less than twenty days from the date thereof, and defend, otherwise, the petition or bill will be taken for confessed. The Clerk shall forthwith cause a copy of this order to be published in some newspaper published in the County, or designated by order of Court.
(7) The order of publication shall contain the style of the Court and cause and the name of the place where the Court is held, without any brief or abstract of the facts, unless directed by the Court. Evidence of the publication in pursuance of the order may be by affidavit of the printer or publisher or by the actual production of the newspaper in Court.
(8) After process on the person under disability shall have been duly served and returned, the Court shall appoint a guardian ad litem to answer and appear and defend for him. If the person under disability be a minor over the age of fourteen years he may file an answer in his own behalf, but this will not dispense with the answer of the guardian ad litem.
(9) The cause shall be triable at any time after the expiration of twenty days from the date of service of process on resident defendants, or from the date of expiration of the publication for non-resident defendants, whichever date is latest, however, the Court may in its discretion order an earlier hearing if all necessary parties are properly impleaded.
(10) The cause may be heard either on oral or written evidence. The Court may require the attendance of the person under disability, if practicable, and may cause subpoena to be issued for any witness whose testimony is desired. If it appears that the testimony of any witness should be produced and such witness from any cause cannot be present in person, the Court may order his deposition taken.
(11) The questions put to witnesses shall be such as to elicit the whole truth and may, if necessary, be prescribed by the Court, and the testimony shall be full, ample and complete. The propriety of granting such relief shall appear to the satisfaction of the Court.
(12) In order to prevent unnecessary or wrongful applications the Court may charge the guardian personally with the costs, including guardian ad litem's fees, if it shall appear that the proceeding has been manifestly improvidently instituted.
(13) The Court shall award the guardian ad litem such fee for his services as shall seem appropriate and may cause the same to be taxed as a part of the costs of the cause to be paid by the estate of the person under disability, or otherwise, as the Court's discretion shall prompt.
(14) If a sale shall be ordered the decree of the Court may prescribe the terms of sale, either for cash or on credit, or partly cash and partly on credit, and the length of credit extended in any case shall be such as seems to the Court proper, and in any sale authorized to be made on credit, a lien shall be retained upon the land in the decree to secure the payment of the deferred purchase money.
(15) The proceeds of sales made under the authority of this Act shall be subject to the control of the Court and such dispositions thereof shall be made as to the Court shall seem proper. In sales ordered for purposes of reinvestment the Court shall direct that the proceeds be reinvested in such manner as is authorized by law for the investment of funds of persons under disability and may within such classes of investments prescribe the particular type of securities in which such fund shall be invested.
(16) If, as the result of a sale authorized under the terms of this Act funds shall be payable to the guardian, the Court shall, before any monies are paid to him require as security therefor a bond with sufficient security in an amount which shall not be less than the amount of the fund nor more than twice its amount, as in the circumstances shall to the Court seem proper. Such bond shall be conditioned upon the performance of the decree of the Court and whatever orders the Court may thereafter make touching said proceeds.
(17) It shall be competent in any proceeding conducted under this Act that the order or decree of Court authorize a conveyance by the guardian of the property in question or in terms divest the title out of the person under disability or its guardian as the case may be and vest the same in the purchaser.
(18) If the provisions of this Act shall have been substantially complied with the purchaser of the property, unless a formal party to the action, shall get a good title, although the Court may have erred in its conclusions as to the necessity or advisability of the sale, and although the decree may for that reason be subsequently reversed or set aside upon any proceeding for the correction or errors.
SECTION 2. That all laws and parts of laws in conflict herewith be and the same are hereby repealed, provided, however, that nothing herein contained shall be construed as having the effect to oust or in anywise affect the present jurisdiction of Courts of Chancery over proceedings for the sale of property of persons under disability.
SECTION 3. That this Act shall take effect and be in force from and after its passage, the public welfare requiring it.
Passed: April 12, 1935.