§ 2353. Bond; how prosecuted. Upon a breach of the condition of a 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. From Id., § 173; ch. 417 of 1864, § 3 (6 Edm. 291), and ch. 446 of 1874, tit. 2, § 8 (9 Edm. 931). § 2354. Reference to inquire into the application. 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. From 2 R. S. 54, Part 2, ch. 5, tit. 2, § 12 (2 Edm. 55); ch. 417 of 1864, § 4 (6 Edm. 291); ch. 446 of 1874, tit. 2, §§ 8, 18; and Id., tit. 1, § 38 (9 Edm. 929, 931, 932); and 2 R. S. 194, Part 3, ch. 1, tit. 2, § 174. Am'd by ch. 268 of 1893. See rule 56 (Sup. Ct.). 2355. Final order. 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. From Part 2, ch. 5, tit. 2, §§ 13, 16, 18, 19, 20, 22; and Part 3, ch. 1, tit. 2, §§ 167, 175 of the R. S.; ch. 417 of 1864 § 5 (6 Edm. 291); and ch. 446 of 1874, tit. 2, §§ 9, 19, 22, 23, 26; and Id., tit. 1, § 38 (9 Edm. 929-933). Am'd by ch. 639 of 1893. § 2356. Report of sale, etc. 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 he 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 under oath. From 2 R. S. 195, Part 3, ch. 1. tit. 2, §§ 176, 177 (2 Edm. 203); and ch. 417 of 1864. §§ 6 and 7 (6 Edm. 292); and ch 446 of 1874, tit. 2, §§ 10 and 11 (9 Edm. 931). Am'd by ch. 639 of 1893. § 2357. Certain sales, etc., prohibited. 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. From Id. § 2358. Effect of conveyance, etc. 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 women. From 2 R. S. 55, Part 2, ch. 5, tit. 2, § 21 (2 Edm. 56); ch. 417 of 1864, § 8; ch. 446 of 1874, tit. 2, §§ 12, 25 (9 Edm. 931, 933), and 2 R. S. 194, 195, Part 3, ch. 1, tit. 2, §§ 168 and 178. Am'd by ch. 639 of 1893. § 2359. Proceeds of sale deemed real property. A sale of real property, or of an interest in real property, of an infant or incompetent person, made as prescribed in this title, does not give to the infant or incompetent person any other or greater interest in the proceeds of the sale, than he or she had in the property or interest sold. Those proceeds are deemed property of the same nature, as the estate or interest sold, until the infant arrives at full age, or the incompetency is removed. If the infant should die before arriving at full age, or the incompetent person should die before the incompetency is removed not leaving any personal property, or not leaving sufficient personal property to pay funeral expenses and expenses that may be necessary or necessarily incurred, then in either or each case the proceeds are to be deemed personal property so far as may be necessary to pay the funeral and other necessary expenses. The proceeds are to be paid upon order of the surrogate's court or court having jurisdiction of the estate of deceased, to an administrator appointed by the surrogate to administer upon decedent's estate, and after paying all funeral expenses and expenses of administration and any indebtedness, the remainder, if any there be, shall upon the order of the surrogate, be paid into the hands of the trustee who held the same, to be distributed as the law directs. This act is to include the said proceeds of any infant or incompetent person that has died prior to this amendment, the proceeds now remaining in the hands of a trustee. From 2 R. S. 195, Part 3, ch. 1, tit. 2, § 180; ch. 417 of 1864, § 10; ch. 446 of 1874, tit. 2, § 14 (9 Edm. 932). Am'd by ch. 523 of 1892. § 2360. Infant deemed a ward of court. From the time of the filing of a petition by or on behalf of an infant, praying for an order directing a conveyance, or a sale, mortgage or lease of his real property, or of an interest in real property. the infant is considered a ward of the court, with respect to that real property or interest, and the income and proceeds thereof. From 2 R. S. 195, Part 3, ch. 1, tit. 2, part of § 179 (2 Edm. 203). § 2361. Disposition of proceeds; accounting. The court must, by order, direct the disposition of the proceeds of such a sale, mortgage or lease. It must direct the investment of any portion thereof belonging to the infant or incompetent person, which is not needed for the payment of debts, or the safe keeping, or the immediate maintenance and education, of himself or his family, or for the preservation or improvement of his real property or his interest in real property. It must require a report, S under oath, of the disposition and investment thereof, to be made as soon as practicable, and must compel periodical accounts to be rendered thereafter, by each person, who is intrusted with the proceeds, or any part thereof. Where an inchoate right of dower is released as prescribed in this title and such release is to accompany a sale by the husband of the property to which the inchoate right of dower attaches, the court shall make an order requiring one-third of the amount realized on the sale of the property to which the inchoate right of dower attached to be invested by the special guardian, or paid into the court to be held for the benefit of the husband during his life and upon his death for the benefit of the wife during her life, or the court may direct said amounts to be paid to the husband upon his giving a bond in the penalty of at least double the amount so received for such release, with at least two sureties, who shall justify in double the amount of such penalty, conJitioned for the repayment as the court shall direct by his executors or administrators of such amount upon the death of the husband. Where an inchoate right of dower is released as prescribed in this title, and, at the time of the application, the property to which the inchoate right of dower attaches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower, the court shall make an order that, as the consideration for the release, or as part of the consideration there for, there may be paid to the special guardian or into the court an amount to be fixed by the court as equal to one-third of the fair market value of the property to be invested by the special guardian or held by the court for the benefit of the person making such payment during the life of the husband, and upon his death for the benefit of the wife during her life, and upon her death to be returned to the person making such payment or to his executors, administrators or assigns; or in lieu of such payment the court may allow a bond to be given in the penalty of at least double the amount so fixed as equal to one-third of the fair market value of the property, with at least two sureties, who shall justify in double the amount of such penalty, conditioned for the payment as the court shall direct, upon the death of the husband leaving the wife surviving, of the said sum so fixed as equal to onethird of the fair value of the property, to be held for the benefit of the wife during her life and upon her death to be returned to the person giving such bond or to his executors, administrators or assigns. From Id., and portions of 2 R. S. 54, Part 2, ch. 5, tit. 2, §§ 14 and 17 (2 Edm. 55); ch. 417 of 1864, §§ 2 and 9 (6 Edm. 291); and ch. 446 of 1874, tit. 2, §§ 7, 13 and 20 (9 Edm. 930-933). Am'd by ch. 237 of 1890; ch. 639 of 1893, and by ch. 368 of 1903. In effect Sept. 1, 1903. See rules 58, 59 (Sup. Ct.). § 2362. Particular estates; when included in sale. Where the real property, or the estate, term, or other interest in real property, directed to be sold, is subject, absolutely or contingently, to a right of dower, or an estate for life, or is subject to an estate for years, in the whole or any part thereof, the person having the prior right or estate, may manifest in writing his consent, either to receive from the proceeds of the sale, a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of his right or estate; or to have a proportionate share of the proceeds of the sale invested, and the interest thereof paid to him, from the time of the investment, or of the commencement of his right or estate, as justice requires, until the determination of his right or estate. Upon filing the consent with the clerk, the final order may in the discretion of the court, direct a sale of the entire property to which the right or estate attaches. In such a case, the court must, after the sale, ascertain the value of the right or interest of the person so consenting; and the final order must either direct the payment, from the proceeds of the sale, of the gross sum so ascertained as the value, or the investment of a just proportion of the proceeds, and the payment to him of the interest thereof. But such a gross sum shall not be paid, nor shall such an investment be made, until an effectual release of the right or estate of the person so consenting, executed to the satisfaction of the court, and duly acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, has been filed with the clerk. From 2 R. S. 196, Part 3, ch. 1, tit, 2, §§ 181, 182 (2 Edm. 204); ch. 417 of 1864, §§ 11 and 12 (6 Edm. 292, 293), and ch. 446 of 1874, tit. 2, §§ 13, 15 and 16 (9 Edm. 932). § 2363. Id.; when belonging to infant, etc. Where the interest of the infant, or of the lunatic or other incompetent person, consists of a right of dower, or an estate for life, or for years, the final order may authorize the special guardian or committee to join, with the person or persons holding the reversionary estate, in a conveyance of the property to which the interest attaches, so as to release the right of dower, or fully convey the particular estate, on receiving, from the proceeds of the sale, a gross sum, in satisfaction of that interest, or a proportionate part of the proceeds, to be invested until the determination of the particular estate; and, in either case, to be ascertained as prescribed in the last section. Where a proportion of the proceeds is so received by the guardian or committee, for investment, the final order must provide for the investment thereof, until the determination of the particular estate; and then for the payment thereof to the person entitled thereto. § 2364. Debts of infant, etc., to be paid equally. In the application of money, arising from a sale, mortgage, or lease, made for the purpose of paying debts, as prescribed in this title, the special guardian of the infant, or the committee of the property of the incompetent person, must pay all debts, in equal proportion, without giving a preference to a debt founded upon a specialty, or upon which judgment has been taken. From a R. S. 54, Part 2, ch. 5, tit 2, 8 15 (2 Edm. 55), and ch. 446 of 1874, tit. 2, § 21 (9 Edm. 933). SUR RA TITLE VIII. Arbitrations. SEC. 2365. When submission to arbitration cannot be made. 2366. What controversies may be submitted, and how. 2367. Appointment of additional arbitrator, or umpire. 2368. Time for hearing; adjournment, etc. 2369. Arbitrators to be sworn. 2370. Attendance of witnesses, etc. 2371. All the arbitrators to meet; when majority may award. Fees. 2373. Motion to confirm award. 2374. Id.; to vacate award. 2375. Id.; to modify or correct award. 2376. Motions; when to be made. 2377. Costs on vacating award. 2378. Judgment on award; when and how entered. Costs. 2379. Judgment-roll. 2380. Effect of judgment; how enforced. 2381. Appeal. 2382. Effect of party's death, lunacy, etc.; proceedings thereupon. 2383. Revocation of submission. 2384. Liability of party who revokes. 2385. Limitation of recovery against him. 2386. Application of this title. § 2365. When submission to arbitration cannot be made. A submission of a controversy to arbitration cannot be made, either as prescribed in this title or otherwise, in either of the following cases: 1. Where one of the parties to the controversy is an infant, or a person incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness. 2. Where the controversy arises respecting a claim to an estate in real property, in fee or for life. But where a person, capable of entering into a submission, has knowingly entered into the same with a person incapable of so doing, as prescribed in subdivision first of this section, the objection, on the ground of incapacity, can be taken only in behalf of the person so incapacitated. And the second subdivision of this section does not prevent the submission of a claim to an estate for years, or other interest for a term of years, or for one year or less in real property; or of a controversy respecting the partition of real property between joint tenants or tenants in common; or of a controversy respecting the boundaries of lands, or the admeasurement of dower. From 2 R. S. 541, Part 3, ch. 8, tit. 14, § 2 and part of § 1 (2 Edm. 560). § 2366. What controversies may be submitted, and how. Except as otherwise prescribed in the last section, two or more persons may, by an instrument in writing, duly acknowledged or proved, and certified, in like manner as a deed to be recorded, submit, to the arbitration of one or more arbitrators, any controversy, existing between them at the time of the submission, which might be the subject of an action. They may, in the submission, agree that a judgment of a court of record, specified in the instrument, shall be rendered upon the award, made pursuant to the submission. If the supreme court is thus |