Allis v. Morton

70 Mass. 63

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Thomas, J.

This is an appeal from the decree of court of probate, appointing the respondents guardians of the appellant, an insane person.

The appellant had been before under guardianship, but his guardian had deceased. The appellant still being insane, the respondents were appointed his guardians, but without notice to him. The question is, whether such appointment is valid.

It clearly is not. The former guardianship was terminated by the death of the guardian. Upon the questions, whether a new guardian should be appointed, and who that new guardian should be, the care and custody of the appellant’s person and property depended. There can be no doubt of his interest in the result.

To say one is insane, and therefore need not be notified, is to decide the question before it is tried. Nor would the existence of insanity be a good reason for dispensing with the notice. A man may be insane so as to be a fit subject for guardianship, and yet have a sensible opinion and strong feeling upon the question who that guardian shall be. And that opinion and feeling it would be the duty as well as the pleasure of the court anxiously to consult, as the happiness of the ward and his restoration to health might depend upon it.

But if the party is wholly demented, yet there are always friends interested in the question, and whom the notice might reach; and the very fact of his incapacity to take care of himself furnishes a sound reason for caution and publicity in all the steps taken.

The fair construction of §§ 9, 22 of c. 79 of the Rev. Sts., taken together, leads to the same result. And if the statutes were wholly silent on the subject, the benignant principles of the common law would require the notice to be given. Chase v. Hathaway, 14 Mass. 222.

Decree of prohate court reversed.