Brigham v. Boston & Albany Railroad

102 Mass. 14

Opinion

Morton, J.

Footnotes

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The defendants concede that the plaintiff is entitled to a decree for specific performance, if he can give them a valid title to the interest of Ellen M. Mayo in the land in question. But they allege that the plaintiff’s deed will not give such title, because his appointment as guardian is invalid, and because the notice of the sale at auction was defective.

1. It appears that on March 12,1868, application in due form was made to the judge of probate for the county of Suffolk for the appointment of a guardian of Ellen M. Mayo, alleged to be an insane person. Upon this application, an order of notice to said Ellen M., citing her to appear at a probate court to be holden on March 30, 1868, was issued, and served upon her more than fourteen days before said court. At a probate court holden on January 25, 1869, the judge of probate, after a hearing upon said application, appointed the plaintiff guardian, who on the same day filed his bond and took out letters of guardianship.

This case does not fall within the principle established by the authorities cited by the defendants. Chase v. Hathaway, 14 Mass. 222. Hathaway v. Clark, 5 Pick. 490. Ellis v. Morton, 4 Gray, 63. Here the insane person had due notice of the application for the appointment of a guardian, and full opportunity to be heard thereupon; and the only alleged defect in the proceedings of the probate court is, that she had no further notice of the time when the final decree was entered, and that the decree was not entered until after the lapse of several months.

But we are of opinion that this should not vacate the decree. The time at which such application shall be heard and the decree entered, and the question whether further notice to the parties interested is requisite, are matters within the discretion of the judge of probate. There is no provision of law requiring notice of the various steps in the proceedings to be given to the parties interested. Davison v. Johonnot, 7 Met. 388.

Nor are the other facts relied upon by the defendants sufficient to invalidate the decree. If it be conceded that the ward, or her representatives, might defeat the appointment, of the guardian, by proof of fraud practised upon her in procuring the appointment, yet the facts of this case do not prove such fraud. The facts, that the ward and her husband joined in a deed" to the defendants of another parcel of land, and that the husband represented that the application for the appointment of a guardian had been abandoned, do not prove that she was deceived or misled, or that the appointment of a guardian was procured by any fraud upon her.

We are therefore of the opinion that the appointment of the plaintiff as guardian was valid.

2. The notice of the sale at auction was not so defective as to vacate the sale. The omission of the date was not material, and would mislead no one. The notice, as inserted, taken in connection with the date of the paper, indicated the time, and place of sale beyond possibility of mistake.

Upon the facts agreed, we are of the opinion that the deed tendered by the plaintiff will convey a valid title to the defendants, and that the plaintiff is entitled to a

Decree for specific performance.

Colt and Ames, JJ., did not sit in this case.