Judge of Probate v. Hinds

Superior Court of New Hampshire

Judge of Probate v. Hinds

4 N.H. 464

Superior Court of New Hampshire·Decided November 15, 1828·Published

Opinion

The opinion of the court was delivered by

Richardson, C. J.

The question which this case presents for our decision, seems to us to be free from all doubt and difficulty.

Had the judge of probate, in the county of Cheshire, jurisdiction to appoint guardians to minors residing in the county of Grafton ? The answer to this question must be found in the statutes, which give to judges of probate the power to appoint guardians.

The statute of February 3, 1789, sec. 25, enacts, “ that the several judges of probate in their respective counties [468] in this state, when and so often as there shall he occasion, be and hereby are empowered to allow of guardians that shall be chosen by minors of fourteen years of age and upwards, and to appoint guardians for such as shall be. within that age.” The statute of July 2, 1822, sec. 22, contains a similar provision.

Judges of probate are authorized by the statute to appoint guardians when and so often as there shall he occasion.

To ascertain, then, in this case, whether the judge of probate had authority to appoint' guardians, we have only to ascertain whether there was an occasion for guardians in the county of Cheshire. On this subject there can be no doubt. The estate of the father of these wards was under administration in the county of Cheshire, and this furnished a proper occasion for the appointment of a guardian, if none had been appointed in the county where the wards resided. Their residence might have furnished a proper occasion for the appointment of a guardian in the county of Grafton, and this would have taken away the occasion for such an appointment in the county of Cheshire.

But there having been no appointment in the county of Grafton, we have no hesitation in holding, that the judge df probate in Cheshire had authority to appoint. A proper occasion for an appointment existed in both counties, and we think the authority might have been exercised in either county.

There must, therefore, according to the agreement of the parties, be

Judgment for the plaintiff.

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The opinion of the court was delivered by

Richardson, C. J.

The question which this case presents for our decision, seems to us to be free from all doubt and difficulty.

Had the judge of probate, in the county of Cheshire, jurisdiction to appoint guardians to minors residing in the county of Grafton ? The answer to this question must be found in the statutes, which give to judges of probate the power to appoint guardians.

The statute of February 3, 1789, sec. 25, enacts, “ that the several judges of probate in their respective counties [468] in this state, when and so often as there shall he occasion, be and hereby are empowered to allow of guardians that shall be chosen by minors of fourteen years of age and upwards, and to appoint guardians for such as shall be. within that age.” The statute of July 2, 1822, sec. 22, contains a similar provision.

Judges of probate are authorized by the statute to appoint guardians when and so often as there shall he occasion.

To ascertain, then, in this case, whether the judge of probate had authority to appoint' guardians, we have only to ascertain whether there was an occasion for guardians in the county of Cheshire. On this subject there can be no doubt. The estate of the father of these wards was under administration in the county of Cheshire, and this furnished a proper occasion for the appointment of a guardian, if none had been appointed in the county where the wards resided. Their residence might have furnished a proper occasion for the appointment of a guardian in the county of Grafton, and this would have taken away the occasion for such an appointment in the county of Cheshire.

But there having been no appointment in the county of Grafton, we have no hesitation in holding, that the judge df probate in Cheshire had authority to appoint. A proper occasion for an appointment existed in both counties, and we think the authority might have been exercised in either county.

There must, therefore, according to the agreement of the parties, be

Judgment for the plaintiff.

Judge of Probate v. Hinds, 4 N.H. 464 (N.H. Super. Ct. 1828).

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