Parke's Case

41 Pa. Super. 531, 1910 Pa. Super. LEXIS 261

• Court: Superior Court of Pennsylvania
• Decided: March 3, 1910
• Docket: Appeal, No. 108
• Status: Published

Opinion

Opinion by

Henderson, J.,

The record does not disclose any facts which require a reversal of the order appealed from. The case originated under the Act of May 28, 1907, P. L. 292, providing for the appointment of a guardian for insane, feeble-minded or epileptic persons unable to care for their property, on the petition of the wife of the alleged lunatic. Pending a hearing on the primary order the court appointed a temporary receiver of the estate. Whether this should be done or not was a matter resting in the sound discretion of the court having jurisdiction of the case. The principal object of the proceeding is to provide for the care of the estate and it may be the exercise of a wise discretion to make such temporary provision. It would be necessary to make out a very clear case of abuse of discretion to warrant a reversal by this court of such an order: Misselwitz’s Case, 177 Pa. 359. The receiver having been invested, then, with the custody of the property it became subject to the control of the court. The sixth section of the statute gives full power to the court appointing such guardian to make an allowance for the support of the lunatic or feeble-minded person and his wife and children. Under this authority the court made the provisional order complained of. It is not suggested that it is unreasonable or excessive, and the very moderate amount allowed would refute any such allegation. The appellant only contends that under the thirty-third section of the Act of June 13, 1836, P. L. 589, the directors are authorized to sue for and recover any real or personal property belonging to any poor person who has become chargeable to their district. Their case is made up of a petition not supported by the record of any proceeding nor is it set forth that an order of relief had been issued in favor of the alleged lunatic or that any emergency had arisen which subjected the district to liability for his care. It was held in Kennedy v. Poor District, 15 Pa. Superior Ct. 1, that there is no liability to furnish relief without an order except in cases of emergency, and that without such order no action would lie against the district. If the case were disposed of on the line of the appellant’s argument, therefore, its appeal must fail from lack of evidence showing its liability, but the subject of the appointment of a guardian has not been disposed of by the court in which it is pending, and no good reason is shown why the action of the court ought not to be sustained. When we consider the small amount of the estate which went into the hands of the receiver and the order providing for the payment of the expense of maintaining the lunatic in the event that he be committed to the asylum the intervention of this appeal can hardly be looked upon as promotive of the welfare of the ward, of his family or advantageous to the appellant. We have thought it advisable to thus dispose of the case without discussing the objection raised by the appellee that the appellant has no standing to take an appeal.

The decree is affirmed at the cost of the appellant.