239 N.C. 378
N.C.
1954
Parker, J.

The appellee briefly states its position thus: (1) Our law does not require or contemplate the appointment of a guardian ad litem for an alleged incompetent in lunacy proceedings; (2) No one, and especially an outsider, should be allowed, however worthy his motives, to inject himself into a lunacy proceeding, and whether under the guise of a purported (ex parte) appointment as guardian ad litem, or otherwise, expect to collect money for his time and trouble out of the incompetent’s estate.

The appellee on page 12 of its brief says : “In this connection, it should be noted that there is a statute permitting the appointment of a guardian or a guardian ad litem in a proper case upon a certificate from the superintendent of a hospital to the effect that a person in the hospital is ‘of insane mind and memory.’ G.S. 35-3.” It seems that the appellee has completely overlooked the certificate of incompetency filed with the Clerk of the Superior Court of Mecklenburg County by Dr. R. Charman Carroll. This appears to be very near, if not, an admission by the appellee that the appointment of the guardian ad litem in this proceeding was proper.

The appellee contends that G.S. 1-65, which provides that infants, lunatics, persons non compos mentis, etc., defend by a guardian ad litem applies only to actions and special proceedings, and an inquisition of lunacy under G.S. 35-2 is neither, quoting McIntosh N. 0. Prac. & Proc., Sec. 98, p. 96 : “An inquisition of lunacy would seem to be neither a civil action nor a special proceeding.” Dr. McIntosh cites as his authority G.S. 2285, now G.S. 35-2, which is captioned “Inquisition of Lunacy; Appointment of Guardian.”

An inquisition of lunacy as regards the person whose sanity is in question is a proceeding in personam; as it affects his property is a proceeding in rem. 44 C.J.S., Insane Persons, Sec. 8. Such an inquisition is certainly not a criminal action. G.S. 1-5. It is not a civil action as defined in G.S. 1-2. G.S. 1-3 states: “Every other remedy is a special proceeding.” Certainly such an inquisition is of a civil nature, though it would seem it is not a special proceeding under G.S. 1-3. In re Cook, 218 N.C. 384, 11 S.E. 2d 142.

The Clerk of the Court has only such jurisdiction as is given him by statute. Beaufort County v. Bishop, 216 N.C. 211, 4 S.E. 2d 525; High v. Pearce, 220 N.C. 266, 17 S.E. 2d 108; Johnston County v. Ellis, 226 N.C. 268, 38 S.E. 2d 31. The appellee contends that as the inquisition in lunacy was not a civil action or special proceeding, the Clerk’s appointment of the guardian ad litem for Adele B. Dunn in the proceeding was void.

We said in Smith v. Smith, 106 N.C. 498, 11 S.E. 188, “. . . we think it well settled that where there has been no inquisition the lunatic may sue by next friend” (citing in support decisions of tbe English Chancery Court). We think the reverse is equally true that where there has been no' inquisition the lunatic may defend by a guardian ad liiem.

The appellant contends that the case of Smith v. Smith, supra, refers only to actions and special proceedings.

However, in deciding this matter, it is not necessary for us to decide whether the Clerk’s order appointing Sam M. Millette, guardian ad litem for Adele B. Dunn, was void or not.

It is well settled law that an insane person is liable, under an obligation imposed by law, for necessaries furnished to him, provided there was an intent to charge therefor and credit was extended to him. 44 C.J.S., Insane Persons, Sec. .115. The obligation is to pay the reasonable value of the necessaries furnished. 28 Am. Jur., Insane and Other Incompetent Persons, Sec. 62. Ruffin, G. J., speaking for the Court in Richardson v. Strong, 35 N.C. 106, says: “There is, therefore, no absurdity in the case of lunatics more than in that of infants in implying a request to one rendering necessary services or supplying necessary articles, and implying also a promise to pay for them.” As to necessaries furnished infants see Cole v. Wagner, 197 N.C. 692, 150 S.E. 339; Jordan v. Coffield, 70 N.C. 110.

This question is presented: Were the services rendered in this case for which the guardian ad litem in his motion seeks payment from the estate of Adele B. Dunn necessaries for Adele B. Dunn?

An inquisition in lunacy is for the benefit of the alleged insane person, and necessary for the protection of his person and property. Depriving a person of his liberty and his freedom to do with his property as he deems proper and putting him under the stigma of insanity or of being a person non compos mentis is a grave matter'. Every reasonable safeguard should be thrown around a person whose sanity is inquired into. An incompetent person is helpless and the law must think and act for him.

“It is generally agreed that insanity proceedings are for the benefit of the alleged incompetent, and necessary to the protection of his person and property. Since legal services are required in the proper prosecution and defense of the proceedings the fees of counsel involved on both sides have been held recoverable from the incompetent’s estate on the principle that an incompetent is liable for necessaries furnished him.” Anno. 22 A.L.R. 2d, p. 1439, where the cases are cited. This statement has been quoted verbatim in Cumulative Supplement to Yol. 28 Am. Jur., p. 116.

“On the theory that one alleged to be incompetent is entitled to a defense, as essential to the protection of his rights, it has been frequently held that an attorney who defends him is entitled to compensation even though the verdict is against his client.” Anno. 22 A.L.R. 2d, p. 1447, citing cases from Kentucky, Louisiana, Missouri, New Jersey, New York, Pennsylvania and England.

In Field v. Tarner (1855, Eng.), 3 Eq. Rep. 1012, 3 Week R 469, a solicitor was held entitled to recover from the estate of bis client, after the latter’s death, the costs of an unsuccessful opposition to an inquiry into the client’s state of mind. Tbe court said tbat an insane person was entitled to be represented in the investigation into bis sanity, and tbat no solicitor would represent bim if costs were refused.

Buswell on Insanity, Sec. 284, is as follows: “Costs and counsel fees reasonably incurred by either party in proceedings to establish tbe lunacy of a person are regarded, both at law and in equity, as necessary expenses incurred for tbe benefit of tbe lunatic, and are recoverable against bim or bis estate.”

“As a general rule, in some jurisdictions affirmed by express statutory provisions, where there is a finding of insanity, the costs of the inquiry are to be paid by the insane person or bis estate, it being considered tbat these are in the nature of necessary expenses incurred for the benefit of the person and for which be or bis estate is impliedly bound. . . . Tbe costs include any expenses reasonably and properly incurred. Commissioners’ and attorneys’ fees are proper items of costs; but the items of costs are restricted to those incurred in the lunacy proceeding, and therefore expenses incurred before or after the inquest generally are not allowable.” 44 C.J.S., Insane Persons, Sec. 34, pp. 98-99. In addition to the authorities cited in support of the text, see Re Freshour, 174 Mich. 114, 140 N.W. 517, 45 L.R.A. (N.S.) 67, Ann. Cas. 1915A 726, where additional authorities are cited. Tbe authorities are not entirely agreed on this subject but it would seem tbat the better rule and the one apparently followed by a majority of the courts is as we have quoted it above.

It is the rule with us that when the court is called upon to make an allowance for attorneys, guardians ad litem, etc., such allowances should be fair and reasonable. Mood, Comr. of Banks, v. Cheshire, 211 N.C. 103, 189 S.E. 189.

On 24 March 1952 tbe Clerk of tbe Superior Court of Mecklenburg County acting under G.S. 122-79 committed Adele B. Dunn to Highland Hospital, Asheville, for observation and treatment, finding as a fact tbat her remaining at large was injurious to her, and disadvantageous, if not dangerous, to tbe community. That was done without any notice served upon her, or upon anyone in her behalf, and in her absence. On 13 May 1953 a petition in accord with G.S. 35-2 was filed with tbe Clerk by a brother of Adele B. Dunn requesting an inquisition of lunacy in respect to Adele B. Dunn and tbe appointment of a trustee for her property. On 15 May 1953 Grace Garrison, a close friend of Adele B. Dunn, acting for herself and other friends of Mrs. Dunn, employed Richard M. Welling of tbe Charlotte Bar to represent Mrs. Dunn in tbe sanity bearing, and Grace Garrison agreed to advance bim a fee of $500.00 and paid bim $200.00. Grace Garrison filed a written application with the Clerk requesting him to appoint a guardian ad litem in said proceeding for Mrs. Dunn to protect her interests. It would seem reasonable to infer that Welling drafted the petition for her. The Clerk appointed Millette as guardian ad litem, and he employed Welling as his attorney. It is apparent that Grace Garrison, Dr. W. D. Holbrook, Miss Neva Cox, Richard M. Welling and the guardian ad litem acted in good faith under the Clerk’s appointment of Millette as guardian ad litem, particularly in the light of the affidavit of J. Spencer Bell. The guardian ad litem, his attorney Welling, Dr. W. D. Holbrook, Miss Neva Cox and Grace Garrison have performed services in the sanity proceeding, which resulted in the protection of the incompetent and the preservation of her estate valued in excess of $500,000.00, and certainly there was an intent on their part, with the exception of Grace Garrison, to charge for such services, for which they expected pay from the estate of Mrs. Dunn.

We think, under the facts of this proceeding, that the services rendered by Dr. W. D. Holbrook, Miss Neva Cox, Sam M. Millette, guardian ad litem, and Richard M. Welling, his attorney, are in the nature of necessary expenses incurred for the benefit of Adele B. Dunn, for which her estate is impliedly bound, and for such services incurred in the lunacy proceeding, and this includes reasonable expenses of Welling necessarily incurred and paid by him in the proceeding (which it is alleged amount to $32.58), the court should make such allowances to them as are fair and reasonable. When the court has fixed the allowance to Richard M. Welling, it shall deduct $200.00 therefrom, and pay it to Grace Garrison.

This proceeding is ordered remanded to the lower court, where judgment shall be entered in accordance with this opinion.

Error and remanded.