15 Haw. 372 | Haw. | 1904
OPINION OF THE COURT BY
Under tbe title, “In tbe Matter of tbe Estate of William Brasb, Deceased, Probate 152”, Susan Brasb, wbo is claimed by ' tbe appellant to be a person of unsound mind and of whose person and property tbe appellant claims to be guardian, on September 19, 1902, filed, before tbe Circuit Judge at Chambers, fin Probate, an affidavit and petition in which she avers inter -alia, “that said J. Alfred Magoon” (appellant) “was, as she is informed and believes, never legally appointed her guardian •and that she does not wish him to act in that or in any other -capacity for her” and prays, in part, that Mr. Magoon render a final account and deliver forthwith to her all personal property 'to which she is entitled under tbe will of her father. Tbe Cir-■i eui-t Judge rendered a decree declaring that a legal guardianship
The facts, which are undisputed, are as follows: William Brash, father of Susan Brash, died in Honolulu on April 11,. 1880, leaving a will. On April 18, 1880, a petition for proof of the will and for letters testamentary was filed and on the-same day was issued an order of publication of notice of the' time and place of the hearing of the petition for probate. Notice' as so ordered was published in an English newspaper, designating May 5, 1880, as the time of the hearing. On the return day, a hearing was had. The clerk’s minutes, under the title,. “In the Matter of the Proof of the Will of William Brash; of Honolulu, deceased”, read, in part, as follows: “Petition of William G. Brash, son and Executor, for probate of the Will of.' the above-named decedent 'and for the issuance of Letters Testamentary to him, the said William G. Brash. Order of Hearing, made 13th April returnable this day.
“Present: R. E. Bickerton for Petitioner, Wm. G. Brash,. Mrs. Elizabeth Brash Hobson and Susan Brash.
“Mr. Bickerton reads the petition, Order of Hearing and files the affidavit of publication and calls” four witnesses who testified to the death of the testator and to the execution of the will-One of the witnesses, a son of the decedent, in giving his testimony said: “Susan Brash, who is in court, needs a guardian,, having been an invalid since childhood.” “The Court”, the-minutes continue, “admits the Will to probate and orders that Letters Testamentary and Letters of Guardianship of the estate of Susan Brash may issue to Wm. G. Brash, it appearing that the said Susan Brash is of unsound mind and it being suggested by the will and Letters of Guardianship of the person of said Susan Brash may issue to Mrs. Elizabeth Brash Robson.” Letters were, presumably, issued as ordered:
There can be no doubt that this last mentioned appointment •of Mr. Magoon as- guardian was merely by way of substitution and that no hearing was then had or adjudication made on the question of the soundness of Susan’s mind. It was based upon the adjudication made in 1880 and is not valid unless the appointment of W. G. Brash as guardian was valid.
The main question is whether or not the adjudication made in 1880 that Susan was of unsound mind is valid, and, more specifically, whether the court acquired jurisdiction over the alleged insane person. In our opinion, the court did not acquire such jurisdiction. Our statute on the subject, Section 1963, •'C.L., reads: “When the relations or friends of any insane per•son shall apply to any of the Judges hereinbefore mentioned, to Rave a guardian appointed for him, the Judge shall cause notice ‘to be given to the supposed insane person, of the time and place •appointed for hearing the case, not less than fourteen days before the time so appointed, and if after a full hearing, it shall •appe'ar to the Judge that the person in question is incapable of ‘taking care of himself, the Judge shall appoint a guardian of his ■person and estate, with the powers and duties hereinafter speei-■fied.” It may be assumed for the purposes of this case, without -so deciding, that the application referred to in that statute need not be in writing but may be oral and that the lack of a “full Rearing” was a mere irregulariy of procedure which cannot be
It is contended that this statutory requirement applies only in eases where an application is made by relatives or friends and not in a case where the judge of his own motion institutes an inquiry. Assuming that this is so and that, aside from the statute, the judge in probate would have inherent power to make such an appointment, still the fundamental principles of justice and of law would require that reasonable notice and an opportunity to be heard be given to the party whom it is proposed to deprive of rights of person and of property. Citations of authorities upon this point would seem to be unnecessary. See, however, Eddy v. The People, 15 Ill. 386, 387; In re Abraham Whitenack, 3 N. J. 252; Jessup v, Jessup, 7 Ind. App. 573,
It is further contended that the defects, if any, as to notice and opportunity to be heard, have been waived and the adjudication and appointment ratified and confirmed by Susan’s appearance at subsequent hearings upon annual 'accounts and other proceedings in the course of the alleged guardianship. Assuming that Susan has at times been present at such hearings, still, if she was of unsound mind as found by the probate judge and as it was necessary for him to find in order to have authority to appoint a guardian, she was incompetent to make any such waiver or ratification. See Behrensmeyer v. Kreitz, 135 Ill. 591, 638, and North v. Jeslin, 59 Mich. 624, 647. The appellant is not in a position to concede that she was not insane. On the contrary in his answer in the matter at bar he alleges that she is a person of weak mind and at times is entirely bereft of reason.
For other cases bearing upon the subject of notice in cases like that at bar, the objects of and reasons for notice upon one actually insane and the result of lack of notice, see Coolidge v. Allen, 82 Me. 23, 25; Jessup v. Jessup, 17 Ind. App. 177, 187; Hathaway v. Clark, 22 Mass. 490, 491; Chase v. Hathaway, 14 Mass. 221, 225; Rust’s Appeal, 177 Pa. St. 340, 343; Sears v. Terry, 26 Conn. 273, 284; Appeal of Royston, 53 Wis. 612, 618.
While it may be that with the proceedings of courts of record all reasonable presumptions must, in the absence of any showing to the contrary, be indulged in in support of the jurisdiction, in this case a common sense reading of the record requires us to hold that the actual proceedings had were those only which are detailed above and that no notice of any proposed guardianship or opportunity to be heard was given the alleged insane person.
The ruling that the former order of guardianship and appointments of guardian are null and void is correct. No order to vacate these was made and the form of the affidavit or petition by Susan Brash, and more particularly of its prayer, leaves it at least doubtful whether such a decree of vacation can properly be made on the present pleadings. The declaration of a
The decree appealed from is reversed and the cause remanded-to the circuit judge for such further proceedings, consistent with-this opinion, as may be necessary.