16 F. Cas. 1103 | U.S. Circuit Court for the District of Rhode Island | 1853
The questions are, whether the probate of this will is defective, and if so, whether that defect renders the decree void, or only voidable by some appropriate proceeding to be had in that matter, by appeal or otherwise, as provided by law. To enable a statute guardian to bind his ward by a proceeding in a court of justice, some statute authority must be found for his act. The statutes of the several states on this general subject are not uniform, but I am not aware that any where the statute guardian is made, generally, competent to represent his ward in legal proceedings. The general rule certainly is, that a guardian ad litem is to be appointed for that purpose. 1 Johns. 509; 10 Johns. 486; 8 Cow. 365; 3 Chit. Gen. Prac. 288. And this, rule extends to probate courts. Hart v. Gray [Case No. 6,152]. It is very clear that no court would appoint the statute guardian, guardian ad litem, if his interest were directly opposed to that of the ward. Parker v. Lincoln, 12 Mass. 16; Noyes v. Barker, 4 N. H. 406.
The defendants’ counsel do not assert that Amasa Sprague, who was one of the residuary legatees and devisees under the will, and, therefore, strongly interested to procure
The first section of the act of January 20, 1S24 (Pub. Laws R. I. 57S), repeals so much of the tenth section of the said act as provides for the manner of giving notice. The second section requires, that previous to the rendering of any order or decree in any matter before them, the court of probate shall cause all parties known to them to be interested, living within the state, to have notice. It then prescribes different modes of giving notice, and then provides that if all such parties shall have given their consent in writing, the court may proceed without notice.’ It is argued that the clause in this tenth section, respecting the service of notice on guardians, is not repealed; and that if, by law, notice was to be served on the guardian, it was competent for him to consent to proceed without notice. I do not know that this necessarily follows, especially in a case like the present. It can hardly be supposed the law intended that a guardian, interested against his ward, would represent him in court; it must have expected that the effect of a notice to his ward, served on him, would be, that he would take care that his ward was properly represented in court by another; and not that he would consent to have the court proceed instanter. without actual notice to the ward, and without such fit representation being provided for by the ward, or his friends, or the ■ court. And it does not seem to me that an authority to take a legal notice, of a length prescribed by law, for the ward, necessarily, and in all cases implies an authority to shorten the time and agree to a proceeding instanter. But it is not necessary to rest upon this; for I think this clause in the tenth section is repealed. The repeal is. of so much of the tenth section, as provides for the manner of giving notice. This is not a repeal of the whole section; but besides the first part of the section which relates to notices, there is another part which relates to the effect of an appeal. This satisfies the restrictive words, “so much,” &c.; and though it is only what relates to the manner of giving notice which is repealed, yet the clause in question, which provides a manner of giving notice to wards by serving on their guardians, is clearly within the description of the part repealed. My opinion is, that-this guardian was not empowered by any statute to consent in writing for his ward, and consequently, that the proceeding was irregular. And I think it very clear, that this irregularity was of such a nature to render the decree utterly void, as against this plaintiff.
A court of probate has only a special and limited jurisdiction. And being expressly required by statute, before making any decree, to cause those interested to have notice. if it proceeds to make a decree without complying with this requisition of law, any party entitled to notice, may treat such a decree as void; and this upon several grounds. 1. Because the court has not jurisdiction to determine the rights of such parties. This was held by the supreme court, in Harris v. Hardiman, 14 How. [55 U. S.] 344, in respect to a court of common law, which had rendered a judgment by default, without notice. And in numerous cases the same law has been applied to courts of probate. 11 Mass. 507; 5 Pick. 343; 18 Pick. 115; 3 Cush. 352; Hart v. Gray [supra]. 2. This court being of a special and limited jurisdiction can do no binding act which is prohibited by statute, and it is prohibited to make a decree without notice. 2 Mass. 120; 7 Mass. 70; 4 Mass. 117; 11 Mass. 513, 514, and the cases there cited. 3. The plaintiff could not appeal, for he had no notice of the decree; and no writ of error will lie; whenever a person interested, cannot have remedy according to law, by writ of error or appeal, he may avoid the judgment or decree by plea and proof; that is, whenever it is set up to affect his rights, he may aver its nullity. 11 Mass. 513, and cases there cited; 17 Mass. 91; 2 Metc. [Mass.] 138.
It has been argued, that though this may be so in cases affecting the person, these principles are not applicable to a decree of probate of a will. That this was a proceeding in rem; and when the will was filed the court obtained jurisdiction, and its decision that the guardian could consent for the ward, though it may have been erroneous, was an error occurring in the exercise of its jurisdiction. It is true, the proceeding is, in some sense, in rem; but so was the proceeding in 11 Mass. 507. where this subject was very carefully considered, and in 4 Mass. 117, and 7 Mass. 70, and 17 Mass. 91. These were decrees of partitions, which were strictly in rem. And there is no sound reason for any distinction between decrees in rem and in
After this decision had been given, the defendants’ counsel offered to prove the will in this action; but THE COURT ruled, that the only tribunal competent to receive the evidence, and pass on the probate of the will, was the court of probate; that the decree of that court, admitting or refusing probate, is conclusive, both as respects lands and personalty, and its jurisdiction over the question of probate is exclusive. The defendants’ counsel then moved for a continuance to enable the defendants regularly to offer the will for probate to the proper court, and it was granted; THE COURT being satisfied that the defect in the proceedings was not occasioned by any fraud, but was merely a mistake, which the defendants ought to have opportunity to correct.