209 N.W. 640 | Minn. | 1926
Prior to the appointment of the guardian Mrs. Scott had employed J.H. Whitely, an attorney, on a contingent fee contract to prosecute an action to recover $2,159.
The guardian qualified on January 6, 1922. Letters issued the next day. The guardian settled the lawsuit for $450 without the knowledge of Mr. Whitely. In May, 1922, Mrs. Scott died. Her will was admitted to probate on August 1, 1922. Mr. Whitely learned of the appointment of the guardian on January 9, 1922.
On August 4, 1922, Mr. Whitely claiming to be a creditor made his petition for the vacation of the order appointing the guardian on the grounds that: (1) The petition did not meet the statutory requirements; (2) the statutory notice for hearing was not given; (3) the signature of the petitioner was procured by undue influence; and (4) Mrs. Scott was not in fact incompetent.
1. May a person, because of his own incompetency, petition for the appointment of a guardian for himself? Jurisdiction of the probate court is conferred by the Constitution. Art. 6, § 7. Such jurisdiction in its field of operation is exclusive and general. State v. Ueland,
2. Jurisdiction depends upon the filing of the petition and not upon notice. Hanson v. Nygaard,
3. Whether Mrs. Scott was in fact incompetent could be litigated only in the proceedings and could not be reached after the time for appeal had expired. This should be true as to any of the essential facts stated in the petition. The creditor did not appeal. *77 If the court was without jurisdiction or if the signature of petitioner was procured by undue influence, which is a species of fraud, he selected a proper procedure. The trial court exonerates the party charged with undue influence and we have above held that jurisdiction was acquired by the petition.
The other assignments of error are not important.
Affirmed.