81 Neb. 193 | Neb. | 1908
The appellants filed their petition in the county court of Cuming county, alleging that their father, the appellee, was the owner of real estate valued at $10,000, and that he, by reason of extreme old age and impaired health, was mentally incompetent to have the charge and management of his property, and incapable of taking care of himself. Upon the trial thereof the county court found against the appellants, and dismissed the action. An appeal was taken to the district court, and from an order dismissing such appeal the case is brought here.
It is contended by the appellee that no appeal will lie from an order dismissing the application for the appointment of a guardian of an alleged incompetent person. Section 5381, Ann. St. 1903, provides that the relations or
It has be«n held by other courts that such an appeal will not lie, because the petitioner has no interest in the proceeding which will entitle him to prosecute his petition further than the court of original jurisdiction. See Studebaker v. Markley, 7 Ind. App. 368; State v. Branyan, 30 Ind. App. 502, and, also, to the same effect is Nimblet v. Chaffee, 24 Vt. 628. In Studebaker v. Markley, supra, it is said: “The petitioner who institutes the proceeding is not a real party in interest. It is a matter of no special concern to him that any person be adjudged of unsound mind; whilst to the court, and to the public, it may be a matter of great solicitude. It is not the function of the petitioner to take upon himself the management of the proceeding. His position is analogous to that of a friend of the court. * * * After the proceeding is instituted, his duty is done, and that of the court begins. * * *
And, again, not only are property interests involved, but the personal welfare of the incompetent person himself is a matter of as great concern. One who, on account of extreme old age or by reason of mental incapacity, is unable to properly take cane of himself is entitled to the care and protection of his next of kin, and they are entitled to demand of the courts a warrant of authority, so that they may legally exercise the necessary control to restrain the unfortunate from pursuing a course, not only destructive of his financial interests, but also disastrous to his health and comfort. The next of kin or dependent relatives are primarily interested as such in the comfort and general welfare of the incompetent, and if they appear only in his behalf it would seem that they would have the right to appeal in such representative capacity. Moreover, the mere fact that the alleged incompetent' person resists the application does not take away the right or the duty of his next of kin to appear for him; for, indeed, if he was in fact insane, his resistance of the application would furnish no reason whatever for the dismissal thereof.
It is true that upon a change of conditions further application might be made to the county court, and the same matter, with additional evidence, tried again before that tribunal. But the matter is of such importance that we do not consider that the interested next of kin should be re
We are not entirely without precedent for the conclusion we have reached. It was held in In re Olson, 10 S. Dak. 648, that such an appeal would lie, and there, as here, the children of the alleged incompetent person were the appellants, and in the opinion we find the following: “If their father was incapable of caring for himself and his property, who could be more vitally interested than his children in having his estate preserved by a suitable guardian? They are certainly interested in the estate affected by the order appealed from. As to them, it was clearly an appealable order.” We held in Prante v. Lompe, 77 Neb. 377, that in a proceeding for the appointment of a guardian for an alleged incompetent person his next of kin were proper parties, and they could appear in court and oppose the petition for the appointment of a guardian. In that case the county court refused the application of the next of kin to set aside an order appointing a guardian. It appears that an appeal may be taken from an order appointing a guardian by any person aggrieved. “But the interest of such person must be a substantial one, not that of love or affection of a relative, unless he is a presumptive
We recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.