Cain, In re
| Decision Date | 13 October 1954 |
| Citation | 108 A.2d 578 |
| Parties | In the Matter of Nellie Rickards CAIN, an incompetent person. Orphans' Court of Delaware, Sussex County |
| Court | Delaware Family Court |
Robert W. Tunnell, of Tunnell & Tunnell, Georgetown, for the guardian.
Houston Wilson, Georgetown, for Daniel G. Anderson, Jr., and Nicholas J. Chase.
The sole question for determination is whether 12 Del.Code, § 3914 confers, expressly or by implication, the power upon this Court to direct a sale of real estate owned by a ward for whom a guardian has been appointed under that section.
The cited section contains five paragraphs. The first one designates those persons who may present a petition to this Court for the appointment of a guardian of the property of 'any person, resident in this State, (who) by reason of advanced age or mental infirmity or physical incapacity is unable to manage and care for his property, and in consequence thereof is in danger of dissipating or losing such property, or of becoming the victim of designing persons * * *.' The second paragraph provides for notice of a hearing. The third paragraph authorizes the Court to appoint a guardian of the property of such person, if satisfied that he is not able, for any of the reasons stated, properly to manage and care for his property.
The fifth paragraph provides that, from the time of the appointment, the ward shall be under disability to contract with regard to the property during the pendency of the guardianship.
The fourth paragraph reads as follows:
'In all matters relating to the appointment, qualification, duties and liability to account, such guardian shall be governed by all of the applicable provisions of law relating to the management of the estates of infants under guardianship and may be removed by the Orphans' Court upon application of the ward, or otherwise, whenever it appears that the guardianship is no longer necessary.'
The Orphans' Court has only such jurisdiction as has been conferred upon it by the Legislature, although within the bounds of that jurisdiction it follows equitable principles. First National Bank v. Andrews, 26 Del.Ch. 344, 28 A.2d 676. I, therefore, agree with the contention now made to the extent that this sale cannot be valid unless the power to order it has been given to the Court by the Legislature. There being no express words to that effect in the statute, the Act must be analyzed to see whether the authority exists by implication. In other words, what was the legislative intent?
Upon examining this Act, we discover that only two powers are expressly given the Court. The first is the right to appoint a guardian after making the prerequisite finding of incompetency; the second is the right to remove him whenever it appears that the guardianship is no longer necessary. Obviously, the Legislature could not have intended the Court's jurisdiction to be limited strictly to those two functions, for it expressly says that the law governing guardians of minors shall apply to guardians in these cases with respect to the appointment, qualification, duties and obligation to account. It would hardly be argued, for example, that this Court has no authority to fix the amount of the guardian's bond or to approve his account when filed. There comes to mind no valid reason to think that the Court cannot authorize the use of principal for the ward's necessities. Yet none of those powers is set forth in so many words. Clearly, then, some authority was necessarily intended to be conferred upon the Orphans' Court other than those expressly mentioned. Any other conclusion would be unreasonable and absurd.
Since some powers exist by necessary implication, the question then becomes one of ascertaining whether those implied rights go so far as to permit a sale of real estate. In determining this, we may examine the state of the law at the time the Act was passed, the mischief which the Legislature was seeking to correct, and the general purposes of the Act. Brown v. Wilmington & Brandywine Leather Co., 9 Del.Ch. 39, 74 A. 1105; Keedy v. Sterling Electric Appliance Co., 13 Del.Ch. 66, 115 A. 359; Lewis v. Du Pont, 2 Terry 347, 22 A.2d 832;...
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Conner, In re
...yet who could easily become the victim of designing persons or who are otherwise in danger of dissipating their property. In re Cain, Del.Orph., 108 A.2d 578. There is no inherent power in the Court to appoint a fiduciary for these purposes, In re Cain, supra, so jurisdiction is derived sol......