Appeal of Gibson
| Decision Date | 14 September 1891 |
| Citation | 154 Mass. 378,28 N.E. 296 |
| Parties | Appeal of GIBSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.C. Joyner, for appellant.
A.C Collins, for petitioner.
If the petitioner, to whom the decree awarded the personal estate of the testator, was his legally adopted child, the decree was right. The act of adoption was in 1861, upon a petition to the probate court by the testator and his wife, assented to in writing by one Gardner as guardian of the petitioner, then four years of age, the decree of adoption having been made without the service or publication of any notice on the day of the presentation of the petition. The child was illegitimate, and her mother, to whom her father was never married, was dead. Her father is said to have been living in the same county, but never to have contributed to her support, or to that of her mother. The agreed facts do not state that he was ever adjudged to be the father of the child, or that he ever acknowledged her as his child. Gardner had been appointed by the probate court as her guardian, upon his own petition, and without any notice, three months before the date of publication of the adoption, but after the death of her mother. The appellant claims that the appointment of the guardian was void for want of notice, and that the adoption was invalid because the consent of Gardner was thus of no effect, and because no notice of the proceedings was given to the father. Without passing upon the question whether either the guardian's appointment or the adoption could be declared invalid in this proceeding, we are of the opinion that Gardner was legally appointed, and that the adoption was valid.
1. By Gen.St. c. 109, § 2, then in force, the probate court was empowered to nominate and appoint a guardian for any minor under the age of 14 years. The statute did not, in terms require any notice of the proceedings, or any nomination or consent on the part of the minor or of any person. We see no reason why, in such cases, notice should be held to be essential to the validity of the proceedings; and the history of the legislation on the subject, in connection with the decisions and practice, confirms this view. The judges of probate were empowered by the Statutes of 1783, c. 38, §§ 1 2, to appoint guardians for minors and for insane persons. In neither case did the statute in terms require notice. The provisions regulating the appointment of guardians for minors have remained substantially the same. Rev.St. c. 79, §§ 2, 3; Gen.St. c. 109, §§ 2, 3; Pub.St. c. 139, §§ 2, 3. In practice it has never been considered essential that notice should be given in the case of a minor under the age of 14 years. But in the case of insane persons this court held, in the case of Chase v. Hathaway, 14 Mass. 222, 224, that notwithstanding the silence of the statute, no decree made under it, assigning a guardian for an idiot or lunatic, could be valid unless the party to be affected had had an opportunity to be heard. This decision was placed upon the ground that whenever the legislature has provided that on account of crime or misfortune the public safety demands a suspension of the essential rights of the individual to the enjoyment of his liberty and property, "and has provided a judicial process by which the fact shall be ascertained, it is to be understood as required that the tribunal to which is committed the duty of inquiring and determining shall give opportunity to the subject to be heard in support of his innocence or capacity." Chase v. Hathaway, ubi supra. But in the case of a minor of tender years, whose person is by the law presumed to be in the care and custody of parents or other guardians, and who has not the right of dealing with his own property, these considerations do not apply. When the statutes relating to guardians were revised by the commissioners under the resolve of February 4, 1842, the provisions relating to minors were left substantially unchanged, and did not in terms require notice. But a new section was reported, the substance of which was enacted in the Revised Statutes, c. 79, § 9, requiring notice to a person supposed to be insane, of which the commissioners say: "It is new, but merely adopts what is understood to be the settled law and practice in the courts." Com. Rep. on Revision of...
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...e.g., Nunn v. Nunn, 81 N.M. 746, 473 P.2d 360 (1970); Marshall v. Indus. Comm'n, 342 Ill. 400, 174 N.E. 534 (1930); Appeal of Gibson, 154 Mass. 378, 28 N.E. 296 (1981); Prudential Ins. Co. of Am. v. Warner, 328 F.Supp. 1128 (W.D.Va.1971). See also Hahn v. Brown, 51 Ohio App.2d 177, 367 N.E.......
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