Appeal Of Waitt.
| Citation | 34 A.2d 476 |
| Parties | Appeal of WAITT. |
| Decision Date | 28 October 1943 |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Supreme Court of Probate, Kennebec County.
Viola M. Waitt was removed as guardian of her two minor children and Walter M. Sanborn of Augusta was appointed in her stead on petition of one E. Max Gladstone of Brookline, Mass. An appeal from the new appointment was denied by the Supreme Court of Probate under a decree which affirmed the action of the judge of probate, and Viola M. Waitt took exceptions.
Exception sustained, and decree of probate court declared void for want of jurisdiction.
Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.
George W. Abele, of Boston, Mass., and Brooks Whitehouse, of Portland, for appellant.
Walter M. Sanborn, of Augusta, for appellee.
Viola M. Waitt was appointed guardian of her two minor children by the Kennebec Probate Court on January 2, 1941. On December 28, 1942 she was removed as guardian, and Walter M. Sanborn of Augusta was appointed in her stead. The latter action was taken on petition of one E. Max Gladstone of Brookline, Mass., setting forth that he was interested in the estate of the minors by virtue of an appointment as their guardian ad litem in a proceeding in the Probate Court of Plymouth County, Mass. Appeal from the new appointment was denied by the Supreme Court of Probate under decree which affirmed the action of the Judge of Probate. The case comes forward on exceptions.
There being no statutory right of appeal from the removal of a guardian, R.S. c. 75, § 31, the appeal proceedings in the Supreme Court of Probate were necessarily restricted to the new appointment. The exceptions, in substance, assert:
(1) That the court can act only on the petition of an interested party; that a guardian ad litem appointed for a special purpose in proceedings in another State is not such an interested party.
(2) That the petition sought only the removal of the appointed guardian, contained no prayer for the appointment of a new guardian and the court had no authority to make such new appointment without petition, due notice and hearing thereon.
(3) That there was abuse of discretion in the appointment as the appointee was counsel in the proceedings.
The only record before this court is the petition, the decree of the Probate Court, the appeal therefrom, the decree of the Supreme Court of Probate, and the exceptions taken thereto.
Counsel for the petitioner improperly included in his brief a statement of alleged facts, unsupported of record, and counsel for the appellant thereupon in a reply brief gave their version of the factual background. In judicial procedure such unwarranted attempts to secure consideration of matters outside the record can receive no recognition or consideration and will not be countenanced.
Of primary consideration is the exception which raises the fundamental question that the Probate Judge had no jurisdiction or authority to act upon the petition appearing in the record, since the proceedings were not initiated by a party in interest.
Probate Courts are creatures of statute and not of the common law, and have a special and limited jurisdiction. They have no jurisdiction, no powers, no modes of procedure or practice, except such as are derived from the provisions of the statutes. The record of their proceedings must show their jurisdiction. The preliminary requisites, and the course of proceedings prescribed by law, must be complied with or jurisdiction does not attach. Moody v. Moody, 11 Me. 247; Overseers of Poor of Fairfield v. Gullifer, 49 Me. 360, 77 Am.Dec. 265; Coolidge v. Allen, 82 Me. 23, 19 A. 89; Tracy v. Roberts, 88 Me. 310, 34 A. 68, 51 Am.St.Rep. 394.
Jurisdiction is granted to the Probate Court with relation to the guardianship of minors and in all matters affecting their property and welfare. The statutes regarding the power of appointment and removal are couched in general terms and read as follows:
“The judge of probate may appoint guardians to minors resident in his county.” R.S. c. 80, § 1.
“He may grant leave to adopt children, change the names of persons, appoint guardians for minors and others according to law, and has jurisdiction as to persons under guardianship, and as to whatever else is conferred on him by law.” R.S. c. 75, § 9.
“The judge may dismiss any guardian, when it appears necessary, or at his own request, and if the case requires it, may appoint another in his place; but previous to such removal, except at his own request, personal notice shall be given to the guardian, *** to appear and show cause to the contrary;” R.S. c. 80, § 23.
Procedural requirements are not here specified. In these particular sections is no substantive provision that petition must be presented by some person having a definite legal right to initiate the proceeding. As to guardians for adults, including persons of unsound mind, spendthrifts and convicts, there is express provision that appointment is to be made on the written application of their friends, relatives or creditors, or of the municipal officers or overseers of the poor of the town where they reside. R.S. c. 80, § 4.
R.S. c. 75, § 48, however, authorizes the adoption of rules of practice for orderly procedure, and of probate forms which thereby become official and which are declared to “be in force in all courts of probate.” One of the rules so adopted provides that “approved blanks shall be furnished by the Register, and must be used in all proceedings to which they are applicable.” The form provided for removal of executor, administrator, guardian or trustee is couched in the following language: “Respectfully represents - of - that he is interested in the estate of -.”
The question for determination is whether this established procedure must be followed in order to give the Probate Court jurisdiction, and if so, whether the present petitioner, who alleged that he was interested “as guardian ad litem of said minors, by virtue of a decree of the Probate Court for Plymouth County in said Commonwealth,” comes within the definition of a party in interest.
It is argued that minor children are entitled to special protection and that the jurisdiction of the Probate Court is intended to be broad and comprehensive; that the authority originally granted to a court of chancery in England now resides in our probate courts; that if it becomes cognizant of the necessary facts, the court should protect the rights of minors; that if it has jurisdiction of the subject matter and parties, it may pass upon and adjudicate the rights of minors and the decree will be...
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