Gardiner v. Jardine (In re Gordon)

• Decision Date: 25 May 1923
• Citation: 139 N.E. 481,245 Mass. 274
• Parties: GARDINER v. JARDINE et al. In re GORDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 274

139 N.E. 481

GARDINER

v.JARDINE et al.

In re GORDON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1923.

Appeal from Probate Court, Middlesex County.

Proceeding by John D. Gardiner against William F. Jardine and others to vacate a decree appointing Jardine as temporary guardian of Dorothy Davies Gordon, and to terminate the guardianship. From a decree dismissing the petition, petitioner appeals. Affirmed.

John Louis Sheehan and Joseph S. Spencer, both of Boston, for appellant.

Robert W. Nason and Thomas W. Proctor, both of Boston, for respondents.

CROSBY, J.

The respondents on June 14, 1922, filed a petition in the probate court for the county of Middlesex, praying for the appointment of the respondent William F. Jardine or some other suitable person as temporary guardian of Dorothy Davies Gordon, who was therein alleged to be an insane person and incapable of taking care of herself. Thereafter on the same day, without notice, a decree was entered in which it is recited that-

‘After a hearing of the matter of said application, it appears to the court that the welfare of said Dorothy Davies Gordon requires the immediate appointment of a temporary guardian.’

It was further therein decreed that a temporary guardian of the person and estate of said Dorothy Davies Gordon be appointed, and that William F. Jardine be appointed such temporary guardian, he first giving bond with sufficient sureties for the due performance of such trust. On December 19, 1922, John D. Gardiner filed a petition in the probate court alleging that he was an uncle and heir presumptive of the ward, and praying for reasons therein set forth that the decree appointing Jardine as temporary guardian be revoked. A citation issued on this petition, which appears to have been served as ordered. On the return day the petition was dismissed, and the petitioner Gardiner appealed. The proceedings for the appointment of the respondent as temporary guardian were in conformity with the provisions of G. L. c. 201, § 14.

1. The petitioner for revocation, Gardiner, contends that the appointment of a temporary guardian can be made only upon an express adjudication that the ward is insane, and that there was no finding to that effect by the judge of probate. This contention is not tenable. The recital in the decree that ‘it appears to the court that the welfare of said Dorothy Davies Gordon requires the immediate appointment of a temporary guardian’ necessarily implies that the allegation in the petition that she is an insane person was proved.

2. As the decree rightly construed includes a finding that the ward is insane, the court was authorized to enter the decree without notice, as the statute (section 14) expressly provides that the appointment may be made ‘with or without notice.’ In construing a similar statute, it was said by Holmes, C. J., in Bumpus v. French, 179 Mass. 131, at page 133, 60 N. E. 414, at page 415:

‘It does not need argument to show that sometimes it may be necessary to impose such a temporary restraint without the delay required for a hearing, and even before notice to the party restrained. Not to mention other instances familiar to the law, the necessity in cases of alleged...