Gray v. Parke

• Decision Date: 09 January 1892
• Citation: 29 N.E. 641,155 Mass. 433
• Parties: GRAY v. PARKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 433

29 N.E. 641

GRAY v. PARKE.

Supreme Judicial Court of Massachusetts, Middlesex.

January 9, 1892

COUNSEL

J.G. Holt and H.O. Allen, for petitioner.

G.W Parke, in pro. per.

OPINION

BARKER J.

1. The first point raised by the exceptions is that the petition to the probate court was insufficient, and the decree of that court invalid, because no legal cause of removal was alleged in the petition or found in the decree. Pub.St. c. 139, § 21 provide that when a guardian "becomes insane or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the probate court, after notice to him and to all other persons interested, may remove him." The petition alleges that the respondent "is an unsuitable person to act as such guardian," and the decree recites that, "it appearing that the conduct of said guardian was such as to render him an unsuitable person further to act as such guardian, *** it is decreed *** that he hereby is removed from his said trust as guardian as aforesaid." The respondent contends that the petition must allege particular facts showing misconduct, and that mere unsuitableness for the trust, unless the guardian is evidently unsuitable because of some striking facts of misconduct, is not a cause for removal; that for a guardian to be "evidently unsuitable," within the meaning of the statute, he must be manifestly, obviously, and unmistakably unsuitable; and that the charge must follow the statute, and contain the words "evidently unsuitable." But we are of the opinion that unsuitableness is itself, without more, and without misconduct of any kind, a fact which, if alleged and shown, is cause for removal. That unsuitableness is evident which appears to the court upon examination of the proofs. The meaning of the words in a similar connection was discussed in the case of Thayer v. Homer, 11 Metc. (Mass.) 104, 110, which held valid a decree removing an executor because he had claims upon the estate which he believed he could not properly prosecute while he held the office. It was there held that the phrase "evidently unsuitable" could not be restricted to clear cases of absolute unfitness, but included also "an unfitness arising out of the situation of the person in connection with the estate." See, also, Winship v. Bass, 12 Mass. 200, 201. The petition and the decree were therefore sufficient.

2. The petition was brought in the name of Elizabeth Gray by two persons as her next friends. In the probate court the respondent moved to dismiss the petition, because "the petitioners are not friends, and have no authority to sign or appear for Elizabeth Gray, and have no interest in the matter." He did not ask the probate court to remove them, and they have continued to act. At the hearing in this court he claimed as matter of law that their authority was seasonably challenged, and that as no order admitting them to prosecute in behalf of the ward appears upon the record they cannot proceed; and he excepted to the ruling of the court that their authority must be deemed to have been setted as a matter of fact by the finding of the probate court. This ruling was undoubtedly correct. Under our practice, although the next friend is presumed in theory of law to have been appointed by the court, no actual appointment is necessary; and the person who assumes to act as next friend in instituting the proceedings is not ousted from his position by a challenge of his authority, but only by removal by the court, and until such removal his authority is in force. Guild v. Cranston, 8 Cush. 506; Tripp v. Gifford, 154 Mass. ----, 29 N.E. 208. The allegations in the motion to dismiss were not a request for their removal, and the record shows that they were allowed by the probate court to act until its final decree.

3. Upon entering his appeal the respondent filed in this court interrogations to the next friends, which they refused to answer; and he excepts to a ruling that they are not adverse parties, within the meaning of the statute, ^[1] and are not required to answer the interrogatories. The ruling was correct. The next friends were not parties to the petition. Smith v. Floyd, 1 Pick. 275; Crandall v. Slaid, 11 Metc. (Mass.) 288; Tripp v. Gifford, ubi supra; In re Corsellis, 48 Law T. (N.S.) 425; Sinclair v. Sinclair, 13 Mees. & W. 646; Brown v. Hull, 16 Vt. 673; Railroad Co. v. Fitzpatrick, 36 Md. 619. Aside from this, the statute authorizing the filing of interrogatories for the discovery of facts in proceedings in probate court (Pub.St. c. 156, § 33; St.1879, c. 186) authorizes the filing of such interrogatories in the offices of the registers of probate only, and not in this court. Whether it was intended to authorize such interrogatories after the entry of an appeal from the probate court is a point upon which it is not necessary now to decide.

4. After the entry of the appeal, the petitioner, at the request of the respondent, and not upon any order of the court, filed specifications of her reasons for the petition. Two of these specifications, charging improper investments and excessive charges for services, were waived. The other alleged that he had prevented the petitioner from receiving visits from and communicating with her relatives, neighbors, and friends, and had restrained and deprived her of her liberty. At the hearing the respondent claimed that evidence of his conduct after the filing of the petition for his removal was inadmissible, and evidence was admitted, subject to his...