Guardianship of Kelley, In re

• Decision Date: 29 February 1964
• Citation: 1 Ohio App.2d 137,204 N.E.2d 96
• Parties: , 30 O.O.2d 159 In re GUARDIANSHIP OF KELLEY.
• Court: Ohio Court of Appeals

Page 137

1 Ohio App.2d 137

204 N.E.2d 96, 30 O.O.2d 159

In re GUARDIANSHIP OF KELLEY.

Court of Appeals of Ohio, Third District, Crawford County.

Feb. 29, 1964.

Petri & Hottenroth, Galion, for appellant Mary Kathryn Ryan, guardian.

Scanlon, Berger & Garner, Crestline, for appellee Grace Thomas, next friend.

GUERNSEY, Judge.

This is an appeal on questions of law by Mary Kathryn Ryan from an order of the Probate Court of Crawford County terminating her guardianship of Veronica C. Kelley, an alleged incompetent, pursuant to a motion filed by Grace Thomas as the next friend of such ward, claiming that one 'Marion Earnshaw, a cousin of Veronica C. Kelley, is a next of kin and is and was at the time of the appointment a resident of Crawford County, Ohio,' 'but was not given notice of the application for the appointment of a guardian.'

Following hearing and consideration the Probate Court in its journal entry of judgment found 'that said motion is well taken and thereby sustains the same' and ordered, adjudged and decreed that the 'guardianship of Veronica C. Kelley be vacated and held for naught,' etc. The Probate Court made no specific finding as to whether Marion Earnshaw was a next of kin of the alleged incompetent or as to whether she was known to reside in Crawford County. No bill of exceptions has been filed in this court reflecting the evidence adduced on the hearing of the motion.

The only assignments of error which the appellant has argued, and which we are thus required to consider, are as follows:

'1. The Probate Court erred in entertaining the motion of Grace Thomas as next friend.

'2. The Probate Court erred in holding that the appointment of guardian was void for failure to notify a cousin resident of the county.'

The first assignment of error presents the question of whether the guardianship of an adult incompetent may be terminated under the provisions of Section 2111.47, Revised Code, pursuant to motion of a person claiming no relationship to the ward, or her estate, except as the next friend of the ward.

In pertinent part, Section 2111.47, Revised Code, reads as follows:

'Upon reasonable notice to the guardian, to the ward, and to the person on whose application the appointment was made, and upon satisfactory proof that the * * * letters of appointment were improperly issued, the probate court shall order that the guardianship of an incompetent * * * terminate and shall make an appropriate entry upon the journal. * * *'

It will be observed that this section does not specify upon whose application such termination shall be had or, for that matter, that a formal application is necessary. However, assuming, without deciding, that an application is necessary and proper we should consider the pertinent provisions of several other sections of the Revised Code, namely:

Section 2101.32, Revised Code.

'* * * The sections of the Revised Code governing civil proceedings in the court of common pleas shall govern like proceedings in the probate court when there is no provision on the subject in Chapters 2101. to 2131., inclusive, to the Revised Code.

'* * *.'

Section 2307.11, Revised Code.

'The action of an insane person must be brought by his guardian; * * *.'

Section 2307.13, Revised Code.

'The defense of an insane person must be by his legally appointed guardian, except that if there is no guardian, or he has an adverse interest, by a trustee for the suit, appointed by the court. * * *.'

In Row v. Row, 53 Ohio St. 249, 41 N.E. 239, the Supreme Court held that an imbecile cannot sue by next friend even if the guardian refuses to sue. However, that case was one in which the action purported to be for the benefit of the ward's estate and not against the guardian, and was not a proceeding such as the instant proceeding where the guardianship itself is sought to be terminated. In the case of Robinson v. Wagner, Gdn., 95 Ohio St. 300, 116 N.E. 514, in finding that an imbecile ward might file his own application for termination of the guardianship on the ground that he has been restored to reason, or that the letters of guardianship have been improperly issued, Judge Newman said at page 303 of 95 Ohio St., at page 515 of 116 N.E., in his opinion concurred in by the other members of the court, that Section 11247, General Code (now Section 2307.11, Revised Code, supra), 'provides that the action of an insane person must be brought by his guardian, and its provisions clearly cannot apply to a proceeding under section 11010 [now Section 2111.47, Revised Code, supra] for termination of the guardianship, where the guardian himself is an adverse party; nor does section 11249 [now Section 2307.13, Revised Code, supra], providing that the defense of an insane person must be made by his legally appointed guardian, etc., relate to the proceeding in question here, where the imbecile ward is not making a defense, but is asking affirmative relief.'

There is therefore no statutory provision prescribing who shall initiate the proceedings for the termination of a guardianship contemplated by Section 2111.47, Revised Code, and the rules obtainable at common law may be applied. Referring to 44 C.J.S. Insane Persons § 47, p. 132, we find that:

'Except as the matter may be otherwise regulated by statute application for removal of a guardian or committee may be made by a relative or next friend of the incompetent. * * *'

It is therefore our opinion that the next friend of an incompetent adult is a proper person to initiate the proceedings contemplated by Section 2111.47, Revised Code, for the termination of the guardianship of such ward on the ground that the letters of appointment were improperly issued, and that the appellant's first assignment of error is without merit.

As to the second assignment of error, the appellant contends, in effect, that the failure to notify a next of kin resident of the county of a proceeding for the appointment of a guardian does not make the appointment void, or even voidable, that there is no necessity under Section 2111.04, Revised Code, that an exhaustive search be made for all next of kin resident of the county, and that the Probate Court could not...