In re Hybart

• Citation: 25 S.E. 963,119 N.C. 359
• Parties: In re HYBART.
• Decision Date: 24 November 1896
• Court: North Carolina Supreme Court

25 S.E. 963

119 N.C. 359

In re HYBART.

Supreme Court of North Carolina

November 24, 1896

Appeal from superior court, Cumberland county; Greene, Judge.

In the matter of the appointment of a guardian for the estate of W M. Hybart, an insane person, a receiver was appointed, and certain orders made for the management of the estate and application of the proceeds. The wife of the insane person was not a party to the proceedings, and from an order overruling her motion to remove the receiver she appeals. Reversed.

The petition of W. M. Hybart, a patient in the North Carolina Insane Asylum, asking for the appointment of a receiver for his estate, heard before Greene, Judge. The petition shows That Hybart's family consists of a wife, to whom he was married in November, 1895, and a first cousin (Miss Weeks) who lived with him before his marriage, but who now lives with a niece, and is an elderly lady, in feeble health, and of very little means; her board being paid by Hybart up to the time he went to the asylum. He is the owner of a farm about three miles west of Fayetteville, where he lived, worth about $1,500, but at present without a tenant, and in need of repairs; three stores in the town of Fayetteville, renting at present for $45.83 per month in the aggregate. That he is in debt for taxes on said property for the last year, and for one other debt, for $35, to H. A. Tucker & Bro., of Wilmington, N. C., and also a small drug and doctor's bill, and a small amount to his nurse. The petitioner further represents that he believes that no suitable person will consent to act as guardian for said Hybart, wherefore he prays that some discreet person may be appointed receiver of his estate. Signed, "C. W. Broadfoot, Petitioner, for Hybart." The court appointed C. W. Broadfoot receiver and ordered him to take possession of the estate and collect all moneys, etc. The wife of the lunatic, through her counsel, moves to set aside the order, that she may be restored to her legal rights under the law; that said order be modified so as to give her such an allowance from her husband's estate, and such rights therein, as she is entitled to by law, as the wife of said lunatic, and for such other and further relief, etc., and from the affidavits filed by Mrs. Hybart, and other affidavits offered by her, and the counter affidavits, and the oral testimony offered by the receiver, the court finds the following facts: "That the father of Mrs. Hybart, with whom she was living at the time, and who represented her, had verbal or oral notice of the intended application for a receiver, and that the application was made in her behalf, as well as of other parties named in the order appointing said receiver. That said receiver is a proper person to manage said estate. That, since the birth of the child, the monthly allowance should be raised to $15, and a present allowance of $30 paid to cover cost of her confinement, and, as thus modified, the order made at April term shall stand. Wherefore the motion for the removal of the receiver is denied, and the order of April term continued in force except as modified by this order. That the present monthly gross income from Hybart's estate is $45.83, and the allowance named is suitable to Mrs. Hybart's condition in life, and as great as the estate will bear." Judgment was rendered in accordance with the above finding, and directing the payment of $30 as an extra allowance to her for the benefit to herself and infant child, and of $15 monthly, instead of $10, as directed in said former order, "which payment of $15 per month is to continue from this time until the further order of the court." Signed by Greene, Judge. From the refusal of the court to set aside the order appointing the receiver, the wife of the lunatic appealed.

T. H. Sutton, for appellant.

N. W. Ray, for appellee.

AVERY J.

The statute (Code, § 1676) provides that where a person is declared insane, and no suitable person will act as guardian, the clerk shall secure the estate of such person according to the law relating to orphans whose guardians have been removed, which is embodied in sections 1584 and 1585 of the Code. It is provided in the last-named section that the judge of the superior court, before whom an action is brought by the solicitor against a removed guardian, shall appoint some discreet person, as receiver, to take possession of the ward's estate; to collect all money due him; to secure, loan, invest, or apply the same for the benefit and advantage of the ward, under the direction and subject to the rules and orders, in every respect, as the said judge may from time to time make in regard thereto. W. M. Hybart was sent to the asylum for the insane at Raleigh prior to the April term, 1896, of the superior court of Cumberland county, and at said term a verified petition was offered by C. W. Broadfoot, setting forth the fact that Hybart had become insane, and was confined in the asylum; that he had a wife to whom he was married in November, 1895, and a first cousin, Miss Mary Weeks, who lived with him up to a short time before his marriage, but then lived with a niece, Mrs. James N. Smith, of Fayetteville, and that Miss Weeks was very feeble, had very little means, and that her board had been paid by W. M. Hybart up to the time he went to the asylum. It set forth the further facts that Hybart's property consisted of three stores in Fayetteville, which rented in the aggregate for the sum of $45.83, and a small farm, worth about $1,500, where he lived, but which was then in need of repairs, and without a tenant. Upon hearing this petition, and in any aspect of the testimony, without notice to the wife of the insane man, the judge appointed the petitioner receiver, and ordered him to pay out of his estate: (1) To W. M. Hybart, or those having him in charge, such sums of money, or supply him with such necessaries or comforts, as are suitable to his condition in life, and as are approved by the superintendent of said asylum. (2) To the wife of said Hybart, $10 per month. (3) To the person who may furnish board for Miss Mary C. Weeks, $7 per month, she being partially dependent on said W. M. Hybart. (4) Taxes due on Hybart's property, insurance and necessary repairs, his doctor's bills and druggist's accounts. (5) A small amount to his nurse who took care of him while here; a debt due H. A. Tucker & Bro., of Wilmington, of $35.

It seems that Hybart lived with his wife at his country home,...