In re Ward

• Decision Date: 05 February 1951
• Docket Number: Nos. 2761 and 2762.,s. 2761 and 2762.
• Citation: 39 Haw. 39
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF HATTIE KULAMANU WARD, AN INCOMPETENT.
• Court: Hawaii Supreme Court

39 Haw. 39

IN THE MATTER OF THE GUARDIANSHIP OF HATTIE KULAMANU WARD, AN INCOMPETENT.

Nos. 2761 and 2762.

Supreme Court of the Territory of Hawai‘i.

Argued January 10, 1951.

Decided February 5, 1951.

APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT, AND ERROR TO CIRCUIT JUDGE FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

The Seventh Amendment of the Constitution does not apply to guardianship proceedings in insanity cases.

Section 12529 of Revised Laws of Hawaii 1945 operates in futurity from time of appointment of a guardian. It grants discretionary authority to remove a duly appointed guardian and specifies an alternative ground for removal as the exclusive cause on which he may be removed but that cause can only have its being in events occurring after his appointment and showing that he no longer is sane or otherwise capable of or suitable for discharging his trust duties.

Questions not properly raised and preserved below and alleged errors of law or alleged abuses of discretion not called to the attention of the trial judge or made the subject of objection and exception at the time they were purportedly committed need not be considered by an appellate court unless it is of the opinion that manifest error patently appears on the record injuriously affecting substantial rights of appellant on writ of error.

To grant or deny a hearing on the merits of a motion to vacate an order appointing a guardian is within the sound discretion of the presiding judge and his denial thereof should not be disturbed unless clearly an abuse of discretion.Harriet Bouslog ( Bouslog & Symonds on the briefs) for appellant and plaintiff in error.

J. G. Anthony ( Robertson, Castle & Anthony on the briefs) for appellees and defendants in error.

LE BARON AND TOWSE, JJ., AND CIRCUIT JUDGE CORBETT IN PLACE OF KEMP, C. J., RETIRED.

OPINION OF THE COURT BY LE BARON, J.

This is a writ of error sued out jointly by Lucy K. Ward and Kathleen Ward as intervenors, and individually by Lucy K. Ward as next friend of their sister Hattie Kulamanu Ward. Consolidated with the writ in this court is an appeal by the said Lucy K. Ward as next friend of the said Hattie Kulamanu Ward. The writ stems from two sets of proceedings below. One set is that of original guardianship proceedings instituted by petition of Lani W. Booth and Mellie E. Hustace, also sisters of Hattie Kulamanu Ward, for the appointment of a guardian of her estate on the ground of incompetency on her part to manage such estate. The other is that of proceedings, subsequent to the appointment of the guardian in the original guardianship proceedings, instituted by motion of Lucy K. Ward as next friend to vacate the order of appointment or to remove such guardian. The appeal stems from the subsequent proceedings only.

The petition for appointment of a guardian in the original guardianship proceedings named Lucy K. Ward as attorney in fact of the alleged incompetent. Notice was served on the alleged incompetent on the filing of the petition. Thereafter an attorney at law was appointed for her as guardian ad litem. At a hearing before the probate judge at chambers without a jury, the alleged incompetent was not present, but represented by the guardian ad litem. Lucy K. Ward and Kathleen Ward as intervenors were not present but both were represented by respective attorneys. The petitioners appeared with their attorney. Evidence of insanity adduced at the hearing was undisputed and proved to the judge's satisfaction that Hattie Kulamanu Ward is mentally incapable of managing her estate. On evidence of suitability the probate judge found that Hawaiian Trust Company, Limited, is “a fit and proper person to be appointed” as guardian of her estate. After the hearing the probate judge entered an order appointing Hawaiian Trust Company, Limited, guardian of the incompetent's estate. Accordingly, letters of guardianship were issued to the guardian upon it giving an approved bond in the sum of $10,000, conditioned in accordance with law. Ever since so qualifying Hawaiian Trust Company, Limited, has been the legally constituted guardian of the incompetent's estate.

In the subsequent proceedings Lucy K. Ward, during the absence of the probate judge who had presided in the original guardianship proceedings, petitioned a different probate judge for the appointment of herself as next friend of the incompetent “for the purpose of representing her in a motion to vacate an order appointing Hawaiian Trust Company, Limited, Guardian of the Estate of Hattie Kulamanu Ward or to remove such guardian and for other relief necessary to protect the interests of said Hattie Kulamanu Ward and her estate and property.” For such purposes that probate judge appointed Lucy K. Ward as next friend of the incompetent. Pursuant thereto, Lucy K. Ward in that capacity filed a motion to vacate the order appointing the guardian or to remove such guardian and to rehear the issues previously determined by such order as well as to protect the interests of the incompetent pending disposition of the motion. That motion contained two main prayers. One is for an order to compel the guardian and the petitioners in the original guardianship proceedings to show cause why the order appointing the guardian should not be vacated or, as an alternative, why the guardian should not be removed. The other is for a temporary restraining order without notice to prevent the guardian from voting stock of the incompetent pending disposition of the motion to vacate or to remove. Upon reading the motion at the time of its filing, the judge who made the appointment of next friend granted those prayers and issued appropriate ex parte orders in accordance therewith. Before the day set therein to show cause, the guardian and petitioners filed a combined answer and return to the motion and order to show cause, which by way of answer to the motion denied the allegations thereof, and by way of return to the order pointed to the record of the original guardianship proceedings as good cause why the guardian should not be removed. On the day set, extensive arguments on both sides were heard by the probate judge who presided in the original guardianship proceedings. At the conclusion thereof the probate judge entered an order dissolving the ex parte order of restraint and denying the motion without a hearing on its merits. From this state of the record concerning these subsequent proceedings it is evident that the underlying relief, sought by the movant and denied by the probate judge, is to have previously determined issues reheard for the sole purpose of discharging the guardian from the trust originally imposed upon it.

The writ challenges the order appointing the guardian of the incompetent's estate and in conjunction with the appeal challenges the order dissolving the ex parte order of restraint and denying the motion to vacate that order or to remove such guardian without a hearing on its merits. Those orders are challenged in eleven assignments of error. But preliminary thereto, the appellants raise for the first time on appeal the constitutional question whether or not the provisions of section 12509 of Revised Laws of Hawaii 1945, on which the jurisdiction of the probate judge in the original guardianship proceedings below is based, contravenes the Seventh Amendment of the Constitution which declares “In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved.”

The question in so far as it goes to the jurisdiction of the probate judge does not require any construction of section 12509, which in derogation of the common law clearly permits a probate judge in guardianship proceedings “after a full hearing” to adjudge an alleged incompetent to be insane and to appoint “a guardian of his person or estate or both” without the intervention of a jury. But it does require the Seventh Amendment to be interpreted as to the meaning of its clause “In suits at common law, where the value in controversy shall exceed twenty dollars” with respect to guardianship proceedings in insanity cases. The appellants concede that the Supreme Court of the United States has had no occasion to interpret, and has not interpreted, that clause with respect thereto nor have they cited any clear authority of a lower court to hold that guardianship proceedings in insanity cases constitute “suits at common law, where the value in controversy * * * exceed[s] twenty dollars” within the meaning of the Amendment and there are apparently none to be found even though such proceedings were known to the common law long before the Amendment was adopted in 1791. From such dearth of authority a serious doubt arises that guardianship proceedings in insanity cases constitute suits at common law in which there is any value in controversy within the meaning of the Amendment. That they are not such suits is strongly indicated by the fact that there is no value therein to be brought into controversy on determining whether or not an alleged incompetent be of unsound mind and incapable of managing his own affairs. Nor can it be argued with reason that such a controversy arises when a presiding judge inquires into the amount and character of the estate of an adjudged insane person for the purpose of appointing a suitable person to manage that estate as guardian, or for the fixing of an appropriate bond, mere value of such estate not being in controversy as a subject of dispute in the cause itself for the appointment of a guardian.

Consistent with the common origin of the power of the lord chancellor as the keeper of the king's conscience to act in lieu of the king as general guardian of all infants, idiots and lunatics and of the equitable jurisdiction of courts of chancery, which grew out of the ancient practice of petitioning the king, as the fountain of justice, for relief in those particular cases where the...