Mason's Guardian v. Mason

• Decision Date: 11 November 1912
• Citation: 84 A. 969,86 Vt. 279
• Parties: MASON'S GUARDIAN v. MASON.
• Court: Vermont Supreme Court

84 A. 969

86 Vt. 279

MASON'S GUARDIAN

v. MASON.

Supreme Court of Vermont. Orange.

Nov. 11, 1912.

Appeal in Chancery, Orange County; Fred M. Buttler, Chancellor.

Suit by Herbert E. Mason's Guardian against Margaret A. Mason. Decree dismissing the bill, and orator appeals. Affirmed and remanded.

Argued before ROWEEL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

March M. Wilson, of Randolph, for appellant.

Davis & Davis, of Windsor, for appellee.

MUNSON, J. The defendant questions the validity of the orator's appointment as guardian. It is said that the probate court making the appointment was without jurisdiction, for the reasons, among others, that the ward was residing in another district, and that he did not receive legal notice. The record of the probate court is not shown. Certain facts regarding it appear from the master's report. The petition for the appointment of a guardian was not dated. The citation thereon was issued August 4, 1910, and was made returnable August 16, 1910. Service thereof was made on Herbert E. Mason, but the officer's return of service bears no date. The master reports that there is nothing before him from which he can find when the service was made. It does not appear that Mason was present at the hearing.

To meet the objection regarding residence, the orator relies upon P. S. 2714, which is as follows: "The jurisdiction assumed by a probate court, so far as it depends on the place of residence of a person, or the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record." This provision has been upon our statute books since 1839, but does not seem to have been brought in issue until now. The question of residence presented by the facts of this case bears only upon the matter of jurisdiction as among the several probate districts of the state, and no doubt has been suggested as to the complete validity of the provision. So, whatever question might be raised on other facts, the question here is whether the want of jurisdiction in respect of residence appears on the record. While the record as above presented does not show the residence essential to jurisdiction, it does not show the want of it. The record is consistent with jurisdiction, and the statute forbids a collateral attack.

The statute requires six days' notice of an application for the appointment of a guardian in cases of this kind. P. S. 3159. There is no provision restricting the effect of a failure to give this notice. The question here is not whether the notice can be proved otherwise than by the record. There was no evidence of any kind from which the master could find that the required notice was...