McKenna v. McKenna

• Decision Date: 03 June 1908
• Citation: 69 A. 844,29 R.I. 224
• Parties: MCKENNA v. MCKENNA.
• Court: Rhode Island Supreme Court

69 A. 844

29 R.I. 224

MCKENNA

v. MCKENNA.

Supreme Court of Rhode Island.

June 3, 1908.

Exceptions from Superior Court, Providence County.

Petition by John McKenna for the appointment of a guardian of the person and estate of Margaret McKenna. There was a verdict for respondent, rendered in the superior court after an appeal from the probate court dismissing the petition, and petitioner excepts. Dismissed.

Argued before DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Thomas P. Corcoran, for petitioner. Cornstock & Canning and Patrick P. Curran, for respondent

JOHNSON, J. This petition was filed in the probate court of the city of Pawtucket for the appointment of a guardian of the person and estate of Margaret McKenna, alleging her to be a person of full age, a person of weak mind, who, from want of discretion in managing her estate, so spends, wastes, or lessens her estate, or is likely so to do, that she may bring herself or family to want or suffering, or render herself or family chargeable upon said city for support. The petitioner is a brother of the respondent. After the petition had been heard and dismissed by said probate court, the petitioner, within the statutory period, appealed to the superior court for Providence county. In the superior court the respondent moved to dismiss the appeal on the ground that the petitioner was not aggrieved by the dismissal of his petition by the probate court. At the hearing on this motion the petitioner's counsel claimed that he had an interest in the respondent's estate, and the hearing was continued to permit him to show what his interest was. At a later hearing he showed that the respondent was the owner of an undivided interest in certain realty in Pawtucket devised to her by the will of Thomas McCusker, that the petitioner had an annuity of $200 charged by the same will on this realty, that the gross monthly rental of the property is upwards of $500, that the buildings are of wood, amply insured, that the property is taxed by the assessors of taxes for the city of Pawtucket at $52,000, and that the only incumbrance thereon is the petitioner's annuity. The motion was denied, and an exception taken.

The case was tried before the superior court with a jury on the 21st day of February, A. D. 1908. Prior to proceeding to trial the respondent formally renewed her motion to dismiss. The motion was denied, and an exception taken. At the close of testimony for the petitioner, upon motion, the jury were instructed to return a verdict for the respondent, and the petitioner excepted. The case is here upon the petitioner's bill of exceptions, which raises the following questions: (1) Was the rescript of the presiding justice at another trial, to which the respondent was a party and to which the petitioner was not, admissible for the purpose of showing that justice's opinion of her then mental condition? (2) Did the court err in directing a verdict for the respondent? The respondent has filed in this court a motion to dismiss said bill of exceptions on the ground that the petitioner was not aggrieved by the decree of said probate court. This question of the right of the petitioner to appeal lies at the threshold of the cause. If the petitioner had no right to appeal from the decree of the probate court, he has no right to complain of the rulings in the superior court, and no right to bring the case here on exceptions.

Section 1047, Court and Practice Act 1905, as amended by chapter 1338, Pub. Laws 1906, is as follows: "A probate court may appoint a guardian of the person and estate, or of the person or estate, of any idiot, lunatic, or person of unsound mind, of any habitual drunkard, or of any person who from excessive drinking, gaming, idleness or debauchery of any kind, or from want of discretion in managing his estate, so spends, wastes, or lessens his estate, or is likely so to do, that he may bring himself or his family to want or suffering, or may render himself or family chargeable upon the town for support. Such guardian may be appointed upon the petition of a relative or friend of such person or of the overseer of the poor of the town in which such person resides or has a legal settlement. Upon the petition being filed the court shall order notice by publication." The section confers jurisdiction for the appointment provided for upon the court of probate. The classes of persons who may petition are enumerated, viz., a relative, or friend, or the overseer of the poor. No rights are vested by the terms of the statute in the persons bringing the petition. They are simply authorized to petition, and thereby bring the situation of the respondent, in the respects provided for by the section, to the attention of the court. The right to bring the petition is not limited by the terms of the section to residents of the town or city where the respondent resides or has a legal settlement. The statute, therefore, does not give the residents of the town or city a right to bring the petition because of the possibility that the town or city may be charged with the support of the respondent.

Section 1048, Court and Practice Act 1905, reads: "The probate court for cause shown after such notice as it shall direct, pending any application for the appointment of a guardian, or pending any appeal from a decree appointing a guardian, may, if it shall deem proper, appoint a temporary guardian of the respondent." A temporary guardian may be appointed "pending any application for the appointment of a guardian or pending any appeal from a decree appointing a guardian." The fact that there is no provision for the appointment of a temporary guardian pending an appeal from the refusal to appoint a guardian is a strong argument that no such appeal was contemplated. The power of appointment of a temporary guardian is, of course, conferred in order that the estate may be taken care of during the period of contingent incapacity created by section 1051, Court and Practice Act 1905. Under said section the only binding contract that the respondent can make while the petition is pending is for necessaries. Substantially his entire power to deal with his property is suspended. The appointment of a temporary guardian is therefore a necessity in case of an appeal. It is not conceivable that the Legislature,...