Sanborn v. Carpenter (In re Carpenter)

• Decision Date: 12 November 1909
• Citation: 123 N.W. 144,140 Wis. 572
• Parties: IN RE CARPENTER. SANBORN v. CARPENTER.
• Court: Wisconsin Supreme Court

140 Wis. 572

123 N.W. 144

IN RE CARPENTER.SANBORN

v.CARPENTER.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Application for the appointment of a guardian to conserve the property of Sarah A. Carpenter, an alleged incompetent. From an order of the circuit court, affirming a county court order denying the petition, petitioner appeals. Dismissed.

The appellant, Eliza E. Sanborn, a nonresident of this state, but a sister of the alleged incompetent, who together with another sister and a brother are the next of kin, applied to the county court for the appointment of a guardian to conserve the property of Sarah A. Carpenter, alleging her incompetence. The county court decided in favor of the application, which decision, on appeal to the circuit court, was reversed, and cause remanded, whereupon the county court entered its order denying the petition, from which order this appellant appealed to the circuit court, where, no evidence being offered in support of the petition, judgment was entered affirming the order of the county court, from which judgment said petitioner appeals. Sarah A. Carpenter moves to dismiss the appeal, on the ground that Eliza E. Sanborn has no interest and is not aggrieved, and is therefore incompetent to bring the appeal.Quarles, Spence & Quarles (J. V. Quarles, of counsel), for appellant.

John H. Paul (Miller, Mack & Fairchild, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

The proceeding authorized by our statutes (section 3976 et seq., St. 1898) for the appointment of guardians for incompetent persons involves a most violent interference with the most sacred rights of property and civil liberty, unless, indeed, there does exist the full degree of incompetency specified by the statute. Unless that exists, and therefore in the question whether it exists, the alleged incompetent, of course, has the most obvious interest adversary to the proceedings. When, however, incompetency does exist, and is or threatens to be effective in the dissipation of property and impoverishment of the subject, doubtless the welfare of both the incompetent person and of the community at large is involved in favor of affirmative action. It is in line with such considerations that the statute vests in the county court authority to proceed to investigate upon the subject being brought to its notice by even a relative or a friend of the alleged incompetent, irrespective of any pecuniary or other legal interest which such petitioner may have in the matter. It does not follow from this, however, that the Legislature has deemed it essential to the protection of either the incompetent person or the public that the determination reached by the county court, a court of great dignity and organized to be intrusted with most important jurisdiction and responsibility, shall be subject to appeal by persons having no legal interest to justify their further interference. Nimblet v. Chaffee, 24 Vt. 628;Studabaker v. Markley, 7 Ind. App. 368, 34 N. E. 606; In re Guardianship of John McLaughlin, 101 Wis. 672, 78 N. W. 144; In re Guardianship of Welch, 108 Wis. 387, 84 N. W. 550. The Legislature may well have believed that the county courts were competent tribunals to which, so far as the public welfare was concerned, those questions might finally be submitted, and that they did so view it is not antagonized by the fact that appeals lie in all cases from decisions of the county courts in favor of individuals whose legal rights are claimed to be invaded by such decisions. The statutes themselves are significant of a marked distinction as to the conditions and persons that may originally arouse the duty of the county court to inquire into competency and those which may justify attack on its decisions and thereby greatly enhance and aggravate the injury to the subject of the charge by multiplication of litigation and expense.

While section 3976, St. 1898, permits any relative or mere friend to awaken the activities of the county court in the first instance, the right to appeal is limited to certain specified official persons and to “any person aggrieved” by the determination which that court may make. Section 4031, St. 1898. This phrase of the statute has from the earliest days been construed to the effect that no one can be aggrieved, in the sense of the statute, unless the determination affects adversely his legal rights; that mere affront to desire or sentimental interest is insufficient. Strong v. Winslow, 3 Pin. 27;Marx v. Rowlands, 59 Wis. 110, 17 N. W. 687; Re McLaughlin, 101 Wis. 672, 78 N. W. 144;Estate of Cole, 102 Wis. 1, 78 N. W. 402, 72 Am. St. Rep. 854. Obviously no personal rights of appellant are involved, for an adult nonresident sister has no legal right to control the custody or conduct of another adult sister residing here, nor any right to support from, or legal duty of care or support to, the latter. It is equally obvious that no legal rights of appellant in or to property are affected. Even a next of kin or heir apparent has no right or legal interest in the property of a living relative. “Nemo est hæres viventis.” Broom, Leg. Max. 521. By reason of the absolute right of disposal of property by the owner, any expectancy or chance of inheritance is too conjectural and remote to be recognized as a legal right. Re McLaughlin, supra; Hamilton v....