majority">Richardson, C. J.

After giving a history of the proceedings in the probate court.) Several objections have been raised in the argument of this case to the regularity of the proceedings in the court below, and we much regret the want of further time to form a more deliberate opinion upon the exceptions which have been taken than can be formed at this time. But the case,seems to require a speedy decision. The interest of the individual, who has been appointed guardian, requires this. A court of probate is not technically a court of record, and to be valid its proceedings must be warranted by law. Any order or decree of the court which is repugnant to law is null, and may be avoided by plea. If then the decree in this case appointing a guardian be void, it must be very desirable to the guardian to know it immediately.

The interest of the appellant and his family demands a speedy decision. The selectmen have found that his memory is greatly impaired ; and the judge of probate, after a full hearing, has adjudged him to be non compos mentis. Nor is this all. We have seen in the newspapers a protest against the doings of the judge of probate in this case, which, if published by this appellant, would seem to us to indicate a decay of his understanding. We *66have been long acquainted with him and have known how high a sense of decorum he has always heretofore cherished; and it is believed that had he retained the memory which he formerly had, he would have, deemed an appeal a sufficient protest against the doings of the judge of probate, and would have seen the gross impropriety of appealing to the public through the newspapers on a question pending in a court of justice. If, as these circumstances seem to indicate, the appellant stands in need of a guardian, it is highly important to him and his family that a guardian should be legally appointed, and that the decision of the questions now under consideration should not be delayed.

We are of opinion that the proceedings in the court below, are. irregular, and that the decree appointing a guardian must be reversed for want of an inquisition by the selectmen of Portsmouth.

The order of the judge of probate, in this case, was no proper commission to the selectmen to take an inquisition. There should have been a commission under the seal of the probate court directing the selectmen, in the language of the old writ, de idiota inquirendo el examinando, to “ go to him the said S. in their own persons and circumspectly examine him by such ways and means touching his condition as they might be best informed,” and diligently enquire whether the said S. was non compos mentis or not, and return to the probate court the inquisition thereof distinctly and openly made under their hands and seals. Regularly there should have been such a commission. But we should not.be inclined to reverse the decree for any want of form in the proceedings where they were substantially correct. There is, however, a substantial defect in these proceedings. The selectmen were directed, not to enquire whether S. were compos mentis or not, but to report their opinion of his situation ; and in pursuance of this direction they have reported that in .their opinion his memory ⅛ greatly impaired. *67The selectmen seem to have acted with great discretion. To have made a legal inquisition would, under the circumstances, have been a task of some delicacy. They therefore simply complied with the order of the judge of probate and there stopped. There was no inspection of the person, no examination of witnesses as to the state of his mind. From casual observation they had formed an opinion that his memory was impaired, and that opinion they returned to the judge of probate.

But is this the inquisition which the law requires in these cases ? We. think not. The law reposes great confidence in the judgment and discretion of the selectmen of towns, and in this instance requires their return of the fret whether compos mentis or not before a guardian can be appointed. There are good reasons why the en-quiry should in the first instance be entrusted to the selectmen of the town. They are in the neighborhood of the person to whom the inquisition relates, and must be supposed to be personally acquainted with him, to know his habits, and character, and general course of conduct. And they must also know where to look for correct information with respect to his capacity. For these reasons their return of the fact that a person is non compos mentis is prima facie a sufficient foundation for a decree of the judge of probate appointing a guardian.

And without their return of the fact no guardian can be appointed by the judge of probate. This is understood to have been the practical construction of the statutes, which have been cited by counsel ; and in Massachusetts, whose statute on this subject we originally copied nearly verbatim, it is essential that the selectmen find the fact. Mass. Statute of 1783, cap. 38, sec. 3; Mass. Prov. & Colony Laws, 515; 8 Mass. Rep. 129, Darling v. Bennet; 14 Mass. Rep. 222, Chase v. Hathaway.

When the selectmen find a person to be non compos men-tis and make return to the judge of probate accordingly, it is competent to such person to traverse the fact before *68the judge of probate, and to bring the cause by appeal to this court where the fact may be tried by a jury.

It is clearly the duty of selectmen in these cases to go to the person to whom the inquisition relates and there diligently enquire as to his capacity. In many cases there can be no diiliculty in ascertaining the fact. But in some cases there may be doubt. The state of a man’s mind can be known only from what he does and from what he says. Generally, a conversation for a short time with the person would enable selectmen to settle the fact. Where that is found not satisfactory, they should enquire into his conduct and his management of affairs by witnesses under oath. When they have found the fact, whether compos, or non compos, mentis, they should distinctly return it to the judge of probate.

The great defect in these proceedings is, that the selectmen have not found the fact whether the person to whom the inquisition related was non compos mentis, or not. It is clearly insufficient to find his memory greatly impaired. For the memory of many a man has been greatly impaired who still retained his reason, and could in no sense be considered non compos mentis.

And we are of opinion that for this cause the decree of thcjudercof probate appointing a guardian must be reversed. It has therefore become unnecessary to give any opinion upon the other objections which have been made to the decree.

Decree reversed.

Citation profile

How this case has been treated — in progress