¶1Revised Statutes, chap. 67, § 4, clause 2, provides for art appointment of a guardian by the judge of probate for two classes of persons : first, those who have become incapable of managing their affairs "by excessive drinking, gambling, idleness or debauchery of any kind;” and second, those "who so spend or waste their estate as to expose themselves or families to want or suffering, or their towns to expense.”
¶2The latter class was intended to include such heedless, improvident and wasteful persons, as thereby expose themselves and families to want, without any reference to habits of drinking or debauchery.
¶3In this case, a majority of the selectmen of Lincolnville petitioned the Probate Court for the county of Waldo, to appoint a guardian to the plaintiff, Stephen E. Young, upon the ground, as alleged in the petition, that he "is an indolent and intemperate man, and who spends and wastes his estate so much that he exposes himself and family to want and suffering, and his said town to expense by reason of said indolence and intemperate habits he is incompetent to manage his own estate or to protect his rights.” It is admitted that Young resided in Lincolnville at the date of said petition, and at the date of the decree in the Probate Court.
¶4The petition of the selectmen contains all the allegations required by the statute to authorize the appointment of a guardian, to a person falling within the description of the second class, mentioned in clause two of section four. It also contains other allegations and inferences, not necessary to be alleged or proved, but which cannot vitiate the important and necessary allegation, which is properly alleged. The petition bore date, February 2, 1889, and was addressed to the Probate Court to be held on the second Tuesday of March, 1889. Stephen was notified of the proceeding, and cited to appear at the Probate Court, at its March term, and show cause why the prayer of the petition should not be granted, by service upon him, in hand, on February 4, 1889, of a copy of the petition, and the order and citation to appear and show cause.
¶5He did not appear at the Probate Court, and the judge of *50probate made a decree that he "is an indolent and intemperate man, who wastes and spends his estate so much that he exposes himself and family to Avant and suffering and said toAvn to expense,” and appointed the defendant as his guardian. It is admitted that the defendant qualified and has ever since acted as guardian of Stephen, and no objection thereto appears to have been made by Stephen till the commencement of this suit on February 6, 1892.
¶6The decree contains all the elements required by statute, as a basis for the appointment of a guardian to a person of this class, and must be presumed to be based upon a hearing by the probate judge, and satisfactory proof of the truth .of the material allegation in the petition.
¶7It is objected that the decree is void because the judge of probate gave no new or additional notice to Stephen, and that-he was not present at the hearing. Section five of the statute provides that where the municipal officers are applicants, if they have given at least fourteen days’ notice to such person by serving him with a copy of their application, the judge may adjudicate thereon without further inquisition, "if such person is present, or on such further notice, if any, as he thinks reasonable.” The municipal officers had made such service on Stephen, and he Avas fully notified of the time and place for a hearing, but chose not to appear. The judge of probate could order further notice to Stephen, if he thought necessary or suitable, but he was not required to do so. It was a matter for the exercise of his judicial discretion. No suggestion is made that Stephen has been in any way prejudiced by thé omission of a second notice, and we do not perceive any reason why another notice should have been given. Stephen has never sought to have the decree reversed in the Probate Court, nor to have the guardianship annulled. The subject matter, and the person of Stephen, was Avithin the jurisdiction of the Probate Court; and the petition, notice and decree were sufficient and effective.
¶8The defendant must be regarded as the legal guardian of the plaintiff, and as such entitled to the custody of the moneys sued for; and the action cannot be maintained. According to the terms of the report, the entry must be,
¶9 Judgment for defendant.