Delano v. Clark

Morton, J. This was a petition by the appellant for the discharge of a conservator who had been appointed over his estate. The petition was dismissed by the Probate Court and the petitioner appealed. The case came on to be heard before the Chief Justice, and after due hearing the petition was ordered to be dismissed by him, and the decree of the Probate Court affirmed. The petitioner appealed from this decree. No report of the evidence is before us, and the only question is, therefore, whether in any aspect of the case before him the Chief Justice could have rightly ordered the petition to be dismissed. And it is clear that he might properly have made such a disposition of the case. The ground of the petition was that the petitioner was able to care for his property himself. The answer denied this. In dismissing the petition the Chief Justice might have found that the petitioner was not able to take care of his property himself, or that he had not sustained the burden which rested upon him to show that he was able to take care of his property, and without a report of the evidence it is manifest that we cannot say that the action of the Chief Justice in dismissing the petition was wrong. See Hodgdon v. Fuller, 193 Mass. 331. Codwise v. Livermore, 194 Mass. 445. Printed with the record in this case are copies of the papers relating to the proceedings upon the original petition for the appointment of a conservator. From them it appears that the petition as originally drawn was by the mayor and overseers of the poor of Northampton and one other citizen. Subsequently the petition was amended “ by adding after the first recital of the names of the petitioners, the words, 6 All of them being friends of Winthrop Delano of said Northampton,’ ” and the appointment was made upon the petition as thus amended. The petitioner seeks to raise in these proceedings a question of jurisdiction affecting the validity of the original appointment by the contention that upon the petition as originally drawn the Probate Court had no jurisdiction to appoint a conservator, that it had no power to allow the amendment which was allowed, and that, therefore, the original appointment was void. This is the only question which has been argued by the petitioner. ■ If we assume in favor of the petitioner, but without so deciding, that the question of the validity of the original appointment could be and is properly raised [542] in this case (as to which see Jochumsen v. Suffolk Savings Bank, 3 Allen, 87), and that the appointment would be void if made upon the petition as originally drawn, the answer to the petitioner’s contention is that the appointment was not made upon the petition as originally drawn but upon the petition as amended, and that the Probate Court as an incident of the proceedings before it clearly had power to allow the amendment. As amended the petition was not a petition by the mayor and overseers of the poor but by the persons named as friends of the party to whom the petition related, and as such came within the purview of the statute and the jurisdiction of the court. R. L. c. 145, § 40. It follows that the decree dismissing the petition must be affirmed. So ordered.