Marx v. Rowlands

Taylor, J. The learned counsel for the appellant argues that Joseph Marx, the son of the insane heir at law of the deceased testator, had no authority to petition for leave for his insane mother to appeal from the probate of said will. It is not denied that if Margaret Marx had been sane she could have petitioned for the order, and if she excused her delay in not appealing within the sixty days allowed by sec. 4031, R, S., the court could, in its discretion, have allowed [113] her to appeal. The learned counsel seems to argue the case as though Joseph was making the petition on his own bé-hali, and not on behalf of his insane mother; and cites a number of authorities to show that he has no such interest in the litigation as would authorize an appeal by him; but the petition is made on behalf of the insane person, Margarret Marx. The petition closes as follows: “ Your petitioner, therefore, and for and on behalf of the said Margaret Marx, prays this honorable court that an order allowing an appeal by, for, and on behalf of the said Margaret, etc., . . . and that some suitable person be appointed guardian ad litem or otherwise for the said Margaret Marx, and that said Margaret Marx may have such other and further relief,” etc. The large list of cases cited by the learned counsel for the appellant would have great force if the petition had been made by the said Joseph Marx on his own behalf to be allowed to appeal from said order of probate. He had appealed before in his own name, and his appeal was dis^ missed, undoubtedly upon the authorities cited by the learned counsel. We see no objection to the proceeding to obtain the order in this case. It follows the rule prescribed by the statute for commencing civil actions by insane persons. Sec. 2616, E. S., prescribes the manner of commencing actions by insane persons, and it provides that “ a guardian for the action may be appointed upon the application of any party thereto, or of any relative or friend of such insane party, after notice,” etc. Ordinarily, it is true, the insane party would be represented by his general guardian; but it is very clear that he cannot be so represented when such guardian is the adverse party in the action or litigation, as is evidently the case upon this appeal. The guardian is himself the opposite party throughout this case, and appeals to this court from the order allowing his ward to appeal from the probate of a will [114] of which he is executor, and in which he is the residuary legatee. It is absurd to say that the guardian so situated was the proper person to protect the rights of his ward. Under the circumstances it was clearly the duty of the court to appoint a guardian ad litem to prosecute the appeal against the general guardian, who was acting as executor of the will and whose interests were hostile to the interest of his insane ward in that litigation. For the purposes of this litigation the court might proceed as though no general guardian of the insane person had been appointed. There was no necessity of removing the general guardian and appointing another in his place before commencing the action. The guardian ad Utem appointed by the court would protect her interest in the litigation, and after it is disposed of there may be no reason for the removal of the general guardian. We are unable to appreciate the force of the suggestion that respondent was guilty of any unreasonable delay in making her application for leave to' appeal because her general guardian, whose duty it was to protect the rights of his insane ward, had declined to enter an appeal as such guardian against himself as executor and residuary legatee. His interests in the litigation were clearly so antagonistic as to preclude the idea that the rights of his ward could be properly trusted to his action. Upon this appeal we are not called upon to look into the merits of the controversy. It is enough if the petition alleges facts which, if proved, would avoid the will. By the Oourt.-^- The order of the-circuit- court is affirmed.