Kurtz v. St. Paul & Duluth R. Co.

Mitchell, J. Action of ejectment. In its answer the defendant alleged title in itself, but this claim is now abandoned, and the action of the plaintiffs is sought to be defeated solely on the ground of their own want of title. One George Leidner died seised of the land, and the plaintiffs, as his heirs, are the owners, unless their title was divested by a guardian’s sale to one Hiram Hayes, in May, 1872. The probate proceedings which culminated in this sale are the same which were considered in West Duluth Land Co. v. Kurtz, 45 Minn. 380, (47 N. W. Rep. 1134,) but the questions now raised are different. The principal point made is that the appointment of Catha [342] rine Burg as guardian of the plaintiffs was absolutely void for want of notice to the minors of the hearing of her application for such appointment. The admitted facts are that the plaintiffs were infants, residing in Wisconsin with their mother, Catharine Burg, and owning this land in St. Louis county, in this state. Their next of kin were their mother, with whom they were living, and a married sister, Mary Burns, residing in Duluth, in this state. On February 27, 1872, the mother petitioned the probate court of St. Louis county for letters of guardianship. On the same day that court ordered that a hearing be had on the petition, March 2, 1872, and that notice be given of said hearing to all persons interested, by personal service on the next of kin, two days before the hearing. The mother, who was the plaintiff’s natural guardian, and with whom they resided, had notice by being herself the petitioner, and notice was served personally on Mary Burns, their sister, .on the said 27th day of February. It is objected that this notice to the next of kin was not notice to the minors; that notice to the minors themselves was necessary to give the court jurisdiction, and to make the appointment of any validity. The power to appoint a guardian of the estate of a nonresident minor situated in this state is unquestioned, and the purpose of so doing is the same as in appointing a guardian of the person and estate of a resident minor. Notice of the hearing for such appointment is not a constitutional prerequisite to the jurisdiction tó name a guardian. Appointing a guardian deprives no one of his property, and does not change or affect the title of it. Letters of guardianship are merely a commission which places the property of the ward in the care of an officer of the court as custodian, and in its effect is not essentially different from the appointment of a receiver, or temporary administrator, a jurisdiction which can be and frequently is exercised before service of any process. The matter of notice of an application for the appointment of a guardian is, therefore, purely a matter of statutory requirement. The provision of statute regulating notice in this ease is found in 1866 G. S. ch. 59, '§ 13, (1878 G. S. ch. 59, § 21,) viz.: “Such notice to all persons interested as the judge shall order.” My own opinion is that when it appears that [343] the person or property was the subject of guardianship, and that the letters were issued by the proper probate court, as were the facts, here, the letters of guardianship are not subject to collateral attack, but, like letters of administration, are conclusive evidence of the due appointment of the person therein named, until reversed on appeal, or revoked by the court which granted them. This is the rule in most jurisdictions; and the practical difficulties and embarrassments resulting from a different rule are very • apparent. But in Davis v. Hudson, 29 Minn. 27, (11 N. W. Rep. 136,) this court held that, while the manner of notice is committed to the discretion of the probate, judge, yet some notice is indispensable; that notice is jurisdictional; and that the validity of the guardianship is subject to collateral attack on the ground of Want of any notice of the application for the appointment. In the present ease there is no question but that all the notice was given which the probate judge ordered, but the contention is. that what the judge ordered was insufficient, because it did not include notice to the minors themselves. The statute clearly commits it to the sound discretion of the judge to decide how and in what manner notice shall be given, and to fix the kind of notice most likely to serve the ends of justice, and protect the interests of the infants. Similar provisions in similar statutes are quite common, and it is agreed, with one accord, that the purpose is to give notice to. relatives or next of kin who. are naturally interested in the infants or their estates, so as to give them an opportunity to attend, if they desire, for the purpose of giving the probate court the requisite information as to the nature and value of the estate of the infant, and as to the propriety or impropriety of the appointment, as guardian, of the person named in the petition. Underhill v. Dennis, 9 Paige, 202; White v. Pomeroy, 7 Barb. 640; Ex parte Dawson, 3 Bradf. Sur. 130. Notice to the infants is not the important or essential thin g, for the very necessity for appointing a guardian for them arises out of the fact that they are incapable of managing their own estate, or of determining for themselves what is for their own interests. If they are of very tender years, and strictly non sui juris, notice to them would be an idle ceremony, and utterly useless. [344] Hence we conclude that the notice contemplated by statute does not necessarily require or include notice to the infants themselves, .but that it is left to the sound discretion of the probate judge to order such notice to persons interested as natural guardians and next of kin as he shall deem most likely to inform them of the application, and thus, through' their attendance, advise him of the extent and condition of the infants’ estate, and of the expediency of the appointment prayed for. Notice to the mother, with whom plaintiffs lived, and to their married sister, their only other near relative, was more likely to accomplish this end than publication, or even personal service on the infants themselves, and fully answered the statutory requirement. The objection that Hayes was disqualified from purchasing at the guardian’s sale because he was attorney for the guardian is one that cannot be made available in an action of ejectment between other parties. The purchase by Hayes is at least valid as to third parties until set aside by direct attack. There is nothing in the point that the deed does not describe or include the land in controversy. Judgment affirmed. (Opinion published 51 N. W. Rep. 221.)