Brigham v. Boston & Albany Railroad

If, on an application to the probate court to appoint a guardian of a person as insane, notice is ordered and given to the person to appear in court at a time and place named, and show cause, if any, why the application should not be granted, it is within the discretion of the judge of probate whether or not to order further notice of other stages of the proceeding; and it is no ground for vacating the decree appointing a guardian, that it was entered, without further notice to the ward, nine months after the time so named in the notice given. It is no ground for vacating a decree appointing a guardian of a wife as insane, that her husband, after making the application and before the decree, joined with her in a conveyance of land, and represented, in conversation, that the application was abandoned. Under a license of court, granted on the 5th day of April in the year 1869, for the sale of land, and directing the licensee to give public notice of the time .of such sale by publishing a notice thereof once a week for three successive weeks in a certain newspaper, he published in the newspaper, on the 7th, 14th and 21st days of the same April, a notice not dated, but reciting that, by virtue of a license of court u granted on the 5th day of April instant,” he would sell the land “ on Thursday, the 22d day of said April, at four o’clock in the afternoon.” Held, that this notice was not so defective as to vacate the sale.

Bill in equity filed May 3,1869, to compel specific performance of a contract of the Boston and Albany Railroad Company to buy certain real estate situated on Orange Street in Boston, which was offered for sale by auction, on April 22, 1869, by the plaintiff, as guardian of Mrs. Ellen M. Mayo, an insane person, and under a license of the probate court of Suffolk. The answer of the railroad corporation admitted its obligation, and expressed its willingness, to fulfil the contract, upon receiving from the plaintiff a valid conveyance of the real estate; but denied the sufficiency of a deed tendered by the plaintiff), and called in question the validity of his appointment as guardian. Upon the filing of the answer, it was ordered by the court that Mrs. Mayo be joined as a defendant, and she was summoned in accordingly, and by a guardian ad litem filed an answer, submitting her rights, with the other parties, to the determination of the court, on a statement of facts agreed substantially as follows : On March 12, 1868, John M. 'Mayo, husband of Ellen M. Mayo, and Charles H. Mayo, her son, all of Boston, filed in the probate court of Suffolk an application for the appointment of a guardian of said Ellen as an insane person, upon which application she was cited to appear at a probate court to be held at Boston on March 30,1868, to show cause, if any, why it should not be granted, and the applicants were directed to cause her to be notified of the time and place so appointed for the hearing, fourteen days, at least, before said court; and John M. Mayo made return under oath, dated March 14, 1868, that he served the citation as therein required. On March 23,1868, Mrs. Mayo and her husband signed, sealed and acknowledged as their free act and deed, a conveyance to the Boston and Albany Railroad Company of other lands than those in dispute, but also belonging to her, which conveyance was recorded March 31, 1868, oil which day the husband, in reply to an inquiry made by an attorney, said that the applicatian for the appointment of a guardian of Mrs. Mayo had been abandoned. On January 25, 1869, without any further notice to Mrs. Mayo, and without her being present or being represented at the hearing, “ unless by the applicants or their attorney’s action in obtaining said decree,” a bearing was had on the application filed March 12, 1868, and a decree was passed thereon, in the usual form, adjudging Mrs. Mayo to be an insane person, and . appointing the plaintiff guardian of her person and estate; and the plaintiff on the same day filed his bond and received his letter of appointment. Upon the plaintiff’s petition to the probate court, filed March 20, 1869, and approved by the overseers of the poor of Boston, for leave to sell the real estate in dispute, as property of his ward, after due proceedings had such leave was granted, and license issued on April 5, 1869, ordering the plaintiff “ to give public notice of the time and place of such sale, by publishing a notification thereof once a week, for three successive weeks, in the newspaper called the Boston Daily Evening Transcript,” with which order the plaintiff complied by publishing in that newspaper on the 7th, 14th and 21st days of the same April an advertisement of the sale in which the only notice of the time thereof was contained in the preamble to the description of the real estate to be sold, namely: “ By virtue of a license of the probate court for the county of Suffolk, granted on the 5th day of April instant, I shall sell at public auction, on Thursday, the 22d day of said April, at four o’clock in the afternoon, on the estate hereafter first described, all the right and interest which Ellen M. Mayo, of said Boston, an insane person, has in and to the following described estate, to wit,” &c. On April 22, 1869, at four o’clock in the afternoon, on the estate first described in the advertisement, the Boston and Albany Railroad Company appeared by its vice-president, and made and signed the following bid for the property offered for sale, which bid was accepted: “ Boston, April 22,1869. To William Brigham, Bsq., or to the auctioneer offering for sale, pursuant to the foregoing notice or advertisement, the right and interest of the Ellen M. Mayo mentioned in said notice or advertisement, in and to the real estate described in said notice or advertisement, the Boston and Albany Railroad Company hereby bid and offer to pay for a valid conveyance of said right and interest by the guardian of said Ellen M., duly appointed and licensed to sell the same, the sum of $18,623.83.”