Parcher v. Reese , 202 Ill. App. 509 ( 1916 )

Mr. Justice Graves

delivered the opinion of the court.

Ella Tunison, now past sixty-two years of age, was on February 21, 1901, adjudged insane in the County Court of Christian county, Illinois, and was then committed to the State hospital for the insane located at Jacksonville, Illinois, and remained an inmate of that institution until June 4, 1907. In November, 1905, appellant was appointed her conservator in Christian county, Illinois. Neither her relatives in Illinois nor appellant, her conservator, ever visited her at Jacksonville, and her conservator has never seen her since she was adjudged insane and committed to the Jacksonville Insane Asylum. Neither the mental nor physical condition of the patient improved while she was in the Jacksonville asylum and in June, 1907, appellee, a sister of the patient, asked that she might be allowed to take her to her home in Missouri and care for her. The superintendent of the asylum advised that she be allowed to go with her sister. Appellant, consented that she should be allowed to do so and the County Court of Christian county also consented. It was the evident intent of all concerned that the arrangement thus consummated should be a permanent one and that from that time forward the home of appellee should be the home of the ward. She has been with her sister, the appellee, in Maryville, Nodaway county, Missouri, from that time to the present. She has a fine home there, is well cared for by her sister and is still insane and incapable of taking care of herself. In January, 1915, in the Probate Court of Nodaway county, Missouri, the ward, Ella Tunison, was adjudged to be of unsound mind and appellee was appointed and qualified as guardian of her person and estate. Thereafter, appellee as such guardian filed her petition in the County Court of. Christian county, Illinois, praying for an order directing appellant to turn over to her the estate of the ward, which consists of something over $9,000 in secured notes and cash. That court granted the prayer of the petition. Appellant appealed to the Circuit Court of Christian county and that court entered the same kind of an order.

It seems manifest that it is not only best for the ward to remain in Maryville, where she now is and where she has been well cared for for eight or nine years by her sister, who seems to be the only relative who shows any interest in her, but that her funds should likewise be placed in the hands of appellee, who knows her needs and can use the same intelligently for her benefit. By that means also there will be saved to the estate the most liberal annual allowance of $100, which appellant has received for loaning about $9,000 and collecting the interest on the loan.

It is not questioned that the guardian of a nonresident insane person appointed in any of the states or territories of the United States or any foreign country may commence and prosecute suits in his own name to recover property in this State under sections 41 and 42 of the Lunacy Act (J. & A. ¶¶ 7325, 7326), but it is insisted that Ella Tunison is not and has not been a nonresident of the State and that therefore the sections referred to confer on appellee no rights as the guardian of a nonresident insane person.

While an insane person is conclusively presumed to be incapable of determining for himself where he will abide or hold his domicile, yet it has been held that if he has a conservator or guardian, his domicile or residence may be changed by the direction or assent of such officer, either expressly or impliedly given. Holyoke v. Haskins, 5 Pick. (Mass.) 20; Anderson v. Anderson’s Estate, 42 Vt. 350; Inhabitants of Pittsfield v. Inhabitants of Detroit, 53 Me. 442; Hill v. Horton, 4 Dem. Surr. (N. Y.) 88; Culver’s Appeal, 48 Conn. 165; In re Jackson, 15 Mich. 417. There are authorities holding a contrary view, but we are satisfied that the weight of authority is in'accord with those cited.

We also feel that no sound reason can be found for holding that persons under disability because of want of mental capacity should be governed by any different rule as to fixing their place of residence than is applied to those under the disability of infancy or coverture. In the instance of both minor children and married women their place of residence is determined by the will of others. Certainly those having charge of insane persons, who are the most helpless of all dependent persons, should be clothed with as much authority over their wards.

While our courts of last resort have not expressly passed on this question, this court in 1903, in the case of Langmuir v. Landes, 113 Ill. App. 134, recognized as valid a change of residence from this State to Canada of a person who had been adjudged insane in this State and had gone to Canada and, after some years, had been adjudged insane there, and also recognized the right of the representatives of the insane person in the foreign country to recover from his conservator in this State the property of the ward in his hands.

The words “resident” and “nonresident” have different meanings according to the subject under consideration. When used with reference to elections or the service of legal process, they are often used as synonymous with £ £ domicile ” or “ citizenship. ’ ’ "When used with reference to nonresident debtors and the right of attachment, they have to do with the abiding place of the person as distinguished from his domicile, home or citizenship, and persons have been held to be nonresidents who abide in one State and retain their domicile, citizenship and voting place in another. Morgan v. Nunes, 54 Miss. 310; Haggart v. Morgan, 5 N. Y. (1 Seld.) 422-427; Chaine v. Wilson, 14 N. Y. Super. Ct. 673-686; Southern R. Co. v. McDonald (Tenn.), 59 S. W. 370. In Carden v. Carden, 107 N. C. 214,12 S. E. 197,198, the “cessation to dwell within a State for an uncertain period without a definite intention as to a time for returning, although a general intention to return may exist” was held to constitute nonresidence.

Lunacy laws are enacted for the benefit of the unfortunate as well as the public. Of necessity they operate at the place and in the jurisdiction where the insane person is found. They are in their nature emergency laws and must operate, if they operate at all, when the emergency arises. Such laws should he construed liberally to the end that their purpose may be effectuated. If courts stick in the bark on technical questions of construction of terms, the lunatic may destroy himself or others or waste or lose his property and the object of the law thereby be frustrated while hairs are split.

“Nonresident” as used in paragraph 41 of the lunacy laws of this State. (J. & A. ¶ 7325) should be construed to mean an insane person who is beyond the jurisdiction of the courts of this State and who has been taken before the courts of such other State and adjudged to be insane, and a guardian or conservator of his person and estate has been appointed by such court. In such cases the courts of this State should recognize the acts of such foreign courts as valid, and the guardian or conservator appointed by them as the guardian or conservator of a nonresident lunatic.

On a state of facts much the same as those in the case at bar, except that the ward was an infant and its removal from the State of Michigan to the Dominion of Canada amounted to criminal abduction, in which the respondent in the habeas corpus proceeding then before the court was at least implicated if not the chief offender, Mr. Justice Cooley, in the case entitled “In the Matter of Jackson,” reported in 15 Mich. 416 (432 to 442), after disposing of other questions in that case, said: “If the child is held in a foreign jurisdiction by one appointed his guardian there, the respondent has legally no such power as is claimed, even though the person having the custody may have been his agent, and, as such, procured the appointment. The agency does not enter into the guardianship. The law there will know nothing of such an agency, and will refuse to recognize it. The custody has ceased to be that of the individual, and has become that of the agent of the law. That law is the foreign law; and we must come directly in conflict with it, if we exercise jurisdiction on the facts here shown. The case, as it would stand in Canada, would be that of a guardian appointed by its courts over a minor within its jurisdiction, coerced indirectly by a foreign court to remove the child abroad, and there deliver it to custodians whose authority would not be recognized in Canada while the present appointment stands. It would be an indirect assumption of jurisdiction by the court in Michigan over the appointment made in Canada, even to the extent of reversing that action. I know of no precedent for such a course, and a due regard to interstate comity should incline us to forbear.

“It is quite probable that the appointment in Canada was made in ignorance of the real facts of the case. I cannot doubt if these were fully presented, the court there would revoke its action, and cause the child to be delivered to the testamentary guardians. In my opinion, that court is the tribunal to appeal to under the facts disclosed by the pleadings.”

It being disclosed by the record in this case that, before this proceeding was begun, appellee was duly appointed guardian in the State of Missouri of Ella Tunison, who had in the same proceeding been adjudged to be insane, that she was a resident of that State at that time, within the meaning of paragraph 41 of our lunacy laws, and that she became such a resident of Missouri by the consent and with the assistance of appellant, it follows that appellee was at the time this proceeding was begun the guardian of a nonresident insane person and as such was entitled to prosecute this proceeding.

The judgment of the Circuit Court being in accord with the views here expressed and no error appearing in the record of that court, the judgment appealed from is affirmed.

!Affirmed.