Hutchins v. Brown , 77 N.H. 105 ( 1913 )

"The judge of probate . . . may appoint a guardian to any minor whenever there is occasion." P. S., c. 178, s. 1. No notice is required. P. S., c. 185, s. 2. "The judge may appoint the father or mother, or any person nominated by either, to be guardian of a child, as he shall think most conducive to the interests of the child." P. S., c. 178, s. 3. The questions presented to the court by the petitions were: Was there occasion for the appointment of a guardian, and whose appointment would best promote the welfare of the minors. Hanrahan v. Sears, 72 N.H. 71. That some one should have been appointed is conceded.

The plaintiff appeals from the decree appointing the defendant. "Any person aggrieved by a decree, order, appointment, grant, or denial of a judge of probate, which may conclude his interest, . . . may appeal therefrom." P. S., c. 200, s. 1. "Generally, it may be said that one cannot be aggrieved by a decision unless he has some private right which is affected thereby." Bennett v. Tuftonborough, 72 N.H. 63, 64. "Every guardian shall have the custody and tuition of the minor and the care and management of his estate." P. S., c. 178, s. 6. It has been held that the presumptive heirs of a ward have such an interest in the ward's estate as to be entitled to appeal from a decree affecting it (Boynton v. Dyer, 18 Pick. 1); but the plaintiff is not next of kin and consequently not an heir presumptive. It is also held that an executor named in a will has an interest in his representative capacity sufficient to maintain an appeal from a decree disallowing the will. Shirley v. Healds, 34 N.H. 407. A foreign administrator may appeal from the appointment of an administrator in this state. Graves v. Tilton,63 N.H. 192. In short, there is a right of appeal when the rights affected are held in a representative capacity.

Whether the act of 12 Car. II authorizing the appointment of testamentary guardians, held to be in force in this state (Balch v. Smith, 12 N.H. 437), would create such an interest in the appointee as to entitle him to appeal from a decree appointing another, and whether the act, if ever in force here, has not been so modified by subsequent legislation and judicial decision (Morey v. Sohier, 63 N.H. 507, 512) as no longer to have such effect, if it ever had, need not be considered. The appellant does not allege an appointment by will in terms, and the finding of the case that the father died intestate negatives any purpose to prove by evidence of that character the father's desire alleged as one of the reasons of appeal.

Whether the plaintiff could maintain an appeal upon the broad allegation that, upon the whole case, he ought to have been appointed and the defendant ought not to have been appears doubtful; but the only allegations to sustain the plaintiff's right to an appointment are the dead father's wish and the plaintiff's competency and relationship to the minors. But if these facts are proved it does not follow as matter of law that the plaintiff must be appointed. Everything deserving consideration being duly weighed, it might be proper to appoint some person other than the competent uncle whom the father desired appointed. Waldron v. Woodman, 58 N.H. 15. As the decree does not relate to any property interest of the appellant in a personal or representative capacity, and as he has not alleged any facts establishing a legal right to the appointment, it does not appear that any legal interest or right of his is affected, and the appeal cannot be maintained.

The plaintiff, as the uncle of the minors, is properly deeply interested in their welfare, but his interest is that of affection and friendship. His interest in the decree arising therefrom is natural and proper; but not being of a pecuniary nature or resting upon a personal right, he is not a person legally aggrieved. Lawless v. Reagan,128 Mass. 592.

Whether the appeal was properly dismissed upon such findings as could be made upon the evidence relating to the last two grounds of appeal, in view of which the order of dismissal was made by the superior court, is immaterial. The appeal should have been dismissed upon the defendant's motion because the plaintiff had no right to maintain it.

Exception overruled.

YOUNG, J., dissented: the others concurred.