Guardianship of Pratt

  Alexander Pratt has appealed from an order overruling his
demurrer to the petition of his daughter for the appointment of a
guardian of his property and estate. The demurrer is very
general, the sole ground being that "the Petitioner has not in
and by her said Petition made or stated

such a case as gives this Honorable Court jurisdiction to appoint
a guardian of the estate of said Alexander Pratt as prayed for in
said Petition."
  From the record it cannot be ascertained what supposed
deficiencies in the petition were called to the attention of the
circuit judge. Certainly the demurrer itself gives no inkling of
the omissions from the petition deemed to be essential to give
the court jurisdiction.
  From the specifications of error set out in appellant's brief
we learn for the first time what he regards as the essential
allegations of a petition of this kind to confer jurisdiction on
the court. They are: 1. That the alleged incompetent is insane
and unable to care for himself; 2. that he is wasting his estate
so as to expose himself or those dependent upon him to want or
suffering; 3. the names and addresses of all persons who have an
interest in either the estate or personal safety or welfare of
the alleged incompetent; 4. that the alleged incompetent is
engaged in business and the character and extent of the property
owned or possessed by him; 5. that the person whom the petitioner
nominates for appointment as guardian is willing to act, and
finally, that the prayer must be for the appointment of a
guardian for both the person and estate of the alleged
incompetent.
  The argument of the appellant is, in effect, that a petition
which omits any of the above particulars fails to state a case
showing jurisdiction in the court to appoint a guardian.
  Section 4850, R.L. 1935, confers jurisdiction on circuit judges
to appoint guardians for the person and estate "or either of
them" of minors "and others according to law." Among others for
whom circuit judges may appoint guardians are insane persons
(R.L. 1935, § 4859), and by section 4858 the words "insane
person" are declared to include every "idiot, non-compos, lunatic
and distracted person." Petitioner has alleged that Alexander
Pratt, the appellant,

by reason of advanced age and physical and mental infirmities,
has become incompetent to understand business affairs or to care
for his property and is now non compos; that he is the owner of
considerable property in Honolulu and elsewhere in the Territory
of Hawaii and that it is necessary that a suitable guardian be
appointed to care for the same. It is further alleged that
Hawaiian Trust Company, Limited, has acted as business agent for
Mr. Pratt, is familiar with his property and business affairs and
is a suitable and proper person to be appointed as such guardian.
The prayer is for such appointment.
  It could not be successfully maintained that a petitioner in
such a case as this need not allege that the person for whom a
guardian is sought is insane. However, that term has a special
meaning given it by our statute and includes persons who are
"non compos." The term "non compos" includes those persons
whose minds are so worn out by old age as to render them unable
to care for their property. (Matter of Barker, 2 Johns. Ch.
[N.Y.] 232.) The petition before us not only alleges that Mr.
Pratt is "non compos" but attributes his condition to advanced
age and physical and mental infirmities. The petition is not,
therefore, subject to the criticism that it fails to allege that
Mr. Pratt is insane within the meaning of our statute.
  The petitioner has alleged that Mr. Pratt has, by reason of the
infirmities mentioned, become incompetent to understand business
affairs or to care for his property, and that it is necessary
that a suitable guardian be appointed to care for the same. These
are ultimate facts, the truth of which is for the purpose of the
demurrer admitted. They are sufficient to let in proof that the
supposed incompetent is wasting his estate and, if ultimately
sustained by the proof, would require the appointment of a
guardian unless it is necessary to also allege and prove that the
incompetent is incapable of caring for his person as well as his
property.

This question will be considered later. It is not necessary in
order to authorize the appointment that the incompetent be
actively engaged in business if he owns or possesses property
which requires care. Every guardian so appointed is given the
"management" of his ward's estate. (R.L. 1935, § 4860.)
Management is given to the guardian to enable him to conserve and
care for the estate.
  Section 4859 prescribes the procedure to be followed in cases
of this character. The procedure so provided is exclusive. (Re
Pires, An Insane Person, 28 Haw. 469.) Said section requires
notice to be given to the supposed insane person of the time and
place appointed for hearing the case. Said statute requires no
notice to other persons. Others not being entitled to notice, we
can conceive of no reason why they should be named in the
petition. We therefore hold that the failure to name such persons
does not constitute a defect in the petition. Holdings in other
jurisdictions are not, in view of our statute, applicable here.
  We now come to the question of whether or not a circuit judge
has authority to appoint a guardian of the estate of an insane
person without at the same time appointing a guardian of his
person.
  Appellant admits that section 4850, which authorizes circuit
judges to appoint guardians for the persons and estates "or
either of them" of minors "and others according to law," is in
pari materia with the other sections of the Revised Laws on
this subject but he invokes the provisions of section 12, which
provides that "laws in pari materia, or upon the same subject
matter, must be construed with reference to each other; what is
clear in one statute may be called in aid to explain what is
doubtful in another." The next step in his argument is that if
there is any doubt as to the meaning of the words "or either of
them" appearing in section 4850, section 4859 makes it clear that
the judge shall appoint one person only as guardian of the
person and estate

of incompetents. An attempt is made to confine the words "and
others according to law" to spendthrifts referred to and defined
in section 4862. As we understand his argument he admits that the
circuit judge may appoint a guardian of the estate of a
spendthrift without the necessity of appointing a guardian of his
person. He also apparently admits that this authority flows from
the provisions of section 4850. It will, therefore, be
instructive to examine the statutory provisions applicable to the
appointment of guardians of spendthrifts and compare them with
the provisions applicable to the appointment of guardians for
insane persons.
  Sections 4859 and 4860, relating to insane persons, follow:
Section 4859: "When the relations or friends of any insane person
shall apply to any of the judges hereinbefore mentioned, to have
a guardian appointed for him, the judge shall cause notice to be
given to the supposed insane person, of the time and place
appointed for hearing the case, not less than fourteen days
before the time so appointed, and if after a full hearing it
shall appear to the judge that the person in question is
incapable of taking care of himself, the judge shall appoint a
guardian of his person and estate, with the powers and duties
hereinafter specified." Section 4860: "Every guardian so
appointed for an insane person shall have the care and custody of
the person of the ward, and management of all his estate, until
the guardian shall be legally discharged. He shall give a bond to
the judge appointing him, in like manner, and with the like
condition, as is before prescribed with respect to the guardian
of a minor, excepting that the provision relating to the
education of the ward shall be omitted in the condition of the
bond."
  Sections 4862, 4863 and 4865, relating to spendthrifts, follow:
Section 4862: "When any person by excessive drinking, gaming,
idleness, or debauchery of any kind, shall so spend, waste, or
lessen his estate, as to expose himself or

his family to want or suffering, his friends or relations may
present a complaint to any of the judges hereinbefore mentioned,
setting forth the facts and circumstances of the case, and
praying to have a guardian appointed for him." Section 4863: "The
judge shall cause notice to be given to such supposed
spendthrift, of the time and place appointed for hearing the
case, not less than fourteen days before the time so appointed.
If after a full hearing it shall appear to the judge that the
person complained of comes within the description contained in
section 4862, he shall appoint a guardian of his person and
estate, with the powers and duties hereinafter specified."
Section 4865: "Every guardian, so appointed for a spendthrift,
shall have the care and custody of the person of the ward, and
the management of all his estate, until the guardian shall be
legally discharged. He shall give bond to the judge appointing
him, in like manner and with the like condition, as is before
directed with respect to the guardian of an insane person."
  A mere reading of the statutory provisions quoted demonstrates
that proceedings are in either case initiated by the friends or
relations of the supposed insane person or spendthrift, as the
case may be, and the action which the circuit judge shall take
when the proof satisfies him that a case has been made out is the
same whether the person complained of be an insane person or
merely a spendthrift. The powers and duties of the guardian are
the same in either case. But for the provision of section 4850 it
could hardly be questioned that a guardian of both the person and
estate would have to be appointed in either case. In the case of
a spendthrift this action is to follow a finding that the person
complained of "comes within the description contained in section
4862," that being the section which defines a spendthrift,
whereas in the case of an insane person the action is to follow a
finding that "the person in question is incapable of taking care
of himself."
 
  In Guardianship of Kawai, 33 Haw. 643, a case in which the
sole question was whether or not the person complained of was a
non compos as that term is employed in section 4858, the
question of whether or not the words "incapable of taking care of
himself" refer to material as well as physical care, was posed
but not answered for the reason that it was unnecessary to a
decision of the single question involved in that case. The court
did, however, definitely hold that a non compos "may be
considered as a person of such unsoundness of mind as to be
incapacitated thereby from taking care of his property," citing
Matter of Barker, supra, in which is found a very instructive
discussion of the development of the law on the subject.
  Counsel has only inferentially asserted that there is any doubt
as to the meaning of the words "or either of them" appearing in
section 4850. We do not find them to be of doubtful meaning.
Their plain import in connection with the context is that circuit
judges may appoint guardians of either the person or estate or of
both the person and estate of minors, insane persons and
spendthrifts, they being the classes of persons subjected by the
statute to guardianship. Counsel would, by his argument, have us
conclude that said words require us to change "and" to "or" in
section 4863 but refuse to so change the same word appearing in
the same connection in section 4859. We are however of the
opinion that in order to give proper effect to section 4850 we
must hold that the word "and" in the phrase "the judge shall
appoint a guardian of his person and estate" appearing in section
4859 must in a proper case be read "or." This conclusion is
supported by section 16. A proper case is where the party
complained of is not in need of a guardian of both his person and
estate but is in need of the one or the other.
  We conclude that section 4850, in pari materia with section
4859, authorizes a circuit judge to appoint a guardian

of the estate of a non compos without appointing a guardian of
his person when it is made to appear that he is incapable of
taking care of his property even though it is not made to appear
that he is in need of one to care for his person.
  The one remaining contention of the appellant is that the
petition is defective for want of a showing that Hawaiian Trust
Company, Limited, who has been nominated by petitioner for
appointment as guardian, is willing to accept such appointment.
  The argument is that where the petitioner prays for the
appointment of one other than himself as guardian the willingness
of the nominee to accept the appointment must be shown. A
Connecticut case decided in 1808 is cited, holding that an
application for the appointment of a guardian ad litem of a
minor defendant must be in writing, naming the person proposed
and stating his consent to be appointed. (Rhinelander v.
Sanford, 3 Day's [Conn.] 279.) There is no discussion of the
question in the cited case. Whatever the rule may have been in
Connecticut, in this jurisdiction it is quite common for
applications for the appointment of guardians to contain a prayer
for the appointment of some suitable person without nominating
anyone. Even where petitioner nominates one for appointment the
court is not bound to accept the nominee. It is in fact the
common practice for the court to inquire into the suitability of
the nominee and if not found suitable refuse to appoint him and
appoint a suitable one. The statute does not prescribe what the
petitioner shall allege nor does it require the petitioner to
nominate anyone for appointment. The petition would have,
therefore, been sufficient in this respect if the prayer had been
for the appointment of some suitable person as such guardian.
  We might well have refused to consider some of the points
argued by the appellant as not being raised by the

demurrer. However, the appellee failed to file a brief within the
time allowed by the rules of this court and the appellant
thereupon waived oral argument and submitted the case upon his
opening brief. The question of the scope of the demurrer has
therefore not been argued and we have, in view of that fact,
elected to consider all of the points presented in appellant's
brief.
  Finding no merit in the contentions of the appellant, the order
appealed from is affirmed.