Opinion
(August Term, 1855.)
The Courts of Equity in this State cannot send the estate of an idiot out of their jurisdiction. But where there is an idiot residing in another State, and having a guardian in such other State having funds in the hands of a guardian in this State, the court can make an annual allowance for his maintainance to be paid to the guardian abroad.
CAUSE removed from the Court of Equity of Rowan at the Spring Term, 1855.
H. C. Jones for the plaintiff.
Boyden for the defendant.
Reese Johnston had been found by an inquisition of Rowan county, to be an idiot, and for more than twenty years had been under the guardianship and protection of guardians appointed by the County Court. For five or six years before the appointment of the defendant, which took place in 1853, the plaintiff, James F. McNeely, who was his brother-in-law and friend, had been his committee; but it not suiting his circumstances to remain in North Carolina, he moved with his family to De Soto County in the State of Mississippi. At the earnest desire of Reese, who was greatly attached to Mrs. McNeely, his sister, wife of the said James F., he was permitted by the present guardian, the defendant, to accompany the family to that State, which was undoubtedly an act of kindness and propriety, and as such was sanctioned by his nearest friends and relatives. He is now with the said James F. McNeely, in Mississippi, and by a regular proceeding in the Probate Court of De Soto County in the said State, which had jurisdiction of the matter, he was declared an idiot, and the said James F. McNeely was appointed his guardian, who gave a good and sufficient bond in an ample sum to cover the whole estate of the said Reese Johnston which was all made to appear in this case by the record of said Court, and by depositions as to the sufficiency of the sureties taken in the State of Mississippi, and filed in the cause. The prayer of the bill is that the defendant J. F. Jamison, the guardian in this State, may be decreed to account and pay over the estate of his ward to the said J. F. McNeely, the guardian in Mississippi; but if the Court shall (187) believe that they have not the power to make such order, the prayer is in the alternative to order the said guardian to pay to his guardian in Mississippi, an annual allowance for the support and maintenance of the said idiot.
The present defendant, James F. Jamison was appointed the guardian of Reese Johnston, by the County Court of Rowan, on the removal of the former guardian, and took charge of his estate. In his answer, he states the amount of his ward's estate. He admits that said Reese left the State with his brother-in-law and sister by his approbation and consent, and with that of all the near friends, of the said Reese, and believes it was an act of discretion and humanity for him so to do. He expresses a decided wish that the funds in his hands may be handed over to the committee in Mississippi, but doubts the lawfulness and safety of so doing without the order and sanction of this Court.
The cause was set down for hearing on the bill, answer, exhibits, and testimony filed, and sent to this Court by consent.
When the plaintiff was carried to the State of Mississippi and became a resident there, the courts of that State acquired a jurisdiction over his person, and had a right to have an inquisition of idiocy found, and thereupon to have a guardian appointed for him. Whether his guardian here could recognize such foreign guardian and have a settlement with, and pay over the idiot's funds to him, is not proper for us to say; but it is our duty to declare our opinion to be, that the courts of this State cannot make an order to send the idiot's funds out of their jurisdiction. Prior to the year 1820, it seems that the guardian of a minor orphan, appointed in another State, to which the orphan had removed, could not call upon his guardian here for the funds in his hands with the view to remove them from this State; and an (188) act was passed in that year, authorizing it to be done, the provisions of which will be found in the Revised Statutes, ch. 54, sec. 23 and 24. That act is expressly confined to the guardians of infants, and of course does not embrace a case like the present. But though we cannot order the removal of the idiot's property, we cannot perceive any reason why we may not make an annual allowance for his support, and direct his guardian here, to pay it over to the guardian of his person in Mississippi. We have not, it is true, been able to find any direct authority for it; but we are not aware of any against it, and we think it may be done upon the same principle which empowers the court of chancery, in a proper case, to order a maintainance for an infant whose person is out of its jurisdiction. See 2 Story's Eq. jur. sec. 1354, b, where is cited Stephens v. James, 1 Myl. Keene, 627; Logan v. Farlie, Jacob's Rep. 193, and Jackson v. Hankey, ibid. 265.
For the purpose of ascertaining what amount will be a proper allowance for the idiot, due respect being had to the amount of his estate, etc., there must be a reference to the clerk to inquire and report, etc., and the cause will be retained for further directions upon the coming in of the report.
Per curiam.
Decree accordingly.