security in order that you might start some kind of a suit, and as a result spend some of the old lady's money for the benefit of Sawyer & Knowlton. Now, we do not recognize the right of the old lady while under guardianship to order about her estate, nor employ attorneys, nor do we intend to allow her to spend her estate in that way, to please any of her children; but we do know our duty, and shall maintain it, and that is to preserve her estate, and only pay out what is necessary for her support and the support of Charles, of which we have the order of court for doing, and thus do our duty faithfully under our bonds. We cannot listen to the notions of Mrs. Howe or yourself, or any others, but must act legally and justly. We sent your mother $250, and will send more when we think it necessary for support (not for attorneys), and will do right and save the estate.

"Respectfully,

"D. CRAMER. "L. GRUNER."

The plaintiff further, in her petition, avers her competency in every respect to have the charge and management of her estate, and that she has always been thus competent so to do; and she further insists that the probate judge never had any jurisdiction of her person or estate in the proceedings had before him, and that the order appointing the said Cramer and Gruner her guardians is void; that in and by the decree of said probate court she has never been adjudged mentally incompetent to have the care and management of her person and estate; that she never had any legal or personal notice of the hearing of the case before the probate court in which the decree was made placing her under guardianship.

That the proceedings had by the superintendents of the poor in the circuit court were without proper notice to herself and the parties interested, and the circuit court for that reason obtained no jurisdiction in the case, and that the order made therein is also erroneous, for the reason that it directs the weekly allowance to be paid to Mrs. Howe and not to the superintendents; that as against the plaintiff and her estate it is erroneous, as it renders a judgment against her pretended guardians in favor of Mrs. Howe for $160, without any notice to her, and without any guardian ad litem

being appointed; and she prays that the order in both courts may be set aside and proceedings dismissed, and asks that this writ issue to remove the proceedings had in both courts to this Court, that such relief, or the proper relief, may be obtained. The writ was allowed by the late Chief Justice Cooley on the seventh day of September last.

The judge of probate and the judge of the circuit court for the county of Washtenaw each make return to the writ.

The judge of probate in making his return, after stating the proceedings as they transpired before him, and annexing thereto "all the orders, papers, judgments and decrees" made in the matters in his court, says: "As to the matters of fact set up in the petition for certiorari I have no knowledge, but respectfully submit the affidavits of D. Cramer, Leonard Gruner, and Elmira P. Howe, and ask to have them received as a part of this return." This, of course, cannot be done: Whitbeck v. Iludson, 50 Mich. 86; People v. Mayor of N. Y., 2 Hill, 9; Stone v. Mayor of N. Y., 25 Wend. 168; Allen v. Merchant's Bank, of N. Y., 15 Wend. 482; 2 Burrill Pr. 168; Grah. Pr. 550; Jackson v. People, 9 Mich. 120; How. Stat. § 2125, S. C. rule 114, B. C. 401; Dowl. Pr. cases, 510. record in the case.

They constitute no part of the

We have, however, at the earnest request of the learned counsel for the respondents, looked through them for the purpose of learning, if we could, what views these affiants could take of the case to warrant these most extraordinary proceedings on the part of those by whom they were instituted and prosecuted. It is true that in the affidavits many of the statements made in the plaintiff's petition are controverted, but the main and material facts therein stated, and shown by the return of the respondents, and the circumstances of the case narrated in the petition, are not essentially changed.

We have also not failed to notice the following closing paragraph of the return of the judge of probate, viz.:

"All of which I do hereby certify and return, as I am within commanded, with the additional and uncalled-for infor

59 MICH-41

mation that, of all the foregoing progeny of Eliza North, the best behaved and the most deserving of the consideration of your honorable court is her insane and idiotic son, Charles North, whose fate will be sad, indeed, if either of the contending factions of children get control of this old lady's person and property, especially of her property, which is all they care about and all they are after."

This seems a somewhat remarkable statement of the feelings, conduct, and motives of a family of four children, three of whom are daughters, and all of whom are forty-five years of age and older, towards, as is claimed, an old and partially helpless and demented mother, and an insane and imbecile brother; and especially would this appear to be the case in view of the statement contained in the affidavit of Mr. Gruner, and which the judge of probate desires to have considered as a part of his return, that "Mrs. Howe had shown the fidelity and love of a true sister" for her brother Charles.

If the views of the probate judge are correct as to the feelings and motives of these children towards this unfortunate brother, it seems his case would be hardly less sad than that of the "aged, and alleged mentally incompetent, mother;" and if it is all true that is said of these children in this "uncalled-for information," and in these affidavits, it ought to serve as an admonition to increased vigilance on the part of the court, to whose judgment, prudence, and discretion the law has committed, in its humanity, the welfare, care, custody and control of such persons, and the management of their estates; that they should see to it that the law is not transgressed or violated to gratify the avarice or cupidity of any one.

No higher duty can be intrusted to any court than that of directing the care to be taken of the widow and the orphan, and the helpless and insane, and the disposition to be made of their property for that purpose.

This record raises the question whether or not such vigilance has been exercised; whether the law has been fully observed, and the rights of the old and infirm, and helplessly insane, have been properly guarded and protected by the pro

bate court. It quite sufficiently appears that up to the time Mrs. North went to Kansas City, in June, 1884, she had so managed her affairs and property as to furnish herself and husband with a good home so long as he lived, as well as a home for Mrs. Howe and her family at least seven or eight years; that she had properly cared for and supported her insane son Charles, and at the time of her husband's death. had preserved of her estate for her then future comfort and support, and that of her son Charles, about $30,000, and had it all well placed, in good paying investments, which brought her an annual income of more than was needed for her own support and the support of those whose dependence was upon her. Certainly this would not tend to show that she was mentally incompetent to have the care and management of her estate. Neither does it appear from the record that complaint had ever been made by her relatives, or any one else, to that effect, previous to the time she went on a visit to her daughter in Kansas.

It further appears that when her daughter Hannah came to visit her such was the situation. It also appears that Mrs. Gibson was in comfortable circumstances, and invited her mother to return with her; that Mrs. North made the necessary arrangements for that purpose, placed the use of the farm at Mrs. Howe's disposal to support her unfortunate son, with whom he had for some time been living upon the farm; thus, so far as appears, allowing Mrs. Howe more for his care than she had before received, and after selecting the person at Ann Arbor to transact her business there during her absence, handed him her papers to place in the bank, and with her daughter Mrs. Gibson left for Kansas City. These certainly were acts not indicating any mental incompetency, but rather the qualities of a good business woman at the age of eighty-three years. She was in good health, and arrived with the daughter at her home in Kansas City in due time.

It is not pretended, neither does the record show, that any person from the county of Washtenaw, or from the State of Michigan, saw Mrs. North until she returned to her home in Michigan in the fall of 1884.

It would appear from the petition of plaintiff that when she left Ann Arbor she intended not to return until the following spring. In September she had some business to attend to in Washtenaw county, and she caused to be written a letter to her agent at Ann Arbor, inquiring if he would attend to it, stating if he could she would forward to him a power of attorney for that purpose; and not until after the receipt of this letter does the record show was it ever intimated that she was mentally incompetent, and needed a guardian. We have stated the correspondence which followed, so far as it appears in the petition and record. It is only necessary to say that Mrs. Ilowe and her brother John filed a petition to secure the appointment of a guardian in the probate court, of the pendency of which, although Mrs. North had never received any legal notice from any source, still she desired to defend against the proceedings, and employed an attorney to make her defense. He, however, did not make such defense, but, as appears from the proceedings, he remained silent in court; and, at the instance of the other side, allowed a decree for a guardianship to be entered, and he himself to be appointed one of her guardians. Mrs. North was in the court-room at the time part of the proceedings were had, and the return of the probate judge says that she appeared in person and by Cramer, as her counsel, on the occasion; but it nowhere appears in his return that the court ever said a word to her, or that Mrs. North ever spoke to hin, or that any inquiry was made of her by said Cramer, or by any other person in the room, while the so-called hear ing was had, or that she understood, or had any comprehension, of the true character, scope, or effect of the proceedings then in progress.

From the foregoing summary of the proceedings taken in these two matters, it will be noticed that two of the children of this old lady, with such aid as they were able to secure from an agent with whom she had intrusted the care of securities to the amount of over $28,000, and a lawyer whom she had employed upon the promise that he would faithfully look after her rights and protect her interests, by a resort to