Mason ex rel. Mason v. Wait

Citations

• 5 Scam. 126

Syllabus

<p>Error to Greene.</p> <p>1, Guardian — cannot delegate trust. The general rule of law is that a trust cannot be delegated. The exception to this rule, that a power coupled with an interest will authorize the delegation of the trust, by making an attorney, does not include -a guardian, nor authorize the latter to appoint an attorney to execute a deed, (a) </p> <p>2. Guardian and ward — interests not adverse. It is not necessary that a ward should have any other day in court, upon an application by an guardian for leave to sell</p> <p>the ward’s real estate, than such as the former has by his guardian’s presence. Such a proceeding is not adverse to the ward’s interest, nor against him. (b) </p> <p>3: Same — intervention. A -third person can be permitted to question the power and acts of a guardian, only when the rights of the former depend upon the existence and due exercise of the powers of the latter.</p> <p>4. Same — sale of realty. A guardian has no power to sell the real estate of his ward, unless authorized by the court, or, perhaps, by the legislature.</p> <p>5. SAME — same. Where a power is conferred upon a guardian to sell his ward’s estate, it must be considered as a naked power, and be strictly pursued.</p> <p>6. Same — same. Where the legislature authorizes a guardian to sell the land of his ward, under the direction and sanction of the judge of probate, a sale made without his consent and direction is void.</p> <p>7. Same — same. It is constitutional for the legislature to authorize a guardian to sell the real estate of his ward, under the direction and sanction of the court of probate.</p> <p>8. Constitution — construction of. In ascertaining the powers of a state legislature, we examine to see what are denied by the constitutions of the United States and of the state, whereas in interpreting the constitution of the United States, we are obliged to find a grant of power, before it can be exercised.</p> <p>9. Same — legislative omnipotence. The legislat