*282The opinion of the court was delivered by
Taft, J.The plaintiff’s exceptions relate to the charge of the court on the second, fifth and sixth requests.
I. The court complied with the second request in its very terms,- and in regard to Mrs. Barnes’ capacity told the jury that it was proper for her to receive competent advice from others, so that by their explanation and advice she was made to understand the contract; that when she finally consummated it she must do it understandingly, whether she had native business capacity enough to understand it, or whether she learned from competent sources what would be for her interest, if she got the capacity by education at the time from competent sources, that would be enough. No exception was taken to the charge in respect to what constituted requisite capacity in a party to execute a contract. The jury then must have known what capacity was required in this respect, and we think it no error when they were told that it might be imparted to her as the result of education. This principle is recognized in many cases. - In Arnold v. Richmond Iron Works, 1 Gray, 434, the court speak of the capacity of a person to make contracts, “ either by his knowledge or by the aid of legal counsel or such other aid and advice as he may avail himself of,” as competent. In Gratz v. Cohen, 11 How. 1, in speaking of the capacity of a party and the circumstances under which a contract was made, the court say: “ She applied to him, rather than he to her, to make the settlement, and he suggested the advice and aid of her business friends rather than attempting a secret and sudden settlement, and she did consult two intelligent business friends.”
II. The fifth request that “ the inquisition of the Probate Court as to Mrs. Barnes’ competency, under the circumstances, would change the presumption in favor of business capacity, and would cast the onus on the defendant,” was made upon the assumption that she was under guardianship when the contract was entered into. Such was not the fact. The contract was made on the second day of January, and the inquisition did not take place until the thirtieth of the same month, so that it is unnecessary to *283pass upon the question, .as the plaintiff is not entitled to a charge upon a state of facts which it is conceded did not exist.
III. The sixth request, “ that the guardian not having been appointed until after the contract was completed, no subsequent attempted ratification of the contract by him would be binding or effectual, and would not confirm the deed from Mrs. Barnes to Mrs. Hubbard,” was answered by the court’s telling the jury that “ if the guardian representing Mrs. Barnes was acting honestly, and the heirs of Mrs. Barnes interested in her estate, with full knowledge of the provisions of that contract, neglected to find any fault with it within a reasonable time after it was made, they have confirmed it.”
No case directly in point has been cited. The question was suggested in Gibson v. Soper, 6 Gray, 279, where the court say, “ how far the probate guardian of an insane person can ratify a deed made by his ward, or what acts of the guardian would be evidence of such ratification, it is not necessary to consider.” No guardian in this State, except by express authority from the Probate Court, can convey lands owned by his ward, lands held by his ward in trust, or consummate an agreement made by his ward, by conveying land that the ward is under contract binding in law or equity to convey. R. L. c. 125'. The legislative power has, with great care, guarded the rights of wards in their real estate. We think it would be in violation of the spirit of our legislation to hold that a guardian may do indirectly, passively, what the law forbids his doing directly, and that it is a safer rule to hold, that in order to confirm a deed made by his ward, while under disability, he must follow the regulations prescribed by the statute, obtain a license, and execute a conveyance himself.
Neither do we think that a confirmation of the deed could be effected by the neglect of those persons, who upon Mrs. Barnes’ death became her heirs, to act in the matter. They had no interest in her estate, and could institute no proceedings in relation to it, except through the guardian ; and one of them had no knowledge of the transaction until after the decease of Mrs. Barnes.
This latter person certainly ought not to be bound by the acts *284of the others. The defendant’s counsel contend that the ratification of the deed was an immaterial fact; that it became so, because upon the death of Mrs. Barnes the contract could not be repudiated, insisting that it was a reasonable one, for necessaries, free from fraud; that they had no reason to suppose that Mrs. Barnes was of unsound mind at the time of the contract, and that the consideration could not then be restored, which they contend was requisite to a rescission. The authorities in support of such doctrine are very full; and had the case been submitted to the jury in that view, and the question of ratification excluded, it is possible that the verdict could not be disturbed. The exceptions do not show that all these facts were litigated upon the trial. They were to some extent; but the case was not submitted to the jury upon this theory. .These facts may have been found against the defendant, and the verdict rendered based alone upon the ratification of the contract, which would have been error. Such facts may be so varied, and it being impossible for us to know what may be claimed in respect to them, that we do not pass upon the question of what effect the complete execution of the contract would have upon the rights of the parties, leaving that to be considered upon another .trial.
Had there been no error in the charge in the respects indicated, we think the jury should have been further told that there could have been no confirmation of the contract unless the parties confirming it had knowledge of their right to have it set aside. Wade v. Pulsifer, 54 Vt. 45, and cases cited. For the errors mentioned the judgment of the County Court is reversed and cause remanded.