OPINION DENYING A PETITION FOR A REHEARING.
*641The opinion of the court was delivered by
Graves, J.:A petition for a rehearing has been filed herein which suggests that the opinion heretofore filed did not consider one of the vital questions involved in the case. It is urged that before the probate court of Lincoln county could appoint a guardian for the estate of Joseph Healy notice of such intended action must have been served upon him; that until service of such notice the court was without jurisdiction to consider such appointment, and any action taken was in violation' of important constitutional rights and amounted to an arbitrary usurpation of power.
As the probate court of Lincoln county did make the appointment without such notice, this question is important. Upon a reexamination of the case we find that, while this specific question was suggested in argument,' it was not seriously discussed and did not receive the attention in the opinion which it probably deserved, and we therefore deem it proper to consider it further at this time.
Courts of chancery have for centuries been regarded as the general guardians of infants, lunatics, and other incompetents, and have exercised their powers as such, through persons appointed by them for that purpose. The power of chancery courts in this respect has been generally recognized in this country the same as in England. From considerations of public convenience the powers of chancery courts in this respect have been by the statutes of most states conferred upon probate courts or other tribunals' in each county. These local courts áre generally recognized as possessing full chancery powers concerning the appointment of guardians, except where limited by the statute under which this duty is imposed. (1 Black. Com., Cooley’s 4th ed., p. 464, note 1; 9 Encyc. Pl. & Pr. 890-892, and notes; Fox v. Minor, '32 Cal. Ill, 116, 91 Am. Dec. 566; Sprigg v. Stump, 8 Fed. 207, 214.)
*642In the case of The Board of Children’s Guardians of Marion County v. Shutter, 139 Ind. 268, 272, 34 N. E. 665, 31 L. R. A. 740, it was held that “the power to appoint guardians for infants, idiots, and lunatics, conferred by the statute, is merely declaratory, of the power they already possessed.” In the absence of statutory requirements no notice is necessary to confer authority upon a probate court to appoint a guardian, either for a minor or a lunatic who has been duly adjudged to be a person of unsound mind. (Kurtz v. St. Paul & Duluth R. Co., 48 Minn. 339, 342, 51 N. W. 221, 31 Am. St. Rep. 657; Swope’s Adm’r v. Frazier’s Committee [Ky.], 37 S. W. 495; Heckman v. Adams, 50 Ohio St. 305, 34 N. E. 155; Martin L. Leffel v. Henry C. Knoop, cited in Heckman v. Adams, supra, but not reported; Van Matre v. Sankey et al., 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196.)
In the case of Heckman v. Adams, supra, the lunatic was regularly adjudged to be of unsound mind, and was sent to the asylum for the insane. Eight months afterward a guardian of her estate was appointed without notice. It was held that no notice was necessary, the statute not requiring it. The appointment was made because of the former adjudication, upon which the lunatic had notice.
By the appointment of a guardian for the estate of a person of unsound mind no constitutional right is involved. He is not thereby deprived of any property; on the contrary, his property is protected and preserved by the court, whose ward he is, through its officer, who has been required to give bond for the faithful and honest performance of his duty. In this state full authority has been conferred upon the probate courts to exercise this power. (Const, art. 3, §8; Gen. Stat. 1901, § 155.) The statute confers this duty in broad and unrestricted terms. It reads:
“If it be found by the jury that the subject of the inquiry is of unsound mind, . . . the court shall *643appoint a guardian of the person and éstate of such person.” (Gen. Stat. 1901, § 3945.)
It follows that whenever it is made to appear to the probate court that any person within its jurisdiction has been duly and legally found by a jury to be a person of unsound mind, it then becomes the duty 'of such court to appoint a guardian for such person. Usually the adjudication of lunacy and the appointment of a guardian take place in the same court and at the same time. In such a case notice is indispensable upon the question of lunacy, but when that fact is established the guardianship follows as a matter of course. There are cases which apparently hold that the appointment of a guardian should be after notice to the lunatic, but in all of these cases which have been brought to our attention the adjudication of lunacy occurred at the same time that the guardian was appointed and the notice was necessary on that account.
When the judgment of the probate court of Shawnee county was presented to the probate court of Lincoln county, as evidence that Joseph Healy was a person of unsound mind, that court decided the ’ question of lunacy, just as every court determines the facts upon which its jurisdiction depends. If the Shawnee county court had appointed the guardian it would have acted upon the same evidence that was before the court in Lincoln county. Healy was never before the Shawnee county court for any purpose except to defend against, the complaint of insanity.
Every probate court when it appoints a guardian for a person of unsound mind does so upon the findings, of lunacy by the jury. No notice is ever given or necessary to answer as to whether a guardian shall be appointed. The petition for a rehearing is denied.
All the Justices concurring.