dissenting.
The decisions of this Court in the present case and in another between the same parties, certiorari No. 760, decided on the 17th instant, are rested on the ground that the order of the District Court of San Juan declaring Emilia Yoight de Tischer incapacitated to manage her property and appointing her son, Otto Tischer, as her guardian is void because said lady was n,ot served with notice of the petition filed for that purpose by five of her seven children.
The prevailing opinion cites Chaloner v. Sherman, 242 U. S. 455 and Simon v. Craft, 182 U. S. 427, in support of the ruling that notice of the petition for the declaration of' incapacity should have been served on Emilia Yoight. However, the holding in the Ghaloner case was not that the service’ of notice on the incapacitated person was necessary but that compliance had been had with the New York statute requiring such service. In the other ease, which originated in Alabama, the finding was upheld that when Mrs. Jetta Simon was taken into custody in consequence of the petition filed for an inquisition of lunacy as to her, she had been served with a copy of the writ setting a day for the hearing of the case, as re*171quired by tbe Alabama statute. In botb of these oases service was made on tbe two in,sane persons — for they were insane — and this constituted all their intervention in the proceedings, since Mrs. Simon was not produced in court n,or did Chaloner appear. Neither of them was represented at the hearing and in both cases the decree of incapacity was affirmed.
The sections of our Civil Code which deal with the declaration of incapacity in the case of insane or demented persons and deaf mutes who are of full age do not prescribe that notice of the petition for a decree of incapacity be served on the alleged incapacitated person, as now held in the majority opinion. Said sections, however, go beyond the mere service of notice, as they provide for the appointment of a person to act as next friend. Section 252 prescribes, in effect, that where the prosecuting attorney applies for a decree of incapacity the court shall appoint a next friend for the person presumed to be incapacitated, and that where the petition is made by the spouse of the incapacitated person or by the relatives entitled to do so the district attorney shall act as next friend. So that, ip these latter cases, the district attorney acts as next friend by express mandate of the law.
The petition for the declaration of incapacity in the instant case was made by children of Emilia Voight; hence the prosecuting attorney was her next friend and legal representative, and he was served with notice of the petition on the very day that it was filed in the district court. Such notice by itself turned the prosecuting attorney into a next friend of Emilia Voight. Therefore, in my judgment, it can not be maintained that there was no due process of law for the purpose of a declaration of incapacity in the present case,, since she had a legal representative before the court. It is true that it does not appear from the stenographic record— which has not been approved by the court — that the prosecuting attorney was present when the evidence was taken; but *172this is no ground for avoiding the proceeding, the more so since there appear on said record the words “No objection” over the signature of the prosecuting attorney. This shows that he examined the evidence introduced and found it sufficient to warrant a decree of incapacity.
By reason of the foregoing, I am of the opinion that the declaration of incapacity of Emilia Yoight is not void, nor is the appointment of a guardian which was made; and, therefore, that the application for a writ of habeas corpus in this case should not have been granted.