On Motion of Appellees for Rehearing.
We are unable to agree with the argument of the appellees that, as specially stated to be the main reason, the proceedings numbered 4286 was so at variance with and contrary to the statute as to render such proceedings for lease of the land null and void for all legal purposes. Thé proceedings numbered 4286 bad origin, not alone for the appointment of a guardian of “the estate,” but also for “the person,” of “a minor.” ‘ So it may be assumed, as we do, and as argued by the appellee, that there was no authority in the probate court in the proceedings mentioned to appoint a guardian of the “estate” of “a minor” or “of the person and estate of a person of unsound mind.” The whole proceeding, however, would not be regarded as a nullity, for the probate court absolutely and certainly had the jurisdiction, in virtue of the application in that proceeding, to appoint the guardian of “the person” of the “minor.” The statute authorizes the probate court to appoint a guardian of “the person” pf “a minor.” And, as laid down in Wakefield Trust Co. v. Whaley, 17 R. I. 760, 24 A. 780, where there has been a legal appointment of a guardian of a minor’s “estate,” a subsequent appointment of a guardian of “the person and estate” does not affect the prior appointment, but becomes valid as an appointment of a guardian' of “the person.” This court so held and intended to so hold in the main opinion.
In the proceedings mentioned, the lack of issuance and service of personal citation on the minor was not destructive of jurisdiction of the court to appoint a guardian of “the person,” because it appeared that the minor was an “insane person.” Evidently the statute does not contemplate service of citation upon a minor when he is in that situation.
The mode of invoking the consent, as done in this record, of the probate court to make the lease was not fatal to the jurisdiction of the court. There was an “application” made to the court by the guardian. It is the application that invokes authority of the probate court to act, and furnishes the basis for the order. The single question then is, Does the mere fact that the “application” for leave to lease the land and the order of the court granting it was made in the proceedings as numbered 4286 render the order of the court and the application therefor absolutely void? The guardian made the application to lease in the dual capacity of “guardian of the person and estate.” By the application the objects to be benefited were both “the estate and the person.” He was, as shown above, the legally appointed and qualified guardian of both “the estate” and “the person” of the minor. We find no authority warranting the ruling that, in such circumstances, the probate court lacked the requisite jurisdiction over either the guardian or the subject-matter to act and authorize the lease. It is thought that in the mode of obtaining such jurisdiction over the application to lease there was no defect so substantial as to render the application and order of the court thereon null and void.
The motion for rehearing is overruled.