guardian, James J. Godfrey appeals. firmed. James J. McCafferty, for appellant. uel Morrison and Charles Loring, for spondent. Af- any kind for them. The opinion is expressed that he was "batty," or "off his nut," and it Sam- is shown that, contrary to his former dispore-sition, he was silent, melancholy, and morose; that when spoken to he would answer questions sullenly, almost insolently. There is CHADWICK, J. Charles . Sall, a resi- evidence to show that he was afraid of losdent of the state of Minnesota, filed his peti-banks were unsafe; and while at the hotel, ing his money and dying poor, and that the tion under chapter 118 of the session laws the clerk says that "he would walk around; of 1909, praying that he be appointed guardian of the estate of his brother Nels Oscar walk to his room six or seven times in ten Sall, whom he alleged to be an incompetent minutes." In November, 1908, he disappearperson. At the time of the application, Nels ed from the Diller hotel, and has not since Oscar Sall was of the age of 45 years. For been seen or heard from, although search several years he had been a resident of the has been made in Alaska, Seattle, Tacoma, territory of Alaska, where he with two oth-Portland, and other places. These are the facts which moved the court to appoint ers discovered a group of mining claims in the year 1907. In December of that year the Charles E. Sall guardian of the estate of claims were bonded to James J. Godfrey, ment of this court, if the law does not inhis brother, and are sufficient in the judgwho resists the petition for guardianship. By the terms of the option agreement, a tervene to prevent it. certain sum was paid down and a deed was Mr. Godfrey has appealed, assigning as erexecuted and placed in escrow at the Puget ror that the superior court had no jurisdicSound National Bank, which bank was made tion to appoint a guardian for a nonresident, the agent of all parties to the escrow agreeor one not within the jurisdiction of the ment, with power to receive the deferred court. It will be observed that chapter 118, payments, and upon final payment to sur-Laws 1909, refers only to property, and has render the deed. In November, 1909, when nothing whatever to do with the guardianthese proceedings were commenced, there ship of the persons of the classes referred was $1,985 of the moneys coming to Nels Os- to therein. It provides in section 1 that a car Sall and paid under the option on deposit petition shall be filed showing not only that in the Puget Sound National Bank and sub- the incompetent person has property needing ject to his check. Prior to April, 1908, Nels care and attention, but that the owner is a Oscar Sall had been a man of usual mental resident of the county where the petition is strength, but in that month, while with a filed. Section 4 of the act provides that sled and team upon the Chitna river in where the incompetent person resides out of Alaska, the ice broke, precipitating the team the state of Washington and has property and sled and Mr. Sall into the waters of the within said state requiring the care of a river. He floated under the ice for a dis- guardian, and a petition is filed in the countance of about 70 feet when he was rescued ty where such incompetent has property, by his companions. He suffered an imme- service by publication may be had. It is condiate shock to his nervous system. There-tended that section 1 defines the jurisdiction after he was in ill health, and it was notic- of the court, and that section 4 cannot be ed that his conduct and demeanor toward given effect unless it is also made to appear others was not as it had formerly been. He that the incompetent is, in fact, domiciled in was taken to the hospital at Valdez from the county. If this effect is given to the whence, after some weeks' treatment, he statute, we think unquestionably that the suddenly disappeared, and was afterwards contentions of the appellant should prevail. found by the United States 'marshal's office, But, construing the act as a whole, and recacting through the intervention of Senator ognizing the necessity as well as the duty Nelson of Minnesota. When found he was of the state to protect the estates of incomworking in a railroad camp at Cordova. He petent persons, the construction put upon seemed to have forgotten his name; at any the statute by appellant may well be doubtrate he was working under an assumed ed. A careful examination of the law on name, and there is evidence tending to show our own account convinces us that the suthat he at times lost the faculty of remem-perior courts have an inherent jurisdiction bering his own identity. At the railroad to protect estates of nonresident incompetent camp he is said to have displayed almost superhuman strength, a condition not unusual in those of failing mentality, and in some cases a marked symptom of mental alienation. Thereafter he came to Seattle, where several of his former friends met and conversed with him. While they were not willing to say that he is not capable of attending to his own business, they all agree that they would not trust him to attend to business of persons; and that, while it is generally said that the power to appoint guardians is purely statutory, the power in fact lies in the sovereignty of the state, and the procedure only is statutory. In England, from whence we have derived our common law and the accepted heads of equity jurisdiction, the king assumed the care of insane persons and their property in parens patriæ. After a declaration or finding of insanity, the Ju risdiction In lunacy cases was held in some early cases to be no longer exercisable under the king's sign manual, but in virtue of the general powers of the court. Ex parte Grimstone, Amb. 206; Burford v. Lenthall, 2 Atk. 551; In re Fitzgerald, Ll. & G. t. Pl. 20, 2 Sch. & Lef. 432. Mr. Woerner, in his work on the American Law of Guardianship, § 18, says that it is the prevalent conviction of lawyers, judges, and text-writers in America that, in the absence of countervailing statutes, American courts having equity powers possess a general jurisdiction for the appointment of guardians. Story draws no distinction between the powers of American and English courts in this respect (Story's Eq. Jur. ch. 35); and Mr. Pomeroy, in his Equity Jurisprudence, at section 1306, says that American courts have this power in so far as it has not been taken away by statute. It is therefore held that where the power to appoint guardians has been conferred upon other courts, as, for instance, the probate court of the territory before the creation of the state of Washington, the power is cumulative and concurrent with the court of chancery. Lee v. Lee, 55 Ala. 590; Wilson v. Roach, 4 Cal. 362; Ex parte Miller, 109 Cal. 647, 42 Pac. 428; Board of Guardians v. Shutter, 139 Ind. 268, 34 N. E. 665, 31 L. R. A. 740; Corrie's Case, 2 Bland (Md.) 488; Wilcox v. Wilcox, 14 N. Y. 575; Durrett v. Davis, 24 Grat. (Va.) 302; Glasscott v. Warner, 20 Wis. 654; Harlin v. Stevenson, 30 Iowa, 371; Sterritt v. Robinson, 17 Iowa, 61. said: "In this state we have no probate It would follow, then, that the statute, in declaring that the court might appoint a guardian for the property of an incompetent person resident of the county, would not bar a court of general jurisdiction of its general In Dodge v. Cole, 97 Ill. 338, 37 Am. Rep. equity powers, provided the Constitution is 111, the power of the court to exercise jurisbroad enough to warrant its exercise. That diction over the estates of incompetent perthe superior court of this state has such gen- sons was called in question. It was contenderal jurisdiction has been frequently declared. ed "that upon the organization of our state In Moore v. Perrott, 2 Wash. 1, 25 Pac. 906, it government the state, as a political soveris said: "The language of the Constitution | eignty, in its character of parens patriæ, suc[art. 4, § 6] is not that the superior courts ceeded to all the rights and duties previousshall have exclusive jurisdiction, but it gives ly enjoyed or exercised by the crown of Engto the superior courts universal original ju- land with respect to idiots and lunatics and risdiction, leaving the Legislature to carve their estates. That the power to which the out from that jurisdiction the jurisdiction of state thus succeeded is not of a judicial the justices of the peace, and any other in- character, wherefore, in the distribution of ferior courts that may be created." In Krie- the powers of government under the Constischel v. County Commissioners, 12 Wash. 428, tution, it was not thereby delegated to or 41 Pac. 186, it was said of the same provi- conferred upon the judicial department of sion: "The language there used is certainly government, and hence, without express legvery broad and comprehensive, and might islation, a court of chancery was not authorwell be said to apply to cases of this char- ized to exercise it." After an exhaustive disacter, as they are 'not otherwise provided cussion of the relative rights and limitafor,' and, if contemplated at all, fall within tions of the legislative and judicial branches the purview of this provision. At all events, of the government, the court came to the it is manifest that it was not the intention conclusion that the courts could, in the exof the framers of this section 6 to exclude ercise of their general chancery jurisdicany sort or manner of causes from the ju- tion, order a sale of real property of an inrisdiction of the superior court." In Filley competent under either one of the following. v. Murphy, 30 Wash. 1, 70 Pac. 107, it is equitable principles: "(1) The duty of the state to protect and provide for such of its citizens as are incapable of taking care of themselves. (2) The right of every owner of property to have it applied to his support. (3) The absolute necessity for such relief. (4) Such applications involve the exercise of judicial power. (5) The duty which the state owes to those laboring under disabilities can be more appropriately and efficiently performed through courts of equity than in any other way." All of which the learned writer of the opinion proceeds to discuss, saying in conclusion: "All who are conversant with the history of equity jurisprudence know that as a distinct system, it has been of constant growth and development from its inception to the present time, covering a period of hundreds of years. The jurisdiction of a court of equity does not depend upon the mere accident whether the court has, in some previous case or at some distant period of time, granted relief under similar circumstances, but rather upon the necessities of mankind, and the great principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages, and all people." Without committing ourselves to the doctrine there announced, that a court might sell the property of an incompetent person for any purpose other than to relieve his immediate necessities and contribute to his comfortable support, the reasoning is conclusive upon the question of jurisdiction, and is sustained by the following authorities: Allman v. Taylor, 101 Ill. 185; McCord v. Ochiltree, 8 Blackf. (Ind.) 15; Corrie's Case, 2 Bland (Md.) 488; Latham v. Wiswall, 37 N. C. 298; Dowell v. Jacks, 58 N. C. 417; Ashley v. Holman, 15 S. C. 97; Burke v. Wheaton, Fed. Cas. No. 2,164. While there are cases holding that this special jurisdiction over the estates of incompetent persons does not come to us as inherent to the equitable jurisdiction of our courts, reference to our Constitution (art. 4, § 6, as construed by the cases heretofore decided by this court) will show that jurisdiction is given "in all special cases and proceedings as are not otherwise provided for." This must include power over the estate of an incompetent when properly brought before the court, for the object of the people in establishing their courts and defining their jurisdictions was to safeguard and protect property rights. It is only where there is no general or plenary jurisdiction conferred upon the court by statute or the Constitution, that the jurisdiction of the courts exercising power over the persons or estates of incompetents is to be considered limited or special. Moda well v. Holmes, 40 Ala. 391. To put the property of an incompetent to such uses as will tend to his relief and comfort should desired in this case, to use the funds on hand for the protection of his property and to finding the ward if possible. Under the general provisions of our Constitution distinctions are preserved between the common law, equity, and probate practice, but it is for convenience rather than because of the original reasons underlying the segregation of the courts under the English procedure. The power, then, being in the superior court, covering as it does the functions of the commonlaw courts, courts of equity and probate, the name of the particular jurisdiction is immaterial to our discussion, so long as a procedure is provided to carry it into execution. This the Legislature has undertaken to do in section 4 of the act of 1909. Nor do we think that the jurisdiction depends upon the domicile of the incompetent. If it did, the humane purposes of the law might be defeated entirely. The first case in which this phase of the law is noticed is that of Southcote, Amb. 110. Southcote was confined in an asylum in Belgium. He had property in England. Upon a petition to appoint a commission for his estate, which of course involved an inquiry de lunatico, Lord Hardwicke, who delivered the opinion, expressed some doubt as to the practice, but was convinced that he had power to issue a commission, where the lunatic was a nonresident and had property within the jurisdiction of the court. In Re Devausney, 52 N. J. Eq. 502, 28 Atl. 459, a guardian was appointed for a nonresident ward. It was held that the court was not ousted of its jurisdiction to issue a commission, because of the nonresidence of the incompetent. In this case it was held that the Southcote Case "is an authority for issuing a commission when the alleged lunatic is nonresident, if he or she owns an estate within the jurisdiction." The court in the opinion mentioned reviews the English cases as well as the following American cases: In re Perkins, 2 Johns. Ch. 124; Matter of Petit, 2 Paige, 174; Matter of Ganse, 9 Paige, 416; Matter of Fowler, 2 Barb. Ch. 305. The only case we have found where the whereabouts of the incompetent was not known at the time of the petition was that of Ganse. Ganse had been a resident of the town of Fishkill, N. Y., and had considerable property at that place. He had become deranged and thereafter disappeared. His whereabouts was unknown to his friends at the time the application was made for guardianship. Upon the authority of the Southcote Case, the commission issued, and the court took jurisdiction of, his property. It is next insisted that the court, in any event, had no power to appoint a nonresident as a guardian. It will be remembered that the statute, chapter 118, Laws 1909, provides for a guardian for the estate only. No reference is made to residential qualifications. is that, in the absence of a statute, the court may appoint any fit and proper person, if he be a resident or nonresident. His bond answers for his presence, and, in theory at least, he is always before the court. While a court should not, and probably would not, have the power to appoint a nonresident guardian of the person of a resident incompetent, the manifest objections to such a procedure can have no application, where it is the thing and not the person which is the subject of the court's intervention. Although, in the absence of a statute, a nonresident guardian for the person as well as estate was sustained in Berry v. Johnson, 53 Me. 401, this authority may well be doubted in so far as it covers the person of the incompetent. Other errors are assigned, but it seems to us that they all depend upon the power of the court to appoint a guardian for a nonresident ward, and not upon further construction of the statute, and, like respondent's objection to the capacity of the protestant to appear in this and the lower court, need no discussion. GOSE and MORRIS, JJ., concur. FULLERTON, J. In my opinion the statute affords ample authority for the action of the court, and I concur in the conclusion reached by the majority. On the question of the inherent power of the court to appoint a guardian under the circumstances recited I express no opinion. RUDKIN, C. J. I agree with the majority that our superior courts have jurisdiction to appoint guardians for nonresident insane persons who have property in this state, but do not think that such jurisdiction should be exercised under the facts disclosed by this record. The person for whom a guardian has been appointed mysteriously disappeared more than a year and a half ago, and diligent search and inquiry throughout the entire Pacific Coast has failed to discover either him or his whereabouts. Under such circumstances, when we consider the state of his mind and the state of his health, the presumption of death is far stronger than the presumption of continued insanity. If dead, the order appointing the guardian is a nullity (Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896), and will afford no protection to third persons dealing with the alleged guardian. The court below has commissioned a nonresident of this state to demand and receive money from citizens of this state, when payment to the person thus commissioned will in all human probability constitute no acquittance of the debt. For this reason I dissent. (59 Wash. 501) PORT BLAKELY MILL CO. et al. v. SPRINGFIELD FIRE & MARINE INS. CO. (Supreme Court of Washington. Aug. 6, 1910.) 1. INSURANCE (§ 334*)-WARRANTY-PRECAUTION AGAINST LOSS-BREACH-CONNECTION WITH LOSS. The stipulation in a fire insurance policy that it is "warranted by the assured that due diligence be used that the automatic sprinkler system shall at all times be maintained in good working order," did not prevent recovery for loss by fire occurring when the sprinklers were time they were for a while out of use. in good working order, although prior to that [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 851; Dec. Dig. § 334.*] 2 INSURANCE (§ 146*)-POLICY-INTERPRETA [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 702; Dec. Dig. § 309.*] 4. INSURANCE (§ 304*)-WARRANTIES-USE OF WORD "WARRANTED"-EFFECT OF. In a stipulation in an insurance contract that it is "warranted by the assured that due diligence be used that the automatic sprinkler system shall at all times be maintained in good nothing to the force of the stipulation, as the working order," the word "warranted" added expression of the word "warranty" does not necessarily constitute a warranty, and it must be used in its ordinary signification. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 698; Dec. Dig. § 304.*] 5. INSURANCE (§ 304*) — WARRANTIES - EX PRESSIO UNIUS EST EXCLUSIO ALTERIUS. Where, in a fire insurance contract several stipulations provided especially that if they were not complied with, the contract should be void, but did not make such provision in connection with another stipulation, then the rule of expressio unius est exclusio alterius would prevent the application of the first provisions to the latter stipulation so as to make it a warranty. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 698; Dec. Dig. § 304.*] 6. INSURANCE (§ 264*)-WARRANTIES-DOUBT AS TO-INTERPRETATION OF THE Court. stipulation in an insurance policy is an Where there is any doubt as to whether a . press warranty, the court should incline to avoid the construction which imposes upon the assured the obligation of a warranty. ex For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes does not totally avoid the policy, but merely suspends it during such prohibited change. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 702, 763, 828; Dec. Dig. § 309.*] Morris, J., dissenting. En banc. On rehearing. Opinion in department (56 Wash. 681, 106 Pac. 194) overruled, and judgment of trial court affirmed. H. T. Granger and Hughes, McMicken, Dovell & Ramsey, for appellant. Hastings & Stedman, Walter S. Fulton, C. D. Sutton, and Titus & Creed (Dorr & Hadley, of counsel), for respondents. shall at all times be maintained in good working order." Privilege was given the assured to make additions and repairs. The fourteenth and fifteenth findings of the court bearing on this proposition are as follows: "(14) That on or about the 29th day of January, 1907, it became and was necessary, essential, and requisite to the business of the Port Blakely Mill Company that an addition, alterations, and repairs be made to that portion of said plaintiff's sawmill building, which was known as the lathmill, and on or about April 1st, 1907, it became and was necessary -in order to make the automatic sprinkler equipment more efficient, and in order to extend the automatic sprinkler equipment to the addition to that portion of said plaintiff's mill building known as the lathmill, and in order to have all of said sawmill building, including said lathmill, protected by automatic sprinkler equipment-to make additions, alterations, and repairs to what was known as the No. 3 automatic sprinkler division in the easterly portion of said sawmill, and that ac DUNBAR, J. Action on fire insurance contract. Judgment was obtained in the superior court by the insured, respondents in this case, on a fire insurance policy issued by the appellant. An appeal followed, and the judgment was reversed by a majority decision of department 1 of this court, filed January 14, 1910, to which reference is made for a state-cordingly, on or about the 29th day of Janument of the case. 56 Wash. 681, 106 Pac. 194. A petition for rehearing was filed, addressed to the court en banc. Said petition was granted, and the case again argued, and it is now here for final determination by the whole court. ary, 1907, the plaintiff, Port Blakely Mill Company, commenced the work of making said addition, said alterations and repairs to said lathmill, and on or about April 1, 1907, commenced the work of altering, repairing, and extending said No. 3 automatic sprinkler division to the new portion or addition to said lathmill, and for that purpose, it was necessary, essential, and requisite that the water be wholly turned off of said No. 3 automatic sprinkler division, and that said repairs and alterations could not be made to said sprinkler division and said extensions thereof could not be made, unless the water was turned off of said division. That said repairs could not safely be made while said plaintiff's sawmill was in operation; that plaintiff, Port Blakely Mill Company, on or about April 1, 1907, had progressed with the work of said additions, alterations and repairs to said lathmill sufficiently to enable it to operate said lathmill, and accordingly the lathmill was put in operation after said date. That said Port Blakely Mill Company continued with the work of making said repairs and alterations and extensions to said sprinkler division with due diligence, and at all times used due diligence that the automatic sprinkler system should at all times be maintained in good working order; and on April 21, 1907, the said alterations, repairs, and extensions to said sprinkler division were so far completed that the water was wholly turned on in said sprinkler division No. 3. That said water was turned on until and during said fire, No. 3 automatic sprinkler system, and all other divisions of said plainThe sprinkler provision, appearing on a tiff's sprinkler system in said mill, were suprider attached to the policy, was as follows: plied with water in such quantities and with "Warranted by the assured that due diligence such pressure, that the heat produced by said be used that the automatic sprinkler system fire in and about said mill did melt and re There were three contentions made by the appellant in the first argument of the case: (1) That the Detroit Trust Company could not have maintained this action; (2) that the policy was avoided by the breach of a warranty therein contained; and (3) that the automatic sprinkler system connected with the mill plant was not in working order at the time of the fire. It was stated in the opinion that each of these contentions had been considered, but that, in view of the conclusion reached on the second, the first and third would not be discussed. Inasmuch, however, as the first proposition lay at the threshold 'of the case and was determinative of the right to bring the action, the court must have decided that proposition against the contention of the appellant before it proceeded to the determination of the second proposition. In any event, we think the technical objection is without merit, for all the reasons urged by respondents. We have given painstaking consideration to the third proposition, for it involves the actual merits of this controversy. But from an examination of the long statement of facts, containing more than 600 pages, we are not convinced that the findings of the trial judge were not sustained by the weight of the evidence, and will therefore consider the case from the standpoint of such findings. |