Opinion
No. 4511.
Argued September 4, 1956.
Decided October 31, 1956.
The granting of a continuance to the defendant in a probate appeal pending disposition of plaintiff's exceptions taken in other proceedings was discretionary and disclosed no error.
The determination of whether the welfare of a mentally incompetent ward would best be promoted by permitting her counsel to see and talk with her rests within the authority and sound discretion of her guardian.
MOTIONS, for a continuance and for an order to permit plaintiff's counsel to consult with the plaintiff, both filed in a probate appeal from the appointment of George R. Scammon as successor to William H. McReel as guardian of the plaintiff.
On December 30, 1955, defendant moved for a continuance of the present action pending determination of plaintiff's exceptions taken in a habeas corpus proceeding. Her exception in that proceeding to the denial of her motion that defendant advance the cost of printing the transferred case was overruled in McReel v. McReel decided this day, 100 N.H. 343.
On January 4, 1956, William H. Sleeper, Esq. as counsel for said plaintiff filed a motion "That the Court order permission for counsel to see and talk with Mabel A. McReel at her home on Lincoln Street, Exeter, N.H." (A similar motion filed previously in the habeas corpus proceeding was denied by Grant, J. November 1955.)
Griffith, J. granted defendant's motion for a continuance and denied counsel's motion to see and talk with plaintiff. Her exceptions to said rulings were reserved and transferred.
Sleeper Mullavey (Mr. Mullavey orally), for the plaintiff.
James C. Cleveland and George P. Cofran (Mr. Cofran orally), for the defendant.
The motion for a continuance presented a question of fact to be decided in the discretion of the Trial Court. Hutchinson v. Railway, 73 N.H. 271, 272. It could be found that justice required that this case should await. the disposition of the plaintiff's exceptions in the proceedings for a writ of habeas corpus. The discretionary granting of the continuance discloses no error. LePage v. Theberge, 97 N.H. 375, 377.
Plaintiff was under guardianship as a mentally incompetent person. Her guardian was under a duty to take care of her person as well as her estate. Cf. Palmer v. Palmer, 38 N.H. 418. In this connection he had authority to determine what contacts with others would best promote her welfare. The record discloses no abuse of this discretion by the guardian and no error in the Court's denial of counsel's motion to see and talk with plaintiff.
Exceptions overruled.
All concurred.