
    Ebenezer White, Administrator cum Testamento annexo of James Grimes, deceased, Plaintiff in Error, versus Thomas Palmer.
    A letter of guardianship of a non compos, issued after the inquisition required by the statute, is prima fade evidence that the ward was not of sound mind. [ Qticere, if it be not conclusive. — Ed.]
    This was a writ of error, brought in the county of Middlesex, to reverse a judgment of the Court of Common Pleas for that county, rendered in June, 1805, in favor of the defendant in error against the plaintiff’s testator.
    The error assigned was, that the said Grimes, at the time of the rendition of the said judgment, was non compos mentis, and incapable of taking care of himself, and that the said Ebenezer White and Samuel Hall had, long before the teste of the writ upon which the said judgment was rendered, been duly and legally appointed guardians to him, the said Grimes, and, from the time of their said appointment to the death of the said Grimes, continued to [*148] be his legal guardians. * Nevertheless, the said White and Hall, or either of them, had never any'knowledge or privity of or in said suit or process, until after the rendition of said judgment.
    The issue joined by the parties, viz., whether James Grimes was of sound mind on the Monday preceding the first Tuesday of June, 1805, the time when the Court was holden, at which the judgment complained of was rendered, was tried before the Chief Justice, at the sittings in Cambridge after the last October term ; and the cause being continued nisi, the Chief Justice reported the evidence at this term as follows: —
    “ The plaintiff in error, to prove that the said Grimes was not of sound mind at the time mentioned, produced several witnesses, from whose testimony on oath it appeared that the said Grimes died about two months after the rendition of the said judgment, aged ninety-four years ; that, for about two years before his death, he had been worn out with age, and had undertaken to transact no business whatever; that, in disposing of any property, leasing his land, and in making any contracts, he called the assistance of his neighbors, by whose judgment he acted ; and that his appearance was that of a man who had lost his mind and become childish. One witness testified that within that time he was sued by the town of Goshen, for the maintenance of a grandchild, and the witness told him he had a good defence, and endeavored to persuade him to defend the suit, but he could not prevail; Grimes saying that he knew all about it, and that the town could recover nothing; and he suffered judgment against himself by default for one hundred and seventy dollars. But no particular act of childishness or insanity, unless resulting from the foregoing testimony, was proved.”
    “The plaintiff in error further offered in evidence a letter of guardianship, granted in due form of law by the judge of probate for the county of Middlesex, and dated one day before the defendant’s action was commenced, appointing Samuel Hall and Ebeneze* White guardians of the said Grimes, who had been legally determined by the said judge to be a person non compos mentis, agreeably to the statute in such case provided ; which letter was objected to [*149 ] as legal * evidence by the defendant in error ; but I overruled the objection, and permitted it to be read to the jury.”
    “ The defendant in error produced no evidence; and I left the cause to the jury, to find the said issue upon the whole of the evidence aforesaid, who found their verdict for the plaintiff in error The defendant in error moved for a new trial, because I permitted the said letter of guardianship to be read in evidence to the jury.”
    
      Ward, in support of the motion for a new trial,
    argued that the letter of guardianship was not proper evidence to the jury of the fact in issue, but merely of the opinion of the judge of probate as to that fact. No opinion, however respectable, was evidence. The reading this paper to the jury was calculated to mislead them, by taking their attention from the substantial testimony, and probably produced the verdict that was found, the other evidence being in competent to support the verdict.
   The opinion of the Court was afterwards delivered as follows by

Parsons, C. J.

By the statute of 1783, c. 38, the Probate Court, making the inquisition there required, is authorized to assign guardians to any person non compos mentis, and to empower them to take care of his person and estate; to improve and receive the profits of his lands; to recover, by suit at law, all debts due to him, and to pay all his debts out of his real or personal estate. This decree of the judge, so long as it remains in force unreversed, must be considered at least as prima facie evidence that the assignment of the guardians was rightly made, and that the ward was a person non compos mentis. If it was not to have this effect, no person could be induced to take the humane but unpleasant office. If in every exercise of his power he must be called upon, not only to show that he was in fact assigned a guardian, but also prove, by other evidence, that the judge had discreetly exercised his jurisdiction, he would be subject to very great and unnecessary vexations.

And no injury can result from considering the guardianship as established wisely, and for good cause. The ward, if sane, may have the assignment revoked upon appeal; and it cannot * be inconvenient to creditors, to call on the guar- [*150j dian for the payment of their debts, to which he is made liable; nor injurious to them, if their demands are disputed, to have the interest of their debtor defended by a guardian. And it is immaterial to the debtors of the ward, whether they are sued by him or his guardian, if they do not seek some undue advantage.

We are, therefore, satisfied that the letter of guardianship was proper evidence to be left to the jury. There are some strong grounds, on which it may be inferred that a letter of guardianship of any person adjudged to be non compos, so long as it is unrevokcd or not annulled, is conclusive evidence of his insanity; but on this point we give no opinion.

The verdict cannot be set aside; and judgment must be rendered that the former judgment be reversed, and that the plaintiff in error, in his capacity of administrator with the will annexed, be restored to all which the testator lost thereby, with costs of suit.

Bigelow for the plaintiff in error.  