
    252 A.2d 359.
    Rhode Island Hospital Trust Company, Trustee vs. Charles M. Perkins et al.
    
    APRIL 17, 1969.
    Present: Roberts, C. J., Paolino, Powers, Joslin and Kelleher, JJ.
   Joslin, J.

This is a petition for certiorari to review the appointment of a guardian ad litem to represent Charles M. Perkins. The appointment was made in a civil action brought in the superior court against Perkins and others by Rhode Island Hospital Trust Company acting in its capacity as trustee under an inter vivos revocable trust. Perkins was the settlor of that trust, which insofar as here pertinent, provides generally that the trustee pay him such amounts from either the income or the principal as he might in writing direct. The dispositions provided for following his decease are not material.

In its complaint, the trust company, alleging that it had been put on notice that Perkins was physically and mentally ill, asked for an adjudication of his capacity to manage his estate. In addition, and on the assumption that Perkins would be adjudicated an incompetent, it asked to be instructed whether it should make payments to him from the trust when requested, or to some other person for his benefit, or to his wife for her support and maintenance.

Perkins and his wife, also a defendant, appeared specially and moved to dismiss under rule 12(b)(1) of the superior court rules of civil procedure. Their grounds were twofold: first, that the superior court was without original jurisdiction to pass on competency; and second, that in any event it lacked jurisdiction in the particular case because Perkins was a nonresident and a non-domiciliary who was only temporarily in this state. The motion was in due course heard by a superior court justice who reserved decision when counsel requested leave for an opportunity to file written memoranda. Although we do not have the benefit of a transcript disclosing the arguments made by the movants, we presume they urged that a question of competency is initially triable in the probate court of the city or town where the alleged incompetent resides or has a legal settlement; and that such a case cannot be commenced in the superior court, but can only come there after being heard in and on appeal from a probate court judgment. (G. L. 1956, §§33-15-3, 33-15-8, 33-23-1).

While awaiting decision on the motion to dismiss, Charles M. Perkins, Jr., Perkins’ son and also a defendant, moved to appoint a guardian ad litem to represent his father in the proceedings. His alleged reason was that his father was “ * * not competent to manage his affairs, including the selection by him of persons to represent him * * * .” A trial justice, other than the one who had heard and reserved decision on the motion to dismiss, granted the motion and appointed a guardian ad litem. Thereupon, Perkins applied for leave to be permitted to file a petition for certiorari. We granted permission, 104 R. I. 722-23, 241 A.2d 305.

We do not reach the substantial question of whether a court should at the request of another party appoint a guardian ad litem to represent a defendant whose competency is a vital issue in the litigation and who is represented by capable counsel. Instead, we decide only that a request for such an appointment will not, at least in ordinary circumstances, be ripe for consideration when a question of jurisdiction over the subject matter of the litigation has been heard and is pending resolution.

When we relate what we decide to these proceedings, we find that the appointment question did not arise until after a trial justice had already exercised his discretion under rule 12(d) of the superior court rules of civil procedure in favor of hearing and deciding the jurisdictional issue and against deferring consideration thereon until the trial on the merits. Presumably, he opted as he did •— and we believe correctly so ■— because the jurisdictional issue was legal rather than factual; because it was determinable without necessity for inquiry either into the facts or other matters relevant to a hearing on the merits; and because the various factors pertinent to the jurisdictional question were not so intertwined and intermeshed with those relating to the merits that it would have been impossible to decide one without at the same time deciding the other. See Land v. Dollar, 330 U. S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209; Fireman’s Fund Ins. Co. v. Railway Express Agency, Inc., 253 F.2d 780; Schramm v. Oakes, 352 F.2d 143; McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, cert. denied, 389 U. S. 896, 88 S. Ct. 216, 19 L. Ed.2d 214.

What gives rise to our present problem is that after the motion to dismiss was heard and pending its resolution the application for the appointment of a guardian ad litem was filed, heard and granted. To appoint or not to appoint at that time — or indeed to take any other action in the proceedings not required in order to prevent irreparable harm ■— appears to us to have posed a procedural difficulty which was not considered by the trial justice, and which, if it had been considered, should have been resolved in favor of delaying action until the jurisdictional issue was decided. Not until that decision is forthcoming, and then only if determination is in favor of jurisdiction, will the guardian appointed be required to act. And in the interim he will have contributed nothing to a resolution of the jurisdictional issue; neither will he have performed any services for the benefit of his ward which either required doing, or if done, could not just as well be done after the jurisdictional issue is decided. Indeed, from all that appears, the guardian’s only essential function since his appointment has been to await word on whether the court has jurisdiction.

If, on the other hand, the ultimate decision is that the court lacks jurisdiction over the subject matter, then, without having received any corresponding benefit, those who moved to dismiss will have been put to an unnecessary expenditure of time and effort and money in defending against the request for the appointment of a guardian ad litem; the trust or some other party will be exposed to a possible liability for compensating a guardian who will have contributed nothing either to a disposition of the jurisdictional issue or otherwise; and the court will have needlessly used time which could have been devoted to other litigation. In all the circumstances, it seems to us that the court abused its discretion in not deferring action on the guardianship question until after the jurisdictional issue had been decided.

A further difficulty is, of course, that any present decision of ours on the appointment question will, if the motion to dismiss on jurisdictional grounds is ultimately granted, be advisory only since it will have settled for the future a question which is not presently in controversy in the true legal sense. That, of course, is something this court will not do except in those limited instances where the constitution directs. Industrial National Bank of Rhode Island v. Isele, 101 R. I. 734, 227 A.2d 203.

The only question which remains open is what our mandate shall be. The alternatives are two. We can quash the writ as improvidently granted because the issue it brought to us may by possibility be non-justiciable; or we can quash the record because the trial justice should have deferred appointing a guardian ad litem until after the jurisdictional issue had been resolved. Which will better serve the interests of an orderly as well as an expeditious determination of this action will in the final analysis depend upon what resolution is made of the jurisdictional issue. Without pre-judging that question, it seems to us that orderly procedures will be less disrupted if we adopt the latter alternative. What we do, however, is without prejudice to the right to re-apply for the appointment of a guardian ad litem if, in the light of future developments, the circumstances warrant.

Edwards & Angelí, Richard M. Borod, for plaintiff-appellee.

Harry Goldstein, Abraham Goldstein, for Charles M. Perkins, defendant-appellant.

Tillinghast, Collins & Tanner, William M. Sloan, for Charles M. Perkins, Jr., defendant.

The petition for certiorari is granted, and the judgment of the superior court appointing a guardian ad litem is quashed without prejudice.

Beals, Sweeney & Jerue, Richard P. Kearns, for plaintiff.

Sidney Clifford, Jr., for defendants. 
      
      Rule 12 (d) reads:
      “The defenses specifically enumerated (1) through (7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before the trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.”
     