
    Nathan Darling, Appellant from a Decree of the Judge of Probate, versus Thomas Bennet.
    An inquisition by the selectmen that one is non compos, and an appointment of a guardian for that cause, are not justified by evidence that the person is old, and has become less careful of his property.
    The decree of the Probate Court appealed from in this case had appointed the respondent, Bennet, guardian of the person and estate of the appellant, as a person non compos * mentis. This decree was founded upon an inquisition made by the selectmen of the town of Middleborough, of which the appellant is an inhabitant, by virtue of a warrant issued by the judge of probate, pursuant to the provisions of the statute of 1783, c. 38, $ 3.
    Upon examination of witnesses, it appeared that the appellant was seventy-eight years of age; that, for a man of his years, he possessed good rational powers; that his children were profligate and intemperate; that the father, for some time past, had been under their influence, and had been induced to spend his property for their undue indulgence; and that, until within a few years, he had been uncommonly careful of his property; and the alteration of his habit in this respect seemed to have been the ground of the opinion which the selectmen had formed in the case, and to have been also the foundation of the decree complained of.
    
      Eddy tor the appellant.
    
      Wood for the respondent.
   By the Court.

The judge of probate was sufficiently authorized, by the inquisition of the selectmen, to make the decree which he did. But upon the facts now before us there is certainly no sufficient foundation to place the appellant under guardianship as a person non compos mentis. Perhaps it would be proper to place guardians over the children, who are causing their father to waste his estate in gratifying their vicious propensities. Further, if the appellant cannot be otherwise protected from the undue practices and impositions of his children upon him, it may yet be discreet and proper for the judge of probate, upon due representation from the selectmen, to place him under guardianship as a spendthrift, that the family may be preserved from want, and the town saved from the expense of their support.*

Decree reversed  