#### In re JEFFRESS.

(Filed 2 June, 1943.)

Insane Persons §§ 17, 18: Guardian and Ward § 6: Appeal and Error § 18—

Where a person has been adjudged incompetent, under 0. S., 2285, and a trustee of his property appointed, and thereafter, upon petition before the clerk under G. S., 2287, by the person so adjudged incompetent, after his trustee or guardian has been made a party as required by eh. 145, Public Laws 1941, he is found competent by a jury and is so adjudged by the clerk, the Superior Court has power to review the matter, on proper showing for *certiorari*by the trustee or guardian, and it would seem that the procedure provided in O. S., 2285, on appeal might appropriately be followed on such review.

Appeal by Louise A. Jeffress, Trustee, from *Bobbitt,*Jat January Civil Term, 1943, of Guilfoed.

Application by Louise A. Jeffress, Trustee of Edwin B. Jeffress, for *certiorari*to review restoration proceeding before the clerk of the Superior Court of Guilford County, it being found on such hearing that Edwin B. Jeffress is “now sane, and of sound mind and memory, and competent to manage his own affairs.”

The record discloses that on 4 December, 1934, Edwin B. Jeffress was adjudged “incompetent from want of understanding to manage his affairs by reason of physical and mental weakness on account of disease,” in a proceeding under C. S., 2285, and Louise A. Jeffress, his wife, was appointed trustee of his property, estimated to be worth in excess of half a million dollars.

On 24 October, 1942, a petition was filed before the clerk by Edwin B. Jeffress alleging that he was then sane and of sound mind and memory, and asking that a jury of six freeholders be summoned to inquire into his sanity as provided by 0. S., 2287. Louise A. Jeffress, Trustee, was made a party to the proceeding as required by eh. 145, Public Laws 1941. She filed answer and denied the allegations of the petition.

On the hearing, the jury found in favor of the petitioner as above indicated. The clerk held that he was without authority, discretionary or otherwise, to set aside the verdict and entered judgment thereon, and ordered the Trustee to file her final account and be discharged.

Thereafter, on 25 November, 1942, the Trustee applied to the judge of the Superior Court for a writ of *certiorari*and *supersedeas,*which was granted and the matter placed on the civil issue docket for hearing at the next civil term, Guilford Superior Court. The respondent filed answer and asked that the writ'be dismissed and the judgment of the clerk confirmed.

*274At tbe January Civil Term, 1943, Guilford Superior Court, tbe matter came on for bearing and resulted in a dismissal of tbe writ, and confirmation of tbe clerk’s order, tbe court bolding that tbe trustee “bas no status or position adverse to tbe respondent whereby she is entitled to a review of tbe proceedings,” and further that tbe petitioner “bas shown no error in law in tbe conduct of said proceedings.”

From this ruling, tbe Trustee appeals, assigning errors.

*G. G. Hampton, Jr., B. D. Broadhurst, and S. J. Stern for petitioner, appellee.*

*BrooTcs, McLendon & Holderness and B. D. Douglas for respondent, appellant.*

Stacy, C. J.

Tbe question for decision is whether tbe application of tbe trustee for a review of tbe restoration proceeding should be entertained. Tbe trial court answered in tbe negative upon two grounds, (1) because tbe trustee is not such a party as may ask for a review, and (2) for that no error in tbe proceeding bas been shown. "We are inclined to a different view.

*In limine,*it will be observed that on petition before tbe clerk under C. S., 2285, to declare a person incompetent from want of understanding to manage bis affairs, which may be filed by any person in behalf of the one deemed incompetent, either the petitioner or the respondent is permitted to appeal from tbe finding of tbe jury to tbe next term of the Superior Court, when tbe matters at issue are to be regularly tried *de novo*before a jury. Conversely, no such right of appeal is provided by C. S., 2287, when tbe proceeding is for restoration to competency. *Ray v. Ray,*33 N. C., 357.

In consequence of the decision in *In re Dry,*216 N. C., 427, 5 S. E. (2d), 142 (1939), tbe General Assembly of 1941 amended tbe restoration statute so as to provide “that in all cases where a guardian hás been appointed . . . said guardian shall be made a party to such action before final determination thereof.” Ob. 145, Public Laws 1941. On petition before tbe clerk under this section, which may be filed by tbe person formerly adjudged incompetent, or by any friend, relative or guardian of such person, and wherein tbe guardian is required to be made a party before final determination, tbe clerk is directed, upon notice, to issue an order to tbe sheriff of tbe county commanding him to summon a jury of six freeholders to inquire into tbe matter, and tbe jury is enjoined to “make return of their proceedings under their bands to tbe clerk, who shall file and record tbe same.” Hence, tbe proper method of review would be by application for *certiorari. In re Sylivant,*212 N. C., 343, 193 S. E., 422; *In re Cook,*218 N. C., 384, 11 S. E. (2d), *275142; *Unemployment Compensation Com. v. Kirby,*212 N. C., 763, 194 S. E., 474.

If tbe guardian or trustee be sufficiently interested to make bim .a necessary party to tbe restoration proceeding before final determination, it would seem tbat sucb guardian or trustee bas sufficient interest to ask for a review, should be be aggrieved or adversely affected by tbe result. *In re Bayer,*108 Wash., 565, 185 P., 606; *Hunter v. Buchanan,*87 Neb., 277, 127 N. W., 166, 29 L. R. A. (N. S.), 147, Ann. Gas. 1912 A, 1072; 2 Am. Jur., 961; 2 R. C. L., 55.

As tbe proceeding before tbe clerk is summary in ebaracter, *In re Dry, supra,*witb tbe result falling short of *res judicata, Johnson v. Ins. Co.,*217 N. C., 139, 7 S. E. (2d), 475, it may be Brobdingnagian to speak of errors in tbe proceeding. *Bethea v. McLennon,*23 N. C., 523. However, it appears tbat tbe clerk undertook to charge tbe jury. In this be arrayed tbe different contentions, instructed them as to tbe burden of proof, and ended witb these apparently conflicting peremptory instructions :

1. “I charge you, gentlemen of tbe jury, tbat if upon consideration of all tbe evidence you are satisfied by tbe greater weight thereof and find tbe facts to be as contended by tbe petitioner, and as testified to by those witnesses offered by tbe petitioner, then it is your duty to answer tbe issue Yes.”

2. “I charge you, gentlemen of tbe jury, tbat if you find from tbe evidence tbe facts to be as contended by tbe respondent and as testified by tbe witnesses offered by her, then it is your duty to answer tbe issue No.”

Moreover, it is alleged that tbe finding of the jury is clearly contrary to the weight of tbe evidence. The clerk concluded tbat be was without authority to interfere with the verdict. To say tbat six freeholders selected by the sheriff, with no right of challenge, can decide tbe matter irrevocably, is to ascribe.to the statute an unusual grant of unbridled power. See *Dowell v. Jacks,*58 N. C., 417; *Smith v. Smith,*106 N. C., 498, 11 S. E., 188; *Groves v. Ware,*182 N. C., 553, 109 S. E., 568; *Bethea v. McLennon, supra.*A reinquisition under C. S., 2285, would only be circuitous and needlessly repetitious.

"Without further comment on the proceeding before the clerk, we think the showing is sufficient to warrant a review of tbe matter in tbe Superior Court. *In re Dewey,*206 N. C., 714, 175 S. E., 161. By analogy, it would seem tbat tbe procedure provided in C. S., 2285, on appeal might appropriately be followed on sucb review. See *Higdon v. Light Co.,*207 N. C., 39, 135 S. E., 710; *S. v. Carroll,*194 N. C., 37, 138 S. E., 339.

Error and remanded.