The opinion of the Court was delivered by

In this case, the title of Rufus Burnham to the lot in question, at and previous to the date of the deed from Joel Bass and Enoch Burnham, to the plaintiff’s intestate, is admitted by both parties; and whether the title of Rufus Burnham was conveyed by that deed, is the question now submitted.

The objections raised by the defendants are, to the appointment of Joel Bass and Enoch Burnham, or either of them, as guardians of Rufus Burnham, and to the licence, or authority, under which they executed the deed in question. In support of the first objection, it is contended, that the return to the inquisition was not a sufficient finding of the incapacity of Rufus Burnham, by the selectmen and civil authority of the town, to authorize the judge of probate to appoint a guardian. It is in, these words:

llWilliamstown, Sept. 4, 1804.

“At a meeting of the selectmen and civil authority of said town, and examining the above request, and situation of the above said Burnham, give it as our opinion, that the above request is right and reasonable.”

(Signed) “Joseph Crane” and others.

This is to be taken in connexion with the order of inquisition, to which it was annexed. That order recited, that a representation had been made to the judge, of Rufus Burnham’s insanity, with a request that a guardian might be appointed. The return admits of but one construction, which is, that having examined the situation of Burnham, they consider the request to have a guardian appointed, to be right and reasonable. This is a finding, in substance, that Burnham was insane, and incapable of taking care of himself; for that was the subject of their inquiry, contained in the order of inquisition. The probate re*94cords do not show, that any notice was given to the lunatick, either by the inquisitors, or by the judge, to appear and be heard touching his incapacity, and the appointment ofguardians. Whatever influence this might have, if Rufus Burnham himself were before the Court, contesting the validity of these proceedings, yet as the statute of 1797 did not direct notice to be given in such a case, and as the guardianship 'existed so long, without objection on the part of the lunatick, we think this exception cannot avail the defendants. It is therefore considered that the original appointment of Daniel Martin and Joel Bass as guardians of said Burnham, was legally made.

It is next contended, that the discharge of Martin, and the subsequent appointment, of Enoch Burnham, were not within the powers of the probate judge. But a power of this kind is evidently vested in the judge, who has the general and only jurisdiction over the subject. Nor can a new representation and inquisition be necessary, upon every change of guardians.

To support the second objection, it is said that the licence to sell the real estate was not legally granted. That licence was founded on a representation of the guardians, that the estate was indebted in the sum of fourteen hundred and seventy-five dollars more than the personal estate was able to pay. It does not appear how much, or whether any of this sum consisted of debts contracted by Burnham, before his distraction, or of expenses incurred in his support; but as the sale of real estate was authorized for both these purposes, and the judge had a competent jurisdiction, the licence must be considered, in this respect, as sufficient, at least, to protect a purchaser. There were no heirs of this living man, to be notified of the intended sale, nor could notice to his children, or other relations, answer the purpose intended by the 49th section of the probate act. That act supposes the estate to háve already vested by descent in the heirs, who, by giving bonds for payment of the debts, are but preserving their own estate ; whereas, here, the estate is still in the lunatick, and on his recovery, is tobe restored to him, unless previously disposed of by his guardians. The title of Rufus Burn-ham was therefore conveyed by the deed of his guardians, and the plaintiff is entitled to

Judgment on the verdict.