Dorr v. Davis

Haskell, J. The judge of probate for the county of Piscataquis appointed Harrison Dorr guardian for two minors under the age of fourteen years, resident in that county. Soon after this appointment, one of the minors, Eosetta, went to live with her aunt in the county of Somerset. When this minor arrived at the age of fourteén, she applied to the judge of probate for the county of Somerset, to appoint the aunt with whom she lived her guardian. The judge, acting upon this nomination, appointed Nancy A. Smith, the aunt, guardian for Eosetta, and issued to her letters of guardianship. The latter guardian, thereupon, demanded of the first guardian the estate of Eosetta in his hands, which he refused to surrender, but retained it until Eosetta was married, and then, having settled his account in the probate court, paid the balance to Eosetta with the assent of her husband, and took her receipt for the same. At the time of the demand upon the first guardian by the second, the former had in his possession, belonging- to Eosetta, the note in suit, which he afterwards negotiated to the plaintiff. The defendant, prior to the commencement of this suit, had paid the note to the second guardian, and now claims that payment was to the lawful owner of the note, and that the plaintiff took it with notice that it was the property of Eosetta, and could only [304] be collected by her guardian in the county of Somerset, to wTkom he had paid the same. Harrison Dorr became the legal guardian of Eosetta, a minor resident in the county of Piscataquis. To him the statute gave the care of the person and education of Eosetta, unless she had a parent living competent to do it. The case shows her father was dead and that his widow survived him, but it does not appear that the widow was the mother of Eosetta. The inference is, that her mother was not living. The care and education of Eosetta devolved upon Harrison Dorr, her guardian. Coltman v. Hall, 31 Maine, 196; Peacock v. Peacock, 61 Maine, 211. Under these circumstances, Eosetta could not acquire a residence in the county of Somerset, while living there with her aunt, that would oust the judge of probate for Piscataquis of jurisdiction in the premises, which he had already acquired and lawfully exercised. She remained in Somerset by the permission of her guardian, who could at anytime have taken her from that county and provided for her a home in the county of Piscataquis. It is unreasonable to hold, that a minor, allowed by a guardian to live in another county from that in which he was appointed, could meanwhile acquire a residence, that could defeat the authority of her guardian over her. Moreover, when a court once acquires jurisdiction over a cause, it cannot be divested of it by a change in residence of any of the parties. Morgan Heirs v. Morgan, 2 Wheat. 290, 297; Mollan v. Torrance, 9 Wheat, 537; Dunn v. Clarke, 8 Peters, 1; Clarke v. Mathewson et al. 12 Peters, 171. A minor, who is over fourteen years of age, " may nominate his own guardian, and if approved by the judge, such nominee shall be appointed, although the minor has a guardian.” E. S., c. 67, § 2. The nomination must be approved by the judge who is to maké the appointment. This statute means, that the judge of probate, who first acquired jurisdiction over the minor and his estate, and has already appointed a guardian, shall determine whether the minor’s nominee for a new guardian is suitable, and should under all the circumstances be appointed in the place and stead of the [305] one already performing that duty. If one judge of pi’obate can interfere with the administration of a ward’s estate under the direction of another judge of probate in another county, as contendedfor in this case, he can do it in any case, whenever a minor, who has a guardian, chances to live in his county. Interminable confusion and tiresome litigation would surely follow. So long as Harrison Dorr remained guardian by authority of the judge of probate for Piscataquis, it was notin the power of another probate judge, sitting in another county, to vacate his trust and end his authority over his ward’s person and estate. Any attempt so to do by the judge of probate in Somerset county could not avail, as he had no jurisdiction in the premises, and his appointment of Nancy A. Smith, guardian to Eosetta Dorr, was illegal and void, and the payment to her set up in defense cannot prevail. Title to the property of a minor under guardianship remains in the ward, and is not in the guardian. The latter is the legal agent of the ward, and must sue the dioses of the ward in the ward’s name. Suits touching the ward’s property must be against the ward, and not against the guardian. The debt represented by the note in suit belonged to the ward. That debt was the consideration for defendant’s promise to pay the note to Harrison Dorr. He held the note in trust for the ward. That trust was disclosed by the note, and if misappropriated it could be followed wheresoever it was negotiated. The promise, nevertheless, was to Harrison Dorr or his order, and he ordered it paid to the plaintiff. It was not for the .defendant to deny his own promise and refuse payment to the order of the payee of the note. There is no merit in his defense, and the entry must be, Judgment for the plaintiff for ‡209, with interest from January 24, 1871. Peters, C. J., Daneorth, Virgin, Libbey and Emery, JJ., eoncui’red.