Field v. Torrey

The opinion of the court was delivered by Collamer, J. This is a plea to the jurisdiction of the court, insisting that the defendant was guardian, and that the whole jurisdiction in relation to her guardianship is exclusively in the probate court. The replication avers, that the defendant ended her guardianship by marriage, in 1826; and to this, the defendant demurs. This is not an objection to the form, of the action, and if is therefore unnecessary to decide whether either or all of the counts should have been against the defendant, as guardian, or as bailiff; or to inquire whether that part which relates to the land should have been in Windsor county, for the plea does not insist on such a jurisdiction in Windsor county court. It is also unnecessary to inquire whether all of these counts can be sustained ; for if any one of them can, under the circumstances stated ip the plea and replication, then this plea to the jurisdiction pnust fail. In all pleas to the courts of general jurisdiction, it must be shown that there i^ another court of exclusive jurisdiction, in which effectual justice, to the full extent to which the plaintiff is entitled, may be administered. 1 Chit. Plea. 432, and the authorities there cited. If the defendant’s marriage did immediately, by operation of law, put an end to her guardianship, in 1826, and yet she continued to receive the rents and income until the full age of the ward, or until the commencement of this suit, the plaintiffs could not have entire remedy in probate, and this action must be sustained, or the plaintiffs are without redress, at least in relation to that part subsequent to 1826. The counsel for the defendant insist, that inasmuch as the defendant’s marriage was not noticed in the probate court, and she continued to act, she was still legal guardian. It is insisted that the probate court must pass on the subject, and find' the marriage apd decree on the subject, apd that it is like the death, or incompetency, or removal of one joint administrator. The statute on these two subjects is entirely different. By the 34th section of the act constituting probate courts,it is provided that whpn any executor,administrator or guardian shall reside without the state, or neglect to account on proper notice, or neglect to perform any decree of said [389] court,- or shall abscond or become non compos mentis, or otherwise A incapable or unsuitable to discharge the trust, such court may decree their powers to cease. By the 3Sth section, it is provided “ That when a feme sole, appointed executrix, administratrix, or guardian, shall marry, such marriage shall extinguish her right, under such appointment.” By the 35th section it is provided “ in all cases where the executor, administrator or guardian shall die, or where the probate court shall decree that their powers shall cease, or their right he by law extinguished, such court shall have power,” &c. to grant-power to others. This collation of the provisions of the statute, shows obviously that in relation to a number of causes of incompetency, the statute empowers the court to pass upon them, but the trust does not cease until the court so decree. It is also apparent that it is contemplated vacancies may exist in three modes, to wit: 1, death — 2, where the court decree the trust to cease, and 3, the right being by law extinguished. And it also appears that the marriage of a feme sole guardian is of the last class. Such marriage shall extinguish their right. Whether the trust and power shall survive on the death of a joint administrator, is a case on which the probate court is to decree. The statute seems clear and explicit, and safety and expediency would appear to sustain this view. By marriage, the wife passes under the control of the husband, .and becomes incapable of keeping the effects of the ward separate from those of the husband. She has contracted a relationship of legal dependence, inconsistent with her trust, and for which her bail cannot be holden. She cannot even sue for the debts of her ward, without joining her husband, and then the judgment would survive to him. That a course so fruitful of incongruity is to arise or continue, because the probate court does not take official cognizance of a marriage of which it has no means of knowledge, is both against the express provision of the statute and common safety and security. The defendant’s right and power as guardian, ceased upon her marriage in 1826. For the use and income after that time, the probate court could not corn-pel account, and it therefore follows that the county court had jurisdiction of this cause. Here we might dispose of this question; but as the entire question-has been argued, and the parties consider a full decision not only important to general practice, but to the ultimate decision of this case, the court proceed further. Can this action be sustained' for an account of those things which yysre done and received by the defendant within her powers of [390] guardian. The only guardian known to the common law, who had the custody of estate, was that of guardian in socage. Guardians by nature, and for nurture, and in chivalry, only extended to the person. Against the guardian in socage, account could be sustained, declaring against him as guardian, and in that way only. It is now argued from this, that the action could be sustained against no other. This does not follow, for no other was then known. It fully appears that if any person got into possession of the heir’s lands, and used them as for him, and not in their own right, the action of account could be sustained agaiust him as bailiff. Therefore, this action could have been sustained at common law. Perhaps it is in analogy with the ancient common law, sustaining account against the only guardian Tcnown to that law, that the courts in this country, considering the common law as having an elastic and expansive principle, adapting itself to the exigencies of society, have sustained this action against such guardians as are known to our taws. This analogy would be perfect if the declaration were against them as guardian, not bailiff. The defendant here seems to insist on abatement on the same matter on which a guardian in socage insists, when sued as bailiff, that is, that he is not sued in his right capacity; but goes further, and insists that no action in any form can be sustained in the common law courts. This seems to be insisting on the privilege of a guardian in socage, and yet disclaiming his liability. Again, when a guardian in socage held beyond his ward’s arrival at the age of 14 years, the action could be sustained against him as bailiff. This the defendant has done by holding beyond the termination of her guardianship, her marriage. But inasmuch as all persons, even intruders, who used the ward’s estate for the ward, were subject to this suit as bailiff, and none could excuse themselves but guardian in socage, this defendant must be liable. It is however insisted that when the guardianship is by appointment and not by descent, as in socage, there the action cannot be sustained. To sustain this doctrine, no decision is produced, not even in relation to testamentary guardians under the statute of Charles II., nor as to guardians and tutors appointed by the ecclesiastical courts in England, before that period; nor in relation to guardians in chancery. That such actions do not appear in the books against such guardians, may be ascribed to two reasons: 1st, If such suits were brought, they would be against them as bailiffs, as already shown. — 2d, Matters of trust and account went [391] into chancery. This, however, did not repeal the action of account, and it has always been left on foot in this country. We are therefore not furnished with a single English decision that this action would not be there sustained, even for a guardianship by appointment. Can it be sustained where the guardianship is not only by appointment, but appointment by a board having power to compel an account, and possessing an entire system. In Connecticut, where the probate court appoint the guardian, take bonds, and can compel an account, a system as entire as ours, it fully appears that after the termination of the guardianship, the action of account is sustained. So it also appears in Massachusetts. In New-York, where a surrogate may appoint a guardian, taking bond or the chancellor without, and where all is a perfect system of accounting •in chancery, still it appears that at and after the termination of the" guardianship,, the ward may have an action of account at common law, and the court of chancery does not enjoin or interfere with it.. This never extends to intermediate accounting. However much we are inclined to confine parties to a single tribunal, and not to increase the already arduous duties of the county courts, and whatever might be our views of convenience, we feel constrained, from these principles and authorities, to hold that this action of account may be sustained, after a guardianship ceases, for what transpired under it. It is not to be disguised, that the probate court is not clothed with all the pow'er wanted for the accomplishment of the object of this action, the power of compelling an account and enforcing the collection of the balance found due, but more especially giving judgment for what accrued after the termination of the guardian's life. Judgment reversed, and the defendant to answer over.