Blackman v. Baumann

Cole, J". It seems to us impossible to sustain the guardian’s sale under chapter 65, R. S. 1849, as one made to raise means to pay the debts of the wards and the charges of managing their estate. All the papers in the probate proceedings fully repel any such conclusion. They show that the proceedings of the guardian were had under the provisions of chapter 64, because “it was necessary that said premisis should be sold, and the proceeds thereof, or [613] some part of the same, be applied towards the necessary education and maintenance of the infants.” This is the reason assigned in the petition for license to sell the real estate. And the county court, in the order appointing the time and place for the hearing of the application, states that the petition represents that in order to defray the expenses of the support, maintenance and education of the. infants, it was necessary to sell the real estate belonging to them. This shows that the application and license to sell were understood to be founded on the provisions of chapter 64. And this was doubtless the fact. Can, then, the sale be sustained under that chapter ? It appears to us not. Section 14 of that chapter requires that the guardian shall, “ before fixing cm, the time and place of sale, take and subscribe an oath,” etc. This was not done in this case. For it appears that the guardian did not take the oath until the day the sale was made. In other words, he did not take it “ before fixing on the time and place of sale,” as required by this section. But it is said, inasmuch as it appears that the proper oath was taken by the guardian before the sale was actually made, that this should be deemed a sufficient compliance with the statute upon that matter. The provision, however, is peremptory, that the oath required shall he taken before fixing on the time and place of sale. Can the court say, in view of language so explicit, that the oath need not be taken before fixing on the time and place of sale, but may be taken at any subsequent time ? We think the court has no right to take such liberties with the statute, and disregard a requirement so plainly expressed, even to sustain a sale otherwise regular. To do so would be assuming the province of the law-making power. We are therefore unable to see upon what principle the sale in this case can be held valid. See Emery v. Vroman, 19 Wis., 689; Williams v. Reed, 5 Pick., 480; [614] Parker v. Nichols, 7 id., 111; Campbell v. Knights, 26 Maine, 224. But it was further claimed that as the sale in this case was confirmed by the probate court, this was a direct adjudication by that court of the sufficiency of the oath and of all other proceedings therein. And it is insisted that if any irregularity intervened as to the time of taking the oath, the remedy'was by an appeal from the order of confirmation and that the sale cannot be avoided in this suit upon that ground. It is very questionable whether chapter 64 contemplates a report and confirmation of the sale made under its provisions. The chief justice, in Emery v. Vroman, supra, clearly intimates that it does not; and I am inclined to agree with him in this construction of the statute. See subd. 5, sec. 23, chap. 64, and subd. 5, sec. 52, chap. 65. But, not to dwell upon this point, it will be seen that sec. 23, chap. 64, declares that the sale shall not be avoided on account of any irregularity in the proceedings provided it shall appear, “ 1. That the guardian was licensed to make the sale,” etc. “ 2. That he gave a bond,” etc. “ 3. That he took the oath prescribed in this chapiter.” This is equivalent to saying that the sale shall be avoided when it appears that the guardian did not take the oath prescribed in that chapter. Such is the manifest implication of the language employed. Reynolds v. Schmidt, 20 Wis., 374. So that, it appearing that the guardian did not take the oath in conformity to section 14, before fixing upon the time and place of sale, the proceeding is invalid. By the Court. — The judgment of the circuit court is affirmed.