64 P. 390 | Or. | 1901
Lead Opinion
after stating the facts, delivered the opinion of the court.
Under the ancient common law, the king, as parens patria, was deemed to have charge of all persons who, by reason of their youth and inexperience, were unable to care for themselves, or to protect their estates. In the exercise of this supervision, the chancellor, who was originally an ecclesiastic, and the keeper of the king’s conscience, was the guardian of all infants : 9 Ency. PI. & Pr. 890 ; Black, Law Diet. Tit. “Chancellor” ; 1 Chitty, Bl. *462, note 8 ; 2 Story, Eq. Jur. § 1832. Mr. Justice SawyeA, in speaking of the method of securing the appointment of a guardian at common law, says : “Upon petition or bill showing that a minor was without a testamentary or other legal guardian, that court took charge of his person and estate, and cared for both by appointing a guardian of his person and estate. Such minors became the wards of the court, and the guardian appointed by the court was but an officer of the court, and held responsible to it as such. The court was, in effect, the guardian, and the nominal guardian was but the agent through whom the court acted, and to whom the court delegated the execution of the trust”: Foxy. Minor, 32 Cal. 111 (91 Am. Dec. 566). See, also, upon this subject, Schouler, Dom. Rel. (5 ed.) § 288. The power thus originally assumed by the chancellor, and afterwards exercised by the court of chancery, to appoint a general guardian of the person and estate of infants, idiots, and lunatics, has, in this state, been vested by the legislative assembly in the
While the county court, exercising probate jurisdiction, may, in many instances, perform the same functions as and exercise the powers of a court of chancery in England, we do not think the legislative assembly of this state has conferred any equitable jurisdiction upon it in thus prescribing that the forms of practice therein shall partake of the nature of suits in equity. In Roy v. Giles, 4 Lea, 535, the defendant having settled his accounts as guardian with the probate court, which accepted his resignation, the ward sought in said court to surcharge and falsify the settlement; but it was held that, while the legislative assembly of Tennessee had conferred upon said court jurisdiction to settle the accounts of a guardian, yet, having exercised such authority, it had exhausted the measure of power so delegated, and could not entertain a bill for the p'urpose indicated, and that resort must ba had to a court of equity for the relief demanded. Mr. Justice McFarland, in rendering the decision of the court, says : ‘ ‘ The question presented in the argument is whether the court has jurisdiction of the cause. The
In Downing v. Smith, 4 Redfield, Sur. 310, a guardian having settled with his ward, to whom he assigned a mortgage, which was accepted and receipted for as an equivalent for the amount due, the ward thereafter, claiming that the mortgaged premises were valueless, applied to the surrogate court of Kings County, New York, to compel the guardian to account; but it was held that, the guardian and ward having had an accounting, such court was without jurisdiction to try the question of the validity of the settlement. The court of appeals of New York has held that a surrogate’s court of that state has no equitable jurisdiction, and can exercise only such authority as has been specially conferred by the statute, together with those incidental powers which are requisite to a proper execution of such jurisdiction : Riggs v. Cragg, 89 N. Y. 479 ; In re Underhill, 117 N. Y. 471 (22 N. E. 1120); In re Camp, 126 N. Y. 377 (27 N. E. 799). In Kellar v. O'Neal, 13 La. Ann. 472, it is held that a ward can not attack the final account of his tutor, for the amount of which he has given a re: ceipt, without first bringing an action to annul his receipt. See, also, Haydel v. Roussel, 1 La. Ann. 35; Foutelet v. Murrel, 9 La. 291; Collins v. Collins'’ Adm’r, 10 La. 264. In Pennsylvania it is held, however, that the orphans’ court of that state is vested with sufficient power to surcharge the account of a guardian notwithstanding his settlement with his ward : In re Mulholland’s Estate, 154 Pa. St. 491 (26 Atl. 612). It does not appear from that case that a guardian, in pursuance of the condition of his bond, could have settled with his ward independent of the orphans’ court, but, however that may be, it is held that such court possesses equity powers ; Mr. Justice Woodward saying, in Shollenberger’s Appeal, 21 Pa. St. 337,
In Davenport v. Olmstead, 43 Conn. 67, a guardian having settled with his ward in pursuance of the conditions of his bond to that effect, it was held that his duty was owing primarily to the ward, rather than to the probate court, and in this respect differed from the obligations of an executor or an administrator, who could not effect a binding settlement with the heirs, devisees, or legatees, so as to defeat the j urisdiction of a probate court to compel them to render an account. Mr. Justice Carpenter, speaking for the court in rendering the decision, says : “Aside from the guardian, but one person is interested in the account. If he, when he becomes of age, settles with the guardian, and gives a receipt, and the settlement is a fair one, it is conclusive, and the bond is discharged. If the guardian refuses to settle, the minor may compel a settlement by an action of account. In that action all the transactions of the guardian with the estate of the minor may be investigated, and the minor will recover only what is justly due.” It will be remembered that our statute requires the guardian to give a bond conditioned that he will settle his accounts with the county
Reversed.
Dissenting Opinion
dissented in the following terms :
I can not concur in the conclusion reached by my associates. The county court, in my judgment, has exclusive jurisdiction in the first instance over the accounts of the guardian of a minor appointed by it, and, as a consequence, the power and authority to inquire into a settlement with the ward when such settlement is pleaded as a bar to a petition for an order requiring the guardian to render a final account. A guardian is required by statute to file in the county court an inventory of the estate of his ward, and to account for and dispose of the personal estate in like manner as is directed with respect to executors and administrators : Hill’s Ann. Laws, §§ 2884, 2898. And I think the statute contemplates that the evidence that he has properly disposed of and accounted for the property inventoried, and has faithfully performed the duties of his trust, shall be an order of the county court discharging him either upon a settlement made with the court or with his ward: Hill’s Ann. Laws, § 2903. If this is so, and such discharge is sought on account of a settlement with the ward, the county court, as an incident of the power to make the' order, has un
Reversed.