Farrar v. Olmstead

| Vt. | Jan 15, 1852

The opinion of the court was delivered by

Isham, J.

To this action in general assumpsit, the defendants have plead in abatement that Harvey D. Farrar was not a legal guardian of the minor James H. Farrar, and had no right to commence this action.

The question arising upon this demurrer, is upon the legality of the appointment of this guardian by the probate court, and whether notice of such application was necessary to be given to the mother or parent of the minor previous to the appointment of such guardian. The demurrer admits that no such notice was given.

The 2d Sec. of Chap. 69 of Comp. Statutes of 1850, page 406, provides that, if the father of a minor child be dead, the mother remaining unmarried shall be the guardian of such child, for all purposes, until another shall be appointed.

The 58th Section, provides that the marriage of a female, who is a guardian, shall extinguish• her right and authority as such, in which case another guardian may be appointed. The marriage, the moment it is consummated, takes away her authority to further act as such guardian. The minor, then, has no parent living who is authorized to act as his guardian.

The 4th Section of'this act provides that when a minor has no parent living who is authorized to act as his guardian, on applicalion of such minor, or of any relative or friend, the probate court may appoint some suitable person to be his guardian. Under this provision of the statute, whenever the appointment of a guardian is made by the probate court, notice is not required to be given to any one — for the obvious reason that no adverse interest is involved in the adjudication, or concluded by the decree of the court. And we entertain no doubt but that the appointment of the guardian in this case falls within this provision of the statute, and that no notice was necessary to be given. The demurrer in this case admits the death of the minor’s father, and the marriage of his mother, by which her right and authority to act as guardian is as effectually extinguished, as if the relation of parent and child did not exist. . This right being taken away by statute, notice of the application for a guardian was not necessary, for the reason assigned. The mother had no adverse right involved in the adjudication, or which could be concluded by the decree of such court.

Under the 3d class of cases mentioned in the 4th Section of this act, notice is required to be given to the parent previous to such appointment. This case, we think, is unaffected by this provision df the statute. It is confined to cases where the minor has a parent living who is authorized to act as his guardian. In this case, if the mother of this minor had remained unmarried,, she would be authorized by express provision of the statute to act as his guardian, and being authorized and having the right, she could not be deprived of the same by the appointment of another as guardian, without notice being given of such application, and her being found incompetent or unsuitable to discharge the duties and trust of that appointment. And wherever the action and decree of the probate court are necessary to deprive her of that right, notice must be given. But when she has extinguished that right and authority by her own act, in contracting a relation inconsistent with the duties of that appointment, the case then falls within the first class of cases.mentioned in the 4th Section of the act, and no notice is necessary to be given previous to such appointment.

There is another difficulty in sustaining this plea in abatement. So long as the decree making that appointment remains unappealed from or unreversed, we must feel bound by the adjudication of that court.

The power of appointing guardians exclusively belongs to the probate court; no other court has concurrent jurisdiction with it. They have power also to vacate such appointments for any matters arising subsequent to the decree, and if there has been any error in their proceedings in making such appointment, it is one of the inherent powers of the court to revise and correct its own proceedings. It was so held in Adams v. Adams, 21 Vt. Rep. 167. But this must be on direct application to that court for that purpose, and from their decree appeals can be had to the appellate .court. And it is the only proper way by which the validity of such decrees can be called, into question. If the parents, relatives xnd friends, are satisfied with the decree and appointment, and take no steps for its reversal, certainly third persons cannot plead the matter in abatement of suits commenced, and in this collateral manner nullify the decrees of the probate court.

The result is that the judgment of the county court must be reversed, and the defendants must answer over.