24 Vt. 123 | Vt. | 1852
The opinion of the court was delivered by
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 applica
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 result is that the judgment of the county court must be reversed, and the defendants must answer over.