Harris v. Harris, 44 Vt. 320

Harris v. Harris

44 Vt. 320 | Vt. | 1872

The opinion of the court was delivered by

Ross, J.

The question arising upon the agreed facts is, whether the county court had jurisdiction of the subject matter involved. In Field et ux. v. Torrey, 7 Vt., 372, the court held that a guardian, by continuing to hold the property of the ward after tho termination of the guardianship, made himself bailiff of the ward’s property for the time which he continued thus to hold it, and was liable to account for the same in the common law action of account; that the probate court had no jurisdiction over such an accounting, and if the ward chose, he could compel an accounting in the county court, not only for the time which the guardian held the property as bailiff, but also for the entire time which he held the property as guardian and as bailiff. This conclusion was reached after a very full hearing, and a careful and extended examination of the decisions in analogous cases in this country and in England. We are satisfied with the law established in that case. It must govern the decision of this case, unless some statute law has intervened to take away the jurisdiction of the county court in such cases.

The defendant relies upon §§ 12, 23 and 28 of chapter 48, and upon §§ 51 and 52 of chapter 72 of the General Statutes, to show a change in the statute law since the decision of Field et ux. v. Torrey.

Section 12 confers upon the probate court jurisdiction “• of the appointment of guardians, and of the powers, duties, and rights *324of guardians and wards,” but does not declare that the jurisdiction of that court shall be exclusive. The act of 1797, in force at the time of the decision of Field et ux. v. Torrey, confers like jurisdiction upon that court, though not in the same language.

Section 23, much relied upon by the defendant, was incorporated into the statute in the revision of 1839. Before that time the appointment of the guardian might be made by one probate court, the license to sell the same ward’s real estate by another, and the settlement of the guardian’s account, possibly, by still another. The law did not confine the discharge of 'these several duties in the case of the same ward to one and the same court. To avoid confusion, and to bring the performance of all these duties into the same probate court, this section was enacted. The word “ alone, ” in this section, is used to confine the discharge of these duties to that one of the probate courts which had or should appoint the guardian, and to exclude the interference of other probate courts in such cases. This, we think, is evident from the preceding sections of the same chapter. Section 19 confers jurisdiction upon that probate court which shall have first assumed jurisdiction to settle the estate of a deceased person, “ to the exclusion of all other probate courts.” The other sections to and including the 23d, define what probate court shall have jurisdiction of the matters mentioned in the several sections, and have no reference to the jurisdiction of probate courts to the exclusion of courts of common law jurisdiction.

Section 28 gives the county courts appellate jurisdiction of all matters over which the probate courts have original jurisdiction. Section 78 of the act of 1797 gave like appellate jurisdiction to the supreme courts. The act of 1797 contains nearly the same provisions which are contained in §§ 51 and 52 of the General Statutes. We are unable to find any statute law since the decision of Field et ux. v. Torrey, which takes away the jurisdiction of the county courts in such cases.

It is claimed that Probate Court v. Slason et als., 23 Vt., 306, shows there has been a change in the law or decisions of the court in this respect. That case was an action to recover for breaches of a guardian’s bond taken to the probate court. The *325defendant had never settled his account in the probate court, nor been called upon to do so. The prosecutor was limited to the recovery of nominal damages for that reason By giving nominal damages, the court decided they had jurisdiction of the subject matter, but refused to go into the accounting. The court says, “ It seems by the statute, and from the nature of the case, that the rule applies to the case of guardian’s accounts which does to that of executors and administrators. And it is now settled by repeated decisions of this court, that in all these cases the probate court have exclusive jurisdiction.” It also says, “ see also Field et ux. v. Torrey, which seems to settle the general rule as to the exclusive jurisdiction of the probate court over such matters.”

The case then before the court was an action directly upon the bond in the name of- the probate court, and not an action of account in the name of the ward. The court well held it would not go into taking the account in an action upon the bond, but compel the party seeking to enforce the bond first to ascertain the amount due the prosecutor, or ward, in the probate court. The language used by the learned judge, who delivered the opinion, in speaking of Field et ux. v. Torrey, would seem to indicate that there were exceptions to the general rule established by that case, and that the case itself was one of the exceptions. Instead of overruling or questioning Field et ux. v. Torrey, the court recognized it as an authority which sets forth correctly the general rule and the exceptions.

Judgment of the county court is reversed, and cause remanded.