Harwood v. Boardman

38 Vt. 554 | Vt. | 1866

The opinion of the court was delivered by

Wilson, J.

This is an appeal by James Boardman from an order and decree of the probate court, allowing a certain account presented to that court by. Harwood, guardian of the appellant, the appellant having been, by the probate court, adjudged and-decreed to be insane and incapable of taking care of himself. Whether the appellee is entitled to recover, and the extent to which he can recover, must depend, to a very great extent, upon the statutes in force at the time of his appointment as guardian, and upon the authority of the guardian of an insane person under those statutes. The principal grounds on which the appellant resists-a recovery in this case are, 1st, That - by the act of 1848 the law authorizing the probate court to appoint a guardian for an insane person, with power to act pending an appeal of his ward, was repealed. 2nd. That if the appointment of the appellee as guardian in December, 1862, was' regular, it was vacated in the revision of our statutes, which took effect on the 1st day of August, 1863. 3d. That on the question of the appellant’s insanity, the jury having found a verdict in his favor, he is not liable for any part of the dosts, charges, or expenses mentioned in the guardian’s account. Prior to the passage of the act of 1848 the question of insanity was first tried by two justices of the peace, commissioned by the probate court for that purpose, and upon their report to the .probate court that the person was insane and incapable of taking care of himself and needed a guardian, that court might appoint some suitable person to that trust, from which finding of the justices and order and decree of the probate court, the person so adjudged insane might appeal. But the statute, authorizing such proceeding, expressly provided that the guardian should continue to act notwithstanding the appeal by his ward. In 1848 the former statute regulating the appointment of guardians for insane persons and spendthrifts was so amended as to authorize the probate court, upon application for that purpose, and notice to the person supposed to be insane, to hear and determine the question of insanity and to appoint a guardian. The first clause of the act of 1848 reads as follows: “ So much of said chapter (ch. 65 of the Revised Statutes), as authorized the probate court to appoint guardians for insane persons and spendthrifts is so amended, that upon application therefor,” —then follows the direction for the proceedings preliminary to the hearing before the probate court and the appointment of a guardian. Section 3 of the act of 1848 repealed so much of chapter 65 of the Revised Statutes as was inconsistent with the act of 1848. The only alteration of chapter 65 of the Revised Statutes, made by the act of 1848, was that dispensing with an inquisition by justices of the peace, and authorizing the probate court to hear and decide all questions as to insanity. The act of 1848 declares the purpose of its enactment, and it repealed nothing consistent with its provisions. That act took away no authority or right given to the guardian by chapter 65 of the Revised Statutes, and it would seem to be clear that the statute, authorizing a guardian to act notwithstanding thependency of an appeal, was in force at the time the appellee was appointed guardian of Boardman.

2nd. Was the appointment of the appellee vacated by the revision of our statutes which took effect on the 1st day of August, 1863? We think not. The general statutes provide that the probate court may appoint guardians for insane persons, and they give the right of appeal to the ward. The general statutes require guardians to give bonds and to manage the affairs of their wards, and no distinction, in this respect, is made between the guardian of an insane person and the guardian of any other person. The general statutes do not in express terms take away the right of the guardian to act pending an appeal, and it would seem that, upon a reasonable construction of their provisions, they give such right. But the present action-does not in any way involve the question whether a guardian can act pending an appeal by his ward. In this case it is evident that the guardian acted under his appointment made in December, 1862, at which time the statute, in express terms, authorized him to act pending the appeal. The general statutes did not abolish the office of guardian, and their provisions did not revoke the authority of a guardian appointed under a previous statute.

3d. It appears that the guardian acted in good 'faith; that he was in no way a party or privy to the proceedings instituted, for his appointment. He derived his authority to act, in the premises, from the probate court, and under the statute it was his duty to render the service and make the disbursements charged in his account. The statute giving a guardian pay for his services and disbursements does not except a case like the present, nor are we aware of any principle or authoritjüwhich would justify us in denying the appellee’s right of recovery.

4th. We think the account marked B. should be included in the judgment for the plaintiff. This is, in substance, an action of book account, in which it has long been the practice in this state to adjust all charges due and payable at the time of the trial. It appears that the account marked B. accrued between the decree of the probate court allowing the account marked A. and the close of the plaintiff’s guardianship. No question is made but that the latter account was ■due and payable at tbe time of tbe hearing before the referee, and it appears that he adjusted the accounts up to that time; and both accounts were, by the appeal, regularly before the county court.

The judgment of the county court is reversed and judgment for the plaintiff for the amount found due by the referee, including the appellee’s aecaumh up to the time of trial in the county court.