85 Wis. 504 | Wis. | 1893
Unless the plaintiff is concluded by the action of Richard Phelan in agreeing to accept, and in accepting, the order of Parmalee on Joseph Phelan for $996.50 in payment and satisfaction of the distributive shares of the three minors, the plaintiff and her brother and her sister, in the estate of Martin Phelan, deceased, it is plain that the defendants had no defense to the action, and the circuit court should have instructed the jury, as requested by the plaintiff, to find a verdict in favor of the plaintiff for the full amount of her claim. The uncontroverted evidence shows that when the transaction between Parmalee and Richard Phelan relied on as a defense took place, the latter was not the lawfully appointed guardian of the plaintiff or of her brother or sister, for all of whom he assumed to act. He was not their agent, because by reason of their infancy they were not competent in law to appoint an agent. There is no evidence to show that after the appointment of Richard Phelan as their guardian, January 12, 1885, they ever in any way ratified or confirmed what he had previously attempted to do in their behalf, nor that he assumed in any way to negotiate or deal with Parmalee in respect to the order.
1. A guardian of a minor derives his authority entirely from the act of the court appointing him such, and this must be evidenced by matter of record — by the record of the .court. The appointment cannot be shown in part by the record and in part by matter in pais; and of necessity the record itself is the sole and conclusive evidence of the fact, and cannot be contradicted or varied by parol evidence. It imports absolute verity, and no allegation can be admitted against it. The statute provides that, “ before appointing any person guardian of a minor, the court shall require such person to give bond to the minor, in such sum and with such sureties as the court shall designate and approve, con
2. The appointment of Richard Phelan as guardian, January 12, 1885, could not relate back so as to validate acts done by him in relation to the property and estate of his wards previous to such appointment, and when he had no authority over it. Huntsman v. Fish, 36 Minn. 148; Wiswell v. Wiswell, 35 Minn. 371. The fraudulent or mistaken representations, • even, of one who without authority assumes to act as guardian for an infant, afford no foundation for an equitable estoppel against the infant or his guardian subsequently appointed, so as to bind the infant or charge his property. Sherman v. Wright, 49 N. Y. 228. And if the same party is appointed guardian his rights and author-
8. The offer of the defendants to show that Parmalee never received in fact but $50 of the property and estate of Martin Phelan, deceased, was inadmissible.' The circuit court properly held that the judgment of the county court, charging Parmalee as administrator de lonis non, as already stated, was in this action conclusive as against his
For the reasons stated the judgment of the eireuit court must be reversed and a new trial had.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.