Pepper v. Stone

10 Vt. 427 | Vt. | 1838

The opinion of the Court was delivered by

Williams, C. J.

John Stone the petitionee, and Josiah White, were appointed joint guardians of the minor children of Daniel Peaslee. An application was made to. have the guardians removed, and one of them, viz. White, tendered his resignation. The other guardian, Stone, claimed to be appointed sole guardian, or that the guardianship belonged to him. The judge of probate removed the guardians, on the ground that the resignation of White was a dissolution of the joint guardianship, and, of itself, operated as a removal of Stone, and, thereupon, proceeded to appoint another guardian. It was proper for the judge to state the ground of his proceeding, especially if it was upon a construction of the statute, or upon the decision of any ■ legal question. If the removal was not because there were objections to the guardians, or the manner of executing their trust, then the court of probate has never exercised its discretion on the subject. If that court meant to decide upon the law, it decided incorrectly. The judge of probate did not proceed in this case, because the guardians had abused their trust, but because he considered that the resignation of one guardian, operated as a removal of the other.

In this view, he was manifestly wrong. Letters of guardianship create a trust, coupled with an interest. When two are appointed, and one of them dies, the trust survives. It is so when administration is granted to two. The law is the same as to joint guardians and joint administrators. Eyre v. Countess of Shaftsbury, 2 Pr. Williams, 102. People v. Byron, 3 Johns, cases, 52, 2 Dane, 40.

The bonds which are required, and given by guardians and administrators, are subject to this known principle of the law. The sureties enter into the obligation with a' knowledge of their liability, for the acts of both, or either, or the survivor. There is nothing in the probate act which either contravenes or repeals this principle of the common law. The court of probate, may in some cases, put an end to the powers of both or either, in cases where the powers would not otherwise cease, — but when the authority of one ceases or is extinguished, that of the other remains.

The court of probate, in the case before us, evidently proceeded upon mistaken grounds, and but for that mistake of this principle of law, we have no reason to believe they would have discharged the guardians and appointed others. It will not be necssary for us to examine witnesses to determine whether the guardians have properly, or improperly exercised their trust, as it does not belong to this court either to grant letters of guardianship or administration, or to take bonds.

The decree of the court of probate mustbe reversed, as that court evidently mistook the law, in discharging or removing the guardians, and the guardians will remain, until the court of probate determine that they are unsuitable or incapable.

The decree, appointing another gnardian, will of course be reversed, and this judgment is to be certified to the probate court.