State v. McKown

21 Vt. 503 | Vt. | 1849

The opinion of the court was delivered by

Poland, J.

This case presents for decision this question, — » Where a guardian of a minor child is removed by the probate court for unsuitableness, and another appointed guardian in his stead, and the first guardian appeals from the decree removing himself from the trust, which of the guardians is entitled to the custody of the ward and property during the pendency of the appeal 1 So far as we know, the question has not before been brought before this court for decision and is now for the first time to be settled ; and as the question is one of some practical importance, we have endeavored to give it as much examination, as our time and opportunities would permit.

It is urged by the counsel for the respondent that, by analogy to appeals from the judgments of justices of the peace to the county court, and of reviews from judgments, rendered in the county court, to a subsequent term of the same court, (where the settled doctrine is, that such appeal, or review, operates to wholly vacate and render inoperative such previous judgment,) the appeal in the case at bar operated to vacate the decree of the probate court, removing the respondent from his trust as guardian, and so left him in the full possession of all his rights, as guardian, and possessing all the powers which he had before the decree was made.

In the case of an appeal from the judgment of a justice of the peace, or a review from a judgment of the county court, the appeal, or review, must be entered at the very time, or term, when such judgment was rendered, and before such judgment has any active legal operation, and before any thing can be done under it, by way of enforcing its execution. The provisions of our law, in relation to the appointment and removal of guardians of minor children, and of appeals from the decisions of the probate court in appointing and removing them, are wholly different. When the probate court remove a guardian, his powers and duties immediately cease, and the probate court may instantly proceed to appoint another, whose powers and duties immediately commence. He may give bonds and assume the custody and control of the person and estate of his ward, as soon as he is appointed. The decrees of the probate court have thus gone fully into effect and operation; but still the first guardian, if he feel aggrieved by the decree, may enter his appeal within the period of twenty days. Shall this appeal from the de.cree of removal have given to it the effect, not only to vacate the decree of removal, but the farther effect, to take away and vacate the rights acquired by the new guardian, and revest the old guardian with his former power and authority. It appears to us that to hold such to be the effect would be productive of great mischief and confusion, and that the analogy between a case of this kind and of appeals and reviews in ordinary suits at law is too slight, to require us to come to any such conclusion.

We have also endeavored to examine the practical effect of a decision, such as the counsel for the respondent asks us to make ; and we may freely admit, that our views have perhaps been much influenced by this consideration ; and as we consider- the question a new one under our statute, we felt entirely at liberty to act upon the result of our conclusions in that view. The nineteenth section of chapter sixty five of our Revised Statutes provides, that “if any guardian shall remove out of this state, or become insane or otherwise incompetent, or unsuitable, the probate court may remove such guardian,” &c., and also provides, that the court may appoint another in his place. Now if we decide, that the respondent in this case, after his removal and the appointment of another in his place, and his appeal taken, was entitled to the custody of the person and estate of his ward, of course such must be the decision in every case of a removal and new appointment of a guardian, even when the first guardian has become insane, or otherwise grossly unsuitable, and is wasting the estate,* or even endangering the person of the ward. The right of appeal equally extends to all cases of removal, whatever may be the cause, or however urgent the necessity for it; and to hold that such former guardians are entitled to keep the custody and control of the person and estate of their wards, as long as litigation can be protracted, we think, would lead to very injurious and mischievous results. We think, therefore, that the safer and better rule is, to hold that the right of the first guardian is suspended during the pendency of the appeal, and that the custody and control of the ward and estate properly belongs to the new guardian, until it shall be restored to the former guardian by a decision of the--appeal* in his favor, or determined in some other way; and webéliévé-, that, in arriving at this conclusion, we are doing no violejítíe'fo thNstatute, or to any analogous principle of law. The respondents'exceptions are therefore overruled. . •' '