Penfield v. Savage

An infant, being an in. habitant of a town within one probate district inherited from her deceased father real estate lying in another; and while she was residing with her mother in the former district, the court of probate in the latter, appointed a guardian to her, who, in that capacity, took her estate into his possession, and paid for her support down to a certain period, when be refused to pay for further supplies, offering, at the same time, to take her into his eus-todyandpro-vide for her himself. In an action of book-debt, against him, for necessaries subsequently furnished^ by the mother’s second husband, it was held, that the defend. ant was not liable: for if he was riot lawful guardian, one might be appointed, who could call the infant’s estate out of his hands ; and if he was lawful guardian, he was only compel-lable, by some proceeding adapted to the case, to apply the estate in his hands to. the infant’s support, and could not be subjected, in are action at lav/, as for his proper debt.

THIS was an action of book-debt, to recover of the defendant, as the guardian of Betsey A. Sloper, the sum of 109 dollars, 84 cents, expended by the plaintiff for her support and education. The cause was tried at Haddam, December term, 1817, before Trumbull, Baldwin and Hosmer, Ja. on the general issue, closed to the court. James Sloper, a resident of Middletown, in September 1806, married Charlotte Haskell, an inhabitant of the same town. He lived with her there until the 20th of January 1807, when he went to sea, and died on the 21st of February following, leaving one child, Betsey A. Sloper, who was horn at Middletown, in the probate district of Middletown, in July 1807. Both the mother and daughter, since the birth of the latter, have constantly resided at Middletown, In July ‡811, Mrs. Sloper married Ilosea Penfield, the plaintiff, in whose family Betsey A. Sloper has since resided ; and the sum stated in the declaration has been expended by him, for her necessary clothing, board and schooling. James Sloper left real estate in Southington, in the probate district, of Farmington, inventoried at 3655 dollars, between two and three thousand dollars of which came into the hands of the defendant, as the guardian of Betsey A. Sloper. The defendant’s wife was the sister of James Sloper, and his nearest surviving relative. The appointment of the defendant as guardian, was made by the court of probate in Farmington district, and was as follows : “ At a court of probate, holder at Farmington, in the district of Farmington, on the 2d da; of September 1808 ; Caleb Savage is appointed guardian to Betsey A. Sloper, a minor belonging to said district. Bond taken, and on file.” The defendant paid the plaintiff for Betsey’s support down to the ¿1st of May 1814, and then requested the plaintiff and his wife to permit her to go with him, stating that he was ready and willing to take her into his custody, to take care of her, to support her, to put her to school, and to do his duty to her as guardian in all respects : but the plaintiff and his wife refused to part with her. The defendant then gave them notice, that he would not pay any thing for her support after that time. The plaintiff’s charges accrued subsequently, of which due notice was given to the defendant. Upon these facts the court gave judgment for the defendant | and the plaintiff moved for a new trial. The motion was reserved in the usual manner. stated, that the principal question in this case, was, whether the defendant was entitled to the custody of Betsey Ji, Slayer, lie contended, that the defendant was not legally constituted guardian 6f her person, as she never resided within the probate district of Farmington, and was not subject to the jurisdiction of the judge of that district. The appointment was coram nonjudice ; and being so, the finding to support the decree, as well as the decree itself, is void. The appointment being out of the case, the guardianship, which, at the age of this child, was, at once, that by nature, and for nurture, devolved on the mother. Co. Litt. 88. b. and n. 67. by Harg. 1 Black. Comin. 461. Reeve’s Dom. Rel. 320. Still, however, the defendant is to be regarded, and rendered liable, as guardian of Betsey .1. Slayer’s property, so far as he has made himself so by his acts. Having taken her property into his possession as guardian, he is precluded from disputing the situation which he has assumed. He cannot say that he is not in the situation in which he has acted. Peake’s Evid. 21. was stopped by the Court.