Palmer v. Oakley

2 Doug. 433

• Court: Michigan Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

Whipple, J.,

delivered the opinion of the Court.

The case presented for our judgment has been considered with the deliberation which its importance demands. In proceeding to announce the opinion of the court upon the several questions involved in it, we shall depart somewhat from the order in which they have been presented to us.

1. It appears on the face of the decree of the probate court appointing Archange Simmons guardian of the plaintiffs, that she was, at the time, a feme covert ; and it is contended on the part of the plaintiffs, that she was incompetent to be a guardian, on account of the coverture ; and that therefore the decree, and her subsequent acts as guardian, are void. It is said that the statute under which these proceedings were had, required that a guardian appointed by the court of probate, should execute a bond, with sufficient sureties, for the faithful discharge of the trust; and, as a bond executed by a feme covert is void, the conclusion is sought to be drawn that the legislature intended to exclude her from the office of guardian ; in other words, it is contended that a person incapable of executing the bond, is also incapable of becoming a guardian to minors.

But does the statute make it necessary for the guardian to execute the bond? The first section of the “ Act empowering the Judge of Probate to appoint guardians to minors and others,” approved April 12,1827, (R. L. 1827, p. 57,) directs that “ sufficient security” shall be taken of guardians “ for the faithful discharge of their trusts,” and provides that when a guardian chosen by a minor above the age of fourteen years “ is unable to give sufficient security,” the judge of probate shall be authorized to appoint a guardian for such minor. The fifth section of the ■same act provides, that “guardians shall gire bond,” &c. “ with sufficient securities for the faithful discharge of the trust,” &e. “ when and so often as they shall be thereunto required.” (Ante, 433, § 5.) It is very clear that the words of the act do not make it imperative upon the guardian to execute the bond ; and it is equally clear that the end to be attained does not render such a construction necessary. When the guardian gives a bond, with sufficient security, the object of the law is fully answered. If the fifth section stood alone, the construction contended for by the plaintiffs might prevail, as the words, “shall give a bond,” might reasonably be construed to be equivalent to the words shall execute a bond. I am unable to perceive the necessity for the execution of the bond by the guardian, as no additional security is thereby afforded to the minor in the event of a breach of its conditions. The guardian would, under any circumstances, be personally responsible, in a court'of law or equity, for the faithful discharge of the trust reposed in him. Cases may arise which would not only authorize, but require us to give to the language of the fifth section the construction contended for; but in the present case, we think the bond filed, with sufficient security, is not only a literal compliance with the words of the act, but answers the end and object for which the bond is required.

We are not entirely without precedent for this construction. The English statute of 3 Jac.I, c. 8, provided, that “no execution should be stayed, upon, or by any writ of error or supersedeas thereupon,” &c. unless the person sueing out the writ, “ with two sufficient sureties,” &c. should “ be bound unto the party for whom the judgment was given, by recognizance to be acknowledged in the same court,” &c. Similar language was used in the subsequent statutes of 13 Car. II. c. 2, and 1 Geo. IV. c. 87, on the same subject. By the construction given to the statute of 3 Jac. I. it was not necessary that the plaintiff in error should join in the recognizance; the words, with sureties, having been construed to mean’ by sureties. And a like construction was given to the statute of 1 Geo. IV. 1 Bac. Abr. 552, ’3; 2 Sell. Pr. 370; 1 Barnes, 75. In Barnes v. Bulver, Carth. 121, it was objected that the plaintiff in error had not given his owri recognizance to the defendant; to this it was answered that he had found two sufficient sureties, by which the intent, though not the letter of the statute, was satisfied. See also, 2 Tidd’s Pr. 1251, and cases there cited. One reason given by Tidd for this construction is, that an infant plaintiff could not enter into the recognizance, nor a plaintiff who had become feme covert after the action brought; and, as the legislature could not have intended to exclude infants and femes covert from the benefit of the act, the courts so construed' it as that it would apply to all plaintiffs in error. The same course of reasoning will apply, with additional force, to the provision of our statute which requires a guardian to give a bond with sureties. It may well be argued that the legislature never could have intended to ■withdraw from the care and custody of her who is guardian by nature, her infant child, and place it under the control of a mere stranger. To warrant such a construction, the statute should contain clear words of exclusion.

Let us grant, however, that the statute does require that the guardian should execute the bond ; does it follow that the grant of letters of guardianship to a feme covert who is not legally competent to execute a bond, and her acts as guardian, are absolutely void ? The giving of the guardianship bond is not a condition precedent to the execution of the trust of guardian. Our statute, like that of Massachusetts, requires that the guardian appointed by the probate court ^hould give bond with sureties. The statute of New York requires the bond to be given before the appointment is made. In Bloom v. Burdick, 1 Hill, 130, a title was sought to be sustained through an administrator. By the statute of New York, the surrogate was required, upon granting administration, to take sufficient bond of the person to whom the administration was granted, with two or more competent sureties. Upon the production of the bond it appeared that it was executed by only one surety. It was contended that this circumstance rendered the- proceeding void. The court, however, held, that this was an error to be corrected on appeal, and not a defect of jurisdiction, which rendered the whole proceeding void. In Russel v. Coffin, 8 Pick. 143, the precise question now under consideration arose, and Chief Justice Parker, in delivering the opinion of the court, says : “ The letter of guardianship is far from being an execution of the power of the judge of probate, under the statute ; but its defects are not substantial. It is directed to the select men of Nantucket, without naming them ; but in the close of the instrument, the names of the persons holding that office are mentioned. The bond is taken from them in their private capacities, and binds their heirs, executors and administrators. This, however, does not make the guardianship void ; for the giving of bond with surety, is not a condition precedent to the executing the authority of guardian, it being in the power of the judge of probate to remove guardians if they fail to give security from time to time, as he shall direet.”

If this case contains a sound exposition of the statute from which ours was borrowed, it may well be questioned whether letters of guardianship granted to a married woman are absolutely void, although the statute might contemplate the execution of the bond by her. The granting of letters of guardianship is a. judicial act; and if the court, by whom such letters are granted, has jurisdiction of the subject matter, and of the parties, will not the decree bind ? Let it be admitted, that our statute requires a bond from the person to whom letters of guardianship are granted, and that it does not contemplate that letters can be granted to a person who has not the legal capacity to execute the bond; would the acts of such a guardian be void ? I am inclined to think they would not, while the decree remained unreversed. If the decree were absolutely void, all acts done under it would also be void ; so would the bond, as respects the sureties. Yet, I think, it will hardly be contended that acts done by virtue of the decree, 'would, as respects third persons, be held void. Receipts of money by such a guardian, and acquittances granted by her, would be held valid ; and, if she abuses the trust confided to her, I have no doubt the sureties would be liable on the bond. The granting of letters of guardianship, under such circumstances, might be an error in law, sufficient to authorize their revocation, but until revoked, the acts of the guardian would be held binding.

The case of Janett v. The State, 5 Gill & John. 27, establishes both of these propositions. In that case, a person died, leaving a widow and an infant son entitled to personal property. The widow refusing to act as guardian, the orphan’s court appointed some third person who accepted the trust. The person thus appointed, died ; and the mother, (who, in the mean time intermarried the plaintiff,) as natural guardian of the infant, and with the consent of her second husband, undertook the guardianship of the infant, and gave a bond in that character, with security, in which her husband united. An action of debt was brought upon the bond against Janett, the second husband, as one of the sureties in the bond ; and it was held that the orphan’s court had jurisdiction to accept the bond, and that the action could be maintained against the surety without sueing the guardian. I shall recur to this case hereafter for another purpose ; my only object in referring to it now is, to show, that the sureties in a guardianship bond were held liable, although the guardianship of the infant was entrusted to a feme covert. By the statute of Maryland, a bond was required of the natural guardians, in certain cases; and it was urged with great force and ability by counsel who have attained to the highest honors of the profession, that from this circumstance, it was clearly inferable that the statute never contemplated that letters of guardianship could be granted to one who was legally incompetent to execute the bond; and if so, that the bond was void as to the sureties. The court of appeals of Maryland, however, affirmed the judgment of the county court declaring the sureties liable.

In the case of Ray and wife v. Doughty and another Admrs. 4 Blackf. R. 115, it seems that letters of administration were granted to a widow, being nineteen years of age, on the estate of her deceased husband, and that suit was brought against her co-administrators, for a devastavit committed by the infant administratrix. It was held, that “ while the letters of such infant administratrix remained unsuspended and unrevoked, the payments made to her by the debtors of the intestate, and the delivery of goods of the estate to her by her co-administrators, are to be considered in the same light, as if her authority were undisputed.” It was further held, that the grauting of letters of administration is a judicial act, and where the court granting them has jurisdiction, individuals and courts of justice are bound to respect the authority of the lotters, and to presume omnia rite acta. The statute of Indiana, like our own statute, requires a bond to be given by a person to whom administration of an estate is granted, and yet, the acts of an infant administratrix were adjudged valid.

Toe case of Westcott v. Cady, 5 John. Ch. R. 335, asserts the same principle. In that case, it was stated in the answer, “that the.plaintiffs were aliens, and residents in England, and could not administer,” &c.; and in the arguments of counsel it was urged, that the plaintiffs could not be regarded as administrators, because, being aliens, always residing in a foreign country, they never could have qualified as such. Upon the question thus raised and discussed, the Chancellor, (Kent,) remarked: “ Another objection, of a technical kind, is, that the plaintiffs are aliens, and residents in England, and that they have not qualified themselves, according to law, to sue here as administrators. The answer to this is, that letters of administration, under the seal of the court of probates of this state, are produced, and I am bound to presume omnia rite acta, and to give full credit to the judicial acts of a competent jurisdiction. I am not bound to look beyond the letters of administration, sub pede sigilli.” p. 343.

It has also been held, that payment to an executor who had obtained probate of a forged will, was a discharge to the debtor, notwithstanding the probate was afterwards declared null in the ecclesiastical court. Will, on Ex’rs. 404; Allen v. Dundas, 3 T. R. 125, 129; R. Peebles’ Appeal, 15 Serg. & R. 39; 4 Bac. Abr. 62. It would be productive of infinite inconvenience and injustice if a contrary rule were established. There would be no safety in dealing with an executor, administrator or guardian, unless the adjudications of the probate court in granting the probate of wills, letters of administration, and of guardianship, are entitled to the highest credit, and are to be regarded as conclusive until revoked. Errors of law or fact, when the court has jurisdiction, will not render void the decree of a probate court.

If the views I have expressed respecting the force and effect of decrees of the probate court be correct, it is apprehended, that, although it is incompetent to grant letters of guardianship to a feme covert, yet, if granted, the acts of a guardian, within the scope of his powers, will be binding and obligatory, and afford full and ample protection to third persons dealing with him. Our statute does not, in terms, prohibit the appointment of a feme covert as guardian. If such an act is prohibited, it must be in consequence of that provision which requires a guardian to give a bond; or, the incapacity must result from the legal relationship existing between husband and wife. I have endeavored to show, that the execution of the bond, by the guardian, is not required, and that the spirit of the statute is fully complied with, if a bond is given with sufficient sureties ; and that if I am in error in this respect, and a bond is required to be executed by the guardian, yet, the decree of the probate court granting letters of guardianship to a feme covert, is not, for that reason, void; that the court of probate having jurisdiction of the subject matter, the grant of letters of guardianship to a feme covert, (whose bond at common law would be void,} is a mere error in law, which might be corrected upon appeal, but which does not render the decree nugatory. These positions, it is believed, are abundantly sustained both upon principle and authority; and are sanctioned by sound policy, reason and justice.

There being no express statutory disqualification, is the appointment of a feme covert as guardian, inhibited by the common law? *

Between the civil and the common law, there exists a wide diversity in respect to the legal consequences of marriage. The great point of distinction is this: that by the former, husband and wife are regarded as distinct persons who may have separate estates, contracts, debts and injuries ; whereas the latter treats them as one. So distinct were the husband and wife by the Roman law, that they might contract with each other; and, upon the same principle, sue each other. Bro. Civ. Law, 82, ’3. Some of the evil consequences which might be supposed to flow from permitting the wife to enter into contracts without the consent of the husband, were obviated by rendering such contracts inoperative upon the husband, and permitting her to sue and be sued without her husband. The authority to sue and be sued, however, is recognized in the tribunals in England, which have, to some extent, retained the imperial constitutions, viz: the courts of equity, and ecclesiastical courts.

The disabilities which, at the common law, attach to a feme covert, apply solely to- her civil rights ; and a reason among others for creating the incapacities provided in that code, is to be found “ in the variety of wills with which human nature is ordinarily constituted, which makes it necessary for the preservation of peace, that where two or more persons are destined to pass their lives together, one should be endowed with such pre-eminence as may prevent or terminate all contestation.” Experience and observation prove that this pre-eminence should be lodged in him upon whom rests the chief burden of educating, defending and providing for the wants of his family, and who is endowed by nature with those qualities, moral, intellectual and physical, which enables him to, sustain that burden.

As a consequence of the authority vested in the husband, sáfeme covert has, in general, no power to contract. The law declares all contracts made by femes covert absolutely void. To this general rule, however, there are a few exceptions; such, for instance, as her power to contract for necessaries, which will bind the husband. At the common law, she is incapable of executing a deed ; therefore, the bond of a feme covert is void. To this general rule, also, there are exceptions which will be noticed hereafter.

The powers and duties of guardians are not expressly defined by the statute of 1827, but it may be fairly inferred that a guardian has not only the custody of the person of the ward, but has also the control of his personal property, and, for certain purposes, of his real estate. His interest in the real estate is sufficient to enable him to maintain trespass, Byrne v. Van Hoesen, 5 John. R. 67; or to lease it for a term of years, 4 Bac. Abr. 585 ; and, as the guardian stands to his ward, in loco parentis, he may maintain an action on the case for seduction. In general, a guardian possesses all the powers of a guardian under the statute of 12 Car. 2, who, it is said, has the same interest in all respects as a guardian in socage, except as to the time and modus habendi ; 4 Com. Dig. 510. A guardian, it is said, has an authority coupled with an interest; but this interest cannot be regarded as a beneficial, but a mere legal interest. In Granby v. Amherst, 7 Mass. R. 5, the court said that by the law of Massachusetts from which ours was borrowed, guardians, being agents of their wards, have an authority not coupled with an interest.

It was contended in argument, that a feme covert might execute the powers and duties of a guardian, administrator, or executor, without the consent of her husband. And this position was sought to be sustained by showing the practice which prevails in the court of chancery in England, in respect to the appointment of guardians, and in the ecclesiastical courts in respect to the appointment of executors and administrators.

These tribunals are, for the most part, governed by the rules of the civil law in respect to the incidents of coverture, regarding the. wife as in many respects a feme sole, and in view of the wide distinction which we have already shown to exist between the civil and the common law on this subject, it is evident that their decisions must be followed with much caution.

Wentworth, in his treatise on executors, (p. 375 — ’7,) says: “ As for the second point, viz : wives or women coverts being made executors, and so having the office of executorship put upon them against their husband’s will, there has also been diversity of opinions. In the time of King Edward the First, Brab. Justice, saith she may be executor without her husband, and the administration shall be delivered to her only. And I think he meant that this might be without the assent of the husband, or whether he would or not; for so it is said in the time of King Henry the Seventh to be the law spiritual; and indeed in courts spiritual no difference is made between woman married and unmarried, for aught I can find. There a wife sueth, and is sued, alone without her husband; he intermeddleth not nor is meddled with touching the things pertaining to his wife. But at the common law it is otherwise ; and thei-e, as Brian, Chief Justice, saith, a wife, without the assent of her husband, cannot be executor, he meaning thereby that the husband may oppose and hinder it; for such a one may be named executor in and by a will, without the knowledge of the husband.” “She may clearly, as well as any other person, (especially if her husband concur with her therein,) refuse the office, trust, and charge, so as if there be no other executor named, the ordinary must commit the administration.” “ But suppose she doth come into court, and offers herself ready to take the executorship upon her; anil, on the other side, her husband expresseth his disassent thereunto, praying that she may not have the execution of the will to her committed; what will then be done? This, I confess, pertains to another learning, and not to that of our profession. But forasmuch as I find, that in the courts spiritual, a wife stands in the same plight and state as a woman sole, the husband not intermedling withal or the afairs of the wife; therefore do I conceive, that in that court the husband’s refusal will not be of force to hinder the committing of the executorship to the wife,” &c. In reference, however, to the legal consequences of marriage at the common law, the same author says: “This stands clear in the rules of the law of England, that the wife is under the husband’s power,” &c. “ But if once the will be proved, and the execution thereof committed to the wife, though against her husband’s mind and consent, I think it will stand firm; and the husband and wife being after sued, cannot say she was never executrix. And I doubt whether the wife administering without the husband’s privity and assent, although the will be not proved, do not conclude her husband as well as herself from saying after, in suit against them, that she neither was executor, nor did ever administer as executor. Yet, perhaps, this administration by the wife, against her husband’s mind, will, (as against him,) be as a void act; else cannot I see how Brian's opinion before cited; viz: that the wife shall not be executor without or against her husband’s mind can be law.”

By the civil code it is quite clear that a feme covert might, even against the will of the husband, take upon herself the office of executor or administrator, while at the common law, it is equally clear that she cannot, without his consent. The reason of for this diversity being, that by the former law, femes covert, in respect to civil rights-, are regarded us sole, while at the common law, a different rule prevails. Yet, I am not prepared to say that, if administration be committed to the wife, without the assent of the husband, her acts will not bind, so long as the letters remain unrevoked.

Toller, in his treatise on executors, recognizes the rule, that a feme covert may, with the consent and concurrence of her husband, take the- office of an executrix, (p. 31.) The same author, (p. 91,) uses this language : “If a feme covert be entitled, she cannot administer without the husband’s permission, inasmuch as he is required to enter into the administration bond, which she is incapable of doing. But if it can be shown by affidavit that the husband is abroad, or otherwise incompetent, a stranger may join in such security in his stead. In either case, the administration is committed to her alone, and not to her jointly with her husband.” In the case of an infant entitled to administration, the practice is to assign it to a guardian of the infant, during his minority. The reason for committing administration to a guardian of an infant, arises, however, from a want of capacity on the part of the infant, and as a protection to the inexperienced, against the machinations of the fraudulent; while the disabilities of femes covert are the consequence of the sole authority which the law has recognized in the husband.

The rule as stated by Toller, will be found to be sustained in 4 Bac. Abr. 32. It is there said that a feme covert may be appointed executrix, and that in the spiritual courts she is considered as a feme sole, capable of sueing and being being sued without her husband; and, therefore, according to their law, she may take upon her the probate of a will without the assent of her husband. It is denied, however, that by the common law she can take upon herself that office without such assent; and if the spiritual courts proceed to compel her, against the consent of the husband, to take upon herself the executorship, a prohibition will be granted. If, however, a wife administers, though against the consent of the husband, and an action is brought against them, they are estopped to say that the wife is not executrix. Ibid. 13. From this, it would seem, that administration committed to a wife, against the will of her husband, is not void, but will bind until revoked.

The capacity of a feme covert to become executrix or administratrix, is also affirmed by Baron Comyn. 1 Com. Dig. 480, 497. See also Chitt. on Contr. 149 ; Will, on Ex’rs. 325, ’6 ; 1 Sch. & Lef. 266. It is also well settled that a feme covert may execute a power simply collateral; and, although once questioned, it seems she may also execute a power appendent, or in gross. Sugd. on Pow. 155; Godlphin v. Godolphin, 1 Ves. 21 ; Lewin on Trusts, 89.

If, then, a feme covert may, with the consent of her husband, execute the office of executor and administrator, and may, in a variety of other cases, act in autre droit, it is difficult to imagine why she may not, with the like consent, execute the office of guardian under our statute. I say, with the consent of the husband ; for, looking to the duties and powers which appertain to that office under our statute, and to the legal consequences which the common law attaches to marriage, I am satisfied that the consent of the husband is necessary; although I am inclined to the opinion, that letters of guardianship granted to a wife, by a competent jurisdiction, without such consent, would not be absolutely void, but simply voidable.

Express authority is not wanting, however, to show that a feme covert may be a guardian. “ It is improper that the wife of a man addicted to the habits of intemperance, should be guardian (in socage,) she being subject to his control.” 4 Bac. Abr. 54S. “If a feme guardian marry, the guardianship is not transferred to the husband.” 4 Com. Dig. 510; Jannett v. The State, 4 Gill. & John. 27. I regret, very much, that the opinion of the court of appeal does not appear in the report of the case last cited. The character of the counsel who took part in the argument, and the research and ability exhibited in the briefs which appear in the case, show that it was one of no ordinary interest; and it seems somewhat remarkable that the opinion of the court is not given. From what does appear, however, it is manifest that the capacity of a married woman, to take upon herself the office of a guardian was fully discussed ; and the court must, from the judgment which they rendered, have considered it competent for a feme covert to execute the duties of guardian, with the consent of her husband, notwithstanding a bond, in certain cases, was required. In fact, the suit was instituted on the guardianship bond, and against the husband as one of the sureties. In that case, as in this, it was contended that a married woman could not act as natural guardian, for by the act of Maryland of 1798, such guardian was required to give a bond; and that the bond of the principal, being at common law void, it was also void as to the sureties. The judgment of the county court, however, in which it was held, 1st. That the mother was the natural guardian; 2d. That the orphan’s court had jurisdiction to accept the bond ; and 3d. That the action could be maintained against the surety without sueing the guardian, was affirmed.

In re Gornall, 1 Beavan, 348, a petition was presented in behalf of an infant, praying a reference to a master to approve of a proper person to be guardian. From the case it appears, that, by an order of the court, the mother of the infant petitioner, was appointed his guardian, and that after such appointment she married. In support of the motion it was said, that it was of course, where a lady who had been appointed guardian, married, to appoint a new guardian. The master of the rolls admitted that it was the usual practice in such cases to direct a reference, on the marriage of a female guardian. He denied, however, that the mother, by reason of her marriage, was to be deprived of her child ; but, on the contrary, ordered that the mother be at liberty to propose herself, and hoped that her application would be successful. It is to be observed, that in the exercise of the large and wholesome jurisdiction of the court of chancery of England, that of requiring security from guardians is included.

In 4 Com. Dig. 506, it is said that, “ if a wife, being a guardian, (in socage,) die, her husband shall not have it, though he survive.”

I think it may be assumed, as fully established, that it is competent, at the common law, for a feme covert to execute the office of guardian ; and that she may, with the consent of her husband, execute the like office under the provisions of the statute of 1827.

The next question to be determined is, whether such consent was given. Nothing appears in the case before us, showing any' express consent by the husband. The only fact from which consent may be inferred, is, the execution, by the husband, of the bond required to be given by the guardian before sale of the real estate of the ward. In the absence of any direct evidence to the contra^', I think this would be sufficient to warrant the presumption that his consent was given. It is said that administration taken by a wife, during coverture, must be presumed to have been with the assent of the husband. 4 Bac. Abr. 13. In the case of Adair v. Shaw, 1 Sch. & Lef. 243, Lord Redesdale, in the course of an elaborate and learned opinion, says: “ The administration having been taken in this instance during coverture, must unquestionably have been with the privity and assent of the husband : he must be taken to have authorized the proceedings.” The same presumption will obtain in respect to a guardian; as the same reason which warrants the presumption in the one case will warrant it in the other. So that, unless the dissent of the husband expressly appear, his assent will be implied.

2. A further objection made to the validity of the decree of the probate court appointing Archange Simmons guardian, was, that it did not appear, on its face, that the minors were under fourteen years of age, or that they were cited to choose a guardian.

Another point made and which we will consider in connection with the above is, that the circuit court erred in refusing to permit the plaintiffs to prove on the trial, that, at the time of the appointment of said guardian, Thomas Palmer, one of the alleged minors named in the decree, was over fourteen years of age.

In the investigation of these points, I have encountered considerable difficulty, arising principally from the circumstance, that learned judges have differed widely upon the question, how far the proceedings had before courts of probate could be impeached collaterally,' and when, and under what circumstances, their decrees are to be deemed and taken as conclusive and binding, until revoked by a revisory court, upon a direct proceeding taken for that purpose.

The importance of the question is not confined to the case or the parties before us, but upon its determination will depend the title to a large part of the real estate in the older counties in this state. This consideration has induced me to give to this part of the case reserved for our advice, a careful and extended examination; the result of which has been, that if reliance were to be had upon adjudged cases, no satisfactory rule could be extracted, by which the question immediately before us could be determined. A survey of the authorities in several of the states has convinced me, ihat the law on this subject has undergone more fluctuations than on any other which has fallen within the range of my observation. These fluctuations are the more to be deprecated, for the reason that a painful uncertainty must hang over the proceedings of courts of probate, rendering insecure and uncertain, titles to a large amount of property, derived through their orders and decrees. Courts have sometimes struggled hard to sustain titles thus derived, in favor of bona fide purchasers, against the claims of those who, at the time of the purchase, were minors, but who, through the fraud or neglect of administrators or guardians, have been stripped of their inheritance ; while, on the other hand, barriers erected by the law for the protection of minors, have been as often demolished, to sustain titles in favor of innocent purchasers.- The judgments of courts seem, in some instances, to have been swayed more by the supposed equities of the case, than by the application of "those general rules and principles by which they should have been determined,!

At the time the decree appointing Archange Simmons guardian was made, two statutes were in force from which the jurisdiction over the appointment of guardians was derived ; both approved on the same day, viz April 12, 1827. One, entitled “ An act establishing Courts of Probate,” defined in general terms the jurisdiction of these courts, and granted, inter alia, the power of “appointing guardians for minors, idiots and distracted persons,” without any restriction as to the age of the minors-. R. S. 1827, p. 85, § 1. (See ante, p. 4-35.) The other statute was entitled “ An Act empowering the judge of probate to appoint guardians to minors,” and authorized the probate court to appoint guardians for minors under the age of fourteen years ; and to allow of guardians chosen by minors of over that age. It further provided, that in case the minor was over fourteen, he should be cited by the judge of probate to choose a guardian ; and if, upon being cited, he should refuse to appear, or, when appearing, should refuse to choose a guardian ; or, if the person chosen by the minor should be unable to give securit}'’, then and in such case, the judge of probate was authorized to appoint a guardian for him. This act certainly contemplated that minors under the age of fourteen years, did not possess the discretion necessary to make choice of a guardian, and therefore conferred the appointment upon the judge of probate; while minors over that age are supposed to possess such discretion. The choice made by a minor over fourteen, was not absolutely binding, however, upon the judge of probate, unless the necessary security was given. The cases in which the judge of probate might, appoint, without the intervention of the minor, are indicated in the act. But in no case could the authority to appoint be exercised, without notice to the minor, except where the minor was over fourteen years of age, or resided without the territory. R. S. 1827, p. 57. (See ante, p. 435, ’6.)

It was contended on the argument that the former of these acts authorized the appointment of guardians for minors ; that the power of choosing granted to the minor by the latter act amounts,-in fact, to the privilege of nomination ; and that the judge might either “ allow,” or reject the nomination ; — -that the power of appointment, in all cases, is conferred upon the judge of probate, which he may exorcise without citation; and that such a proceeeding, where the minor was over fourteen, might be irregular, but is not void, as the choice to be made by the minor, is a mere incident in the proceedings,- and does not enter into the jurisdiction or authority of the court to’ appoint in all cases under the provisions of the first named act. We think that, although the “ act establishing courts of probate” confers the authority, in general terms, upon the court of probate, to appoint guardians, yet, it is to be construed with reference to the second act, which was passed the same day; and that it was the obvious intention of the legislature, by that act, to restrict and regulate the exercise of this general authority. Suppose the two acts to have been merged in one and the same act; could it be contended that it conferred upon the probate court the unrestricted power to appoint guardians to minors, irrespective of age, and without notice ? I think it could not be so contended, without doing violence to the words and spirit of the act. How, for instance, could such a construction be reconciled with that part of the act which limits, in express terms, the authority to appoint; as, where the person chosen by the minor refuses to give the required security, or where the minor resides out of the state. But especially would such.a construction contravene that provision, which requires notice to be given to the minor, when over fourteen years of age, before any decree can be made affecting his rights.

I am not prepared to say, that if a citation had been issued and served upon the minors, and, upon their appearing, a quéstion as to whether Thomas Palmer was under or over the age of fourteen years had arisen, and the judge of probate, after hearing evidence to that point, had arrived at a wrong conclusion, his decree appointing a guardian would have been void, if, in fact, he was over fourteen years of age. By issuing and serving a citation upon the minor, the probate court would have acquired jurisdiction over the subject matter and the person, and • any error of fact committed by him in the exercise of that jurisdiction, might have justified'á reversal of-the decree upon appeal; buttsuch error in judgment would not render void the decree ; nor could it be successfully assailed in a collateral action. The acts of a guardian, so appointed, would bind until the decree was annulled by appeal to a superior jurisdiction. The whole fallacy of the argument of the learned counsel consists in supposing, that the mere presentation of the petition, representing all the minors to be under the age of fourteen years, gave jurisdiction to enter the decree appointing a guardian to the minors, whether they were over or under the age of fourteen years ; and that, having jurisdiction, the decree will bind, whether a citation was issued and served or not.

It is a fundamental principle of the common law, founded in justice and sound policy, that no judgment or decree affecting the person or property of an individual shall be valid, unless notice, actual or constructive, is given to the individual whose rights are to be affected. The exceptions to this general rule, prove the existence of the rule itself. And this principle is applicable to all courts, whether of superior or inferior jurisdiction. With respect to superior courts, however, jurisdiction will be presumed until the contrary be shown ; whereas, the jurisdiction of an inferior court must be shown by those claiming rights under their orders or decrees. Opinion of Spencer, J. in Mills v. Marlin, 19 John. R. 33; Borden v. Fitch, 15 Id. 141.

Applying this principle to the case before us, it is clear that nothing appears in the proceedings to show the authority of the probate court to make the order appointing a guardian for a minor over the age of fourteen years. The record furnishes no evidence whatever, that a citation issued, or that any notice of the pendency of the application was given to any of the minors. By the decree, the custody both of the persons and property of the minors was transferred to the guardian. It was a decree by Which their rights and interest's were Vitally affected. The fa**sentation of the application by Mrs. Simmons, the mother of the plaintifls, to the judge of probate, gave him full power and authority to inquire into and determine the .question, as to whether the prayer of that petition should be granted or denied. This, to be sure, is the exercise of jurisdiction ; for it is an authority to hear and determine. The law, however, pointed out the mode by which this authority should be exercised, before a final order or decree should be entered, by which the rights of the minors were to be concluded. The first step which should have been taken, was, to ascertain whether the authority to appoint a guardian existed. This could only be determined by receiving evidence of the facts upon which the right to appoint depended. If the proceeding had been conducted with regularity, a citation should have issued to the minors; this being served, the parties to be affected by the proceeding would be considered as having been brought into court, whether they actually appeared or not. This would have been a safe proceeding, although, perhaps, unnecessary, as respects those of the minors whose wishes were not to be consulted in the appointment of a guardian. The return of the citation served, ought to have been followed by evidence touching the ages of the minors, respectively; upon this evidence the judge of probate was to determine whether the power to appoint actually existed. If the evidence showed, to his satisfaction, that the minors were all under the age of fourteen years, then his authority to appoint would be unquestionable ; but if it manifestly appeared that one of the minors Was over the age of fourteen, then his jurisdiction in the premises was at an end ; unless, indeed, the minor failed to appear and make choice of a guardian, in which case the probate court would have possessed full power to appoint, without the intervention of such minor. If a citation issues and is served, and the minor appears, and admits that he is under fourteen years of age ; or, if the evidence warrants that conclusion, although the fact may be otherwise, yet, the decree will stand good until reversed; and for this reason, that the person to be appointed by the decree is brought into a court competent to hear and determine the facts upon which his authority to enter a final decree depends. If his determination is erroneous, the error must be corrected by a direct proceeding to annul the decree. The error in judgment, of the court by whom the decree is pronounced, cannot impair rights of innocent third persons, acquired through such proceedings. They have a right to rely upon the decree of a court having jurisdiction of the subject matter, and which has acquired jurisdiction of the person affected by the decree.

The case of Bloom v. Burdick, 1 Hill’s R. 130, illustrates and enforces the principle for which I contend. An administrator presented a petition for the sale of the real estate of an intestate, which was granted, and the estate sold. An action of ejectment was subsequently brought by the heirs at law of the deceased, for the real estate sold. The statute of New York requires that guardians should be appointed to take care of the rights of infant heirs who may be interested in the estate. The record of the surrogate did not show the appointment of a guardian to represent the interests of the plaintiffs, who were minors at the time the order for the sale was made. In delivering the opinion of the court, Bronson, Justice, remarks: “ The surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the petition and account. It was also necessary .that be should acquire jurisdiction over the persons to be affected by the sale. It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. He jpust, either, by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court; and if judgment is rendered against him before that is done, the proceeding will be as utterly void as though the court had undertaken to act where the subject matter was not within his cognizance.” And again ;■ “ The surrogate’s court is one of inferior jurisdiction ; it is a mere creature of the statute. Indeed, it has been held that, in all the cases relating to surrogate’s sales, the persons claiming under them, must show affirmatively that the officer had acquired jurisdiction.”

In the case of Jackson v. Robinson, 4 Wend. 436, the lessor of the plaintiff claimed to recover under a deed from an administrator. One of the objections taken to the sufficiency of the evidence to entitle the plaintiff to recover was, that it was not shown, otherwise than-by the recitals in the order, that there were any debts of the intestate, that there was a deficiency of assets to pay the same, or that the personal property had been applied to' the payment of the debts, and consequently that enough had not been shown to give the surrogate jurisdictions Marcy, Justice, in delivering the opinion of the court, makes use of this language :■ “ After hearing the proofs and allegations of the executors or administrators and others interested in the estate, the surrogate is to examine into and determine the question whether there is sufficient to pay the debts or not; and if he finds that there is not enough for that purpose, he orders- a sale. In> deciding upon the sufficiency of the assets, he acts judicially, and an error in this matter does not affect his jurisdiction.” “ He has not only authority, but it his- duty to settle that question. If he errs, his determination may be reviewed and reversed on appeal; his proceedings are not void, but voidable only.” I cite this ease to support the position I have laid down, that, if the judge of probate had jurisdiction of the subject matter, and of the person of the minor, Thomas Palmer, any error committed by him in determining the question whether he was over or under the age of fourteen years, would not render his proceedings void, but voidable only. The distinction is clear, and recognized in many cases, between proof before' a court which is to give it jurisdiction, and before a court that already has jurisdiction. Adkins v. Brewer, 3 Cow. 206; per Spencer, J. in Van Steenburgh v. Kortz, 10 John. R. 170; Smith v. Bouchier, 2 Str. 993; Jackson v. Crawford, 12 Wend. 533. In the case of Bigelow v. Stearns, 19 John. R. 42, Chief Justice Spencer, in delivering the opinion of the court, said : “ I consider the process issued by the defendant as unexceptionable ; it bad no seal, and there is nothing in the1 act requiring it. The constable returned upon it that he had served it by reading. It appeared in- evidence that the plaintiff was never before the justice ; that the process was served by reading it to the-plaintiff in the presence and hearing of his father, who now prosecutes as guardian ad litem to his son. The father requested the constable to delay the return of the process, until the next day at ten o’clock, as he wished to take counsel, and that he would attend before the justice the next day for his son. This conversation took place when the officer served the warrant, and in the plaintiff’s hearing and presence, and he did not object to the arrangement. The father appeared with counsel before the justice, and objected to the process and the manner of its-being served, and insisted that the plaintiff ought to have been brought personally into court; these objections were' overruled, and the father withdrew with his counsel.”' “It is evident that the summoning of the accused, was not specifically required ; yet this has been considered a principle so necessary to the impartial administration of justice, that it cannot be dispensed with.” And again r “ It is no answer to say, that being summoned, he might appear. It was the duty of the justice to cause him to be brought before him.” This case is a strong one to show that although a court may have jurisdiction of the subject matter, and issues process which is unexceptionable, yet, that its judgments will be held void, unless the person is not only served with the process, but is actually brought before the court, before judgment is rendered.

Applying these principles to the case before us, it will appear that, notwithstanding the probate court had jurisdiction t.o entertain the petition presented by Mrs. Simmons for the appointment of guardian- to her minor children, yet, that it was not competent to pronounce a decree in relation to such of the minors as were over the age of fourteen years, until a citation was issued and servad upon them.

It was intimated in argument, that the application itself shows* that all of the minors were under that age, and that this was sufficient to authorize the decree, whatever tbe fact might be. This argument cannot, I think, be sustained. It would be to make a mere suggestion contained in the petitidn, unsupported by the oath of the petitioner, or any other proof* conclusive evidence of a fact, upon the determination of which the right to enter a decree appointing a guardian depended. The legal effect of the application, was to give to the court of probate jurisdiction to inquire into the very fact which the application assumed ; but the petition did not, of itself, prove the fact. The decree does not purport to find the fact that the minors were under the age of fourteen years, nor that any citation ever issued, nor that any proof was offered, or evidence heard in relation to that fact¡

To sustain further the views I have expressed, upon the point immediately under consideration, I will recur to a few more of the many authorities which were cited upon the argument, and others which have come under my observation.

In the case of Chase v. Hathaway, 14 Mass. R. 223, it was held, that the decree of a court of probate appointing a guardian to a person who had been adjudged and certified by the select men of the town in which he resided, to be incapable of taking care of himself, was absolutely void, no notice having been given to him before the final adjudication in that court. The statute did not, in terms, require that notice should be given ,- but the court held, that an opportunity should have been given to the person interested, to be heard in support of his capacity. It was urged in that case, that, as the proceeding was wholly a matter of judicial discretion in the judge of probate, it was to be presumed that every proper measure was adopted by him, before passing the decree ; and that notice to a non compos, would be of no avail. The courts however, rested the judgment upon the ground, that notice-to the- party was essential' to jurisdiction ; and, it not appearing upon the face of the proceedings, or otherwise, that notice was given, they declared the decree null and void; and, to the last proposition upon which' the decree was sought to be sustained, the court gave the following conclusive answer: “ It has been intimated, that notice to an insane person would be of - no avail, because he would be incapable of deriving advantage from it. But the question upon which the whole process turns, is, whether he is insane.” In that case, the application or petition to the judge of probate gave jurisdiction of the- subject matter, precisely as the application did in the case before us. But the court held the decree void, because notice was not given to the party to be affected by the decree, and he was thus deprived of an opportunity of contesting the very fact upon which the right to pass the decree depended. So in the case before us : the failure to give notice to Thomas Palmer, deprived him of an opportunity to prove the falsity of the suggestion contained in the application, that he was under the age of fourteen years; and which suggestion, if overthrown by competent proof, would have rendered any appointment of guardian, so far as he was concerned, nugatory.

In the case of Newhall v. Sadler, 16 Mass. R. 122, the facts were, that one Jonathan Newhall died intestate, leaving several children, his heirs at law, to inherit his estate. A proceeding was had before the probate court with a view to divide the estate among the heirs. For this purpose, commissioners were appointed by the judge of probate, who appraised the estate, and assigned the whole to the eldest son, being of opinion that the same could not be divided among all the heirs without prejudice to or spoiling the whole ; and they ordered him to pay to the other heirs their several proportions of the appraised value of the estate — the sum to be paid to the demand-ant being $217.53, within three years, with interest annually. The doings of the commissioners were approved by the judge of probate; and, by his decree, the whole of the estate was assigned to the eldest son, “ upon condition that he should pay to the other children of said deceased, or to their lawful representatives, the several sums of money, at the time and with the interest, as ordered in said return of said commissioners.” No security was ordered to be given to the heirs, and none in fact was given. Hetty Newhall, the demandant, disregarding the decree of the probate court, brought a writ of entry to recover seizin and possession of her share of the real estate inherited from her father. The supreme court directed a recovery, on the ground that the judge of probate had no authority to pass a decree until the money was actually paid to the demandant, or good security given ibr its payment as required by the .statute. The jurisdiction of the probate court over the subject rpatter was un? questionable; his authority to issue a warrant to commissioners, was equally clear; but his authority to enter a decree assigning to the eldest son the whole of the estate was denied, because payment was not made, nor security given as required by law.

We have been referred to the case of Loring, Adm,’r v. Steineman, 1 Metc. 204, as supporting the views of the counsel on the part of the defendant, in respect to the con? elusiveness of the decree of the judge of probate. I have carefully examined that case, and do not find that it mili? tates against or overrules other cases tq. b,e found in the Massachusetts Reports, some of which baye been referred to in this opinion. On the contrary, both the reasoning decision of the court in that case, tend to confirna the views I have endeavored to sustain. The language of the Chief Justice in one part of the opinion, is as follows: “ We can entertain no doubt that the judgment of a probate court, duly made, after such notice as the statutes require, or if they require no notice, then after such notice as the court, in its discretion, acting upon the circumstances of the case, may think proper to order, must be deemed in its nature so far conclusive, as to protect an administrator, acting in good faith, in conforming to it.” But it is sufficient to say of that cas,e, that the court likeped the proceeding had before the court of probate, to proceedings in courts of admiralty, where persons are only incidentally concerned.

■ In the case of Heath v. Wells, 5 Pick. R. 140, it was held, that a license granted to an administrator to sell real estate of a deceased person, to pay a debt barred by the statute of limitations respecting executors and administrators, was void. After reviewing some of the previous decisions in Massachusetts respecting the conclusive nature of decrees made by the probate court, Mr. Justice Wild says: “But in the case under consideration, it ap-s pears that the court granting license to the administrator had no jurisdiction of the subject matter; for if the ad-, ministrator had no right to sell, the estate not being assets in his hands, the court had no cognizance of the case, ancl the license was merely void. It was not a case for deliberation or decision.” And yet, if the views of counsel were fully understood, and reliance is to be had upon some of the cases which seem to favor these views, the decision of the supreme court of Massachusetts was erroneous, These views, upon the case cited, would be, that over the whole subject of granting license to administrators to sell real estate, the probate court of Massachusetts had jurisdiction ; the presentation of a petition for the sale of real esr tate, representing that the personal property was insufficient to pay the demands against the estate, called this jur risdiction into exercise; and a decree directing a sale, in-r volved the question as to the existence of demands against the estate and the sufficiency of personal assets to pay them, and hence such a decree of sale would be valid, aU though in point of fact no debts existed. But it is appre-? hended that this view cannot be sustained. The proceeds ings are n.ot, strictly speaking, in rem. There are adversary parties. By such a decree and sale, heirs may bes come divested of their inheritance; devisees may be di? vested of rights undef a will; and yet, it would be contends ed that there is no remedy for the mischief, except by a.ps peal, when, perhaps, neither heirs nor devisees had notice of the proceeding. I. think the views of the supreme court of Massachusetts, when they assert, that where there are no debts, the real estate never becomes assets in the hands of the administrator, and he cannot therefore sell, must prevail, and that a decree without the existence of a fact upon which to base it, must be void.

The case of Perkins v. Fairfield, 11 Mass. R. 227, is distinguishable from the case of Heath v. Wells. Iu the former case, says Mr. Justice Wilde, “ the estate had been represented insolvent, and the certificate of the judge of probate was founded on the list of claims allowed by the commissioners. One of these had been afterwards reduced by a trial at law, so that the proceeds of the real estate exceeded the amount of claims thus reduced, and the attempt was, to set aside the sale as void, on account of this excess. But the sale was held valid.” The distinction consisted in this; that in the case of Heath v. Wells, there were no debts, and therefore there was nothing upon which a decree of sale could be founded ; in the case of Perkins v. Fairfield, there were debts, and therefore the necessary facts existed to , authorize a decree of sale. In the first case there was no jurisdiction ; in the latter ease there was jurisdiction, but it was improvidently exercised.

In Holyoke v. Haskins, 5 Pick, R. 20, administration granted by the judge of probate of Suffolk, on the estate of a person, whose domicil at the time of her death was in Middlesex, was held void, for want of jurisdiction. It might have been said in that case, as in this, .that the residence of the deceased was involved in the question as to whether an administrator should be appointed, and consequently the decree was not absolutely void, but merely voidable..

We have been referred by counsel to the case of the United States v. Arredondo, 6 Pet. R. 709, for a definition •of the word jurisdiction. Mr. Justice Baldwin, in that case says : “ The power to hear and detetmine a cause is jurisdiction ; it is “ coram judice," whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition, that, on demurrer, the court could render judgment in his favor, it is an undoubted case of jurisdiction.” With this definition I am not disposed to find fault; and yet, I am unable to see that it renders conclusive the decree of the judge of probate appointing Mrs. Simmons guardian of Thomas Palmer. Let us apply the definition and illustration given by Judge Baldwin to the facts as they appear before us. The jurisdiction of the court of probate to grant letters of guardianship is expressly given by statute. The petition of Mrs. Simmons presented facts which called this jurisdiction into exercise. It gave to the probate court power to hear and determine. Suppose a citation had been issued and served upon Thomas Palmer, and upon his appearing in court, he had interposed an answer to the petition, affirming that he was over fourteen years of age ; and to this answer a demurrer had been interposed by the petitioner; what, it may be asked, would have been the judgment of the probate court? Clearly, that the petition, as. to him, must be dismissed ; for the reason, that there was an admission of record, which ousted the court of jurisdiction; an admission which, in point of fact, showed that it never had jurisdiction to pass a decree. But suppose the facts to have existed as they are presented by the record. We have an application from Mrs. Simmons to be appointed guardian to her minor children, who, it wás suggested, (not averred,) were under the age of fourteen years. Then follows the decree of the probate court, granting the prayer contained in the petition. No citation issues ; no evidence appears to have been taken. No fact is found by the court. Yet, is it insisted, that a decree thus made, is conclusive upon Thomas Palmer, because the petition presented a case for the exercise of the jurisdiction conferred upon the probate court, although the fact was that that court never had jurisdiction to pass the decree. If Thomas Palmer is bound by such a decree, although no notice was ever served upon him, and no opportunity ever afforded him to deny the facts it contained, then would he be bound, although he nlay have attained the age of twenty-one years ; for the same course of reasoning which would sustain the validity of the decree in case he was fifteen years of age, would sustain it allhough he was in fact twenty-one years of age.It is admitted, however, that if a citation had issued and been served on Thomas Palmer, and upon thus obtaining jurisdiction of the person whose interests We're involved* he had demurred to the petition, thus admitting the facts therein stated, the judgment upon the demurrer, in favor of the petitioner, would have been Conclusive. The same effect, I have already stated, would be given to the decree* had he appeared, and, by plea and answer, denied the facts contained in the petition.

Rut it is said that the only remedy in such a case is by appeal. It is very true, that when an appeal is given by statute from the judgment of any court, the party aggrieved must avail himself of the remedy which the statute' provides. Putnam v. Churchill, 4 Mass. R. 517. In the case before us, for aught that appears, Thomas Palmer never had notice of the pendency of the proceedings in the probate cou'r't, and that court never obtained jurisdiction over the person; the proceedings were ex parte; and thus, without any fault on his part, the opportunity for appealing was lost. Under such circumstances, it would seem extraordinary to urge that he was forever concluded* because he did not avail himself of his remedy by appeal.-

The right to impeach a decree thus rendered, in a collateral action, is fully recognized in the case of Smith v. Rice 11 Mass. R. 507. In that case, the court say: “ If it appear that the judge of probate has exceeded his authority; or that he has undertaken to determine upon the rights of parties, over whom he has no jurisdiction; whether the want of jurisdiction arise from their not being duly notified, not regularly before him, or from any other cause; or that he has proceeded in a cause expressly prohibited by law; in all such cases, the party aggrieved, if, without any laches on his part he has had no opportunity to appeal, may consider the act or decree void.”

The comments made upon the case of the United States v. Arredondo, will apply to the case, of The State of Rhode Island v. The State of Massachusetts, 12 Pet. R. 657. It is said in the latter case, (p. 718,) that “jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit; to adjudicate, or exercise any judicial power over them.” And again : “ If the law confers the power to render a judgment or decree, then the court has jurisdiction ; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.” Admitting, in their fullest extent, the correctness of these propositions, it is quite obvious that the power to hear and determine the subject matter in controversy between parties to a suit, necessarily implies that the parties have been regularly brought into court; and if they have not, then the law does not confer the power to render a judgment or decree. In Grignon’s Lessees v. Astor, 2 How. 319, Mr. Justice Baldwin, in referring to his definition of jurisdiction as given in the two cases last referred to, says: “ This is the line which denotes jurisdiction and its exercise, in cases in personam; where there are adverse parties, the court must have power over the subject matter and the parties.” The supreme court of the United States, in that case, decide, that, in a proceeding to sell the real estate of an indebted intestate, there are no adversary parties ; that the proceedings are in rem, the administrator representing the land ; and that all the facts necessary to give jurisdiction to the county court who decreed a sale, having been sufficiently shown, that decree was to be held conclusive upon all persons interested. If the proceedings were strictly in rem, (which is neither denied or affirmed,) then the judgment of the supreme court can be easily sustained ; if not, then it would be difficult to reconcile it with numerous reported cases relating to the same subject.

I have given to the two leading cases decided by the supreme court of the United States, and so much relied upon by counsel, a very careful and critical examination; and without questioning the correctness of the conclusion to which the court arrived in those cases, I am bound to declare, that the judge by whom the opinions were delivered, asserted principles which are at war with the opinions of judges and jurists, who have done much to illustrate the jurisprudence of this country; and Which, if correct to the extent warranted by the language in which they are announced, conflict with the views of that court, at an earlier period of its existence. In the case oí' Rose v. Himely, 4 Cranch, 241, Chief Justice Marshall, uses this strong and clear language : “ The court pronouncing the sentence, of necessity, decided in favor of its jurisdiction; and if the decision was erroneous, that error, it is said, ought to be corrected by the superior tribunals of its own country.” “ This proposition certainly cannot be admitted in its full extent. A sentence, professing on its face, to be the sentence of a judicial tribunal, if rendered by a self-constituted body, or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever.” “ The power under which it acts, must be looked into ; and its authority to decide questions which it professes to decide, must be considered.” “ But, although the general power by which a court takes jurisdiction of causes must be inspected, in order to determine whether it may rightfully do what it professes to do, it is still a question of serious difficulty, whether the situation of the particlar thing on which the sentence has passed may be inquired into, for the purpose of deciding whether that thing was in a state which subjected it to the jurisdiction of the court passing the sentence. For example, in every case of a foreign sentence condemning a vessel as a prize of war, the authority of the tribunal to act as a prize court, must be examinable. Is the question whether the vessel condemned is in a situation to subject her to the jurisdiction of that court, also examinable? This question, in the opinion of the court, must be answered in the affirmative.” “Upon principle, it would seem that the operation of every judgment must depend upon the power of the court to render that judgment.”

In the case of Elliot v. Piersol, 1 Pet. R. 328, the court hold this language : “ Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities.” And again: “This distinction runs through all the cases on the subject ; and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court where the proceedings of the former are relied on and brought before the latter, by the party elaiming the benefit of such proceedings.” It would certainly be difficult to reconcile these views, which are so fully sustained by a long train of decisions both in England and in this country, with the opinions of the distinguished judge in the case of Grignon’s Lessees v. Astor, and also in United States Bank v. Voorhies, 10 Pet. R. 449.

In the case of Perry v. Brainard, 11 Ohio, 442, it was held, that the county court were not authorized to appoint a guardian to a female over twelve years of age, unless she refused to appear and make choice of one, after notice to her for that purpose.

Id the case of Demming v. Corwin, 11 Wend. 647, the supreme court of New York, in a collateral action, held that a judgment in partition was void, where the record did not show that notice was given to unknown owners.

In Clark v. Holmes, 1 Dough Mich. R. 390, this court, after a careful review of the authorities, held, that courts of special and limited jurisdiction, when proceeding to exercise the powers conferred, must have jurisdiction of the person, by means of the proper process or appearance of the party, as well as of the subject matter of the suit; and that where they have no such jurisdiction of the cause or person, their proceedings are absolutely void. And in the conclusion of the opinion in that case, Mr. Justice Goodwin said : “ As far as authorities have come under my view, it would seem that the jurisdiction of special inferior tribunals, at least, may be inquired into in respect to their authority over the person, as well as the subject matter; and the want of jurisdiction may be shown by evidence, even when it tends to contradict the minutes or dockets which those tribunals may keep as records of their proceedings.” It is unnecessary to go so far in the case before us, or to affirm, that the rule as laid down, is applicable to the records of the probate court, inasmuch as it no where appears that a citation issued, or that jurisdiction was obtained over the person of Thomas Palmer.

A brief reference to one or two other cases will conclude my review of the many authorities cited by counsel in argument. Brittain v. Kinnaird, 5 E. C. L. R. 137, was strongly relied upon to uphold the decree of the probate court. A careful examination of that case, however, will show the grounds upon which the court held the conviction in the inferior court conclusive. A new trial was moved, for the reason that the magistrate had, by the act under which the proceedings were instituted, no power to take any thing but a boat; that he had no right to assume to himself a jurisdiction, by calling that a boat, which was in truth a vessel. In opposition to the motion it was insisted that, whether the subject matter of the conviction were a boat or not, was the very question to be decided before the magistrate, and upon which his decision was final. The reason for the judgment of the court in refusing a new trial will appear in a few extracts from the opinions of the judges. Dallas, C. J. remarked : “ Now allowing, for the sake of argument, that boat is a word of technical meaning, and somewhat different from a vessel; still, it was matter of fact to be made out before the magistrate, and on which he was to draw his own conclusion.” — Parke, J.: “In the present case, the whole argument has turned on that, which, under the circumstances, it was impossible to give in evidence, namely, that the vessel in question was not a boat; bul supposing that this point might have- been entered into at the trial, has any thing been stated to show that the vessel was not a boat ? Upon such point as this, dictionaries are certainly very good authority, and Dr. Johnson calls a boat, a ship of small size,” &e. — Richardson, J.: “ Whether the vessel in question were a boat or no, was a fact on which the magistrate was to decide,” &c. — The Chief Justice, referring to the case of Welsh v. Nash, 8 East. 394, spoke of it as an ex parte order of justices ; “ a proceeding in no way resembling a conviction, where the matter is investigated on oath, in the presence of both parties.” These brief extracts, show very clearly the distinction between that case and the one before us. The magistrates were authorized to seize, under certain circumstances, boats in the river Thames. A vessel was seized, which, it was insisted, was not a boat, within the meaning of the act of 2 Geo. III. A trial was had in presence of both parties, and evidence heard; after which it became necessary for the magistrates to exercise a judicial discretion — -to decide judicially, whether, under the evidence, the vessel seized was a boat within the meaning of the act. In the case before us, the proceedings were ex parte ; the order was ex parte ; and the court pronouncing the order had no jurisdiction over the person upon whom it was to operate, either by citation issued and served, or by voluntary appearance.

In Ackerly v. Parkinson, 3 Maule & Selw. 425, the party appeared, although the citation was defective in some ■formal particulars. This fact distinguishes that case from the present.

But I am admonished by the length to which this opinion has been drawn out, to bring to a close the discussion of this important feature of the case before us. I have bestowed upon it much labor and consideration, and the conclusion to which I have arrived, is, that it was competent for the court below to receive evidence that Thomas Palmer was, at the time the order was granted appointing a guardian, over the age of fourteen years, unless it shall further appear that he had legal notice of the proceedings ; in which case the evidence would be incompetent.

From what I have had occasion to say on this branch of the case, and especially from a view of the authorities cited, my views of the other branch of the proposition I have been considering, will have been anticipated. It is very true that the record of the probate court is, in some respects, informal; nevertheless, I think the decree is sufficient to bind such of the plaintiffs as were under the age of fourteen years ; and that a formal finding of the fact that they were under fourteen, was not necessary to be inserted in the decree, to render it valid. We must intend that the probate court had sufficient evidence of the facts upon which the decree was founded. That evidence it was not necessary to spread out upon the record. All that was necessary was to enter the decree, which we must presume was justified by the evidence before the court. Dubois v. Dubois, 6 Cow. 496; 5 Mason, 335.

It was suggested in argument, that if no citation in fact issued to Thomas Palmer, and if, in point of fact, he had no notice of the pendency of the proceedings, yet, from the relation in which he stood to the guardian who was appointed, and from the circumstance that he lived with her for several years, and received his proportion of the money arising from the sale, he would be considered as acquiescing in the appointment. No such facts appear in the case before us, and we therefore express no opinion as to the effect of such evidence when it shall be produced.

3. Another objection was, that the deed of the guardian was void because the husband did not join in its execution. To this we answer, that it was not necessary that the husband should join. This follows from what we have already said upon the first point presented in the case made. Besides, it is quite clear that the husband had no interest in the premises conveyed; his execution of the deed, therefore, was unnecessary. On the part of the wife it was the mere execution of an authority in which neither she nor her husband had any beneficial interest.

4. The last objection to the regularity of the proceedings by the guardian in conducting the sale is, that the notice of sale given was insufficient, and was given before the bond was executed.

The statute requires, that, before making sale of any real estate by a guardian, a bond shall be given with sureties, and thirty days’ notice of the intended sale. (See ante, pp. 437, ’8.) An oath is also required. (See ante, p. 440. § 18.) The requirement in respect to the bond and notice, is contained in a proviso, and may be considered is a limitation or restriction upon the authority to sell. But does the neglect on the part of the guardian to comply wilh these several provisions of the statute, render the sale absolutely void, and can it. affect the rights of an innocent bona fide purchaser, claiming through the decree authorizing the sale. I think the rights of such a purchaser, especially after the lapse of so many years, are not to be disturbed in consequence of the failure of the guardian to perform acts in pais, subsequent to the decree of sale. The acts of the guardian are, in legal contemplation, the acts of the ward, whom he represents; and it cannot now be permitted to the ward to come in and allege the non-feasance of his guardian, to disturb a title derived from him, through such his legally constituted representative. All that a purchaser at a judicial sale is bound to look to with a view to his protection, is, to see that the court by whom the sale was authorized, was empowered to make the decree. If the court had the power, the failure of the guardian, as in this case, to fulfil certain directions which the law imposed on her, should not, and cannot prejudice the rights acquired by such purchaser. If the ward is prejudiced by any neglect on the part of the guardian in the execution of the trust reposed in her, his remedy is upon her bond. It never could have been contemplated by the legislature, that the validity of a sale should be made to depend upon the observance of those provisions of the law, which are in their nature directory to the guardian. If such a rule were to obtain, but few purchasers would be found at judicial sales; for but few would incur the hazard of purchasing and paying their mone3r, when the purchase so made, may, at the distance of ten or fifteen years, be held void, in consequence of a non-compliance by a guardian with the requisitions of the statute. Such a rule would also operate injuriously on the ward, as, upon every sale .made, the purchaser would take into the account the hazard he incurs. The best interests of infants require, that no unnecessary obstacles should be thrown in the way of obtaining the best, possible price for their estates, when sold. If a wrong is done them by their guardians, they have a full and ample remedy. In the case of Perkins v. Fairfield, 11 Mass. R. 226, it was held that a failure, by an administrator, to give the bond required by the act of Massachusetts of L783, before the sale of'real estate of his intestate, would not invalidate a title derived through such administrator. The views I have expressed are also fully sustained in an able and' conclusive opinion, delivered by Mr. Justice Hitchcock, in. the case of Stall's Lessee v. Macalester, 9 Ohio R. 19. And it has been held that a sale made by an administrator, under like circumstances, would protect an innocent purchaser. Ludlow's heirs v. Johnson, 3 Ohio R. 553. Counsel referred us to the case of Williams v. Reed, 5 Pick. R. 480, to show that a failure on the part of the guardian to take the oath and give the bond required by law, would-render a sale void. The case does not sustain the proposition. The language of Chief Justice Parker was as follows: “ There being then no bond, and no oath, the sale is void, or at least voidable, so that the parties to it were-at liberty to vacate it, and consider it as annulled.” Our statute was borrowed from that of Massachusetts; and, in adopting it here, we are disposed also to adopt the practical construction it has received in the courts of that state; especially, when that construction seems consistent with sound policy, and is justified by construing the-section in question, with reference to other sections of the-same statute.

Ordered certified, that, as to Thomas Palmer, one of the-plaintiffs, the motion for a new trial should bq granted ; but that, as to the other plaintiffs, it should be denied; and that the defendant, as to them, was entitled to judgment-