Penfield v. Savage

2 Conn. 386

Opinion

Swift, Ch. J.

In this case, the defendant is lawful guar dian to Betsey JI. Sloper, the infant, or not. If he is not the lawful guardian, then a guardian may be appointed, who can call out of his hands the estate of the infant, which lie lias received, and lie cannot be liable for her support. If he is now the lawful guardian, then this action cannot be sustained ; for a guardian is not bound to support his ward out of his own estate, and is not liable to an action in his personal capacity. It must be by some process, by which the guardian may be compelled to apply the estate of the ward for her support, and not by a suit at law against him as for his own proper debt.

IIosmek, J.

It lias been rontonded by the plaintiff, that the appointment of the defendant as guardian to Betsey Jl, Sloper was corum non judice, and void. If this were admitted, under what legal obligation would he be to provide for her ? 1 a ¡u of opinion, however, that he is her legal guardian. The fact conferring jurisdiction on the court, is the residence of the minor.

(a) The appointment by the judge of the district of Farmington, declares on its face, that “ Betsey Jl. Sloper is a minor belonging to said district.” This, in support of the appointment, is- conclusive. Every court of limited jurisdiction, has right to ascertain the facts requisite for the exercise of its jurisdiction. Betsey A. Sloper, if she pleases, may appeal from the appointment, and then the question of fact will be open. The truth of the fact found, cannot, collaterally, be the subject of enquiry.

The word “ guardian,” as used in the statute, is commensurate with the whole parental right and duty, and equiva-* lent to tutor et curator of the Roman law. 1 Black. Comm. 460. 1 Swift’s Syst. 212. The exception in behalf of fathers reserving to themselves their authority over the person, notwithstanding a guardian is appointed, shows the extent of the term when unrestrained.

The defendant, as legal guardian of Betsey Jl. Sloper, over both person and estate, demanded the possession of her person, and expressly declared, that he would pay nothing to the plaintiff for her support. Posterior to this, the supplies were made, on which the present action is founded. On what ground can there be implied a contract against the defendant ? He has never assented that these supplies should be made; but, virtually, has prohibited them.

I am clear, that a new trial ought not to be granted in this case.

The other Judges, were of the same opinion, except Chapman, J., who gave no opinion, having been absent when the case was argued.

New trial not to be granted.

V) 1 &tat.\Conn. tit, 84. s. 1.