Hosmer, Ch. J.
The plaintiffs have brought an action of trespass against the defendants, for entering their close, and cutting and carrying away their timber and wood. The defendants have attempted a justification, by virtue of leases given to one of them, by the plaintiffs’ conservator, under which the premises [284]*284were possessed ; by agreement with him to do the acts complained of, in order to pay the plaintiffs’ debts and obtain necessaries for their support ; and by having settled with the conservator, and procured his release. The court instructed the jury, that notwithstanding the leases, the action of trespass was maintainable, as the conservator had no authority to make them ; that he had no right or authority to dispose of the timber and wood on the premises ; nor to receive satisfaction for it, so as to discharge the trespass, of which he was equally guilty with the defendants. It is the object of the motion, to review the correctness of this charge to the jury.
The first enquiry made, relates to the legal power of the conservator. If he had the authority, supposed by the defendants, it is undeniable, that the lessee was tenant for years : and the plaintiffs, so far from having had possession of the premises, at the time of the acts done, had only a reversionary interest. The question depends on the construction of the statute" for relieving and ordering of idiots.” P. 382, ed. of 1808. By the 4th section of this law, the county court of the county where the idiots dwell, if they have any estate, “ may order and dispose thereof, in such manner as they shall judge best, for and towards the support of such persons” Had the law stopped here, it would be unquestionable, that the estates of idiot would be subjected, without limitation, to the discretion of the county courts, to be disposed of for their support. It is equally clear, that such estates are now at the disposal of the above courts, in fulfilment of their trusts, except so far as this authority is impaired, by other expressions in the above law. In the section before, cited, the county courts are authorized to appoint and empower “ some meet person a conservator, to take care of and oversee such idiots, &c. and their estates, for their support, who shall be accountable to said courts for their management of such trust.” The operative words, defining the authority of a conservator, are, “ to take care of and oversee" such idiots and their estates, for their support, if the expression is construed according to the popular meaning, it is impossible that the mind should be left in doubt as to its meaning. When expounded in reference to the subject matter, by the words “ to oversee,” the conservator is authorized to superintend : and by the expression “ to take care of,” it is made his duty to assume the requisite charge, in order to the preservation and profit of the estate. This literal construction of the law confers no right to sell, or lease the property; nor is it extended at [285]*285all, by the object, which the legislature had in view. It was their intent to procure an income from the use of the idiot s estate, by its sunerintendency and oversight ; and this trust was to lie committed exclusively to the conservator. His power was wholly confined within these boundaries.
The enquiry, however, naturally arises, how is the idiot to be supported, if the estate, through its deficiency, or other cause, should be required to be sold or leased? Undoubtedly, it must be sold or leased ; but the question remains, who is to perform these necessary acts ? The answer is obvious ; those, who have the authority ; and this brings us back to the enquiry, has this authority been devolved on the conservator?
I have recited enough of the statute to show, that no such power has been imparted to him ; but that this authority is communicated, in the most explicit language, to the county court. They have sovereign power to order and dispose, of the estates of idiots for their support, “ in such manner as they shall judge best.” It is not within the compass of language to grant unlimited dominion, in terms more perspicuous. The 5th section of the law terminates all possible doubts on this subject “ When it shall appear to the respective county courts,” says the law, “ upon the liquidation and adjustment of the [conservator’s] accounts exhibited to them, pursuant to the provisions of this act, that the debts so ascertained shall exceed the personal estate of such idiot, &c., it shall be lawful for the said courts respectively to order the sale of so much of the real estate of such person or persons as shall be sufficient to pay the same.” This Clause necessarily implies the following positions. First, that the real estate of the idiot may not be disposed of, to any extent, so long as any personal estate remains, Secondly, that by way of condition precedent, the conservator shall exhibit his accounts to the county court, who must ascertain the necessity of a sale of the real estate, and then, and then only, make the requisite order ; not for the disposition of all the property, but of so much only, as the exigency of the case demands. This clause alone, upon the principle that omne majus in se continet minus, might, not unreasonably, be considered as giving to the courts authority, to order the estate to be leased ; but this construction is rendered unnecessary, When taken in connection with the 4th section, it is clear beyond a question, that the county courts have unlimited authority over the estates of idiots, to sell them, when necessary, and to dispose of them, in any other manner, which, in their discre[286]*286tion, they shall deem best. But the conservator has no such, authority ; and cars only exercise the. power of a bailiff, by oversight, superintendency, and applying the temporary profits to the use of the idiot. The moment we pass this bound, we declare the legislature to have empowered two jurisdictions, which may conflict, to sell and dispose of the estates of idiots ; and thus, in opposition to the words and reasons of the law, an authority would be given to the conservator to intermeddle with the real estate, before any necessity is ascertained by the court, and by his leases, to tie up their hands, and frustrate the discretion, which the sovereign power has thought safe and proper to vest in them alone.
The construction given to the law is too unquestionable to require any collateral confirmation. At the same time, I think proper to remark, that the distinct authority imparted to the county courts, and the conservators of idiots, was, undoubtedly, by analogy to the distinct powers vested in England in the Lord Chancellor and committee of idiots. The parallel is too obvious to be mistaken. The King, who has authority by law over idiots, commits the administration of their estates to the Lord Chancellor, with special authority to make grants, from time to time, of their estates The legislature of Connecticut, possessed of undoubted power, have committed the estates of idiots to the county courts, to order and dispose of them as they shall judge best for the idiot’s support. The Lord Chancellor appoints a committee of the idiot’s estate, by virtue of which he has a superintendency of it, for the idiot’s support ; but he in ay not make leases, or encumber the estate, without leave of the court. Foster v. Merchant, 1 Vern. 262. In Connecticut,
Free access — add to your briefcase to read the full text and ask questions with AI
Hosmer, Ch. J.
The plaintiffs have brought an action of trespass against the defendants, for entering their close, and cutting and carrying away their timber and wood. The defendants have attempted a justification, by virtue of leases given to one of them, by the plaintiffs’ conservator, under which the premises [284]*284were possessed ; by agreement with him to do the acts complained of, in order to pay the plaintiffs’ debts and obtain necessaries for their support ; and by having settled with the conservator, and procured his release. The court instructed the jury, that notwithstanding the leases, the action of trespass was maintainable, as the conservator had no authority to make them ; that he had no right or authority to dispose of the timber and wood on the premises ; nor to receive satisfaction for it, so as to discharge the trespass, of which he was equally guilty with the defendants. It is the object of the motion, to review the correctness of this charge to the jury.
The first enquiry made, relates to the legal power of the conservator. If he had the authority, supposed by the defendants, it is undeniable, that the lessee was tenant for years : and the plaintiffs, so far from having had possession of the premises, at the time of the acts done, had only a reversionary interest. The question depends on the construction of the statute" for relieving and ordering of idiots.” P. 382, ed. of 1808. By the 4th section of this law, the county court of the county where the idiots dwell, if they have any estate, “ may order and dispose thereof, in such manner as they shall judge best, for and towards the support of such persons” Had the law stopped here, it would be unquestionable, that the estates of idiot would be subjected, without limitation, to the discretion of the county courts, to be disposed of for their support. It is equally clear, that such estates are now at the disposal of the above courts, in fulfilment of their trusts, except so far as this authority is impaired, by other expressions in the above law. In the section before, cited, the county courts are authorized to appoint and empower “ some meet person a conservator, to take care of and oversee such idiots, &c. and their estates, for their support, who shall be accountable to said courts for their management of such trust.” The operative words, defining the authority of a conservator, are, “ to take care of and oversee" such idiots and their estates, for their support, if the expression is construed according to the popular meaning, it is impossible that the mind should be left in doubt as to its meaning. When expounded in reference to the subject matter, by the words “ to oversee,” the conservator is authorized to superintend : and by the expression “ to take care of,” it is made his duty to assume the requisite charge, in order to the preservation and profit of the estate. This literal construction of the law confers no right to sell, or lease the property; nor is it extended at [285]*285all, by the object, which the legislature had in view. It was their intent to procure an income from the use of the idiot s estate, by its sunerintendency and oversight ; and this trust was to lie committed exclusively to the conservator. His power was wholly confined within these boundaries.
The enquiry, however, naturally arises, how is the idiot to be supported, if the estate, through its deficiency, or other cause, should be required to be sold or leased? Undoubtedly, it must be sold or leased ; but the question remains, who is to perform these necessary acts ? The answer is obvious ; those, who have the authority ; and this brings us back to the enquiry, has this authority been devolved on the conservator?
I have recited enough of the statute to show, that no such power has been imparted to him ; but that this authority is communicated, in the most explicit language, to the county court. They have sovereign power to order and dispose, of the estates of idiots for their support, “ in such manner as they shall judge best.” It is not within the compass of language to grant unlimited dominion, in terms more perspicuous. The 5th section of the law terminates all possible doubts on this subject “ When it shall appear to the respective county courts,” says the law, “ upon the liquidation and adjustment of the [conservator’s] accounts exhibited to them, pursuant to the provisions of this act, that the debts so ascertained shall exceed the personal estate of such idiot, &c., it shall be lawful for the said courts respectively to order the sale of so much of the real estate of such person or persons as shall be sufficient to pay the same.” This Clause necessarily implies the following positions. First, that the real estate of the idiot may not be disposed of, to any extent, so long as any personal estate remains, Secondly, that by way of condition precedent, the conservator shall exhibit his accounts to the county court, who must ascertain the necessity of a sale of the real estate, and then, and then only, make the requisite order ; not for the disposition of all the property, but of so much only, as the exigency of the case demands. This clause alone, upon the principle that omne majus in se continet minus, might, not unreasonably, be considered as giving to the courts authority, to order the estate to be leased ; but this construction is rendered unnecessary, When taken in connection with the 4th section, it is clear beyond a question, that the county courts have unlimited authority over the estates of idiots, to sell them, when necessary, and to dispose of them, in any other manner, which, in their discre[286]*286tion, they shall deem best. But the conservator has no such, authority ; and cars only exercise the. power of a bailiff, by oversight, superintendency, and applying the temporary profits to the use of the idiot. The moment we pass this bound, we declare the legislature to have empowered two jurisdictions, which may conflict, to sell and dispose of the estates of idiots ; and thus, in opposition to the words and reasons of the law, an authority would be given to the conservator to intermeddle with the real estate, before any necessity is ascertained by the court, and by his leases, to tie up their hands, and frustrate the discretion, which the sovereign power has thought safe and proper to vest in them alone.
The construction given to the law is too unquestionable to require any collateral confirmation. At the same time, I think proper to remark, that the distinct authority imparted to the county courts, and the conservators of idiots, was, undoubtedly, by analogy to the distinct powers vested in England in the Lord Chancellor and committee of idiots. The parallel is too obvious to be mistaken. The King, who has authority by law over idiots, commits the administration of their estates to the Lord Chancellor, with special authority to make grants, from time to time, of their estates The legislature of Connecticut, possessed of undoubted power, have committed the estates of idiots to the county courts, to order and dispose of them as they shall judge best for the idiot’s support. The Lord Chancellor appoints a committee of the idiot’s estate, by virtue of which he has a superintendency of it, for the idiot’s support ; but he in ay not make leases, or encumber the estate, without leave of the court. Foster v. Merchant, 1 Vern. 262. In Connecticut, the county courts appoint a committee of the idiot, under the denomination of a conservator, to take the oversight of his estate, for his support; but to him, by virtue of his appointment, no authority is given to sell, lease or encumber, in any manner, the idiot’s estate, unless by the county court, he is specially authorised. In England, the committee is made accountable to the Chancellor ; and in Connecticut, to the county courts, the conservator is bound to render an account of his administration. A person must wink extremely, or he cannot fail to see, that one of these systems is the prototype of the other.
I can entertain no doubt of the precise correctness, with which the judge, in this case, charged the jury. The leases of the conservator were unauthorized and void ; and equally so, was the disposition of the wood and timber, an essential part of [287]*287the freehold, and the settlement with the defendants. The inference cannot be resisted, that the conservator was alike guilty with the defendants of committing a wrong.
Admitting this, the defendants have contended, that they were in the occupation of the land ; and that the plaintiffs, not having the actual possession, cannot sustain the action of trespass.
It is unquestionably true, that this action is founded upon possession, insomuch that possession, without legal title, is sufficient to maintain the suit against a wrong-doer. The question then arises, were the plaintiffs in possession.
The cases cited from the reports of determinations in the states of New-York and Massachusetts, in which there is a conflict of opinion, have no bearing on the case under discussion. Campbell v. Arnold, I Johns. Rep. 511. Tobey v. Webster, 3 Johns. Rep. 468. Starr & al. r. Jackson, 11 Mass. Rep. 519. In these cases, the actions were brought by the landlord against strangers, or tenants at will, being in the actual possession of the premises, for a trespass committed by them. In the case before us, trespass is instituted against, the tenant at will, for committing waste, by the cutting of wood and timber, to the destruction of the owner’s property. By this act, the estate at will terminated, and the possession of the defendants was that of trespassers only, from the first stroke given in felling the trees. The principle is well stated, in the Countess of Shrewsbury’s case, 5 Co. 13. b. “ If a lessee at will commits voluntary waste, sell, in abatement of the houses, or in cutting of the woods, there a general action of tresspass lies against him. For, as it is said, in 2 & 3 Phil. & Mar. Dyer 122. b. where tenant at will takes upon himself to do such things, which none can do hut the owner of the land, these amount to a determination of the will, and of his possession, and the lessor shall have a general action of trespass, without any entry ; and there 15 E. 4. 20. b. is cited, that if a bailee of goods, as of a horse, &c. kill them, the bailor shall have a general action of trespass ; for by the killing, the privity was determined.” To this effect, so far as I know, are all the cases, both antient and modern. Co. Litt. 57. a. Countess of Salop v. Crompton, Cro. Eliz. 784. Com. Dig. tit. Estates. H. 5. and tit Trespass. B. 2. Bac. Abr. tit. Tresspass. G. 2. Phillips v. Covert & al. 7 Johns. Rep. 1. It is therefore unquestionable, that the possession of the premises was in the plaintiffs ; and that the defendants can he considered in no other light, than as if they had unwarrant[288]*288ably entered on the land. Of consequence, trespass is the proper and only action, which the plaintiffs can sustain.
The determination of the court below was entirely correct; and a new trial ought not to be granted.
Peters, Brainard and Bristol, Js. were of the same opinion.
New trial not to be granted.