Cole v. Jerman

• Decision Date: 16 December 1904
• Citation: 59 A. 425,77 Conn. 374
• Parties: COLE v. JERMAN.
• Court: Connecticut Supreme Court

59 A. 425

77 Conn. 374

COLE

v. JERMAN.

Supreme Court of Errors of Connecticut.

Dec. 16, 1904.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action by Edward F. Cole, guardian of a minor, to obtain possession, and damages for the use, of land belonging to his ward, and occupied by defendant, William W. Jerman, and protection of his rights as guardian by injunction. After the death of defendant pendente lite, his administratrix entered to defend, voluntarily and without process of scire facias. Upon the defendant's general denial the court found the allegations of the complaint proved, and rendered judgment for the plaintiff, and defendant appealed. No error.

John O'Neill, for appellant.

Edward F. Cole, for appellee.

HAMERSLEY, J. Bertha B. Forest is. the sole heir at law of her mother, Almira A. Forest, as well as the sole devisee and legatee of all her estate under her last will and testament. Mrs. Forest died July 1, 1895, and at the time of her death owned and was seised and possessed of the land described in the complaint. Bertha, at the time of her mother's death, and until after the bringing of this suit, was a minor. Mrs. Forest's will named no executor, and her husband, Belmont G. Forest, was appointed administrator with the will annexed. The estate was settled as a solvent estate, and on February 30, 1896, the administrator filed his final account showing that all the debts of the testatrix and expenses of administration had been paid, and that there remained in the hands of the administrator $230.44, which belonged to the sole legatee. This account was duly approved and accepted by the court of probate, and thereupon the estate became settled, and this settlement has never since been opened for any purpose. Upon the settlement of the estate the statutory right of the administrator to possession of the real estate of the testatrix ceased, and from that time the guardian of the estate of Bertha has been entitled to possession as guardian of the land described in the complaint, and bound as guardian to obtain the proceeds of the use and improvements thereof, and apply the same for the benefit of his ward in her support and education or otherwise. From about February 1, 1899, to the commencement of this action William W. Jerman was in possession of the land mentioned, appropriating to himself the profits thereof, without accounting to the guardian of Bertha or to any one. Edward F. Cole was duly appointed as guardian of the estate of Bertha November 27, 1901, and brought this action as guardian against Jerman as defendant June 30, 1903. The complaint alleges in detail the foregoing and other facts deemed appropriate to support the plaintiff's prayer for relief, which, with other relief, prays for possession of the land, damages for its use and occupation, and an injunction against the defendant's transferring or conveying the land. After the commencement of the action, and before an answer or other pleading had been filed, the defendant died. On October 23, 1903, in pursuance of a stipulation by counsel for plaintiff and defendant Harriet A. Jerman, administratrix of the estate of William W. Jerman, entered to defend said case; the attorney of record for William W. Jerman remaining attorney for the defendant throughout the trial. After said entry the following answer was filed: "The allegations in the complaint are denied. The defendant, by John O'Neill, her attorney." The cause was tried upon the issues of fact thus framed. The court found all the allegations of the complaint to be true; that the reasonable value of the use of the land by William W. Jerman was $200; and rendered judgment ordering the defendant to deliver possession of the premises to the plaintiff and pay the plaintiff $200 damages and costs of suit, and also ordering that the defendant be enjoined from conveying or transferring the land.

Upon the trial the defendant claimed that upon the facts alleged and proved the plaintiff was not entitled to a judgment specifying in support of this claim a number of claims of law as applicable to the facts. The alleged error of the court in overruling this claim, especially in view of its finding of facts, is the only question raised by this appeal. All the material grounds urged by the defendant in support of his contention are comprised in three propositions, namely: (1) William W. Jerman was lawfully in possession of the land as owner; (2) the action could not be maintained in the name of the guardian; (3) the order for injunction was illegal. William W. Jerman was not owner of the land in question. That claim is based upon the following facts and transactions, as alleged by the complaint and found by the court: During the settlement of the estate the administrator represented to the court of probate that the personal estate was insufficient to pay the debts, and asked for an order of sale for that purpose, directing him to sell a whole or a part of the real estate, as the court might deem for the good of the estate. The court made an order of sale on September 24, 1895, directing the administrator to sell the whole of the real estate, and make return to the court. Pursuant to this order the administrator sold a part of the real estate, being land other than that described in the complaint, for a sum more than sufficient, with the personal estate, to satisfy all debts and charges of administration, and made return to that effect to the court of probate, which approved, accepted, and recorded said return. The return was made and accepted on the same day that the administrator filed his final administration account, and the receipt of the proceeds of the sale of land and its application were shown by that account And this execution of the order of sale was approved by the acceptance of the return and the administration account. About three years after this, William W. Jerman and Belmont G. Forest made an agreement for an exchange of lands, in pursuance of which Jerman conveyed to Forest a farm then belonging to Jerman, and in exchange for this Forest conveyed a piece of land then belonging to him to Jerman, and also gave to him an administrator's deed of the piece of land described in the complaint. No price is fixed for the land described in this deed, and no consideration is stated in the deed as having passed from Jerman to Forest as administrator. The deed purports to be made in pursuance of the order of sale of September 24, 1805, and refers to the records of the court of probate relating to said order as showing authority to make the deed.

The trial court correctly held that Jerman acquired no title or right to the land mentioned in this administrator's deed. Upon the settlement and acceptance of the administrator's account, the settlement of Mrs. Forest's estate was completed. Her daughter being sole legatee and devisee, the court had neither occasion nor authority to proceed with a distribution of the estate. The records of the court of probate, to which Jerman was referred by the deed which he accepted, showed that the order of sale mentioned did not, after its execution as accepted by the court and settlement of Mrs. Forest's estate, authorize a sale of the land described; and, even if the order of sale could be held to have continued in force, it clearly did not authorize the exchange of lands which took place.

The action was properly brought in the name of the guardian. The authority and duties of the guardian of the estate of a minor are determined mainly by the common law of...