Hatch v. Ferguson

• Decision Date: 06 May 1895
• Docket Number: 167.
• Citation: 68 F. 43
• Parties: HATCH et al. v. FERGUSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

68 F. 43

HATCH et al. v. FERGUSON et al.

No. 167.

United States Court of Appeals, Ninth Circuit.

May 6, 1895

Brown &amp Brownell, for appellants.

A. D Warner and Stratton, Lewis & Gilman, for appellees.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

The complainants in this suit are the minor children of Ezra Hatch, deceased, and devisees of his last will and testament. They bring suit to set aside the judicial sale of their interest in the pre-emption claim of their testator and the decree of partition upon which the same was sold. Ezra Hatch died on the 8th day of July, 1890, leaving five children, to whom he devised all his estate, real and personal, appointing E. C. Ferguson the executor of his will and the guardian of his minor children. He left a pre-emption claim, to which he had acquired patent, and a homestead claim, upon which he and his wife and family had resided for four years. It was believed by the executor that the widow of Ezra Hatch was the owner of an undivided one-half of each claim. In September of the same year the widow made proof upon the homestead claim and paid the commutation price therefor, but, before patent issued, she gave to E. C. Ferguson a power of attorney to sell all her interest in both claims. On the 21st day of October, 1890, under the power of attorney, Ferguson sold and conveyed to the defendant Hewitt all the right, title, and interest of Josephine Hatch in and to said lands. On the 7th day of April, 1891, Hewitt, having purchased the interest of Esther Hatch, the only one of the children of Ezra Hatch who was of age, commenced, in the superior court of the state of Washington for the county in which said land was situate, a suit against the appellees and E. C. Ferguson, their guardian, for the partition of the pre-emption claim alleging in the complaint that the plaintiff was the owner of an undivided six-tenths interest therein, and that the appellees were the owners of an undivided four-tenths interest. It was found by the court in the partition suit that the title was as alleged in the complaint, and that the land could not be divided. A sale was accordingly ordered. Hewitt became the purchaser, and the sale was subsequently confirmed by the court. Hewitt thereafter conveyer 10 acres of the land to the defendant La Moure, and the remaining 150 acres to the defendant the Everett Land Company. The circuit court, upon final hearing, found the appellees to be entitled to the relief sued for, ruling that the partition decree and sale were void for the reason that Ferguson was not the guardian of the children, and that Josephine Hatch had no interest in said claim at the time of her conveyance to Hewitt, but that the whole of the claim belonged to the children of Ezra Hatch. These rulings of the circuit court are assigned as error.

By the terms of his will, Ezra Hatch appointed E. C. Ferguson executor, without bonds, and also appointed him the guardian of the persons and estate of the minor children until they should each become of age. It contained no provision by which the guardian's bond should be dispensed with. Through some error or inadvertence, the probate court understood the will to require no bond of the guardian, and on the 22d day of July, 1890, an order was entered in that court in the 'Records of Letters Testamentary and Administration' reciting that Ferguson was appointed guardian of the person and estates of the minor children of Ezra Hatch, without bonds, and concluding thus:

'The said appointment of said E. C. Ferguson by the testator Ezra Hatch is hereby approved, and the said E. C. Ferguson is hereby appointed guardian of the person and estates of Esther Hatch, Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch.'

There is no evidence that letters of guardianship were actually issued to Ferguson. Section 1141 of the Code of Washington (2 Hill's Code) declares that all the provisions of the statutes relative to bonds given by executors and administrators shall apply to bonds taken of guardians. Section 1142 provides that every testamentary guardian 'shall give bond in like manner and with like condition as hereinbefore required. ' Section 906 provides as follows:

'Every person to whom letters testamentary or of administration are directed to issue must before receiving them execute a bond to the state of Washington with two or more sufficient sureties to be approved by the judge.'

Without pausing to consider whether, under the laws of Washington, a father may, by his last will and testament, appoint a guardian of children whose mother survives, or whether, by the provisions of those laws, the guardian's bond may in any case be dispensed with, it is sufficient to say of that portion of the judgment of the probate court which declares that by the terms of the will the guardian is not required to give a bond that it is void, whether it be regarded as a recital of fact or a judgment of the court construing the will. The will being absolutely silent upon the question whether or not it was the wish of the testator that the guardian should serve without bond, the probate court had no power or authority to make such finding or enter such judgment. If the authority could be conferred upon the court to make such a finding, it could only be by the words of the testator expressed in his last will and testament. He having failed to confer that authority, there was no other source from which it could come. The probate court, while it is a court of record, with general jurisdiction, acts nevertheless, in the matter of appointing guardians, under a specific grant of power, and exercises a special jurisdiction defined by statute. If the facts do not exist which authorize the action of the court, its action so far is a nullity. Lewis v. Allred, 57 Ala. 628; Seamster v. Blackstock, 83 Va. 232, 2 S.E. 36; Risley v. Bank, 83 N.Y. 318; Windsor v. McVeigh, 93 U.S. 282; U.S. v. Walker, 109 U.S. 258, 3 Sup.Ct. 277, and cases there cited. Said the court in Windsor v. McVeigh:

'The doctrine invoked by counsel, that when a court has once acquired jurisdiction it has a right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but is subject to many qualifications in its application. It is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.'

Ferguson gave no bond, but proceeded to act as the guardian of the estates of the minor children, and continued so to act until the commencement of the present suit, which was in February, 1892. In the suit which was brought by Hewitt against the minor heirs of Ezra Hatch and against E. C. Ferguson, their guardian, the latter appeared as the guardian, and as such represented the interests of the children. The questions arise whether he was such guardian, and whether the partition decree and sale are void on account of his failure to give a guardian's bond. The decisions of the courts concerning the proposition here involved are not in harmony. It has been held in Alabama, Kentucky, Georgia, and North Carolina that the filing of a bond is not essential to the validity of the appointment of a guardian when the same is collaterally attacked. In Cuyler v. Wayne, 64 Ga. 88, the court ruled that the granting of letters of guardianship by the ordinary, without taking bond, would not make the grant of the letters void as against a bona fide purchaser, who had no notice that a bond had not been given. The statute of that state provided that 'every guardian before entering on the duties of his appointment shall take an oath * * * and shall also give bond with good and sufficient surety,' etc. In Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718, the court expressed the opinion that the failure of the plaintiffs to give bond would not render the grant of administration to them absolutely void, but only voidable. Citing Ex parte Maxwell, 37 Ala. 362, and Cunningham v. Thomas, 59 Ala. 158. In Howerton v. Sexton, 104 N.C. 75, 10 S.E. 148, under a statute providing that 'every guardian of the estate before letters of appointment are issued to him must give a bond payable to the state,' the court held that a guardian who had been duly appointed, but had failed to qualify, could bind his ward by the receipt of money paid by an innocent purchaser as the proceeds of the ward's land, and proceeded to say:

'We are disposed to hold the appointment itself effectual, for it is made in proper form, and the defect lies in the omission to take the bond with surety of the defendant,-- an omission not affecting its validity, but subjecting the clerk to the consequences of such neglect.'

In Mobberly v. Johnson's Ex'r, 78 Ky. 273, a testator had left a will designating executors, and directing them to sell his real estate. The statute provided that 'no guardian can act until he has been appointed by the proper county court and given covenant to the commonwealth with surety. ' The court said:

'But we consider it immaterial whether the surety is bound on the bond for the proceeds of the real estate sold by the administrator, or whether there was any bond at all. The order of appointment was made by a court having jurisdiction of the person and of the subject-matter, and its judgment cannot be thus collaterally attacked. The executor derives authority to convey from the will. The order of appointment and qualification is the evidence of his authority to act.'

But the reverse of these views...