Hollis v. Tilton

• Decision Date: 07 March 1939
• Citation: 5 A.2d 29
• Parties: HOLLIS v. TILTON.
• Court: New Hampshire Supreme Court

5 A.2d 29

HOLLIS

v. TILTON.^*

Supreme Court of New Hampshire. Belknap.

March 7, 1939.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

Transferred from Superior Court, Belknap County; Young, Judge.

Action by Franklin Hollis, guardian ad litem, against Frank P. Tilton, guardian, wherein plaintiff moved for reopening of previous accounts of defendant which had been allowed. From a denial of the motion, plaintiff appeals. The superior court transferred questions of law without ruling.

Case discharged.

Probate appeal. The defendant is the guardian of an insane person. He filed three successive accounts each of which was allowed, after publication by notice, but with no appointment of a guardian ad litem to represent his ward. A fourth account has been filed and as a party to it the plaintiff as the ward's guardian ad litem appointed on the petition of a relative of the ward has entered appearance. Incident thereto he moved that the three previous accounts be reopened. The appeal is from the denial of the motion.

The Superior Court (Young, J.) has transferred without ruling certain questions of law. Two of them are whether, by reason of the ward having no guardian ad litem appointed to represent her, the decrees allowing the three accounts are void or voidable, and whether the plaintiff may contest the accounts as though there had been no hearings or decrees. As bearing on these questions, one of the admissibility of certain evidence offered by the defendant and stated in the opinion is also transferred. Another question is of the defendant's chargeability for a special item which the opinion discloses.

Demond, Sulloway, Piper & Jones, of Concord, and Franklin Hollis, pro se, for plaintiff.

Richard F. Upton, of Concord, Fred A. Tilton and Frank P. Tilton, pro se, both of Laconia, and Robert W. Upton, of Concord, for defendant.

ALLEN, Chief Justice.

The defendant asserts that the statute (Pub.Laws, c. 289, § 5) requiring a guardian to settle an account with the Probate Court as often as once in three years, contemplates that the account shall be complete and final for the period it covers. And he also asserts that the decree upon the accounting has the full force, standing and attributes of any final judgment. These positions are correctly taken. The accounts are more than provisional and tentative. The statutory requirement is "to settle" them, and no distinction is made between an interim and a final one. Whatever the character of a trustee's annual account as required by his bond (Pub.Laws, c. 309, § 1, subd. 2), it does not indicate any statutory purpose that a guardian's account shall not cover all accountable matters for the period it covers, and the decree thereon not be final.

It is conceded that the ward had no notice of the accounts sought to be reopened. Her insanity would have made any personal service of notice on her a nullity, and the notice by publication could no more, if as much, be notice to her. And having no notice, she is not chargeable with a default.

The subject of notice in legal proceedings of a special character has had much divergency of treatment, and the complexity of applicable considerations has been productive of much difficulty in determining its requirements in such proceedings. Failure to correlate and coordinate the considerations, with emphasis on some in disregard of others, accounts in substantial measure for the confusion and inconsistency that is found in any effort of reconciliation and consistency. Any formulated test which has been declared encounters qualifications and exceptions, declared by reason of peculiar features but not always with adherence to basic principles.

At the outset, it is to be observed that notice is a constitutional requirement of due process, Const. pt. 1, art. 15, "No one can be deprived of his rights or property by judicial process, without notice and an opportunity to make his defence." Holbrook v. Bowman, 62 N.H. 313, 322. "It is a first principle of justice, everywhere recognized, that no judgment or decree, affecting the rights of any person, and by which his rights may be concluded, shall ever be rendered without notice to him of the proceeding." Brown v. Sceggell, 22 N.H. 548, 552. "'Due process of law' generally implies and includes regular allegations, opportunity to answer, and a trial according to some settled course of proceeding." Holman v. Manning, 65 N.H. 228, 229, 19 A. 1002, 1003. "It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard." Stuart v. Palmer, 74 N.Y. 183, 30 Am.Rep. 289.

"But it is clear that the fourteenth amendment [to the federal constitution, U.S.C.A.] in no way undertakes to control the power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice, and affords fair opportunity to be heard before the issues are decided." Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393, 16 S.Ct. 344, 345, 40 L.Ed. 467. "If it be said that it rests with the legislature of the state in which the attachment is issued to declare what shall be a sufficient notice, the answer is that that may be so, provided there be a reasonable and bona fide provision for giving notice. But certainly a legislature cannot enact that no notice need be given, or make that a notice which is no notice at all. To do that would be a fraud on the constitution." Martin v. Central Vermont R. Co., 50 Hun 347, 350, 3 N.Y.S. 82, 83.

Whether a judgment in rem is in ultimate reality a form of a judgment in personam, or whether it is a judgment against property or an adjudication of a status, impersonally, regarding the property or status as a party to the proceeding, and the distinctions between judgments in rem and judgments quasi in rem do not here demand consideration. The conflicting views, one that "All proceedings, like all rights, are really against persons" (Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814), and one that "The property itself is in such actions [of an in rem character] the defendant" (Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 166, 30 L.Ed. 372), call for no preference of acceptance.

As a practical matter the conflict is in general more of statement than of substantial difference. It is not intended to suggest that a judicial proceeding may not result in a judgment which determines the rights and liabilities of persons, even everyone, in respect to the subject matter of the proceeding, in addition to those who are immediate parties to it. In an in rem proceeding, the rights of parties interested in the res are affected, and they are entitled to notice, though it be only constructive. Windsor v. McVeigh, 93 U.S. 274, 278, 279, 23 L.Ed. 914; Hassall v. Wilcox, 130 U.S. 493, 504, 9 S.Ct. 590, 32 L.Ed. 1001. "The only essentials to the exercise of the state's power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard." Pennington v. Fourth Nat. Bank, 243 U.S. 269, 272, 37 S.Ct. 282, 283, 61 L.Ed. 713, L.R.A.1917F, 1159. Whether property is seized in the proceeding or is already under the court's control, does not make a material difference. While the manner and form of notice in an in rem proceeding may differ from that in one in personam, yet it must be reasonably efficient to lead to actual notice, so far as information and circumstances permit. A judgment in an in rem proceeding with no notice of the proceeding is a nullity as much as in an in personam one. In general, constructive notice as by publication, is insufficient if personal notice in some form is reasonably practical.

Notice implies delivery and receipt of information, given either actually or constructively, and if there can be no receipt of notice by reason of legal incapacity or incompetency, then there can be no notice, even by legislative fiat. Due process would then seem to require a substitution for notice through appointed representation. An example is found in the statute relating to the sale of real estate of which there is conditional ownership including possible future interests of possible unborn persons, for whom a next friend is appointed. Pub.Laws, c. 213, §§ 28-32. It is process sufficient to satisfy the constitutional requirement.

A guardian's account has been held to be a proceeding in rem, for the assigned reason that "all parties interested in the subject-matter" are bound by it. Clark v. Courser, 29 N.H. 170, 173. An administrator's or executor's account has also been held to be of the same character. Starkey v. Kingsley, 69 N.H. 293, 39 A. 1017. But there is a practical difference between an account of a guardian and one in settlement and distribution of an estate. In the former, "Whether the ward's property has been judiciously and legally managed and invested by the guardian is a proper subject of investigation and inquiry upon the adjustment of the guardian's accounts in the probate court, * * *." Pendexter v. Cate, 66 N.H. 556, 557, 22 A. 560. In the latter, "The object of the proceeding thus provided [for distribution] is to establish the title to the fund in the possession of an executor or administrator, as against all the world". Starkey v. Kingsley, supra, page 294, 39 A. page 1017. This case related to a Massachusetts proceeding, but its reasoning is applicable to a local one of similar nature. The need of notice in the proceeding is thus discussed (page 294, 39 A. page 1017): "* * * it is not always possible to give personal notice to all interested parties. The existence of an interest, or the names and residences of persons supposed to have an interest, are sometimes unknown, and cannot be ascertained, but...