Potter v. Alcorn

• Decision Date: 30 June 1953
• Citation: Potter v. Alcorn, 140 Conn. 96, 99 A.2d 97 (Conn. 1953)
• Parties: POTTER v. ALCORN. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 97

99 A.2d 97

140 Conn. 96

POTTER v.ALCORN.

Supreme Court of Errors of Connecticut.

June 30, 1953.

Philo C. Calhoun, Bridgeport, with whom was Philip H. Smith, Bridgeport, for appellant(plaintiff).

Robert H. Alcorn, pro se, the appellee(defendant).

Before BROWN, C. J., BALDWIN, INGLIS and O'SULLIVAN, JJ., and CORNELL, Superior Court Judge.

INGLIS, Associate Justice.

The plaintiff took an appeal from an order of the Probate Court for the district of New Haven allowing the defendant a fee of $500 for services rendered as guardian ad litem for David Henderson, a minor.The Superior Court sustained the defendant's demurrer to the reasons of appeal and, from the judgment rendered upon the plaintiff's refusal to plead over, the plaintiff has appealed to this court.

For the purpose of testing the demurrer, these facts stand admitted: The plaintiff is the mother, and Holcomb H. Henderson, her former husband, the father, of David Henderson, a minor.On June 24, 1949, the plaintiff filed with the Probate Court for the district of New Haven an application wherein she asked for the removal of the father as guardian of the minor's person and the appointment of herself as guardian of his person and estate.On June 28, 1949, the Probate Court appointed the defendant as guardian ad litem of the minor.The appointment was made without the plaintiff's consent and upon the request of persons unknown to her.Neither then nor thereafter did the minor have an estate, nor has he ever been the owner of any property rights.On June 4, 1952, the Probate Court entered its order allowing the defendant a fee of $500 for his services as guardian ad litem in the proceeding.

The sustaining of the demurrer did not decide the question whether the plaintiff is personally liable for the payment of the amount of the allowance.It is true that the ground stated in the demurrer was that 'on the facts stated the appellant is liable * * * for the fees of the appellee.'The trial court, however, stating in its memorandum that counsel upon argument had agreed that the demurrer should be considered as addressed to the reasons of appeal generally, expressly avoided the question of the plaintiff's personal liability and decided the demurrer on other grounds.SeeAnselmo v. Cox, 135 Conn. 78, 79, 60 A.2d 767.It is clear, moreover, that the reasons of appeal do not put the question of liability in issue.The allegation therein that the order appealed from implies a finding that the plaintiff is liable for the fee is a mere allegation of a conclusion of law which is not justified by the order itself.The order is simply 'that a fee of $500.00 be and the same is hereby granted for services as guardian ad litem.'This does no more than determine the proper amount of the compensation of the guardian ad litem.It does not direct that the compensation shall be paid by the plaintiff.Consequently, both because the question of the plaintiff's liability for the defendant's fee was not passed upon by the trial court and because it is not really involved in the appeal from the probate order, it is not before us on this appeal.The decision of that question will have to be left to other litigation.The questions before us, at the present time, are only two in number.They are whether the Probate Court has power to appoint a guardian ad litem in a case such as this and, if it has, whether it has power to make an allowance to him for his services.

It is, of course, elementary that courts of probate are strictly statutory tribunals.Palmer v. Reeves, 120 Conn. 405, 408, 182 A. 138.As such, they have only such powers as are either expressly or impliedly conferred upon them by statute.Union & New Haven Trust Co. v. Sherwood, 110 Conn. 150, 161, 147 A. 562;Lewis v. Klingberg, 100 Conn. 201, 204, 123 A. 4.Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a statute.1 Locke & Kohn, Conn. Probate Practice, p. 76.That is true in this case.The statute which endows courts of probate with power both to appoint guardians ad litem and to make allowances for their compensation is § 6861 of the General Statutes(as amended, Cum.Sup.1951, § 1244b).The relevant portions are set forth in the footnote.¹

The principal contention of the plaintiff is that the statute is not intended to apply to proceedings for the removal of a guardian of the person of a minor.So far as the power to appoint a guardian ad litem is concerned, the statute on its very face clearly refutes this contention.Its first sentence authorizes the appointment 'in any proceeding before a court of probate'.So far the provision is all inclusive.The only limitation on the words quoted is that it must appear that one or more persons who are minors 'have or may have an interest in such proceeding'. It can hardly be said that a child has no interest in the question who is to be the guardian of his person. Though not pecuniary, it is, nevertheless, an interest which is recognized in probate law. SeeSpencer's Appeal, 122 Conn. 327, 332, 188 A. 881. So real is his interest that, when it comes to the choice of a guardian who is not a natural parent, the law gives a minor more than fourteen years of age the right to choose the guardian. General Statutes § 6853;Ferrie v. Trentini, 111 Conn. 243, 246, 149 A. 664;Adams' Appeal, 38 Conn. 304, 306.Since a minor does have an interest in who is to be the guardian of his person, a proceeding for the removal of such a guardian is one within the statute.

One of the only two arguments to the contrary is that, since § 6850 of the General Statutes, empowering the Probate Court to remove a guardian, permits it to request an investigation by the commissioner of welfare, any necessity for the appointment of a guardian ad litem is obviated.Inasmuch as the provision is not mandatory but merely permissive, the statute does not preclude the appointment of a guardian ad litem when, in the courts' judgment, such a course will better meet the situation.

The other argument is that, in view of the fact that the last sentence of § 6861 provides that the compensation of the guardian ad litem 'shall be paid as a part of the expenses of administration', the whole section is inapplicable to any proceeding in which no assets are involved out of which costs of administration can be paid.This contention ignores the fact that it is conceivable that in many cases guardians ad litem may be found who are willing to serve without compensation.The fact that it may be difficult to provide compensation for a guardian ad litem might be a factor to be taken into consideration by the court in determining whether it is advisable to make an appointment.By itself, however, it cannot be determinative of the question whether the court has power to appoint.If the court has jurisdiction to appoint in any proceeding in which a minor's interest is involved, it must have jurisdiction to appoint in all such proceedings.

The history of § 6861 indicates that, in enacting the provision that the compensation of a guardian ad litem might be paid as part of the expenses of administration, the General Assembly did not intend to restrict the appointment of such a guardian to cases in which assets are available.The prototype of the statute was enacted in 1885 as a part of the codification of laws relating to probate.Section 80 of chapter 110 of the Public Acts of 1885 provided: 'When, in any proceeding before a court of probate, notice is required to be given to a person who is a minor, and such minor shall have no parent or guardian, the court of probate shall appoint a guardian ad litem for such minor before passing any order or decree affecting his interest.'Section 73 of the same chapter authorized courts of probate to appoint or approve as guardian of a minor some person other than the parent or natural guardian if the latter was found to be unfit.It was also provided in this chapter (§§ 69,70) that a child of fourteen years of age or over, if he had no parent, had the right to choose his guardian and that the Court of Probate, before making an appointment, should 'notify him to appear' to make his choice.Because of this requirement that the minor be notified to appear, the matter of the appointment of a guardian in lieu of a parent was brought within the class of proceedings as defined in § 80 in which the Probate Court was authorized to appoint a guardian ad litem.In its inception, therefore, the statute clearly did not restrict the power of the courts of probate to appoint guardians ad litem to proceedings in which the minor's interest in property was involved.

No material change was made in the statute under consideration until 1905.It will be remembered that the act of 1885 permitted the appointment of a guardian ad litem only in cases in which the minor had no parent.In 1905 the General Assembly extended the authority to cases where the minor does have a parent but 'where it shall appear to said court that it is for the best interests of a minor * * * to have, as guardian ad litem in said proceeding, some person other than said parent'.Public Acts 1905, c. 139.In 1919 the following sentence was included in the act: 'When such appointment is made in connection with the settlement of the estate of a deceased person, the person so appointed [as guardian ad litem] shall be authorized to represent such minor in all proceedings for the settlement of such estate or until his appointment be terminated by death, resignation or removal.'Public Acts 1919, c. 47.This addition did not limit appointments of guardians ad litem to proceedings involving a minor's interest in an estate.On the contrary, it clearly recognized that appointments might be made in cases other than those in which an estate was involved.

It was not until 1921, Public Acts 1921, c. 125, that the provision was added upon which reliance...