Ezekiel E. Simpson, Appellant, vs. Emelia J. and her Husband, Blake J. P. Gonzalez, Eric Winters and Richard C. Winters, by their Guardian, Blake J. P. Gonzalez, Appellees, 15 Fla. 9

WESTCOTT, J., delivered the opinion of the court. It is insisted that the Circuit Court has not jurisdiction of this cause; that jurisdiction has attached in the county court, and that if any case is made, that is the proper forum to grant relief. This complaint was filed under the Code, and the law of the Code must be the rule of decision to be applied to it. Under the Code a complaint is the means through which both the common law and chancery powers of the Circuit Court may be invoked, and the Circuit Court is- a court having general original jurisdiction in both common law and equity causes.

In this case Simpson, as guardian of these infants, had in his control nine thousand four hundred and seventy-four dollars. Pursuant to an understanding between Bronnurn and himself, he applied for and obtained an order discharging him from his guardianship, and Bronnurn applied for and obtained an order appointing him guardian, and thereupon Simpson turned over to him the amount above named. Bronnurn subsequently wasted the estate.

Plaintiffs now seek to recover this sum of Simpson, upon the ground that these proceedings of the probate court are void; that it was not in the power of the probate court to. discharge Simpson; and that if it was within its power to discharge him as guardian, its action was void as to them, they having been given no notice of the application for discharge. It is thus-seen that the general question arising upon this demurrer is whether Simpson was, either in law or equity, liable for this sum; and if he was so liable, plaintiffs sought a judgment for that sum.

Is the jurisdiction of the county court adequate, to the granting of such a judgment and its enforcement? The county court lias no such power. Its jurisdiction, in strictly common law cases, is limited to “cases where the amount in controversy does not exceed three hundred dollars.” It cannot hear and determine a suit arising out of the relation of guardian and ward, and enter a judgment or decree for the sum claimed in this action.

The county court has full power to call a guardian to an account, and to exercise other powers, either surrogate or probate in their character, appertaining to the infant and his person and estate. These powers, however, do not extend to jurisdiction in an action upon a guardian’s bond for a sum over three hundred dollars; nor would it have jurisdiction to en,ter a decree for the sum claimed in this suit.

The case presented is nothing more than a matter of accounting between guardian and ward, in which the sum claimed is in excess of the ordinary civil jurisdiction of the county court, and to the recovery of which the jurisdiction of a court of equity or common law is appropriate, according to the peculiar nature of the facts, that is, whether they are legal or equitable, which .constitute the basis of the claim. The Circuit Court had jurisdiction over the subject matter of this action. - The second error assigned is that the judge could not en,ter this order in vacation.

This being one of those cases in which, prior to the Code, the Judge of the Circuit Court could have acted in vacation, he is, by the amendments of the Code, now authorized to act: out of term. There is an apparent conflict between the provisions of

Section 201 of the Code and

Section 202, as amended, (Chap. 1,832, Sec. 1,) but this was the evident intention of the Legislature, and if any effect is given to the amendment, it must go to this extent, or have no operation at law' to accomplish the effect desired by the Legislature. Thus disposing of these preliminary questions which relate to general jurisdiction over the subject of the action, and the regularity of its exercise as to method, we reach the merits of this controversy.

Their consideration is involved in the determination of the third error assigned, which is that the judgment upon the demurrer should have been for the defendant, for the reason that the complaint does not set forth facts sufficient to constitute a cause of action.

Appellant insists, that after the appointment of Bronnum as guardian, his receipt was a discharge of Simpson’s liability, while appellees maintain that the Judge of Probate could not, under the Constitution then in force, make the order removing Simpson from the guardianship; that the constitutional direction to the Legislature conferred no, power upon the Legislature to vest such jurisdiction in the Judge of Probate; that no such jurisdiction was conferred by the Legislature; 'that if it was, such jurisdiction was in this case exercised without notice to these infants, and is for that reason void as to them, and that the facts' attending the attempted removal of the one and appointment- of the other are such as render Simpson still liable for these funds.

These proceedings in the probate court were had under the Constitution of 1839, and the legislation thereunder, and it is to these we must'look to determine their validity. The argument is, that the power to remove a guardian was under this Constitution an exclusive power of the court of chancery; that such was the case in England, and that such was the case here.

Under this Constitution it was provided that u the judicial power of this State, both as to matters of law and equity, shall be vested in a Supreme Court, Courts of Chancery, Circuit Courts, and Justices of the Peace,” and until a separate court of chancery was orgagized, the Judges of the Circuit Courts were to exercise such chancery jurisdiction. Eollowing the general distribution of judicial power,

Section 9 of the same

article directed that “ the General Assembly shall provide by law for the appointment in each county of an officer to'take probate of wills, to grant letters testamentary, of administration and guardianship, to attend to the settlement of estates of decedents and of minors, and to discharge the duties usually appertaining to courts of ordinary, subject to the direction and supervision of the courts of chancery as may be provided by law.” These clauses must be construed together, with reference to the manifest purpose of the Legislature, and that purpose must be determined by the nature of the changes which they worked in the antecedent system, and the- objects which they intended to accomplish.

We cannot accept the argument that because the power to remove was an exclusive chancery power in England, that such was the case here under the American system, a system in which many of the powers belonging exclusively to courts of chancery in England are here oonfided to other courts*. The constitution in express terms directs that this officer shall have jurisdiction in the matter of appointing guardians and the settlement of the estates of minors.

Under the English system, the settlement of the estate, as far as its management was concerned, and the appointment of a general guardian, were exclusive chancery powers, and eyen there the chancellor does not attempt to .deal with the inheritance of infants without the aid of

an act of parliament. 1 Malloy, 525 ; 6 Beav., 97.

There was in England no such thing as a distinct surrogate’s court of court of ordinary, or of probate, and what were called county courts, while their jurisdiction, before the courts at Westminster were erected, was very extensive, yet they have had no such powers since that time, if they did before ; and while the ecclesiastical courts have since that'time exercised some of the powers which in this country belong to the jurisdiction of what in American law are called courts of ordinary, surrogate’s courts, or probate courts, such as taking proof of wills, granting letters testamentary and of administration, <fcc., still they had not in the matter of guardianship any power beyond the appointment- of a guardian ad litem,, a power incident to any jurisdiction where an infant’s interest can become the subject of judicial investigation'.

The books disclose but one case in which such power was exercised by them. In that case, Lord Hardwicke reprobated it as a presumption in the ecclesiastical court to appoint a guardian of the person and estate, declared their appointment of such guardian to be an interference with his power as chancellor, and recommended the Attorney-General to resort to a quo warranto to try the question. We thus see that the power to appoint a general guardian of the person and estate belonged exclusively to the chancellor in England.

The power to settle the estates of minors' 'we.?, equally a chancery power, and it must be-noted that this is a greater power than the power to settle the account of a guardian, from which appellees insist no power to remove him can be implied, but of this we say more hereafter. We thus see that every power directed to be granted by the Constitution as to the matter of guardianship, was an exclusive chancery power in England, and that there was no court in the English system corresponding in its functions and relative powers to the courts of ordinary or of probate in the United States.

What powers followed the grant embraced in the words, “ and to discharge the duties usually appertaining to courts of ordinary,” so far as concerned the matter of guardianship ? These powers, it is evident, must be ascertained by reference to the powers of such courts in the United States, as there was no such court as a court of ordinary known to the English system. The term, ordinary, there signified every official of the bishop or other ecclesiastical judge having official power, and at common law it signified him who hath ordinary or immediate jurisdiction in causes ecclesiastical.

There are comparatively but few courts known as courts of ordinary in the United States. We have examined the laws of all the States within our reach. We find but one State in which there is a “ court of ordinary.” We find ten in which there are “ courts of probate,” two in which there are “ orphans’ courts,” three in which there are “ county courts,” one in which there is a court of “ common pleas.” The term, “ courts of ordinary,” in the Constitution, cannot be interpreted with reference exclusively to courts of that particular name.

If, however, such was the case, the power to remove a guardian, to revoke his appointment, is possessed by that court. These words indicate “ a class of duties which the Constitution provided should be imposed by the Legislature on the officer designated, these duties to be of a like character with those imposed by other States ” upon the courts which, in their several systems, had the power of appointing guardians and the general supervision of their accounts.

This officer was not only to be invested with the general and particular powers named in the Constitution, but the Legislature was to impose such duties as usually appertained to those courts in other States which occupied in their system the same relative position which the probate court was to have in ours. And, in the matter oí guardiam ship, it made no difference whether these powers were such as belonged exclusively to the .court of chancery in England.

All general power over the guardian in England being-of that character, such a construction would deny a chancery power, notwithstanding it was a power usually appertaining to courts of ordinary, and would exclude every other power, except that of appointment and settlement of accounts.' This is not a proper construction, as the Constitution expressly directed that the Legislature'should impose the duties usually performed by such courts without any such exception.

These differences, in the American and English systems, are fundamental in their character, and the clear inference is, that those who made them intended great changes. These changes, too, are'not restricted alone to the matter of jurisdiction, but extend also to the.method of its exercise. binder the English system, the chancellor had a general discretion and control, and the guardian was not bound by any statute or act of parliament to render his accounts at stated periods, while here, fixed periods were indicated for his' accounting.

Again, all the powers which the Legislature was to confer were to be powers, in the exercise of which this officer waste be sirbject to the direction and supervision of the court of chancery, and a court of chancery could not perform a more appropriate function than supervise an inferior officer invested with powers of a like description as those possessed by itself; while it would be an inappropriate function- to supervise the exercise of powers of a different character. It would be an anomaly for a court of chancery to supervise or direct a court exercising common law powers.

Indeed, if such authority was given to it, it would cease to be a court confined to chancery jurisdiction, and become court exercising powers of each character, and thus strictly both a court of chancery and common law. The fact that the removal from the place of guardian was in England a power confided alone to the chancellor, is not a reason why such a power might not, in perfect accordance with the Constitution, be invested by the Legislature in this officer. The verse, we think, is the proper view.

The framers of this Constitution expected, directed and intended that the Legislature should by law give this officer just such powers, to be exercised undpr the general control of the chancellor. This officer was to be an aid and auxiliary to that court, and, in the matter of guardianship, was to be invested with such power as would enable him to control the guardian and project the estate.

Is the power to remove or displace a guardian of like char.-aeter with the powers conferred by other States on their courts of ordinary, or is it a particular power following the grant of authority to settle the estate of the infant % We have "exhausted the material for examination at our command, and without a single exception these courts have the power to remove or displace a guardian from his office- or place before its termination, according to the letter of his appointment.

In many of the States, they have control over them similar to that exercised by the court of chancery in England, and sometimes the jurisdiction is exclusive. Cooley’s Black., § 463, note 10. While the causes for which this rovocation of appointment and displacement from his position are various, in some States the power being general,.in others limited to particular circumstances,- still the power belongs to the class which usually appertains to courts of ordinary in the United States, and for this reason we conclude that the Constitution does justify the investiture of such authority by the Legislature.

We deem it unnecessary to say anything as to the power to settle the estates of infants, in view of this conclusion, as it disposes of the point. We next inquire, has this power of revocation of appointment and displacement been conferred by the Legislature ? 'In accordance with the direction of the Constitution, the Legislature, at its first session, passed “

an act to organize the courts of probate for the State of Florida.” After fixing the method of appointment and the term of office of the officer, it was enacted that it should be his “ duty to take probate of wills, to grant letters testamentary, of administration and guardianship, to attend to the settlement of estates of deceased persons, and of minors, and to discharge the duties usually pertaining to courts of ordinary; and an appeal shall lie from any final order or decision of the said Judge-of Probate to the Circuit Court of the proper county in like manner as the same is now authorized from the decisions Of the County Courts to the Superior Courts.” The act further provided “ that the Judges of Probate hereby authorized to be appointed, shall have all the powers and shall perform all the duties heretofore prescribed by law as the powers and duties of Judges of the County Courts, when acting as courts of ordinary.” It further provided “ that every Judge of Probate shall record in a book or books, to be kept for that purpose, distinct ■ and at full length all wills, testaments and codicils proved before him, and the proof thereof, all letters testamentary and of administration, all accounts of executors and administrators settled before him, all orders and decrees made by him in relation to such estates, the appointment of guardians and the revocation of such appointment, the accounts rendered by guardians and settled by him, orders and decrees for the sale of minors’ real estate, all orders and decrees for the assignment or admeasurement of dower, and all other orders and decrees.” Under the legislation conferring powers upon the county ■courts, it was provided that “ the county courts shall hear and determine all complaints of wards against guardians, require of them counter security, when necessary, displace them, or make such orders as to them may seem equitable, 'and right relating to the estate.” Sec. 1 of Act Nov. 20, 1828, Duval, 168.

The 8th

section of

an act approved February 17, 1833, Duval, 276, provided “ that the Judge of each County Court shall have power either in open court or in vacation to take the probate of wills, grant and revoke letters testamentary ,a.nd letters of administration, appoint and displace guardians of infants, orphans, idiots, lunatics and persons non compos mentis” * * * * . * *

Section 50 of the act of November 20, 1828, enacted, provides “that the Judges of the several County Courts of this territory shall have power to take cognizance of all matters concerning orphans and their estates, and to appoint guardians in cases where it appears necessary and proper, and shall take good security of all guardians appointed by them' for the estate of orphans committed to them.” * * Under these statutes the Judge of Probate was invested with a very exténsive jurisdiction.

We have already seen that the power to remove or displace a guardian is such a power as usually appertains to courts of ordinary in the sense that these words are used in the Constitution, and the same is true of the power conferred by these words in the act of tlpe Legislature organizing the probate court. Under the first

section of the act of November 20, 1828, it is made his duty to hear and determine all complaints of wards. He is invested with the general powér to require of them counter security whenever he deems it necessary, and he has the general power to displace them, as well as to make such orders relating to the estate as to him may seem equitable and just. It was insisted in the argument that the'effect of this

section was to restrict this power of displacement to those cases only in which the ward complains of the guardian. It was not the purpose of the Legislature thus to restrict the court. Such a restriction would be inconsistent with the general tenor of the whole of this legislation. Theinfantis,b3rlaw> deemed incapable of attending to his own concerns, and it would be strange indeed if the j>ower of the court, which has charge of his interests, could be invoked in this important matter only when one legally deemed incapable of attending to his own concerns should call for the exercise of such protection.

The guardian of an infant occupies a position of power and control, both as to his person and estate, and it is against this power and influence that the infant needs protection. Strange indeed would be that law which, while it deemed one incapable of protecting himself and placed him in the control of another, still restricted the power of a court to which his general interest was confided, in extending this protection against such power to those eases only in which this incompetent person should act. The proper grammatical construction of this

section vests a gone ral power'to displace, and such, power is .entirely consistent with the general policy of the legislation upon the subject.

Section 50 of the same act invests the Judge of Probate with power to take cognizance of all matters concerning orphans and their estates, and to appoint guardians. The 8th

section of the act of February 17, 1833, invests him, in general terms, without any restriction, with the power to appoint and displace guardians of infants. The Legislature, deeming it essential that this officer should preserve a record of his acts under these powers, required of him to make a record of all appointments of guardians, and the revocation of such appointments, thus 'showing that the Legislature conceived that he had the power, under this legislation, to revoke such appointment. It should be a plain case to justify us in giving a construction to a statute inconsistent with the clear legislative

interpretation of its own action. A brief examination of the cases cited from New York will show the very great difference between those cases and this. Under the Constitution of New York, no power was conferred upon a surrogate. The Legislature was not directed to invest any officer with powers of the nature mentioned in the Constitution of Florida, and the chancery jurisdiction was invested in other courts under the letter of the organic law. Under the legislation of that State, there was no general grant of power, from which this power to revoke an appointment of guardian could be implied or result.

Ilis jurisdiction to remove was restricted by the Legislature in this language : “ On the application of any ward, or of any relation in his behalf, or of the surety of a guardian, to the surrogate who appointed any guardian, complaining of the ineompetency of such guardian, or of his wasting the real or personal estate of his ward, or of any misconduct in relation to his duties as guardian, the surrogate, upon being satisfied by proof of the probable truth of such complaint, shall issue a citation.to.such guardian.” The act further provides that if, upon the trial, he is satisfied of the incompetency or misconduct of such guardian, he may, by an order, remove the guardian from his trust, and, upon such removal being made, the surrogate may proceed and appoint a new guardian.

Chancellor Kent held that under this statute the surrogate had no general jurisdiction over a guardian appointed by him as trustee, that power remaining in the court of chancery. (1 John., 99.) So Chancellor Walworth held, (5 Paige, 536,) that this statute gave jurisdiction to a suiTogate to remove a guardian appointed by him, (the surrogate,) for ihcompetenev or misconduct, but he had no jurisdiction to remove a guardian appointed by the court of chancery, or to compel him to account either before or after such removal. This was the point involved.

In his opinion, however, the chancellor went further and remarked : “ The surrogate has no authority to. call any guardian to account, or to discharge or remove a guardian, except in the particular cases specified.in the statute, the surrogate, in this respect, taking no incidental power or constructive authority by implication which is not expressly given .by statute.” Looking to the New York statute, it is apparent that no other conclusion could have been reached.

Looking to the Constitution and statutes of New'York and Florida, it is equally apparent that the powers conferred upon the surrogate in the one State and the Judge of Probate in the other, are not at all similar, arid that the cases in New York are not authorities by which to measure the power of the Judge of Probate in Florida.

The probate court having tlie power to revoke the appointment of Simpson, and thus displace him from the place of guardian, the next quéstion presented for our consideration is, was it necessary to the validity of this order that the wards should have been given notice % It is insisted that they were entitled to notice upon the broad ground that such an order was one affecting their rights. . ■ It is unquestionably .true, as a general proposition, that, no person can be deprived of his life, liberty, or property, without due process of law, and also that this involves notice.

It is, however, clearly settled that no ward has a right to a particular guardian, and that guardianship is an office or place under the sole and exclusive charge.' of the courts having jurisdiction over the general subject qf the custody of infants. The chancellor or court having general power of revocation, is entrusted with the management of the estate, subject to such regulations as are j>reseribed by law.

In England the jurisdiction, so far as the appointment was concerned, was exercised in a snmmary manner upon petition, and there are cases in the United States holding expressly that it is no objection to the validity of an appointment that the infant was not made a party. (33 Ala. 221; 1 Ala. 388 ; 2 Doug. 434 ; 1 Hay. 303 ; 39 Ala. 150; 7 M. and W. 409 ; 7 Ves., Jr., 348, 381.) The matter of the appointment of a guardian certainly affects the interest of the infant as much as the removal. The case from 1 John. Ch’y, cited by appellee, sustains this view as to the power of removal.

There the ward had arrived at • the age of fourteen, and sought to remove the guardian. Chancellor Kent said : “ This court has the care and protection of infants during their minority, and they have not, nor ought to have, any such power in regard to guardians appointed by this court.” See also 1 Murphy, 227. It is the practice in many of the States for this action to be taken at the instance of some relative of the infant.

Baron Alderson, in the case above cited, says, that “ in all cases where a party cannot sue for hiinself, the court employs a proohein comA as its officer to conduct the suit for him, and no appointment or subsequent confirmation by the party is necessary. It is in fact almost the same thing as appointing an attorney ; the law, if we may so speak, appoints an attorney to act in behalf oí the infant.” As a matter of course, there is, in many respects, a difference between the powers and duties of a prochein ami and that of a general guardian, and the case is not precisely this case.

The general guardian, as well as the proehein ami, are, however, both officers of the court, and the infant has, as against the power and discretion of the chancellor, no more power in the one case than in the other. . In the case of Ripton vs. Hall, 1 Stewart, 166, the complaint was filed by a person other than the infant, and the guardian was removed.

The court remark, “ as the statute prescribes no particular mode of proceeding, (and that is the case in Florida,) nothing more is necessary to appear of record than that the court had jurisdiction of the subject matter of the controversy, that the guardian had an opportunity of being heard, and has been removed for good and sufficient cause.” The power of removal there was limited to cases where good and sufficient cause was shown, and this case was heard upon appeal.

It is insisted also that the exercise of the power of-removal or displacement here ■was not in conformity with the- rule prevailing in a court of ■ chancery, that the guardian was removed without cause, and as it were upon his mere resignation. . We do not say that there was any error here, but if there was, the Judge of Probate, having this power and jurisdiction of the subject matter, an erroneous exercise of it cannot be reviewed and corrected in this collateral manner. The case of Young et al. vs. Lorrain et al., 11 Ill., 633, is a case precisely in point.

This pi’inciple is so well recognized that it is unnecessary to say more in reference to it. There remains but one more point to' be disposed of in this case, and that is whether, under the facts set xxp in the complaint, the transfer of the moneys by Simpson to Bronnum relieved Simpson from any further liability.

The plaintiffs in their complaint allege that on or about the first day of Januax’y, 1856, pursuant to an understanding betweeix the defendant and the.said Bronnum, the defendant applied for and obtained an order from the probate court of said county discharging him from his said guardianship, and the said Bronnum applied for and obtained an order appointing him guardian of the persons and the estates of' the said Emelia J., Eric and Eiehard C., and thereupon the defendant turned over to the said Bronnum all the assets in his possession, or under his control, belonging to his said wards, including the proceeds of their real, estate, which the defendant had converted into money as aforesaid,, amounting in the aggregate to $9,424.87.

The plaintiffs-further allege that the said Bronnum has utterly wasted and spent the entire estate, and that the sureties upon his bond, as well as himself, are insolvent. There is no allegation that Simpson, the removed guardian, was in any way connected with the subsequent wasting of the estate by Bronnum. There is no allegation that Simpson had any reason to believe even that Bronnum was not entirely trustworthy at the time of the change.

As to the naked, understanding and agreement between these parties, in the absence of an allegation of' facts showing it to-have been fraudulent, we cannot presume that such, was the case, and therefore no case of fraud is here presented for our consideration. If there was nothing more than understanding, we cannot see the least impropriety in that. "We think rather it is highly commendable in a guardian to continue in the discharge of his trust until he can find some suitable person to whom it can be transferred.

Such would be the course of any guardian who felt much interest in his ward, in the future of the infants entrusted to his care. The court itself might refuse a revocation of -appointment until the name of some good person was suggested. Upon the revocation of the appointment of Simpson, his power as guardian for the future ceased. It - was a matter of course-to require him to account and to pay over to his successor the’balance. (10 Paige, 316.) Having done this, he was relieved from any further responsibility. There is a great difference between this case and the case of Doyle vs.

Blake, so much relied upon by appellee. The executors there had acted; had each intermeddledjwith the assets. The administration to Horan was void. (Levinz, 182.) Their transferring the assets to him was the same as if they had transferred them to an individual. In the present case Simpson was displaced from his guardianship by a court having that power. The simple revocation of his appointment, his removal, did not release him from any liability for past acts. When he ceased to be guardian, he. was no longer entitled to the custody of the assets. The court then appointed Bronnum.

That appointment was not void like Horan’s, but was effective and legal. He became legally entitled to the custody and control of the estate of the ward, and his reception of the funds relieved Simpson of all liability for the loss which occurred by the subsequent wasting of the estate by Bronnum, and the insolvency of Bronnum and his sureties. The judgment is reversed, and the case will be remanded for further proceedings not inconsistent with this opinion, and conformable to law. ) Maine — The Judge of Probate may “dismiss” at his discretion or tupon request of guardian.

New Hampshire — The Judge of Probate “ removes ” whenever he thinks iit necessary or expedient. Gonneeticut — The J. P. appoints and may remove for good and sufficient cause. Rhode Island^The J. P. appoints and has general power of removal. Vermont — The J. P. has general power to remove and may accept resignation. New Jersey — General power of removal belonged to Orphans’ Court. Maryland, — Particular power of removal belonged to Orphans’ Court. Georgia — Court of Ordinary appointed and might dismiss.

Indiana — Court of Common Pleas appointed and had particular powers of.removal. , ' Tennessee — County Court might appoint and might remove in some-cases. Guardian might resign. Kentucky — County Court might appoint and remove. Guardian might resign. Alabama — J. P. might appoint; might remove for cause. Mississippi— J. P. might appoint and “ displace.” Arkansas — J. P. appointed and might remove for good cause. Iowa — County Court appointed and might remove for cause. Michigan;— J. P. appointed; could remove for cause. Guardian might resign. Minnesota — J. P. appointed; could remove for cause.

Guardian might resign.