HAMILTON v. PICKETT

A conservator is not liable for wearing apparel furnished without his knowledge or approval to the wife of his ward, in the absence of any evidence tending to prove that he had withheld from them necessaries suitable to their fortune and condition in life. To permit a verdict against the conservator to stand, under such circumstances, would defeat the very purpose of the statute, § 240 (Rev. 1918, § 4888), which is to prevent an incompetent from recklessly and unnecessarily expending his money. General Statutes, § 739 (Rev. 1918, § 5771), permits an action to be brought against an "executor, guardian, or trustee" for just claims growing out of moneys paid or services rendered for the estate in his hands. Held that if this statute applied at all to conservators, it could not be invoked in a transaction to which the conservator was not a party and of which he had no knowledge. Civil actions demanding damages of $100 or less in the City Court of New Haven, are not appealable to the Court of Common Pleas in New Haven County; the only remedy is by a direct appeal from the judgment of the City Court to this court for the revision of alleged errors of law.

RORABACK, J.

The disposition of this case as it now presents itself to this court depends in part upon the construction of § 240 of the General Statutes (Rev. 1918, § 4888), the material portion of which reads as follows: "The conservator shall return an inventory, under oath, of the estate of the incapable person, and shall manage all such estate and apply so much of the net income thereof as may be required, and, if necessary, any part of the principal of the estate, to support him and his family, and to pay his debts, and may sue for and collect all debts due to him."

It would be a novel construction of this statute, and have a pernicious effect, to sustain the plaintiff's claim upon the facts before us. It appears that this bill was contracted by the wife of an incompetent person whose estate was under the management of a conservator, without his knowledge or approval, and when it was not shown that the conservator had withheld from his ward or his wife necessaries suitable to their fortune and condition in life. To allow such a claim would defeat one of the principal objects for the appointment of a conservator, which is to prevent an incompetent from making reckless and unnecessary expenditures of his money. The legal obligations and duties of a conservator are in some respects similar to those of a guardian. "An action will not lie against a guardian on a contract made by the ward, but must be brought against the ward and may be defended by the guardian." 1 Parsons on Contracts (9th Ed.) [*] 136. In this case there are no elements of contract, express or implied, as the conservator was not directly or indirectly a party to this transaction.

The plaintiff places reliance upon the provisions of § 739 of the General Statutes (Rev. 1918, § 5771), which provides that actions may be maintained against an "executor, administrator, guardian, or trustee," for claims growing out of moneys paid or services rendered for the estate in his hands, and which should, justly, be paid from said estate. In the construction of this statute, which was then § 1049 of the Revision of 1888, this court held that "if the statute applied to conservators at all, it could not be invoked in a proceeding to which the conservator was in no way a party." Merwin's Appeal, 72 Conn. 167, 43 A. 1055. In that case (p. 172), which was a claim for the reasonable value of necessaries furnished to the ward in the expectation of compensation out of her estate, and with the knowledge and assent of the conservator, we said: "If its averments can be read as importing that the conservator neglected to make any other provisions for watching and nursing her, they are a sufficient foundation for the claim." In the present case the jury concluded that the defendant was liable, although it was shown that the purchases in question were made without the assent or approval of the conservator and when it did not appear that the conservator had acted without due regard to the ward's necessities and liabilities. Such a conclusion could not have been reasonably reached by the jury from the evidence. It follows, therefore, that the defendant's motion to set aside the verdict should have been allowed.

Other questions presented by the appeal do not require consideration, except that we ought to observe that there was no error in the court's denial of the defendant's right of appeal, from the judgment rendered, to the Court of Common Pleas for New Haven County.