Paty v. Smith

By the Court, McKinstry, J.: While entertaining grave doubt in respect to the point, we shall assume, for the purposes of this decision, that the Legislature has power to authorize or direct the sale, by a stranger, of the real estate of a minor; that the matter of the appointment of guardians of infants, and the disposition of the estates of such, is not exclusively of judicial cognizance, to be referred to a court of appropriate jurisdiction, but is one which may, in any instance, be directly regulated by the legislative department of the government. It is not necessary to determine the constitutional question suggested, because we are convinced that the act, on the construction of which the main point in this case turns, is not an attempt to confer the power of sale on Martha Ann Paty Dayley, as an individual, but to confer upon her the power of making private sales in her capacity as guardian of the estate of the infant, Francis William Paty.

Independently of any question of constitutionality, we would not be justified in saying that it was the intention of the Legislature to authorize an adult who had given, and was required to give no bond or security, to sell the real estate of an infant, and to appropriate the proceeds, freed of the supervision of any court or officer, unless the language conferring that dangerous power should be clear and explicit. We cannot assume such intention upon any ambiguous phraseology. The person named in the act was never appointed guardian in this State; never gave bond to secure the proper application of any fund that might come into her hands; and (if we adopt the construction of the respondent) while the Probate Judge was given power to disapprove of [159]a sale—that is, to require that a larger sum should be realized and paid to the guardian, so called—he had no power to interfere for the protection of the infant, by directing or supervising the use of the proceeds.

At the time the act under consideration was passed there was a general law providing for the appointment of guardians, requiring bonds, the rendition of accounts, and proof to the satisfaction of the Probate Court of the necessity and propriety of sales, and conferring on the Probate Court or Judge a controlling direction over the property and proceeds. Acts had been passed, however, authorizing particular guardians, duly appointed and qualified, to sell the real estate of their wards, without the formalities or conditions required by the general law. We do not decide whether such special laws are constitutional; we think, however, the Legislature, by the act under consideration, intended to follow these precedents.