On appeal from a decree of the former Court of Chancery.
For reversal and remandment: Justices Case, Heher, Burling, and Ackerson. For affirmance: Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
The essential question here is whether the old Orphans' Court had jurisdiction to entertain and adjudicate an account tendered by the putative guardians of a mental incompetent whose appointment as such guardians was void for want of notice of the proceeding to the incompetent.
There was an adjudication of mental incompetency on an inquisition issued out of the old Court of Chancery; and thereafter, on September 26, 1944, an order was entered in the Passaic Orphans' Court designating complainants as guardians of the incompetent. The appointees gave bond and undertook the function. The corporate appellant is the surety on their bond.
On October 31, 1946, the putative guardians filed their first intermediate account in the Orphans' Court. There were exceptions to the account. There was controversy also as to the validity of certain claims presented by the accountants as individuals against the incompetent, allegedly for moneys loaned and services rendered to and disbursements made on behalf of the incompetent prior to the adjudication of incompetency. The Orphans' Court thereupon appointed the respondent Weiss as guardian ad litem of the incompetent and directed the putative guardians to render a supplemental account, which they did on October 24, 1947, in the form of a second intermediate account. The guardian ad litem of the incompetent interposed a petition praying that a prior order allowing the accountants' claims
against the incompetent be vacated and the moneys paid thereon restored to the estate, and the appointment of appellants as guardians decreed to be void; whereupon the bill herein was filed.
The bill prays, inter alia, (a) that appellants' appointment as guardians of the incompetent be decreed to be valid, or, in the alternative, (b) that there be such appointment by the Chancellor, nunc pro tunc as of September 26, 1944, or as of the date of the filing of the bill; and (c) that the Chancellor take over the administration of the estate and appellants be given leave to account before him for their stewardship as de facto guardians. The defendant surety, by counterclaim, joined in the prayer for the assumption of jurisdiction by Chancery. By an amendment of the bill, the complainants seek a decree adjudging their appointment as guardians void, and permitting them to account in Chancery. The surety joins in this prayer. The contention is that, for lack of jurisdiction, a decree of the Orphans' Court approving their account would afford no protection to the accountants or their surety. The bill and counterclaim were dismissed. The learned Vice Chancellor found that the Orphans' Court had concurrent jurisdiction of the subject matter, and there was no reason for Chancery's intervention. We take a different view.
The appointment of complainants as guardians was void for failure of notice of that proceeding to the incompetent. There was no jurisdiction of the person. Lommason v. Washington Trust Co., 140 N.J. Eq. 207 (E. & A. 1947). This is conceded. Complainants were not guardians de jure but de facto or de son tort accountable in Chancery as constructive trustees, subject to all the duties and liabilities of a guardian duly appointed. The settlement of such accounts is a part of equity's inherent exclusive jurisdiction over trusts and their administration. In the absence of a specific constitutional or statutory grant, the probate courts are not invested with this jurisdiction. Van Epps v. Van Deusen, 4 Paige 64 (1853); Moody v. Bibb, 50 Ala. 245 (1873); Burch and Mundell v. State, 4 Gill & J. 444 (1832); State, ex rel. Kelly v. District Court, 73 Mont. 84, 235 Pac. 751 (1925); Starke v. Storm's Executor, 115 Va. 651,
79 S.E. 1057 (1913); Wortham v. John, 22 Okla. 562, 98 Pac. 437 (1908); In re Mize's Guardianship, 193 Okla. 164, 142 Pac. (2 d) 116 (1943); Bailey v. Bailey, 67 Vt. 494, 32 A. 470 (1895); Campbell v. O'Neill, 69 W. Va. 459, 72 S.E. 732 (1911).
A guardian is one who legally has the care and management of the person, or the estate, or both, of the incompetent. A guardian de facto or de son tort is one who assumes to act as guardian without right or lawful authority. It does not matter in this regard whether or not, as in the case of a de facto guardian, there is color of authority for the exercise of the power. The jurisdiction to entertain or compel an accounting by the quasi guardian resides in equity and not in the probate court, unless the latter is clothed with the power either by the organic law or by statute. One acting as guardian of a lunatic under a void appointment is a trustee in invitum, accountable as such in a court of equity. In that case, there is no guardianship; it is as if there had been no appointment at all. In equity, by the mere operation of the law, a trust is charged upon the conscience of one who acts as guardian of an incompetent without legal right; and he is rendered accountable as a constructive trustee. Pennington v. Exrs. of Fowler, 7 N.J. Eq. 343 (Ch. 1848); Boylan v. Deinzer, 45 N.J. Eq. 485 (Ch. 1889); Bailey v. Bailey, supra; Moody v. Bibb, supra; Story's Equity Jurisprudence (11 th ed.) section 1254. See, also, Moses v. Moses, 140 N.J. Eq. 575 (E. & A. 1947). The Orphans' Court had no such jurisdiction.
The Orphans' Court was invested with jurisdiction to hear and determine all controversies respecting, inter alia, "the right of administration and guardianship, and the allowance of the accounts of executors, administrators, guardians or trustees," as therein directed, and to compel accountings by "executors, administrators, guardians and trustees under wills * * *." R.S. 3:1-2. The term "fiduciary," as used in the title, was defined to include "executors and administrators and guardians and trustees;" and "guardian" was defined ...