
    MIDDLESEX COUNTY,
    MARCH TERM, 1859.
    Present, Stores, C. J., Ellsworth, Sanford and Butler, Js.
    Bani Nettleton's Appeal from Probate.
    A judge of a probate district was also one of the selectmen of a town within the district, and as such was made, under a requirement of the statute with regard to the appointment of conservators, a party respondent to an application to the probate court for the appointment of a conservator over a person residing in the town. Held, that he was disqualified to act as judge upon such application.
    A court of probate has power to settle and allow the account of a conservator in the administration of the estate of the ward, after the conservator has gone out of office. ' ’
    The cases of Norton v. Strong, 1 Conn., 70, and Butts v. Spalding, 5 Conn., 427, commented on.
    Appeal from a decree of the probate court of the .district of Killingworth, allowing the account of Hibbert Francis for services and disbursements as conservator of the appellant.
    Francis, claimed to have been legally appointed such conservator by the probate court of the district of Killingworth. At the time of his appointment the judge of the probate court was also one of, th.e selectmen of the town of Killingworth, where Nettleton resided, and, as such, was under the statute made a party respondent to the application ; and considering himself disqualified to act in the matter, he called in the judge of an adjoining probate district, (under the statute authorizing such course where the regular judge is disqualified “ by relationship, interest, or other cause,”) who held the court and made the ap- [ *269. ] pointment. From this *decree an appeal was taken by the present appellant to the superior court, where the decree was reversed on another ground. From the time of his appointment till the reversal of the decree by the superior court, Francis had acted as conservator, having given bond with surety according to law, and the account allowed by the probate court in the decree now. appealed from, was for services rendered and moneys disbursed in the care of the estate of the ward during that time. The appellant assigned in the superior court, as reasons of appeal, that Francis was never legally appointed conservator, that the decree of the probate court appointing him had been reversed by the superior court, and that the' court of probate had no jurisdiction over the subject of the account after the conservator had gone out of office.
    Upon the foregoing facts, the case was reserved for the advice of this court.
    Tyler, for the appellant,
    contended that the regular judge of the probate court was not disqualified to act, at the time of the appointment of Francis as conservator, by reason of his being one of the selectmen of the town and as such a party respondent to the application ; that the selectmen are not parties to such an application in the ordinary sense, and only nominally so, having no pecuniary interest in • the matter, and not being liable for costs ; that if the judge was not disqualified, the judge of the adjoining district had no jurisdiction, and his proceedings were void ; that if the appointment was not originally a nullity, it became such by the reversal of the decree by the superior court; that if the appointment was a legal one, yet that the conservator could only expend the ward’s money, for the benefit of the ward and of his estate, and, if he advanced his own money, had no other remedy than any other creditor, and no lien on the estate that would remain after he had ceased to be conservator ; citing Norton v. Strong, 1 Conn., 70 ; and that a court of probate had no jurisdiction over the account of a conservator after he had gone out of office, for the purpose of allowing the same out of the estate of the ward.
    [ *270 ] * Calef and Culver, for the appellee,
    contended that the regular judge of probate was disqualified by being a party, as one of the selectmen, to the application for the appointment of a conservator; that he was not a mere nominal party, as the statute required the selectmen to be made such for the purpose of seeing to the interests of the town in the matter, such an appointment being important to the town that the estate of the ward might not be wasted and he become a burden upon the town ; that if he was not legally disqualified, yet that it was enough that he acted in good faith, and called in the adjoining judge in the belief that he was disqualified ; that the acts of the judge so called in would not be void, as it was a question, not of the jurisdiction of the probate court, but of the organization of a court confessedly having jurisdiction ; that the reversal of the decree by the superior court could not affect the case, as the appoinment was good until such reversal, the appeal not vacating the decree below ; and that the probate court had jurisdiction over the settlement and allowance of the conservator’s account after he had gone out of office, the whole matter of the appointment and supervision of conservators being now conferred upon the courts of probate, and the bond given by the conservator expressly binding him to a settlement of his account with the probate court, while a right of appeal protects all parties interested.
   Sanford, J.

The first question presented in this case is, whether, upon an application to the court of probate for the appointment of a conservator, made by the relatives of the “ incapable person,” the judge of the district in which the application is made is disqualified because he is one of the selectmen of a town embraced in the district—the selectmen of such town being made parties to the application, and duly summoned as the law requires.

The sixtj'-first section of the statute relating to courts, (Rev. Stat., tit. 5,) provides that whenever any judge of probate’shall, by reason of relationship, interest, or other cause be disqualified, the judge of probate of an adjoining district shall act *in his stead, unless, &c. And the second section of [ *271 ] the act concerning idiots, lunatics and spendthrifts, (Rev. Stat., tit. 25,) provides that, whenever the application for the appointment of a conservator shall be made by the relatives of any incapable person, the selectmen of the town in which the respondent resides shall be made parties thereto, and some one of them shall be notified of the time of hearing such application.

Selectmen are, for most purposes, the agents of the town and the guardians of its treasury, appointed (in the language of an ancient statute) “ to take care of and order its prudential affairs,” (Stat. ed. 1808, p. 6.49,) as well as to inspect the conduct and management of all persons residing in it, with an especial refer* ence to the protection of the town ¿gainst liability for the maintenance of persons reduced to want. It is not without good reason, therefore, that the legislature have'required that, when the selectmen are not themselves the applicants for the appointment, they shall be made parties to the application and notified of the time of its being heard, in order that they may see to it that the interests of the corporation which they represent shall not be injuriously affected, or jeopardized by an uncalled for appointment, or an unfit appointee.-

The selectmen then being parties representing the interests of the town, Judge Hull, if he had not declined, would have been in his court of probate, representing interests’in conflict with the interests, either of the applicants or respondent, or of both of them; and the extraordinary spectacle would have been exhibited, of an individual, in the character of a party in court, contesting a claim upon which as judge of that'court it was his duty to decide. It would be shocking to all our notions in regard to judicial dignity, impartiality and decorum, to witness, in the same person, at the same time, the exercise of functions so incongruous and incompatible.'

In our opinion Judge Hull, though not on account of relationship or interest, yet for the other cause ” that he was a select man of the town, and therefore necessarily a party, [ *272 ] *was disqualified to act as judge on the hearing of the application, and did right in declining. And no other objection to the acting of Judge Clark being taken, the original appointment of the conservator was legally made.

The next question is, whether the court of probate had authority to accept and record the conservator’s account after the revocation of his appointment.

No question is made in regard to the items of that account or the regularity of the conservator’s proceedings prior to the revocation. And the court of probate merely accepted the account and ordered it to be recorded, but made no other order or decree regarding it.

The effect of such ’a proceeding upon the ultimate rights or remedies of' the conservator and the ward need not now be determined. And we have no occasion to call in question the doctrine of the case of Norton v. Strong, 1 Conn., 70, cited on the argument, the only point decided in that case being, that the conservator was n'ot the owner of produce' raised on the ward’s farm and remaining on hand at the death of the ward, and had no lien upon it for the-balance of his account, and, consequently, that a duly'authenticated copy of the conservator’s' account, which had been examined, allowed and lodged on file by the court of probate after the ward’s death, was not admissible evidence on the trial of an action of trover against the ward’s executor, to prove such ownership or lien, although the account contained a credit for the produce and showed a balance still due to the conservator.

The whole scope and structure of the statute now in operation, indicates the intention of the legislature to vest the power in, and make it the duty of the court of probate to liquidate and adjust the conservator’s account. Thus, the first section provides that the conservator shall give bond with surety, payable to the judge of probate and his successors in office, for the faithful discharge of his trust. The third, that he shall make and return to that court a true and perfect inventory of the ward’s estate; and render to said court his account of the management of his trust when thereto required ; and shall be allowed a reasonable compensation *for his services. [ *278 J The fourth, that he shall manage the estate in a husbandlike manner, and apply the annual income and profits thereof to support the ward and his family; that he may collect all debts due to the ward, and adjust and settle all accounts and debts due from him, and may sell or dispose of the personal estate of the ward to pay his debts and support him and his family. The fifth, that if the annual income of his estate shall be insufficient to support the ward and his family and to pay his debts, the court of probate, on application of the conservator, shall liquidate the debts due such person, and thé expenses of his support, and, if it shall find the personal estate insufficient to discharge the same, may order the sale of the real estate, and empower the conservator or some other person to sell and convey the same, the party so empowered first giving bond to dispose of the proceeds under the direction of the court and to render his account to said court when required. The sixth, that when the ward shall be restored to his capacity, what remains of his estate shall be returned to him, or in case of' his death to his heirs, &c., after a reasonable allowance to the conservator for his services, to be ascertained and allowed by the court of probate. And the ninth, that every conservator shall annually render to the court of probate his account with his ward, containing the particulars and stating the situation of the estate, and that the settlement of all accounts of conservators appointed by the county court before the passing of the act, shall be made before the court of probate, &c.

But to what purpose is the conservator to render his account to the court of probate if that court has no authority to examine, liquidate and allow it ? The conservator is entitled to a reasonable compensation for his services out of the funds in his hands, at the death of the ward or the restoration of his capacity, and the amount of it can be ascertained only upon an examination of his account, and allowed only by the court to which that account is rendered. And as in the case of the ward’s death, or the restoration of his capacity, so upon the removal or resignation of the conservator, the court of probate [ *274 ] seems the peculiarly appropriate tribunal for *the examination, adjustment and settlement of his account. In the latter cases as in the former, the conservator, if he has conducted fairly, is justly entitled to a reasonable compensation for his services, and, by an obvious analogy, the amount should in both cases be ascertained in the same way, and settled by the same authority. And besides, the obligee in the bond, whose duty it'may be to enforce the same by suit, ought to be informed, by the rendition of the conservator’s account, in what manner his duties have been performed and what is the condition of the estate.

We are aware of the case of Butts v. Spalding, 5 Conn., 427, but we find nothing in the determination in that case in conflict with the opinion above expressed. The Chief Justice indeed says that the county court had no jurisdiction to settle a conservator’s account after the conservator’s death. But the only point decided was, that the action of the county court, in the settlement of a conservator’s account after his decease, was not a judgment upon which an action of debt could be maintained by the ward, to recover the balance found due to him upon such settlement. No such question arises in this case.

No sufficient cause is shown for the reversal of the decree of the court of probate, and we therefore advise the superior court that it be affirmed.

In this opinion the other judges concurred

Probate decree affirmed.  