
    William H. Hamilton vs. Edwin S. Pickett, Conservator, et al.
    Third Judicial District, New Haven,
    June Term, 1918.
    Prentice, C. J., Roraback, Wheeler, Beach and Shhmway, Js.
    Á 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.
    Argued June 7th
    decided July 23d, 1918.
    Action against a conservator and the wife of his ward to recover the price of wearing apparel furnished the'wife for her personal use, brought to the City Court of New Haven and tried to the jury before Hoyt, J.; verdict and judgment for the plaintiff against both defendants, and appeal by the defendant conservator.
    
      Error and new trial ordered.
    
    Before appealing to this court, the defendant conservator filed an appeal to the Court of Common Pleas for New Haven County, which the trial court refused to allow.
    
      No error in this refusal.
    
    The principal question is whether the trial court erred in denying the defendant's motion to set aside the verdict as against the evidence. The most that the evidence of both sides tended to prove was, that the appellant is the conservator of Jerome H. Owens, a man over eighty years old, who, since the spring of 1916, has been under a conservator. This defendant succeeded a prior conservator, and was appointed March 12th, 1917. In January, 1917, Mr. Owens, the incompetent, married a woman considerably younger than himself. He was living with his wife and receiving support for himself and wife from the defendant conservator, when the purchases in question were made. Between March 24th and April 6th, 1917, the wife of Mr. Owens personally purchased from the plaintiff various articles of merchandise, the dates, prices and descriptions of which are set forth in the bill of particulars as follows:—
    1917
    Mar. 24 House Gown $2.95
    House Gown 1.25
    Bath Robe 10.50
    Waist 1.95
    30.00 26 Gown
    1.49 29 N. Gown
    1.49 Chemise
    .95, Chemise
    1.95 Apr. 2 N. Gown
    2.95 Petticoat
    3.00 6 Changes on gown
    23.50 Gown and changes
    $81.98
    Apr. 3 Credit Bath Robe 10.50
    
      When these goods were purchased the wife was not accompanied either by her husband or his conservator. It also appears that these goods were bought by the wife without the knowledge or approval of the conservator. It was conceded that the amount and value of Mr. Owens’ estate at this time was about $14,000. The conservator was making an allowance of $15 per week to Mr. Owens. and his wife for their support. This amount was fixed by Mr. Owens, and it does not appear that either Mr. Owens or his wife claimed to the conservator that this allowance was not sufficient for their proper maintenance and support. Neither was it shown that Mrs. Owens actually needed the goods which were purchased, or that the conservator had failed to furnish her or Mr. Owens with necessary wearing apparel or means to provide it.
    
      Edwin S. Pickett, for the appellant (defendant conservator).
    
      Sidney C. Rosenberg, for the appellee (plaintiff).
   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, § 6771), 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 Atl. 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 hable, 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.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.  