Potter v. Alcorn

O’Sullivan, J.

(dissenting). As pointed out above, probate courts are statutory tribunals, capable of exercising only those powers bestowed upon them by the General Assembly. Of the two statutes authorizing them to appoint guardians ad litem, one has no pertinence to the case at bar. General Statutes § 7022. The other is § 6861 (as amended, Cum. Sup. 1951, § 1244b), a part of which is set forth in a footnote to the majority opinion. However, since that footnote omits certain language to which I shall subsequently refer, the.first sentence of the section is recited below in full.1

*107Section 6861 was the statute upon which the Probate Court relied as the source of its power in appointing the defendant as guardian ad litem for the minor, David Henderson. It is true that § 6861 provides at the very beginning that “in any proceeding” before it, the Court of Probate may appoint a guardian ad litem for a minor, if it appears that the minor has an interest “in such proceeding.” On their face, these provisions might seem ample to support the court’s appointment of the defendant, since the plaintiff’s application for the removal of Henderson as the natural guardian of his son was the institution of a proceeding before the court, and it is evident that, speaking in the broadest sense, the son had an interest in that proceeding. Such a point of view, however, is superficial, it seems to me, since it is reached without having due regard for the legislative intent expressed in the entire statute. That intent is to be found, not in an isolated sentence, as the majority insist upon, but rather from a consideration of the statute as a whole. Biz v. Liquor Control Commission, 133 Conn. 556, 560, 53 A.2d 655; Lake Garda Co. v. LeWitt, 126 Conn. 588, 592, 13 A.2d 510; Kelly v. Dewey, 111 Conn. 281, 286, 149 A. 840. Indeed, all of the provisions must be read and construed together. West Hartford v. Thomas D. Faulkner Co., 126 Conn. 206, 211, 10 A.2d 592. This is necessary in order that every part of the statute be made operative and harmonious with every other *108part. State v. Dorau, 124 Conn. 160, 168, 198 A. 573; Savings Bank of Rockville v. Wilcox, 117 Conn. 188, 193, 167 A. 709.

As just indicated, the majority rest their opinion upon the first sentence of the statute. If the statute consisted of that one sentence and nothing more, the homage paid to it by my colleagues might be justified and their position might be warranted. Such, however, is not the situation. There are five other sentences, the last of which, when properly analyzed and considered in connection with the others, provides the key to the legislative intent. That sentence recites that “[a]ny guardian ad litem appointed under the provisions of this section may be allowed reasonable compensation by the court appointing him and the same shall be paid as a part of the expenses of administration.” This may be broken down into two propositions: first, the Court of Probate may allow compensation to every guardian ad litem appointed by it and, secondly, the compensation allowed by the court is to be paid as an expense of administration. Since the authority of the Probate Court to appoint a guardian ad litem is derived solely from § 6861, and since that section empowers the court to allow compensation for the services of such a guardian, and since that allowance, when made, is to be paid as an expense of administration, it necessarily follows that authority is lacking in the Probate Court to appoint a guardian ad litem in any proceeding in which there cannot possibly be any expenses of administration. The fact that an estate, through lack of funds, may not be able to pay the compensation ordered by the Probate Court is of no moment. In instances of that nature, the compensation ordered for the guardian ad litem would still be an expense of administration, although an unliquidated one owing to the impe*109cuniosity of the estate. Parenthetically, it might be observed that in situations where there are no assets in the estate to meet the payment of a guardian’s compensation, the court should not go through the useless formality of passing an order for compensation which the probate judge knows cannot be honored.

The plaintiff’s application to remove her former husband as guardian of the person of their son, David, was brought under § 6850 of the General Statutes. That section is devoted exclusively to the subject matter of guardians of the person of a minor. The filing of the plaintiff’s application was not a proceeding in which expenses of administration were incurrable, since such expenses are those arising in the management of an estate. See 2 Locke & Kohn, Conn. Probate Practice, §§ 579, 581. It follows that the Probate Court had no authority to appoint the defendant as guardian ad litem or to order an allowance for his services.

The foregoing permits a construction which will give meaning to every provision of § 6861. As opposed to this, the majority make impossible the harmonizing of the last sentence with the rest of the statute. Indeed, they attribute no meaning at all to the words “expenses of administration,” nor can they logically do so in the light of their interpretation of the legislative intent. Nothing in any enactment of the General Assembly should be treated as superfluous, void or insignificant, unless there are impelling reasons, not here discernible, why this principle cannot be followed. General Motors Corporation v. Mulquin, 134 Conn. 118, 126, 55 A.2d 732.

The conclusion of my colleagues, I fear, will lead to confusion. Since they hold that the defendant was legally appointed, it is inevitable that they must *110uphold the order of the Probate Court that he be paid $500 for his services. The confusion will arise when one inquires from whom or from what source is payment to be sought. Certainly, the plaintiff does not qualify as the debtor because she has nothing to do with any expenses of administration, and the statute does not make her liable for the compensation as one of the taxable costs or fees in the proceeding. The same situation applies to the respondent Henderson. And it would be the height of naivete to assume that the judge of probate is to pay the $500 out of his own pocket.

The position which I have taken is fortified, I believe, by a provision in the first sentence which the majority failed to incorporate in their footnote. This provision permits the Superior Court, “whether acting upon an appeal from probate or otherwise,” to appoint guardians ad litem and to order reasonable compensation for them which, here again, “shall be paid as a part of the expenses of administration.” It strikes me that the legislature intended that the’ Superior Court might exercise this statutory grant of power in those instances where, as the language indicates, minors, incompetents, the undetermined or the unborn might have an interest in an estate. If, on the other hand, the majority are right in their interpretation of § 6861, the Superior Court may appoint and order compensation for a guardian ad litem of a minor whose custody is sought in a divorce action. It will be interesting to learn what expenses of administration there are in a divorce action.

Without pressing the matter further, I am satisfied that the legislative purpose in enacting § 6861 was to permit the appointment of guardians ad litem only-in those situations where the minor may have an interest in an estate which is involved in the proceed*111ing. For this reason, I disagree with the majority opinion.

“See. 6861. appointment op guardian ad litem. When, in any proceeding before a court of probate or the superior court, whether aeting upon an appeal from probate or otherwise, it shall appear *107that one or more persons as individuals, or as members of a designated class or otherwise, have or may have an interest in such proceeding, and that one or more of such persons are minors, incompetent persons or persons undetermined or unborn at the time of such proceeding, the eourt may appoint a guardian ad litem for any of sueh minors, incompetent, undetermined or unborn persons, or may appoint one guardian ad litem for two or more of such minors, incompetent, undetermined or unborn persons. . . .”