55 Cal. 81 | Cal. | 1880
Defendant Henry M. never became executor of the estate of Edwin A. Willis, deceased. He did not qualify, nor were letters testamentary issued to him. Nor was he guardian of the person, or property, of the infant, Amelia Willis, Jr. True, one wrongfully intermeddling with the property of an infant is sometimes held by equity as a guardian, but only (as in the case of an administrator de son tort) for the purpose of an accounting ; he acquires none of the rights of a guardian. Pishon was appointed testamentary guardian—an office not in itself assignable, because a personal trust. If, however, it could be held that the policy of our law will permit a testator to provide by his will that a testamentary guardian therein appointed may delegate his powers, Henry M. never gave bond, nor qualified, as required by § 1758 of the Code of Civil Procedure.
Nevertheless, Henry M. Willis was a trustee, holding the moneys of the infant, Amelia, Jr., which came into his hands in trust for her. The mortgage executed by him to secure such moneys was altogether for her benefit, and the fact that it is set up in her answer by her guardian ad litem, and relied upon diercin, constitutes sufficient proof of delivery to and acceptance by her.
The Court below found that there was no registered satisfaction of the mortgage to Amelia, Jr., other than one “ caused to be entered” by defendant Henry M. Willis, “ acting as guardian.” We understand this to be a finding that the marginal satisfaction purports to be executed by him as guardian. Whether, however, his pretended character appears upon the record is immaterial, since he was not in fact guardian. The record then showed an attempted satisfaction of a mortgage by
It is urged by counsel, that inasmuch as it was agreed between the assignor of plaintiff and defendant, Henry M. Willis, that the Hubbell mortgage should be paid out of the moneys loaned by the former, and the sum was paid then and there, the transaction operated an equitable assignment of the Hub-bell mortgage ; that the instrument sued on is in legal effect a continuation of the Hubbell mortgage, and, to the extent that the money loaned was used to pay off the Hubbell incumbrance, plaintiff should be decreed priority over the mortgage to Amelia Willis, Jr. Any finding on that subject, however, is entirely outside of the issues made by the pleadings, and one conclusive answer to the proposition of counsel is, that plaintiff has not sued as assignee of the Hubbell mortgage, but has brought this action to foreclose the mortgage to Drew.
Judgment affirmed.
Morrison, C. J., and Ross, J., concurred.
Thornton, J. (in bank, on petition for rehearing) :
The petition for a rehearing before the Court in bank in this case is denied.
The second paragraph of the opinion of Department No. 1 is in these words : “ Nevertheless, Henry M. Willis was a trustee holding the moneys of the infant Amelia, Jr., which came into his hands in trust for her. The mortgage executed by him to secure such moneys was altogether for her benefit, and the fact that it is set up in her answer by her guardian ad litem, and relied upon Qand proved) herein, constitutes sufficient proof of' delivery to and acceptance by her.” To which we desire to add, “ and this must be so, since if it (the mortgage) had not been for the benefit of the infant, the Court below, it must be presumed, as it had control over the conduct of the guardian ad litem, would not have allowed him to set it up.” (Story’s Eq. Jur., § .1349-1353 inclusive ; Sanford v. Head, 5 Cal. 297 ; People v. Houghtaling, 7 id. 348; People v. Davidson, 30 id. 379; Dougherty v. Creary, id. 290; Joyce v. McAvoy, 31 id. 279, et seq.)
We are further of opinion that the facts as found show that the mortgage as taken was in exact compliance with the terms of the will, and in that view, a voluntary acceptance by the infant was unnecessary—since the law compelled her acceptance. She takes under the will, and is bound by its terms. (Morrison v. Bowman, 29 Cal. 346.
Whether Henry M. Willis was guardian or not we consider immaterial. The same result follows whether he (Willis) was or was not the general guardian of the infant Amelia Willis.
Sharpstein, J., Myrick, J., McKee, J., and McKinstry, J., concurred.
