Alexander's Estate

156 Pa. 368 | Pa. | 1893

Opinion by

Mr. Justice Thompson,

In 1867 Newton Lightner became the guardian of Mary, Howard, Percy and James, minor children of James K. Alexander, deceased. As such guardian he received $4,200, the purchase money of certain real estate belonging to the estate of James K. Alexander, deceased. Of this sum $1,400 was the interest of the widow, and the remaining $2,800 belonged to his wards. The entire sum was invested by the guardian in a judgment against James H. Hopkins, the father of Mrs. J ames K. Alexander. This judgment has been regularly revived up to the present time. Upon the judgment bond was noted that one third of it belonged to Mrs. Alexander, the interest to be paid to her for life, and upon her death the principal to be paid to her children, and two thirds to the guardian of the minor children of James K. Alexander, deceased. In April, 1885, the guardian submitted to his wards an account of his receipts and expenditures, and on May 1, 1885, Percy Alexander and his mother, Mrs. Alexander, certified that they had examined it and found it to be correct. In July, 1885, when all of the wards except James were of age, he made a settlement with them, and they executed a full release from all claims and demands against him. In this they acknowledge that they have received their respective shares, they have examined the account, and have found it to be correct. In this settlement they receipted for their respective interests in this judgment against Hopkins. Subsequently Hopkins, the debtor, paid to Howard the interest on his proportion of it, and Percy the interest on his proportion, both up to April 1, 1889. The guardian having died in November, 1889, the appellant was appointed administrator c. t. a. In July, 1890, Howard and Percy filed a petition for a citation upon the administrator to file an account. He accordingly filed his account January 2, 1891, and claimed credit for the guardian for the respective amounts of these wards’ interests in the Hopkins judgment, and for a counsel fee of $150. The auditor allowed the counsel fee and those credits as to the wards that were of age when the release was executed, and disallowed any as to the ward who was not of age at the time. The court sustained the exception of the wards, overruled the finding of the auditor, and directed him to surcharge the accountant with the amounts of these wards’ interests in the judgment and $100 of the counsel fee. This was done in an amended report, and it is assigned for error.

The guardian was the uncle of the wards, and appears to have been actuated by a kind interest in them and a desire to serve them. From the time of his settlement with them in 1885 up to the time of his death, no question appears to have been raised either as to the propriety or correctness of his actions as guardian. The letters written in 1887,1888 and 1889 by Percy and James establish this conclusion, and clearly indicate that his action in regard to the Hopkins judgment was unquestionéd by them. They in addition received from Hopkins interest on their respective portions of this judgment.

The auditor finds “ that while no actual transfer appears in the prothonotary’s docket by Newton Lightner to these wards of said respective portions of this judgment, yet the fact is that James M. Hopkius, the debtor in this judgment, had paid to Howard Alexander the interest on 1158.21 thereof up to April 1, 1889, the exact amount specified by Newton Lightner in said release to be Howard’s portion thereof, and he paid to Percy Alexander the interest on $648.45 thereof, up to April, 1889, the exact amount specified by Newton Lightner in said release to be Percy’s portion thereof, and he paid to James H. Alexander the interest on $248.90 thereof up to April 1, 1889, the exact amount specified in said release to be James’s portion thereof.” Howard in bis receipt for interest recites “ that it is on $158 his portion of the judgment.” In making the investment in this judgment no fraud is alleged or shown. It seems to have been regarded as judicious, botb by tbe widow as well as by the guardian. In fact the auditor finds “ as to the judgment not being good by reason of prior liens, there is no evidence offered to show the value of the property, or that it would not bring enough to satisfy this lien in full, and no attempt has been made to collect it.” When tlie wards, three of them being of age, executed the release, there is no evidence that the guardian concealed any fact or made any misrepresentations. He acted in the transaction in entire good faith, and the audit- or finds “ the release is sufficient in form and clearly sets out the manner of payment, and there is no evidence that these wards were not fully made acquainted with its contents.” They in fact recognized his good faith by remaining silent for four years, by accepting their proportions of this judgment, and by receiving from the debtor interest on the same for several years. Having made this settlement, executed the release, received interest, and having remained silent and acquiesced in them for years, these wards, without allegations or proof of fraud or mistake, cannot be permitted to set them aside. In Roth’s Estate, 150 Pa. 266, it is said by Chief Justice Paxson : “ Tbe rule upon this subject was fairly stated in Luken’s Ap., 7 W. & S. 48, where it was said by Kennedy, J.: ‘ The ward, under the express provision of the act of assembly, has a right to require that such settlement shall be made by the guardian before the court; but if be chooses, after bis arrival at full age, to make a settlement with his guardian without tbe intervention of the court, and, after having received the amount agreed to be coming to him, to give an acquittance or release to the guardian, he ought not to trouble the court, or his guardian either, afterwards, without pointing out some mistake or other error in the settlement, or showing that a fraud has been practiced on him by his guardian whereby he has been prejudiced. ’ ”

The fact that there was no formal transfer on the docket of their respective portions of' the judgment to the wards will not warrant the conclusion that they are not bound by the release and settlement made in 1885. As the widow, the guardian, and the wards were the owners of the judgment, doubtless it was considered advisable that a formal record of the ownership of each should not be made. As these wards accepted their proportions of the judgment as found by the auditor, as the debtor paid them interest on their respective portions, as they have for years been in fact the owners of their interests in the same, without any request to assign upon the record such respective interest, and as such ownership with all the rights incident thereto is not denied by anyone, they cannot successfully assert that they are not the owners, because no formal transfer has been made on the docket.

In regard to the counsel fee, it is sufficient to say that it was earned, and it was properly charged against the wards.

For the reasons thus given it is now ordered and decreed that the decree of the court below be reversed, that the original report of the auditor be confirmed, that distribution be made accordingly, and the appellees pay the costs of this appeal.