Bannister v. Bannister

44 Vt. 624 | Vt. | 1872

The opinion of the court was delivered by .

Barrett, J.

It seems to the court that the rules and reasons which have long prevailed, in charging a guardian like the one in this case with duty and accountability, require of the plaintiff something more than is shown in this case, in order to discharge him in respect to the fund entrusted to him as guardian. The whole theory of statutory guardianship of property assumes the incompetency of the ward to take care of and deal with his own property, to as great an extent, at least, as the common law assumes the incompetency of a minor to bind himself by contract. In this case the minor had no legal competency to contract with his father, so as to bind himself. By such bargain, the father, as against the minor son, had no enforceable claim to the money stipulated. It was not the province of the guardian to participate in such contract. It was for him to so deal with the fund as to be able to account for it when the ward had a right to call on him in that behalf. This did not accrue till he arrived at his majority. Prior to that, it was the very purpose of the law, in requiring the interposition of the guardian, to put the fund beyond the control and disposition both of the minor and his father, so that the ward would be sure to have the full benefit of it on arriving at full age. In this case, the guardian virtually paid over the money to the ward during his minority, to be appropriated in fulfillment of a contract by which he was not bound. We think if the guardian in this case would claim his discharge in respect to the fund, he must show affirmatively that the ward is at least no worse off than if he had his money, with interest, on arriving at his majority. The cases in which it is held that the ward cannot keep the proceeds of the money, and have the money too, are not applicable in this case, for by the very theory the money went from him at once, and whether he would get any adequate return was wholly contingent, depending on his industry, business tact, and providence. So far as this fund is concerned, the result of this contingency is cast by the law on the guardian, and he must show himself well out of it, so far as the interest of the ward depends on such result.

Standing in such position, he has seen fit to come into court without any showing as to such result. As the transaction itself was an adventure of hazard, in which the guardian assumed the risk, it is impossible for the court to imply or presume that the result was not prejudicial to the ward, in reference to the fund entrusted to the guardian. This view in this case may have a feature of harshness, and this claim of the defendant may smack of meanness ; but however this may be, we thipk the law'requires the judgment to be affirmed.