Eckford v. Evans, 56 Miss. 18

56 Miss. 18 | Miss. | 1878

Simrall, C. J.,

delivered the opinion of the court.

In 1873, Andrew J. Evans, guardian of his wards, loaned to W. B. Evans, in the aggregate, $3,600. The money was paid to W. B. Evans on three several checks, drawn by A. J. Evans, guardian, on Adams, Spratt & Co., bankers. The money loaned was derived from a policy of insurance on the life of James A. Evans, deceased, for the benefit of his wife and children. The guardian had money to his credit, in his fiducial character, with these bankers.

We are satisfied that the testimony satisfactorily establishes the above facts, though there is some controversy about them.

The allowance of the claim to share in the distribution of the insolvent debtor’s estate was contested because it was barred by the three years’ Statute of Limitations, the argument being that it was founded on open account, and is governed by sect. 2151, Code 1871. The administrator and exceptor insists that the claim is an “ open account,” to which the last clause of tlie section applies. On the other side, it is contended that it is embraced in the words “ contract or liability, expressed or implied,” and is not barred until six years, etc.

It is further insisted that it is immaterial which limitation applies ; that the creditors are the wards of the guardian, who were, and are, under the disability of infancy, and are within the saving clause of the Statute of Limitations.

There are a series of cases in our books, beginning with Bacon v. Gray, 23 Miss. 143, which have placed a construction on the saving clauses of the Statute of Limitations in favor of infants and married women, which protect their interests, which would otherwise be lost through the negligence or laches of their trustees. They announce the principle that although the legal right may be barred, yet that does not operate as a bar also of the beneficial interest or estate, if the owner was under one of the disabilities of infancy, coverture, etc. Speaking of the extent of the saving, the language in the case citéd is, that it is “ general, * * * and operates against all persons. * * * To hold that time does create a bar against infants in certain cases is to interpolate on the statute.” The reasoning of the court is on the postulate that the infant is unable to contract, or, in his own name, to bring to his aid any of the processes of the court. There must intervene between himself and his property, or rights, or interests, a trustee. Indeed, the law forces his property into the hands of some sort of trustee, and one of the purposes of the saving was protection against the negligence and mismanagement of guardians, and others in like i’elation. The meaning of the statute, in these clauses, is summed up to be, that “ the rights of persons laboring under disabilities shall not sufier in consequence of such disabilities.” This case was followed by Fearn et al. v. Shirley et al., 31 Miss. 301; Pearson v. McMillan, 37 Miss. 609; Anding v. Davis, 39 Miss. 574; Parmele v. McGinty, 52 Miss. 481. In various circumstances this court has, over and over again, asserted that the rights of those under disability shall not be swept away by the ignorance, carelessness, or negligence of trustees ; and that, although the legal title may be barred, the equitable estate which was grafted upon it shall not be prejudiced thereby.

These doctrines have not been questioned in this case ; but it is argued that they have no fitness to this contestation. The effort of counsel was to place the guardian in the category of plaintiff in a court of law, suing to recover the money back. But is not that a much narrower view of the real question than was taken in Pearson v. McMillan, supra? There the recovery would have enured to the ward. She was regarded as “ the real party to the action,” and “ no defence to the merits can prevail unless it be a bar to it, considering the suit as brought by the ward, —the real plaintiff.”

Stripping the transaction in question of all disguises of form, and we see that the guardian of the wards had on deposit in bank, in his name as guardian, a large sum of money. • This money was derived from a policy of insurance for their benefit. Evans, the guardian, loaned this identical fund of his wards to the'intestate. The money was paid to him, or his order, on the checks signed by the guardian. It was never repaid by the intestate in his lifetime ; it has been pressed, as a probated claim, against the insolvent estate.

The fund loaned belonged to the wards ; its administration pertained to the guardian.

The wards, through their guardian, give the Chancery Court to know that the intestate was debtor to them, as the borrower of their money. This is resisted because the guardian may be barred of a suit at law. Whilst that might be so, the estate would continue the debtor of the minors, and their equities would not be prejudiced thereby.

A court of equity ought, especially in this case, to look through all forms, and seize upon the substantial merits.

The borrower of their money has died, his estate is insolvent, and a distribution pro rata is about to be made among its creditors. The real creditors (as to this claim) are the infants. Their beneficial and equitable rights are not barred, and it was right to award them -apro rata share of the fund. A payment of it to their guardian is a payment to them. If that redress were denied in this proceeding, the infants would remain creditors of the intestate until their majority, and longer, with a right to recover the debt. Yet, with such ultimate right, if the court refuses them all share in the distributive fund, that is neither reasonable nor just.

We think that the chancellor was right in holding them entitled to participate in the distribution. The chancellor was of opinion that a letter of the intestate, read at the hearing of the exceptions, was sufficient to take the claim (a note) due to Mrs. Harper out of the Statute of Limitations.

The principle stated in Trustees of Canton Female Academy v. J. J. Gilman, 55 Miss. 148, is that the writing, to have the effect of a new promise, or of a waiver of the statute, must identify the debt to which it relates, with such definiteness as to the amount due, and the creditor, that nothing-important is left open to further testimony. This rule is deduced from Lawrence v. Mangum, 30 Miss. 171, and Mask & Harrison v. Philler, 32 Miss. 237. The case of Hart v. Boyt, 54 Miss. 550, stands on its peculiar .facts. The writing-indorsed on the mortgage was for the very purpose of waiving the statute. The debt was admitted, subject to certain credits, which would be shown on the mercantile books of the creditor. The debt was identified, and there was no dispute about the credits.

The letter of the intestate, W. B. Evans, dated 22d May, • 1874, does not refer to any particular indebtedness; nor, indeed, to any debt whatever, except inferentially. The only allusion, directly, to pecuniary matters at all, is in these words: —

“ I wrote to Mr. McKnight about the 1st of this month to know how I should send the money, and have not heard from him. I am going to Aberdeen to-morrow, and will send fifty dollars, which is all I can possibly spare at present,” etc.

This is not such written waiver or promise as is intended by the statute. It was error, therefore, to have overruled the exception to the allowance of Mrs. Harper’s claim as a creditor.

So much of the decree as overruled the exceptions to the indebtedness to A. J. Evans, guardian, and allowed said claim as a debt of the intestate, and entitled to share in the distribution, is affirmed. So much of the decree as overruled the exceptions to Mrs. Harper’s debt, and established it against the estate, is reversed. A. J. Evans, guardian, to recover his costs in this court and the Chancery Court; Mrs. Harper to be taxed with costs.