78 Va. 297 | Va. | 1884
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Elizabeth City county, pronounced at the April term thereof, 1879.
The facts, so far as necessary to be stated, are these: Bailey T. Elliott, late of York county, departed this life about the year 1844," intestate, leaving, surviving him, a widow, Susan, and three children, namely: Isabella, George B., and John Elliott. All of these children were, at the time of their father’s death, infants, aged, respectively, six, four, and two years.
In the year 1851 an account of said George W. Elliott, as administrator of said Bailey T. Elliott, was returned to the county court of said county, which purports to have been settled on the 31st day of December, 1846, by which it appears that the estate was then indebted to the administrator in the sum of $480.88. The record does not disclose any other settlement of his transactions by said George W. Elliott, either as administrator or guardian.
Hot very long after his qualification as guardian of his said wards, Geo. W. Elliott, as such guardian, instituted suit, and proper proceedings were had, in the circuit court of York county, for the purpose of having said land, of which the said Bailey T. Elliott died seized, sold; and on the 28th day of September, 1847, in obedience to a decree of said court, made in said suit, the same was sold for the sum of $1,030.00, and, after deducting expenses and the interest therein belonging to said widow, the residue, $750, belonging to said infants, was invested in a house and lot in the town of Hampton, and this house and lot became the home of said widow and her children, the said wards, and where the latter were sheltered from their tender infancy until they attained nearly, if not quite, their years of maturity; when, in 1861, the house was destroyed by fire, at the burning of said town of Hampton. This proceeding for the sale of the said land and the investment made, was at the in
Bailey T. Elliott, at the time of his death, owed his brother, the said George W. Elliott, a considerable debt, evidenced by bond. The slaves owned by decedent were hired out, and the widow collected the hires, which did not exceed $400 per year, and appropriated them to the support of herself and said three children, so that no part thereof ever came to the hands of said administrator and guardian. Some ten years after the death of Bailey T. Elliott, on account of some bad conduct, one of said slaves was sold for the sum of $800, and the proceeds applied by said administrator to his said debt against the estate of his dead brother, the amount being insufficient by a few dollars to discharge the same with the interest then accrued thereon. Aside from the sale of this negro, and the interest of said children in the proceeds of said land sale, no part of the estate of the decedent—nothing belonging to his said wards—ever came to the hands of said George W. Elliott, either as administrator or guardian. For the support of herself and children, said widow had nothing but the small sum she derived from the sale of her husband’s.land and the hires of said slaves; and these could afford but a meagre support for the family. In this state of circumstances, said George W. Elliott, administrator and guardian, who was connected with the naval service of the United States, was then unmarried, and a man of considerable means, with a most commendable, open-handed generosity stood nobly in the relation of a parent and kind benefactor to these wards, not for gain,
But by some mistake (it does not precisely appear how it occurred) the house and lot in Hampton was conveyed to-Mrs. Susan Elliott, the widow of said Bailey T. Elliott, and mother of said wards, instead of being conveyed to them. Some time before the war, and when George W. Elliott was-about going to sea, being advised that said house and lot was improperly conveyed, and apprehensive that trouble might grow out of the mistake thus made, he, through his. attorney and agent, procured a deed to be made by Mrs. Susan Elliott in favor of her children as to said house and lot; which deed was duly executed and delivered to said agent as an escrow to be held until the children became of age, when at their choice they could take and hold their property thereunder, or release it to their said mother. This deed was by said attorney and agent placed for safe keeping in an iron safe in his law office in the town of Hampton, and was destroyed by fire at-the burning of that town early in the war.
Since the war, at the suit of the creditors of Mrs. Susan Elliott, the lot in Hampton was sold and the proceeds applied to the claims of said creditors, the appellees interposing no objection and asserting no claim to said lot of land. In the meanwhile said widow had acquired other property in said county in her own right fully equal in value with said lot, which passed at her death to her said children and grandchildren, and which might have been subjected to the demands of said creditors, but was not, as the sale of said lot was sufficient; so that in point of fact no loss was sustained by the children and grandchildren of Bailey T. Elliott, to whom said lot really belonged.
Such being the facts, Morton B. Howell, who was the husband of said Isabella, and George B. Elliott, the only
The said Thomas Tabb, administrator of Geo. W. Elliott, answered the bill, stating the fatherly care and protection extended by said guardian to his said wards in their sustenance and education at his own expense, amounting to several times as much as their entire patrimony; stating that by some mistake the house and lot in Hampton had been conveyed to Mrs. Elliott, the mother of said children; that subsequently, George ~W. Elliott had, by his agent and attorney, procured from Mrs. Elliott the deed protecting the rights of said children and wards, and the destruction
The cause having been matured for hearing, on the 24th day of April, 1875, an account was ordered to be taken of the transactions of said George W. Elliott as guardian, and requiring, in aid thereof, that Thomas Tabb, administrator of said George W. Elliott, produce before the commissioner taking the same, all books, papers and vouchers in his possession or under his control, touching the matters thereof. Accordingly the commissioner took and returned the account, in which the commissioner, taking as a basis the settlement of his administration account by George ~W. Elliott, before referred to, and charging said Elliott as guardian with the actual receipt of the hires of the slaves, the $800 received from the sale of the slave Sally, and crediting him with the debt and interest accrued, due him from the estate of the said decedent, Bailey T. Elliott, as of the date of the sale of said slave, and with the expenses incurred for clothing, board and tuition of his wards, according to the then prevailing rates, as near as the same could be ascertained; by which account each of said wards appeared largely indebted to their guardian. This account was taken by Commissioner S, W. Armstead, and no exceptions thereto appear in the record, nor is there any decree adopting the settlement therein reported, nor recommitting the same; but it must have been recommitted, as there is in the record a further report by Commissioner John Booker, purporting to have been made in obedience to a decree in the cause, rendered on the 24th day of April, 1875, which
This is an unfortunate controversy, which has grown out of ill-feeling, engendered in respect to the distribution of
The principle upon which guardians' and other fiduciaries are held accountable is, that in whatever they do they shall act in good faith, and with the same wisdom and discretion that a prudent man is accustomed to exercise in the management of his own affairs. 2 Barton’s Chy. Pr. 702; 1 Minor’s Inst. 448; Knight v. Lord Plymouth, 3 Atk. 480; Thompson v. Brown, 4 Johns. Chy. R. 619; Taylor v. Benham, 5 How. 233; Elliott v. Carter, 9 Gratt. 541; Myers v. Zetelle, 21 Gratt. 758 to 760.
In the last named case, Christian, J., delivering the opinion of this court, said: “ There has been great uniformity in the decisions of the English and American courts in the application of the equitable principles which fix the liability of trustees and other fiduciaries, with respect to the trust subject; and I believe no case can be found where a trustee, guilty of no mala ftdes, has ever been held responsible for a loss occurring from a mere error of judgment, without any wilful default on his part when-the act done was within the power under which he acted.”
Squared by these principles, how stands the case under consideration? Here, by proper proceedings in a court, not only of competent jurisdiction, but one especially charged by statute with the custody of such Subjects, one piece of real estate is sold, the interest of the widow in the proceeds is paid to her, and the residue, belonging to her children, is, by their guardian, promptly invested in another piece of real estate—a home for mother and children— which they enjoyed under- circumstances of peculiar advantage to them for a long period of years—until, in fact, from tender infancy these children attained nearly to mature years, and then the buildings are destroyed by fire, and only the bare lot is left to represent the investment. There can be no question as to the authority of the guardian to make such investment, nor has any question been raised as to the wisdom or propriety of this investment, which was a boon to the mother and her children. It is the duty of a guardian to invest properly the funds coming to his hands, belonging to his wards, and for his failure to do so he will incur responsibility according to the nature of the case and its attendant circumstances. The burthen of complaint in this case is not that the investment was made as made, but that the property invested in was conveyed to the mother and not to the children, whose money had purchased it; that thereby it was lost to the children, it having been sold to pay their mother’s debts; the children having grown up under the belief that it was their mother’s property and not theirs.
This pretension is not and cannot be borne out by the facts. It might be if the conveyance1 to the mother had
It is of no avail to say that by sharp-sighted vigilance the guardian might have prevented the improper conveyance or mistake, for whatever the error was, it was substantially cured by the guardian in procuring from Mrs. Elliott the deed before referred to; at the time of the execution of which these wards must have been, respectively, about eighteen, sixteen, and fourteen years of age, and, living with their mother, as they were, it is incredible that they did not know all about it. That they did have such knowledge is borne out, certainly to some extent, by the deposition of George B. Elliott himself, who seems to have been prominently active in this litigation. He, on cross-examination, admits that he visited his uncle and former guardian in Virginia, in the year 1867 or 1868, long after he became of age, and when asked if he had, after arriving at age, ever said anything to his uncle in regard to the claim asserted in this suit, answered: “I do not remember
It is manifest that this suit was an after thought; and this is also borne out by the further admission made by said George B. Elliott, when, in his deposition, on cross-examination, he was asked why he did not, on his visit to his uncle in 1867 or 1868, then ask for and have a settlement with him, he answers: “ I had not seen him for years. I had only four or five days to remain. My visit was for pleasure and reunion, not to discuss dollars and cents. Moreover, I had paid no attention to the estate; had the
There is no pretence that George W. Elliott ever appropriated, as guardian, one dollar, or one cent even, of his ward’s money to his own use, or that he ever in any way misappropriated any part of it. His estate, after his death, and after all his acts of generosity to his wards, is sought to be charged with a claim which, at the utmost, has no foundation other than a mere mistake; a claim which would never have been presented had he lived, and which in justice and good conscience should never have been made against his estate after his death. It is not just, it is not lawful, that sanction should be given to claims asserted against fiduciaries under such circumstances; for to do so would be to deter worthy men from the assumption of such relations, under such responsibility, as would not be willingly incurred by prudent men. Such a policy would be highly detrimental to the public, and opposed to the uniform current of decisions, both English and American, on the subject. Hence the remark of Lord Hardwicke, in ex parte Belchier, that “ these rules should not be laid down with such strictness as to strike terror into mankind acting for the benefit of others, and not their own.”
Where there is no bad faith, no wilful default on the part of one in the situation of a trustee or other fiduciary, the courts will always favor him. So in Thompson v. Brown, 4 Johns. Chy. R. 619, Chancellor Kent declares
It is impossible to discover in this case any bad faith,, any Wilful neglect. On the contrary, the whole case teems with the evidences of integrity and good faith; with evidence that this guardian, free from all desire for personal gain, assumed the position of guardian to his dead brother’s children only that he might bestow, as he did, to better advantage, a bounty compared to which their little-patrimony was a trifle. Looking at all the circumstances,, in no possible view can the claim asserted be sustained. For these reasons we are of opinion that the decree appealed from is clearly erroneous, and must be reversed and annulled and a decree entered dismissing the claimants’’ bill.
Decree reversed.