54 Ala. 510 | Ala. | 1875
The principle which must control in determining the validity of the release, executed by the appellant to her guardian, the appellee, Lowery, when she was in her twenty-fourth year, before a final settlement of the guardianship, is not matter of doubt or controversy. It is not perhaps capable of clearer or more accurate statement than as it is expressed by Judge Story : “ Courts of equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, unless the circumstances demonstrate in the highest sense of the terms, the fullest deliberation on the part of the ward, and the most abundant, good faith (uberrimafides) on the part of the guardian. For, in all such cases, the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased, as, if the accounts between the parties have not been fully settled, or if the estate still remains, in some sort, under the control of the guardian.” — 1 Story’s Eq. § 317. The principle is founded on principles of public policy, and general utility, and is extended beyond the legal relations of trust, to all the relations of life, in which confidence is reposed and accepted. It is said to be one of jealousy, founded on the reason that no man should be trusted with power that will give him an opportunity of taking advantage of those who voluntarily or of necessity trust him. The purpose is to prevent the abuse of confidence reposed or arising out of the relation, and to remove all temptation to its perversion to selfish interests. The difficulty lies in the application of the principle to the varying transactions
The chancellor, in decreeing against the appellants, following the authority of Kirby v. Taylor, 6 Johns. Ch. 242, distinguishes a release given by a ward, sui juris, from gifts or voluntary conveyances to a guardian, treating the release as primafacie valid, casting on the ward the onus of impeaching its fairness. We declined to recognize this distinction at the present term in the case of Malone v. Kelly, and after an examination of our former decisions, and other authorities, said: “ A trust may be discharged, and the trustee relieved from all liability for his administration of the trust estate, by a release, executed by the cestui que trust, who is fully sui juris. Such release can not be distinguished from any other contract or agreement into which trustee and cestui que trust may enter. If it is made soon after the expiration of the time appointed for the continuance of the trust, and immediately on the emancipation of the cestui que trust from the disability of infancy, as was the release now relied on, it will not be sustained unless the trustee shows affirmatively, that it was executed with full knowledge of all the circumstances, after sufficient deliberation, and ample opportunity of investigating all the accounts- and transactions connected with the trust.” By a release, the guardian may obtain all the benefit, and the ward sustain all the detriment which would proceed from a gift or conveyance. The inducements to an abuse of confidence, and the exercise of undue influence, or to fraudulent practices, to procure its execution, are the same in character and degree as the inducements against which the court guards by the suspicion and jealousy with which a gift or conveyance is viewed. The conservative principle on which the court acts, founded on public policy and general utility, would be directed against form rather than substance, if a release should be distinguished from a gift or conveyance. In Waller v. Armistead, 2 Leigh, 14, the case of Kirby v. Taylor was pressed on the consideration of the court, and it was said: “ Chancellor Kent draws a distinction between a deed giving a gratuity or bounty to a guardian in remuneration of antecedent duty, and a- deed of release, acquittance or discharge. He admits that the policy of the
The release may be, as said by Chancellor Kent, an ordinary act, but it is one into which it is the sacred duty of the guardian not to invite the ward, without a just accounting and a full settlement, or the disclosure of every fact necessary to inform the ward of all with which he is parting, and then committing it to his uninfluenced will whether he will enter into the release or not. When the release is purely voluntary, or its consideration is grossly inadequate, as compared with the liability discharged, its validity must depend on the same principle on which gifts or conveyances depend.
When, and by whatever evidence, the unfavorable presumption the court is compelled to indulge against a transaction between guardian and ward, from which the guardian derives benefit and the ward suffers injury, will be removed, it is neither desirable or possible to define more certainly, than to say, the court must be satisfied there is an absence of any influence, springing out of the relation, and of any violation of duty by the guardian. The act must proceed from the volition of the ward, and he must have full knowledge of its effect. Much depends on the peculiar facts and circumstances attending the particular transaction.
It is not necessary, in the view we take of this case, to determine whether this release does not, under the facts, partake rather of the character of a compromise of pending litigation, into which, if the appellant surrendered rights without consideration, she was. induced rather by her own desire
The facts show clearly that the only matter of controversy on which the release operates, is a supposed liability of the guardian, because of his collection during the war, in Confederate treasury notes, of debts, for moneys of the ward, by him previously loaned. The account filed by the guardian in the court of probate for final settlement, in obedience to citation issuing at. the instance of appellant, and which had been of file for more than twelve months before the execution of this release, fully discloses the fact of these collections. . ,
The exceptions to it, filed by the appellant, were directed only against the credits claimed for these notes. There was not then, or now, any objection that the guardian did not charge himself with aLL the moneys he had ever received or ought to have received.
The answer of the guardian discloses to whom the money was loaned, when it was collected, and under what circumstances; and his deposition, subsequently taken, supports the answer. This full disclosure of specific facts in the answer, repeated in the deposition, afforded the appellants ample opportunity to introduce opposing evidence. None has been offered, and it must be taken as uncontroverted, that the moneys of the appellant were properly loaned by the guardian, and subsequently collected, during the war, in “Confederate treasury notes,” when they were the only circulating medium at the residence of the ward, the guardian and the debtors, and uniformly received in payment of debts and all other business transactions. The notes were not subsequently used by the guardian, but were kept safely, ready for delivery to the ward when she should become of age, or for investment in her behalf, if it could be made prudently.
The liability of guardians or other trustees, because of a conversion by them of choses in action into Confederate treasury notes during the war, has been the source of much distressing litigation in this court, and the decisions are in irreconcilable conflict. On the 9th November, 1861, the general assembly passed an act authorizing guardians or other trustees to invest trust funds in the bonds or treasury notes of the Confederate States, and to receive them in payment of debts due to them in their representative capacity. — Pamph
Without the aid of the statute, it was within the line of the duty and authority -of the appellee, as guardian, to receive paper currency, the circulating medium employed in all business transactions and usually received in payment of debts, in satisfaction of. the debts due his ward; and if, without fault on his part, it subsequently depreciated or became worthless, he is not chargeable with the loss.- — Coffin v. Bramlitt, 42 Miss. 194; Weller v. Creswell, 4 S. C. 353; Covington v. Leak, 66 N. C. 365; Cummings v. Mebane, 68 N. C. 317. The argument which seems to have been of controlling influence in the later decisions of this court, to which we have referred, is, that Confederate treasury notes was an illegal, treasonable currency, vitiating- all transactions of which they formed the consideration. If it is admitted such was the character of Confederate notes, the fact remains, that they were the only currency in use when these collections were made. They were issued by and on the credit of a government having “ actual supremacy within the territory where they were circulated” — a government to which obedience “in civil and
It was said by Lord. Cottenham, in Clough, v. Bond, 3 Myl. & Or. 496, that a personal representative, acting strictly within the line of ‘his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation óf the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it. Again, that “necessity which includes the regular course of business in administering the property, will in equity exonerate the personal l-wpresentative.” In Gould v. Hays, 19 Ala. 595, it is forcibly said by Chilton, J.: -
“It is thé anxious desire of courts of chancery to protect trustees from Harm, who act in good faith, and not to subject their conduct to the application of such harsh and rigid rules as to deter all prudent men from assuming fiduciary duties and relations. The court must also look to the number and nature of the duties to be performed, and while it will exact the exercise of that care, diligence and forethought in the discharge of those duties which a prudent man would bestow upon his own business of a similar character, it will not be astute to hunt out and seize upon every slight departure from the strict line of discretion and good management. Nor should it look merely at the result, which may be unfavorable to the interest of those concerned, and conclude from thence that the trustee has been guilty of gross negligence or mismanagement, since it often happens that the best laid schemes fail of success. Such is the imperfection of our nature, and the vicissitudes to which we are exposed, that even the most wary, discreet and prudent are not exempt from misfortunes and failures.” • '
The duty to be performed by the guardian was the collection of the debts due the ward. In the performance of that duty, the law demands the diligence and forethought a pru- ' dent man exercises in. reference to his own business of a
It is not the result alone which is to be considered — trustees are insurers and guarantors of results, only when they depart from the line of duty, or, keeping within that line, are wanting in diligence. The result is the calamity of war, in which a whole people, men, women and children, were alike involved. When the conduct of men is to be passed upon, it is neither just nor equitable to disconnect it from the circumstances surrounding them, and read it in the light of subsequent events only. To-day; when the event of the war and all its disastrous consequences are realized, it is easy enough to discourse of the folly and infatuation of men, who risked all upon the issue of battle and war. If it was folly or infatuation, it was the folly and infatuation, not of individuals, but of a whole people. Men as wise and judicious, of as high integrity and as nice sense of duty as any of the present day, pursuing the line of conduct pursued by this guardian, trusted all and lost all; and it would be a harsh judgment to condemn him as wanting in either good faith or prudence, because he was influenced by and followed their example. — Myers v. Zetelle, 21 Gratt. 751. The decisions to which we have referred, charging trustees to whom no bad faith or want of prudence was imputable, because of the collection of choses in action in Confederate treasury notes, have been gradually departed from until they have ceased to be authoritative, and the rule governing on this im
“Fraud, without damage, gives no cause of action; but when these two do concur, and meet together, then an action lieth.” If fraud, actual or constructive, could be imputed to the guardian, the release not being productive of legal injury to the ward, would not be avoided. Influence can hardly be undue, when employed to accomplish no other end than that which Avould follow judicial investigation.
We believe sound policy and a due regard for the repose of society demands that when parties, though standing in confidential relations, have without litigation voluntarily adjusted controversies arising out of transactions during the war, the courts, in the absence of all traces of actual fraud, should be slow to disturb the settlement. While we would not relax the operation of the principle requiring courts of equity to look Avith jealousy and suspicion on all transactions between persons standing in confidential relations, by Avhich the one acquiring confidence derives benefit and the other sustains injury, it must be remembered, the principle is founded on considerations of public policy and general utility, and in its application much depends on the nature of the transaction assailed. General utility demands there should be a termination of litigation over transactions during the war, under circamstanees so different from those now surrounding us, that they can not be justly appreciated.
We may regret the appellant’s loss of her inheritance; we can not decree her compensation from her guardian, who in good faith and without any want of diligence, in the stress of necessity war created, administered it in the regular course of business.
The decree of the chancellor, dismissing the bill, must be ' affirmed..