47 S.E. 398 | N.C. | 1904
Lead Opinion
The defendant, R. A. Brown, had been removed from the guardianship of Lilly Ury, and this action was then brought by the plaintiff, as the newly appointed guardian, against the defendant R. A. Brown and the other defendants, sureties on his guardian bond, for an account and settlement of the guardianship. The case was referred to the Clerk of the Superior Court to state the account. The report of the referee was filed and confirmed by the Court. The first exception of the defendant which we will consider is the one to the receiving by the referee, • as evidence, an admission made by the defendant R. A. Brown in the proceeding instituted for his removal as guardian, to the effect that he qualified as guardian of Lilly IJry for the purpose of using the funds belonging to her in his own business, and that he applied the same to his own purposes. We do not deem it necessary to discuss that exception any further than to say that it was error on the part of the referee to have received that admission in evidence. In any aspect of the case it is harmless error. - The defendants in their answer in the present case admitted that the defendant R. A. Brown used the guardian funds in his own business and for his own benefit.
The next exception was to a conclusion of law of the referee, and affirmed by the Court, that the defendant R. A. Brown, because of his having used the funds belonging to the estate of his ward in his OAvn business, should be charged with eight per cent.-per annum on the fund up to February 21, 1895 (the date of the change of law of interest), and after that time with six per cent, per annum. The exception cannot be sustained. The point is expressly decided in
The rate of interest allowed in special contracts under section 3835 is what the Court meant by the highest rale of interest.
The only other one of the exceptions of the defendant necessary to be considered was a conclusion of law arrived at by the referee, and affirmed by the Court, that the defendant E. A. Brown, having used his ward’s money in his own business, and having never otherwise invested it, should not be allowed commissions on the interest or income from the fund in his hands belonging to the estate of his ward. That exception must be sustained on the authority of Carr v. Askew, supra. On a similar exception to the one raised in the case before us the Court there said: “We think this exception should be sustained. It was held by this Court in Burke v. Turner, 85 N. C., 500, That a guardian is not entitled to commission on money collected and used by him in his own business,’ but that was a case where the guardian not only used the money in his own business but was guilty of gross negligence in not making his returns. * * * jn -(kig Case, although the guardian used the money of his ward for his own purpose, he made his annual returns with strict punctuality and fairness for thirteen years, so that it might be seen at all times for what sum he was liable to his wards, and he and his sureties were perfectly responsible. Although he violated the law, and abused the trust reposed in him by the use of his ward’s money, we
In tke case before ns, tke defendant R. A. Brown, guardian, made regular returns throughout tke whole period of his guardianship and charged himself with six per cent, interest. The cases are similar on the point of commissions to be allowed and the exception is sustained.
We have examined the other exceptions of the defendant and we find that they are without merit and ought not to be sustained. The parties to this action can, when the certificate of this opinion is received in the Court below-, by consent, have the judgment of the Superior Court modified to the extent of having commissions allowed to the defendant Brown as above set out, t.o save the trouble and expense of having the matter recommitted to the referee to make the allowance of commissions.
Modified and Affirmed.
Concurrence Opinion
concurring. The rule laid down in Carr v. Askew, 94 N. C., 194, and reaffirmed in this case, that when a fiduciary has used the trust funds in his own business he is to be charged with the highest rate of interest, unless he is shown to have made more, when he is chargeable with the actual profits made, is based upon the sound reasons given in the opinion of the Court. It is also sustained by the precedents. In the absence of all evidence as to profits, the fiduciary in such cases is chargeable with the highest permissible rate at which he could have loaned the money, and the burden is on him to show that he made less (3 Williams Exrs., 404, 7 Am. Ed., and cases cited), though in all cases when he himself uses the money he is chargeable not less than the ordinary rate of interest, even though he should not have made so much. Wedderburn v. Wedderburn, 20 Beavan, 100; Treves v. Townshend, 1 Bro. C. C., 384; Heathcote v. Hulme, 3 J. & W. Ch., 135, which last
Concurrence Opinion
concurring. The referee does not find as a fact, nor is there any suggestion, that the guardian could have loaned the money of his ward at eight per cent, interest. I am of the opinion that in the absence of this finding he should not be charged with more than the legal rate of six per cent. In Carr v. Askew, 94 N. C., 194, the referee found as a fact that the guardian could, during the period of his guardianship, have loaned the money in Wake County upon safe personal security or real estate mortgage at eight per cent. This finding clearly distinguishes the two cases. In that case the referee also found that, taking into consideration the intervals occurring between the taking in and re-lending of loans, a continuous rate of seven per cent, would have been the maximum that could have been realized. The Court, adopting this conclusion, charged the guardian with
Lead Opinion
The defendant, R. A. Brown, had been removed from the guardianship of Lilly Ury, and this action was then brought by the plaintiff, as the newly appointed guardian, against the defendant R. A. Brown and the other defendants, sureties on his guardian bond, for an account and settlement of the guardianship. The case was referred to the clerk of the Superior Court to state the account. The report of the referee was filed and confirmed by the Court. The first exception of the defendant which we will consider is the one to the receiving by the referee, as evidence, an admission made by the defendant R. A. Brown in the proceeding instituted for his removal as guardian, to the effect that he qualified as guardian of Lilly Ury for the purpose of using the funds belonging to her in his own business, and that he applied the same to his own purposes. We do not deem it necessary to discuss that exception any further than to say that it was error on the part of the referee to have received that admission in evidence. In any aspect of the case it is harmless error. The defendants in their answer in the present case admitted that the defendant R. A. Brown used the guardian funds in his own business and for his own benefit.
The next exception was to a conclusion of law of the referee, and affirmed by the Court, that the defendant R. A. Brown, because of his having used the funds belonging to the estate of his ward in his own business, should be charged with eight per cent per annum on the fund up to February 21, 1895 (the date of the change of law of interest), and after that time with six per cent per annum. The exception cannot be sustained. The point is expressly decided in Carr v. Askew,
The rate of interest allowed in special contracts under section 3835 is what the Court meant by the highest rate of interest.
The only other one of the exceptions of the defendant necessary to be considered was a conclusion of law arrived at by the referee, and affirmed by the Court, that the defendant R. A. Brown, having used his ward's money in his own business, and having never otherwise invested it, should not be allowed commissions on the interest or income from the fund in his hands belonging to the estate of his ward. That exception must be sustained on the authority of Carr v. Askew, supra. On a similar exception to the one raised in the case before us the Court there said: "We think this exception should be sustained. It was held by this Court in Burke v. Turner,
In the case before us, the defendant R. A. Brown, guardian, made regular returns throughout the whole period of his guardianship and charged himself with six per cent interest. The cases are similar on the point of commissions to be allowed and the exception is sustained.
We have examined the other exceptions of the defendant and we find that they are without merit and ought not to be sustained. The parties to this action can, when the certificate of this opinion is received in the court below, by consent, have the judgment of the Superior Court modified to the extent of having commissions allowed to the defendant Brown as above set out, to save the trouble and expense of having the matter recommitted to the referee to make the allowance of commissions.
Modified and affirmed.