47 N.H. 88 | N.H. | 1866
This is an appeal from the decree of the judge of probate in this county, allowing the account of said Currier as guardian of his ward, Walter H. French. There are six grounds of appeal filed by the appellant. They are correctly stated in the counsel’s brief for the appellee. The case lias been referred to an auditor, and his report, as amended, is before us, and presents certain facts and questions proper for our consideration. We have a right to investigate only those questions which come within some of the reasons assigned for the appeal. Bean v. Burleigh, 4 N. H. 550; Mathes v. Bennett, 21 N. H. 200.
Under the facts reported by the auditor, it appears that the appellee was duly appointed guardian of the said Walter, on the 6th day of December, A. D., 1853, and accepted and held that trust until the second day of December, A. D., 1858, when the appellant became 21 years of age. The said Currier was also during this time guardian of several
50 shares of the Amoskeag Bank stock, appraised at $108 per share, $5400.00
20 shares Manchester Gas Light Co. stock, $110 per share, 2200.00
20 shares Appleton Bank stock, §105 per share, 2100.00
Note for §550, and interest thereon, §57.75, 607.75
Cash, 192.25
§10,500.00
For which said property, the said Currier executed to the said administrator the following receipt:
June 6, 1855. Received of Abram French, administrator of the estate of Walter French, ten thousand five hundred dollars.
(Signed) Moody Currier, Guardian of the children.
The said guardian also charged himself in his book of accounts as follows:
1855. June 6. To cash of A. French, §192.25
To stocks and note, 10,307.75
§10,500.00
The certificates of said stock were transferred to said Currier by due assignment on the back thereof, signed by the administrator, Abram French.
Under this, and the other evidence of the case, the guardian claims that the aforesaid shares of stock were delivered to him, as his own private property, and that he was to account for the same, at their estimated value, as so much cash, in his settlement with his wards. On the other hand, the said administrator and his ward allege that they did not so understand the transaction, but rather that the aforesaid shares of stock were to remain in the hands of the guardian, as the property of his wards, and that he was to account in his settlement with his wards for the same specific stock, and all the dividends which in the meantime might accrue thereon. Upon the consideration of the circumstances of this part of the case, and the law' applicable thereto, we cannot find that the said Currier became entitled to hold said shares, as his private property. There was no express assent on the part of the administrator to a sale of this nature. Nor does it appear that the administrator had sufficient legal power to sell any part of said stock at private sale. Ii he would make a legal sale and transfer of said stock, as administrator, he must strictly pursue one of two courses. He must
Trusts of this nature are enforced not only against persons who are rightfully possessed of trust property, but against all persons who come into possession bound by the trust, or with notice of the trust, and whoever so comes into possession is considered as bound with respect to that special property to the execution of the trust. 1 Story’s Equity, sec. 533; Hill v. McIntyre, 39 N. H. 416.
Chancellor Kent says, the guardian’s trust is one of obligation and duty, and not one of speculation or profit, and is governed by strict rules. He cannot reap any benefit from the use of the ward’s money. He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust. If he has been guilty of any negligence in keeping, or disposing of the wards’ money, he must bear the loss himself. 2 Kent’s Com. 2 ed., 246, and note; Sparhawk v. Allen, 21 N. H. 9, and cases cited; Barney v. Sanders, 16 Howard 535.
The guardian in this case may, therefore, be considered as the holder of the stocks in question not as his own, or held in his own right, as a purchaser, but as the property of his wards, and, therefore, must be held responsible for them, and to account for them at the price at which he took them; or if any have been actually sold by said guardian, he must account for them at the price received by him, and also for any and all dividends or income received by him during his guardianship. The dividends, as reported by the auditor, are presumed to be faithfully reported by the auditor, both as to their amount, and the date of their reception, and can be adjusted by the guardian by opening new and separate accounts with each ward, and apportioning the amount belonging to each one, upon the principles suggested in Stark v. Gamble, 43 N. H. 467.
As to the commission, or compensation,-which the guardian may be entitled to demand of his ward, we would remark, that, upon the evidence before us, it does not appear to us that the omission to credit the wards with the whole amount of dividends received by him on the stocks in his hands, has originated from any corrupt intent to defraud his wards, but rather from a mistake, or misapprehension, as to the true
Therefore, our conclusion is, that the guardian’s account be so far corrected, that he be charged with the said stocks at the rates mentioned in his receipt, or if any shares be sold, at the highest amount actually received therefor, also for the dividends received on said stocks from and after their receipt, with five per cent, interest on said sales or receipts, at annual rests, deducting the expenditures made by him for the benefit of his wards and interest thereon at the same rate and times. Or, in other words, that the guardian be charged with six per cent, interest on all his receipts, and allowed a credit of one per cent., which is understood to be the common reasonable commission in this State in like cases. Slark v. Gamble, ante.
If the guardian has invested any of the moneys of .his wards in unproductive stocks, it must be his own loss. The wards are not obliged to take them from the guardian. Kimball, apt. v. Reding, 31 N. H. 352; Hill on Trustees, 378.
The charge of $25.00 made by the guardian for special services in furnishing his letters of guardianship, and for time, &c., in preparing his account for settlement, has been allowed by the auditor, and we approve of the same as being reasonable and consistent with common usage in this class of cases.
From A. D. 1855 to 1866, inclusive, the said guardian had more or less property in his possession, belonging to his several wards, liable to assessment for public-taxes. The appellant’s share of the taxes for A. D. 1834, would not be large, in consequence of a previous payment made to his ward under a partial settlement previously made with him. It is not pretended that the guardian can claim anything for taxes, assessed prior to 1864. For the just amount of taxes assessed on the appellant’s share of the estate liable to be rated for public taxes, which remained in the hands of his guardian, in April, 1864, the said guardian has now a good claim. The auditor will investigate the proportion of the appellant’s taxes for the year 1864, and if anything be legally assessed since that year upon the appellant’s estate, he will allow it accordingly.
The report of the auditor will be recommitted accordingly, and he will make up a statement of the appellant’s account on the principles here suggested.
