32 W. Va. 215 | W. Va. | 1889
On the 16th day of July, 1870, one A. G. Calvert was appointed guardian for Albert Marion Hescht and Gracilla Belle Hescht, infants and only children of Jacob Hescht and Mary Ellen, his wife, and entered into bond in the penalty of $600.00, with one Wilfred Moore as surety, conditioned for the faithful performance of all the duties of said office and trust, and to well and truly pay and deliver or cause to be paid and delivered unto said Albert Marion Hescht and Gracilla Belle Hescht, orphans of Jacob Hescht deceased, all such estate, as then was or thereafter should appear to be due said orphans; the said Jacob Hescht having enlisted in the service of the United States in 1862, and having been killed in said service during the year 1862, leaving said Mary Ellen, his widow, and the said Albert Marion and Gracilla Belle, his only children, surviving him. Some time in the year 1863 his said widow intermarried with
It seems from the deposition of Albert M. Hescht, filed in the cause hereinafter mentioned, that he and his hiother and step-fatlier and seven of the children lived together until he was twenty years of age, except that a part of the time, when ho was small, he lived with his grandfather, Cornelius Vorhees, in Wetzel county, W. Va., and part of the time with his uncle, Charles Smith, and part of the time with another uncle David Harland two or three different times. After this he went to live with his step-father and the family, who were farming, and -worked on the farm for Mr. Hubbs until he was about sixteen years of age. He then went to work in the Pittsburgh stave-factory and worked for about two years. While working at said factory he lived at home, and, what he could save after buying his clothes, gave to his mother and step-father for the support of the family, or bought supplies for the family and took them home. When he was eighteen his step-father had bought a farm on the waters of “Proctor,” and moved on to it, and he went with them and worked on the farm for one year. When he was nineteen years of age, he went to work at the carpenter’s trade with one David Windgrove and worked with him that fall and that winter • that when he was twenty years of age, he went to Jackson county, W. Va., where he remained with his cousin for about five months, when returning to Wetzel
On the 20th day of December, 1882, said A. G. Calvert seems to have gone before one W. S. Wiley, a commissioner of accounts, and made a settlement of his accounts as guardian for appellantsand said commissioner found, that said guardian had received altogether for .his said wards the sum of $1,715.53, and that he had paid out for their use and benefit $1,335.55, leaving a balance due them of $379.98 when they arrived at the age of twenty one years. Said commissioner however further reported, that in his opinion said guardian should be allowed for his commissions and services in attending to the interests of his said wards from the time of his appointment the sum of $115.00 and deducting that sum from the balance in said guardian’s hands at the time said Albert M. Hescht arrived at the age of twenty one years ($379.98) shows a balance due said wards of $264.98, and, deducting costs, $7.00, would leave a net balance due said wards at the time they arrived at twenty one years of age of $257.98'; that one half of that sum was due Albert M. Hescht, and one half due Gracilla B. Hescht, being $128.99 due each of them; and that after said Albert M. Hescht arrived at the age of twenty one years he had been paid by his said guardian $178.00, which would leave a balance due said guardian of $49.01; and that Gracilla B Hescht, after she arrived at the age of twenty one years, had been paid by her said guardian $175.00, leaving a balance due said guardian from her of $46.01.
To surcharge and satisfy this account settled as-aforesaid before Commissioner W. S. Wiley this suit was brought at February rules 1886, in the Circuit Court of Wetzel county, and plaintiffs allege that they at no time had any settlement with their said guardian ; that the accounts laid before said Commissioner Wiley are by no means correct, and they charge.
The defendants, A. G. Calvert and Wilfred Moore, at the September term, 1886, of said Circuit Court, demurred to plaintiffs’ bill and pleaded the statute of limitations, and the defendant A. G. Calvert filed his separate answer to the plaintiff’s bill. The defendant Calvert in his answer admits the allegations of plaintiffs’ bill as to his appointment and qualification as guardian for plaintiffs and as toliis executing bond as such guardian with one Wilfred Moore, liis co-defendant, as surety, also as to the age of plaintiffs, the time and manner of the death of their father, Jacob Iiescht, and also that plaintiffs were his only heirs at law; that in the latter part of the year 1875 a pension was granted them and their mother, Mary Ellen Iiescht, widow of said Jacob, by the government of the United States, but claims that said pension was not for the sum of $1,530.50, as stated in the bill, or at least that he only received $1,505.53 with a stipend of allowance of $30.00 every three months; and he denies that he received every three months $30.93, as charged in the bill, but only the sum of $30.00 each quarter. He says, that, at the time said money was received said Albert M Iiescht w-as 16 years of age or about that age, and his sister, 'Gracilla B., was about the age of fourteen or fifteen 3-ears. He denies, that they were constantly employed in the labors of the family, or that they were compelled to and did earn their livelihood by rendition of any services to their mother or any one else, and alleges that on the contrary they were idle and of a roving disposition ; that they were not. disposed to attend school, and could be compelled to do so with
Upon this state of pleading, on the 2d day of October, 1886, a decree was entered in said cause requiring J. "W. Newman, one of the commissioners of the court, after giving persona] notice to the parties of the time and place at least ten days previous, to take an account and state and re
On the 17th day of January, 1887, said commissioner, J. W. Newman, returned his report in pursuance of said decree and with it a notice, which seems to have been served upon him, “that the complainants would ask and insist, that said commissioner take into account in his report in this cause to the court the respective amounts due each of the complainants, Albert M. Hescht and Gracilla B. Hyder, based upon the evidence in this case and a letter filed before said commissioner from the pension department of the Hnited States showing, that there was paid to said A. G. Calvert, guardian etc., for the use of Albert M. Hescht the sum of $767.93 and for the use of Gracilla B. Hyder, $973.53, respectively, instead of upon the basis of an equal amount due to each one, as was done by the commissioner of the County Court.” Said commissioner in making up his report credited said A. G. Calvert as guardian as aforesaid with $1,056.00
The complainants by counsel excepted to said report for the following reasons: “(1) Instead of following the direction of the order of reference it ‘finds and reports the result of his investigations/ and that report is not in accordance with law, equity or the evidence in the cause. (2) Ho evidence is returned or referred to to support the report. There is not evidence to support the item of $1,056.00 paid December 4, 1875, to Mary E. Hubbs, or of $100.00 paid January 6, 1879, to Mary E. Hubbs, or $105.00 paid June 23d to Mary E. Hubbs; but they are all shown to be improper and unjust. (3) In that there is allowed guardian for services from time of his appointment for all services rendered $115.00, while it is charged and fully proven, that the defendant forfeited all claim to any compensation by notmaking annual settlements as required by law. (4) It allows credit to guardian for $20.00 paid A. M. Hescht in February, 1880, and $45.00 paid him May 20, 1880, in cash, as having been paid him after he attained his majority, while the evidence shows it was paid during his minority, which were improper and illegal charges or credits. (5) Deport allows credit to guardian for $10.00 paid July 5, 1879, and for $20.00 paid Hovember 8, 1880, to Gracilla B. Hyder, after she became twenty one years old, while the bill charges, and the evidence shows clearly, and it is not denied- in the answer, that these sums were paid to her while a minor and infant in money, and are improper and unjust charges or credits; (6) The commis
On the 11th day of June, 1887, this cause came on to be heard upon the bill and exhibits, the answers of defendants, general replication by complainants, former orders and decrees, plea of the statute of limitations filed by defendants and issue thereon by complainants, and upon the report of James W. Uewman, the commissioner, to whom the same was referred, and the depositions therewith returned filed in the cause on the 17th day of January, 1887, and the exceptions of complainants to said report, and upon the motion of the defendants to dismiss the suit, because T. B. Harness was not made a party, which last-named motion the court, as I think, properly overruled. The court then by its decree proceeded to overrule said exceptions to said commissioner’s
From this decree of the Circuit Court of Wetzel county overruling the exceptions to the report of Commissioner J. W. Newman filed by the complainants, and stating the account between said guardian and his wards in the manner in said decree set forth, this appeal wa's taken by the plaintiffs in said bill.
■ The questions to be determined in this case are raised by the exceptions filed to Commissioner Newman’s report. Did the court below commit an error in overruling and disregarding said exceptions ? At the time the bulk of the pension-money was received by said guardian, amounting to $1,505.58, his wards were respectively seventeen and fifteen years of age,, and the residue of said pension-money was received between that date (January, 1876) and February, 1878. This money came into the hands of said guardian, as any other money, to which they were entitled, wmuld come. The reason, why a guardian is required by law to be appointed for infants, is, that their estates may be protected not only from strangers but, as experience indicates, more frequently from the avai’icious designs of their nearest relatives. The guardian in this case'evinced some prudence and caution by consulting the commissioner of pensions for instructions as to the disposition, which he should make of the pension-money received for his wards; but unfortunately for him it seems, that this letter of inquiry was not written until the 15th day of January, 1876, and according to his own voucher returned before the commissioner of accounts he had taken the responsibility of paying to Mary E. Hubbs, the mother of his said wards, $1,056.00 of said pension-money on the 4th day of December, 1875, more than a month before he wrote said letter, and was credited with that amount as of that date; and it will be seen by reference to the reply sent to him by IT, M. Atkinson, commissioner of pensions, that he
“ The design in granting pensions to children under sixteen years of age unquestionably was that this bounty of the government should be used in supplying them with a home, food, clothing, books, tuition, and other necessaries during their helpless infancy and minority, and, if all the pension-money is needed for these purposés, it should all. be used without hesitation. Whoever furnishes these supplies, the mother included, should be paid for them what is just and equitable -upon a properly stated and itemized account, allowed and approved by the court having probate jurisdition, which then becomes a voucher for you in the settlement of your account as guardian. In cases where the pension is not all needed for the comfortable support of the children, any surplus should he safely invested for their benefit, and paid only to them. The mother has no claim upon such surplus, nor does her claim upon the children’s pension-money differ in any respect from that of a stranger.” This letter of advice seems to vary but little from the terms of our statute in regard to the duties of guardians, (chapter 82, § 8, of the Code,) which provides that “ no disbursement shall be allowed to any guardian where the deed or will under which the estate is derived does not authorize it beyond the annual income of the said ward’s estate, except * * * when (although old enough to be bound out as an apprentice) it shall be deemed best for the ward that the principal of his personal estate, or a portion thereof, should be applied towards his education or maintenance.* But the guardian shall, before thus applying any part of such principal, file his petition before the Circuit Court of the county in which he was appointed for the permission thus-to apply the whole or a portion of said principal, in which petition he shall state the facts relied on by him to induce, the court to grant the prayer of the petition. * * * IJpon the hearing of the case the Court may grant, or refuse the petition, as to it may seem judicious and proper. No credit shall be allowed the guardian in the settlement of his accounts for expenditures for his ward under this section except for disburse*228 ments of the annual income of his ward’s estate, and for such amounts as the said court shall have first authorized to be expended of the principal of his personal estate, as hereinbefore provided.”
If said guardian had availed himself of the provisions of this statute, his disbursements made in pursuance of an order of the court thus obtained would have been properl}7 allowed by the commissioner; but, in the absence of such an order and under the circumstances disclosed by the evidence in this 'case I can arrive at no other conclusion, than that neither the commission of accounts, W. S. Wiley, nor J. W. Newman, commissioner of the Circuit Court, was authorized to allow said guardian credit for the sum of $1,056.00 paid Mary E. Hubbs December 4, 1875, the $100.00 paid her June' 6, 1879, the $105.00 paid her June-23,1877, or the $10.00 paid her December 10, 1877 ; and I am of opinion, that the court below erred in reforming and amending said guardian’s account, as it did, upon the bases of the credit allowed him by W. S. Wiley, commissioner of accounts. Said decree is correct in crediting to Albert M. Hescht the sum of $767.93, that being the amount of the pension-money allowed him ; and in crediting Gracilla B. Hyder, formerly Gracilla B. Hescht, with the sum of $973.53, that being the amount of the pension-money allowed her; but the court erred in ascertaining the amount, with which said wards should be respectively charged, by dividing the credit allowed said guardian in his settlement with Wiley, commissioner and charging one half to each. That would seem to be wrong, if for no other reason, because there is no. itemized account, and no evidence in the cause, that the expenses of schooling, clothing and maintenance of said wards were equal. There was a difference of two years in their ages; and, while both worked away from home a considerable part of the time, and both helped to support the family while at home and away, yet there is nothing to indicate, that the costs of sup-' porting and schooling them were the' same, but on the contrary many things, which would indicate, that'the amount of assistance they received from their mother and step-father were widely different. As to the credit.then of $1,056.00, with which said guardian is credited as of December 4,
Mrs. Mary, 13. Hubbs, the party, to whom said amount seems to have been paid by said guardian, in giving her deposition, when asked to state who furnished the clothing for Albert, until he was twenty one, answered : “ His clothing was furnished by different ones. My father furnished some, and a good part they got, themselves.” When asked: “ Who furnished for Gracilla B.?” she answered: “ She got a good many herself, and Mr. Hubbs furnished some, and my father some.” When asked : “ How was it as to board ?” she answered: “When they were at home they boarded there, and when they worked away they boarded where they worked, except .when Albert worked at the stave-factory, he then boarded at home.” When asked: “ When so working put did they contribute to the expenses of the rest of the family ?” she answered : “Albert- sometimes got' some things for the rest of the family.” When asked what they did when at home, she answered : “ They helped work in the field, when there was work to do raising crops; both Albert and, Belle.” When asked where and for whom Grá-cil la B. worked when away from home, she answered: “ She worked away from home for Mrs. Yoho; also for Mrs. Ilar-lands, most of one winter; at Gilbert Vorhees about three months. - She also stayed awhile with Mrs. Greene, and Mrs. Buchanan; awhile at Jack Moore’s, John, Cochran’s, Mrs. Dunlap’s, and with a man living in Dunlap’s house, at Sim-mon’s, and at W. Wingrove’s.” And she also stated that Albert worked at the stave-factory, while he was away from home, one winter, with his uncle Charles Smith; was with his grandfather for some time after her marriage with Hubbs; worked at a job for Mr. Alexander; worked some at the carpenter’s trade; and was in Jackson county part of one winter; ,and that they sometimes did not go to school, because their clothes were not fit; that she never made out any account. She thought the account was for $1,000.00; the $56.00 she knew nothing about. It seems, that the voucher produced before the commissioner was merely a receipt bearing date December 25,1875, annexed to an account which reads as follows:
*230 “ A. G. Calvert, guardian of the minor children of Jacob IIescht, deceased, private of Co. F, 15th Ohio Vol. Inf’ty in' the war of 1861, in account with Isaac Hubbs and Mary E. Hubbs, Hr. To keeping, clothing, and schooling Albert M. Hescht and Gracilla B. Hescht for eleven years up to Dec. 4, 1875,11,056.00.
“Jan. 25, 1876, received the above $1,056.00 from A. G. Calvert, guardian of Albert M. Hescht and GracillaB. Hescht, infant children of Jacob Hescht, late private of Co. F, 15th Ohio Vol. Infan’ty..
[Signed] '“Isaac Hubbs,
“M ary E. Hubbs.”
The sum of $105.00 was allowed as of June 23, 1877, and $100.00 as of January 6, 1879, on similar vouchers. Hnder section 4702 of the United States pension-laws it seems, that the child or children of certain deceased soldiers are entitled to a pension, which under the law goes into the hands of the guardian to be administered. The commissioner of pensions in his letter of January 15, 1876, instructs the guardian, that “the design in granting these pensions to children under sixteen years of age was to supply them with home, food, clothing, books, tuition and other necessaries during their helpless infancy, and if all the pension-money is needed for these purposes, it should all be used ; that whoever furnishes these supplies, the mother included, should be paid for them what is just and equitable upon a properly stated and itemized account, allowed and approved by the court having probate jurisdiction, which then becomes a voucher for you in the settlement of your accounts as guardian. In ease the pension is not all needed for the comfortable support of the children,' any surplus should be safely invested for their benefit and paid only to them. The mother has no claim upon such surplus, nor does her claim upon the children’s pension-money differ in any respect from that of a stranger.”
Now, it seems, that the application for this pension was delayed for some five or six years, and in the mean time the wards arrived at the ages of sixteen and eighteen. Whatever assistance had been rendered to said wards by Mary E. Hubbs and her husband in the way of keeping, clothing, and schooling could only be properly ascertained by an in
The decree of the Circuit Court of Wetzel county rendered on the 11th day of dune,,1887, in this cause must be reversed, and the cause remanded to said Circuit Court for further proceedings to be had therein; and the appellants must recover their costs in this court.
Reversed. Remanded.