78 Tenn. 268 | Tenn. | 1882
delivered the opinion of the court.
This litigation arises out of the following facts r Robert Harlan departed this life in 1862, intestate, leaving six minor children surviving him. His estate-was administered. On the 6th of February, 1865, Samuel Harlan, a brother of the deceased, qualified as guardian of the children.- Shortly after the death, and before the appointment of the guardian, Robert Harlan’s dwelling-house, located upon a farm of 225 or or 235 acres, of which he died owner, was burned and the fences were partially destroyed. ' The administrator paid over to the guardian the sum of $2,081.34.. The interest on. this sum and the rent of the farm constituted the entire income of the children. The-
The defendants filed their joint answer, insisting upon the settlement made in county court, and proof was taken. The case was heard on the 6th of November, 1875, and an agreed decree was entered, requiring the clerk and master to “ state an account between complainants and said Samuel Harlan, by which he will charge said Harlan with all sums which he •collected for his wards, or could have, collected by
James T.$614 55
Paralee’s Estate.485 95
Mrs. Hobbs.346 89
Martha .'.346 89
Ellen’s Estate.542 63
Total.;.$2,336 91
The clerk would have been justified under the decree to have allowed the guardian the full income of each of his wards for his or her necessary and proper expenses, in board, education, medical bills, clothing, etc. These incomes to each child were small, being $20.81 interest and one-sixth of the rents, which after the payment of taxes, did not exceed, on an average, $30 to $40 per year f r each child, making a total income to each ward of from $50 to $60 per year; but instead of so doing, the account has been so taken as to give to five of the children only a judgment for $2,336.91, which is more, by several hundred dollars, than the original principal; and at the same time the account shows that the guardian was disallowed largely his expenditures for clothing, board, medical bills and schooling — all prime necessities. The account has not been taken in accordance with the decree, and the result is, an unjust and onerous judgment against the guardian and sureties. Harlan became guardian on the 6th of February, 1865. One of the children, Ellen, died April 22d, 1865, before the guardian had received any portion of the rent, or received the money from the administrator. She had incurred a few accounts, and what of these were reasonable and proper should have been deducted from her income for that or succeeding years until they were paid; after which, her estate remaining should have gone to her brothers
It is admitted to be the general rule that a guardian cannot spend more in maintaining his wards than the interest and profits of his ward's estate, without the intervention of a court of equity: Daws v. Harkness, 6 Ill., 173; Bybee v. Tharp, 4 B. Mass., 313; Gilbert v. McEachen, 38 Miss., 499; Brown v. Mullins, 24 Miss., 204; Villard v. Chovin, 2 Strobh (S. C.) Eq., 40; Phillips v. Davis, 2 Sneed, 520; Beeler v. Dunn, 3 Head, 87; Myers v. Wade, 6 Rand (Va.) 444; Roseborough
Is this general rule not subject to some qualifications, and if so, what qualifications? It is claimed that the guardian may, on his own authority and without making prior application therefor to a court of chancery, make necessary expenditures for his wards exceeding their incomes, and that a court of equity, upon proper proceedings instituted by him, or upon his settlement, will allow him to do so, and ratify his acts. On the other hand, it is maintained that without the previous authority of the court his acts will not be confirmed. Clearly the latter is a hard and unreasonable rule, and could not be administered without shocking the sensibilities and sense of justice. There are many cases and of frequent occurrence in which great and gross injustice would be done to the parties most concerned, were it the rule.
I shall refer to only a few of the many cases of frequent occurrence, such as a personal injury to the ward involving the services of a surgeon; sickness of a protracted character, requiring expensive nursing and medical bills; death of the ward, requiring expenses for decent interment; marriage of a female ward; besides a large number of social and moral emergencies necessitating instant action on the part of the guardian, involving pecuniary obligation. Such a rule lo dcs alone to the pecuniary estate of the ward and overlooks personal comfort, health, character, social standing, accidents and emergencies. It regards nothing but “the mint, anise and cumin,” while neglecting
I mention these classes not as a limitation of the rule, but merely as illustrations. There are and will be, doubtless, other classes and instances affording equally “good reasons” for the failure to apply to the chancery court before incurring the expenditures or obligation, such as is claimed in this case, viz., that these transactions took place during the war, and when the courts were closed.
The case of Roseborough v. Roseborough, 3 Baxt., 314, decided by this court, goes one step in advance of the general rule as modified, and holds “when a
Her guardian met the emergency by advancing the necessary funds for this purpose out of his own estate, her estate consisting of a remainder interest in lands, which the court ordered to be sold and he reimbursed. What should the guardian have done consistent with “decency and humanity”? Let her run at large, or lock her up until the next term of the chancery court, which in this State only meets at intervals of six months? It may be 'that the suddenness of the lunacy and the consequent necessity for instant action on the part of the guardian, precluded his application
The doctrine that the court will ratify expenditures of a guardian, over and above the income of a ward, if such expenditures are made upon “ urgent necessity,” or “such as could not have been foreseen and provided for,” has been' recognized in many well considered cases: Prince v. Logan, Spears (S. C.), 29; McDowell v. Caldwell, 2 McCord (S. C.) Ch., 43; Johnson v. Coleman, 3 Jones (N. C.) Eq., 290; Frelick v. Turner, 26 Miss., 393; Dorney v. Bullock, 7 Ire. Eq., 102. In one of the cases cited (3 Jones Eq.), the court define what would be a justifiable necessity as “a case of physical necessity.” In the case in 7 Ire., it is defined with these illustrations, “such as a -dearth, and consequent failure of crops, some extraordinary sickness.” Scbouler says: “The English- rule is undoubtedly strict; but as to probate, guardians and in modern practice, legal formalities have been considerably relaxed. . In most of the United States the guardian is doubtless justified in breaking the principal fund under strong circumstances of necessity, for the benefit of the ward, and he may leave his conduct to the subsequent approval of the court, when he presents •his accounts”: Schouler, 3d ed., sec. 338. The reasons for the strict rules in English courts do not apply in America. There have been developed in •England no less than eleven different kinds of guardians, “guardianship of chivalry; guardianship by special •custom; guardianship by appointment of the spiritua
Premising that all guardians in England are appointed by the court of chancery, and that it is done by petition, setting out the name, minority and property of the ward, this is followed by a reference to the master to report a ñt person for guardian and the exact condition of the ward’s estate; which being done and confirmed by the chancellor, the infant is thus constituted a ward in chancery. Thereupon, an annual sum arising from the income of his estate is set apart by the court and placed in the keeping of the guardian, to be expended in the maintenance of the ward, more than which he is not allowed to expend without previous permission of the court. The court is ever present and open, and I may add, unfettered in authority, to assist, advise and direct or remove the guardian. The court thus actually manages the ward’s estate, makes its schemes for his maintenance, and allows the guardian a certain fixed income therefor: Schonler, sec. 323. In the United States, except where chancery guardianship is adopted, the sys
In taking the accounts, the master will take and state it upon the principles herein set forth, that is, passing the estate of a deceased child to the survivors, and thus incieasing the annual income of the latter. Foi all reasonable and necessary expenses incurred in putting up and keeping in repair the fences on the farm, the guardian will be credited.
It appears, from the proof, that in order to rent the farm, that some character of tenement house and improvements in the way of out houses, were reasonable and necessary, and that the houses erected by the guardian did increase the annual rentals over and above what otherwise what would have been the rents. It also appears that these improvements did not add to the permanent value of the farm, for the reason that a person able to buy a farm of that character would
The master will charge the guardian six per cent per annum interest on the money which came to his hands, unless it be shown that he realized a larger rate of interest, and in this event he will be charged the greater rate.
Subject to these modifications the decree of the chancellor will be affirmed. ' The costs of this appeal will be paid by complainants. The case is remanded.