229 Wis. 262 | Wis. | 1938
So far as material on this appeal the following-facts appear without dispute. On January 9, 1919, letters of guardianship were issued to Lina Hansen as guardian of the person and estate of Anna D. Paulsen, then fifty years of age. Theretofore, on December 11, 1918, she had been found insane and mentally incompetent by the county court of Calumet county and committed to the Northern Hospital for the Insane. On March 22, 1921, she was paroled on condition that she remain with her sister; but on June 25, 1921, she was returned to- the Manitowoc county asylum, of which she has since been an inmate. On August 2, 1919, Lina Plansen as guardian filed an inventory and appraisal, listing twenty-five shares of stock of the Chilton National Bank appraised at $3,750; and in reports filed in 1919, 1920, 1921, 1922, and 1923 she listed the stock as an asset and reported the receipt of dividends amounting to $150 in 1919 and 1921, and $300 in 1920, 1922, and 1923. Upon the death of Lina Hansen, Fred Matzen was appointed guardian of the estate of Anna D. Paulsen on August 23, 1924. He filed his annual accounts as guardian each year for the years of 1924 to June 16, 1937, inclusive, and in each of them up to and including 1934 listed the bank stock at its appraised value of $3,750; but in his report for 1935, he listed the stock as valueless, and thereafter did not report it as an asset of the estate. He also reported dividends paid on the par value of the stock at the rate of twelve per cent each year to and including 1929; ten per cent in 1930; eight per cent in 1931; and four per cent in 1932. Thereafter no dividends were paid. On August 27, 1932, the bank entered into a stabilization agreement with its depositors, and the comptroller of the currency appointed a conservator on July 30, 1933, and on December 7, 1933, declared the bank insolvent and appointed a receiver, and thereupon the bank suspended and ceased to do business. Its stock not only became valueless,
On this appeal the guardian ad litem contends that under sec. 320.01, Stats, (relating to securities eligible for the investment of trust funds by guardians, executors, administrators, and trustees), it was Matzen’s duty within a reasonable time after the assets of his ward came into' his possession, to convert the bank stock into cash or securities of the classes specified in sec. 320.01, Stats.; that his failure to perform that duty is not excused by any probability of his ward’s recovery of her mental competency and the control of her property, or any ex parte approval by the court of annual accounts which Matzen and his predecessor guardian had filed; and that by reason of his failure to convert the stock into securities eligible, under sec. 320.01, Stats., for the investment of trust funds, he was negligent, as a matter of law, and liable for the resulting loss. In support of those contentions the guardian ad litem relies upon the provisions in secs. 319.29 and 320.01, Stats., and the following decisions applying the latter, to wit: Guardianship of Farness, 225 Wis. 383, 273 N. W. 522; Guardianship of Uggen, 224 Wis. 24, 271 N. W. 326; Estate of George, 225 Wis. 251, 270 N. W. 538, 274 N. W. 294; Estate of Grotenrath, 217 Wis. 109, 258 N. W. 453; Estate of Fouks, 213 Wis. 550, 252 N. W. 160; Estate of Dreier, 204 Wis. 221, 235 N. W. 439; Estate of Allis, 191 Wis. 23, 209 N. W. 945, 210 N. W. 418; Will of Leitsch, 185 Wis 257, 201 N. W. 284.
It is true that there are distinctions between the rights, powers, and duties of a guardian as compared to those of a trustee. As is stated in the Restatement, Trusts, P- 27, § 7,—
“A trustee has title to the trust property; a guardian of property does not have title to the property, but has only certain powers and duties to deal therewith for the benefit of the ward, the ward having title to the property. The beneficiary of a trust has an equitable interest in the subject matter of the trust; a ward has normally a legal interest. . . . The beneficiary of a trust may or may not be lacking in legal capacity; a guardian is appointed only when and for so long as the ward is lacking in legal capacity.”
That is in accord with the statement in 32 C. J. p. 692, § 381,—
“The guardian or committee has no title to the property of his ward, either in trust or otherwise, the title remains in the ward, tie is not the agent of his ward. He is the mere bailiff or curator of the ward’s property; his possession is the possession of the court. At common law, his powers are merely such as are essential to the temporary preservation of the estate. The right to exercise any control over the property of the ward beyond this must be found in some legislative grant. At present the duties and powers of guardians or committees over the assets of their wards are generally fixed by statute, and they usually are limited to the powers thus conferred, or conferred by order of court.”
It is provided in sec. 320.01, Stats. 1937, that,—
“Executors, administrators, guardians and trustees may invest the funds of their trusts in accordance with the provisions pertaining to investments contained in the instrument under which they are acting, or in the absence of any such provision, then in the securities of the following classes: . . .” (See margin.1 )
On its face that provision is applicable alike to guardians, as well as trustees, executors, and administrators. No dis
“We find no ambiguity in the phraseology of the act. The language and the provisions clearly show how investments of trust funds shall be made.”
Accordingly, it was held in that and the other cases cited above, which related to the duties of trustees, that it was the duty of a trustee, in the absence of a provision to the contrary in the instrument under which he is acting, to sell the securities of the trust which are not eligible for trust-fund investment, under sec. 320.01, Stats., and invest the proceeds in securities eligible thereunder; and in Guardianship of Farness, supra, that rule was held applicable likewise to a guardian. However, at all times since the-enactment of sec. 25, ch. 80, R. S. 1849, relating to the sale of personal property by a guardian, there have been provisions in substance like the provisions in sec. 319.29, Stats. 1937, that,—
“The court, on the application of a guardian or of any person interested in the estate of any ward, after such notice to all persons interested therein as the court shall direct, may authorize or require the guardian to sell any personal property held by him as guardian, and to' invest the proceeds of such sale and any other moneys in his hands in real estate or in any other manner that shall be most for the interest of all concerned therein; and the court may make such further orders as the case may require for managing, investing and disposing of the personal property in the hands of the guardian.” (See margin.1 )
However, even though it was Matzen’s duty, as guardian, to continue to hold the stock until he was authorized or required to sell it by an order of the court, it was his duty to exercise due care and diligence for the conservation of the estate, and he would be liable for any loss caused by his negligence in the performance of that duty. 28 C. J. p. 1129, § 213. But the evidence bearing on that issue warranted, as stated above, the court’s findings that, Matzen throughout the performance of his duties as guardian exercised such diligence and prudence as an ordinarily prudent man exercises in his own affairs; that he was not guilty of any negligence or carelessness, either in law or in fact; and that he discharged his duties entirely in good faith and free from any bad faith. Although the court also stated in that connection that the accounts filed annually by Matzen’s predecessor guardian in 1919 to 1923, inclusive, and by himself in 1924 to 1928, inclusive, continued to list the bank stock as an asset of the estate, and that on each of those accounts the county
By the Court. — Judgment affirmed.
Sec. 320.01, Stats. 1937, was first enacted in substance by ch. 317, Laws of 1903, and was numbered sec. 2100b, in the 1906 Suppl. That section was renumbered sec. 231.32 in the statutes of 1925, was repealed but re-enacted in substance by ch. 363, Laws of 1935, and numbered sec. 320.01, Stats. 1935.
The provisions of sec. 319.29 first appear in substance in sec. 25, ch. 80, R. S. 1849. The statute was numbered sec. 3986, R. S. 1878; sec. 319.29, Stats. 1925; and sec. 319.29, Stats. 1933, in its present revised form.