Martin v. Davis

| Wis. | Oct 20, 1891

WiNslow, J.

¥e think the circuit judge was right in his conclusion that Edward had never received any property of his ward. The former guardian, Bancroft, had no .right to put his ward’s money into trade. When he did so he converted his ward’s estate and became personally liable for the amount. The goods bought did not become the property of the ward. The ward,'when he became of age, could demand his money, or he could elect to take the property which his money had, purchased, if still in the hands cf his guardian, together with the profits of the trade, if any. Until such election, the title to the property purchased was in the guardian. It follows, logically, that when J. C. Bancroft turned over this stock of goods to Edward Martin, he did not turn over to him any of his ward’s property.

There is another aspect of the case, however, which we think was overlooked by the circuit court. It is a well-settled principle of law that when one assumes the office of guardian who is at the time indebted to his ward, the indebtedness becomes assets in his hands, to be accounted for as property. Winship v. Bass, 12 Mass. 203; Neill v. Neill, 31 Miss. 36" court="Miss." date_filed="1856-04-15" href="https://app.midpage.ai/document/neill-v-neill-8256955?utm_source=webapp" opinion_id="8256955">31 Miss. 36; Griffin v. Bonham, 9 Rich. Eq. 77. Bancroft owned this "stock of goods. He, in .effect, sold them to Edward in consideration of a release of his liability as guardian of Edward, and the assumption by Edward of Bancroft’s liability to George. This created a valid obligartion on Edward’s part to pay George, which was not affected by the statute of frauds. Hoile v. Bailey, 58 Wis. 434" court="Wis." date_filed="1883-11-20" href="https://app.midpage.ai/document/hoile-v-bailey-6604176?utm_source=webapp" opinion_id="6604176">58 Wis. 434.

, If assent on the part of George was necessary in order to make Edward’s obligation binding, still there was, at the time this bond was given, an inchoate or contingent liability on the part of Edward, subject to be made absolute by George when he became of age. Bid not the bond cover this liability of the principal? It provides that Edward shall pay over and deliver all moneys, estate, and effects remaining in his hands, or due on final settlement, to the person or persons legally entitled thereto. By prosecuting this claim the ward has certainly assented to the transaction between Edward and Bancroft. He has made the moneys in question due from his guardian on final settlement and covered by the bond. It is not to be understood that by this decision we have held the first guardian, Bancroft, or his sureties, discharged from liability. Their liability to the ward was not affected by the transaction. The ward simply acquired an additional remedy against Edward and his bondsmen.

By the Court.- — The judgment of the circuit court is reversed, and the action is remanded to the circuit- court with diiections to affirm the judgment of the county court.