Mathes v. Bennett

21 N.H. 204 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

According to the decision just made in the ■the preceding case, the guardian must be charged in the first place with the sum of $257.44, the balance in her hands as .administratrix.

This is an appeal from the decree upon her account as guardian.

The first point made by the appellant is, that upon the balance in the hands of the guardian, as administratrix, on the 11th of March, 1818, interest should be east and added to the income for each year, thus making an annual fund for the support of the ward. The auditor has not allowed or disallowed interest, conceiving that the Court had, and that he had not, judicial discretion in the matter. But the former report finds that there has generally been a balance due the administratrix, for the support of Lydia Ann, larger than the balance due from her; and therefore he allows no interest. The decision in that case must govern us in the present case, and this point must be overruled.

. The second point is, that the guardian, should not be allowed to retain any part of the income of the real estate on account of her dower, as it was not assigned while she was guardian. She had a right of dower, but she had instituted no proceedings to have it established. This might have been done at any time. How is the ward injured by the omission ? The pecuniary result would have been the same in either case. It would be a most inequitable advantage to give the ward over the guardian, the daughter over the mother, to permit the ward to have all the income, when the omission has caused no injury, and when the relative condition of the parties might somewhat explain the delay. We have not discovered that the principle of the case of Lowell v. Briggs, 2 N. H. Rep. 219, 220, to which we have been referred in argument, applies here. That case states, that a guardian’s conduct should be carefully scrutinized when he purchases property of his ward; but no purchase or contract exists in this case. There is no conflict of interest here in relation to the income, but the interests of the two parties are identical. There would, be more conflict if the dower had been assigned, so that the land should have been occupied in severalty.

The third point is, that the marriage of the guardian with Bennett in 1820 extinguished the trust, and her power to act as guardian. This point must be overruled, for the reason stated for overruling a similar position in the former account.

The fourth point is, that the expenses of defending the suit brought by Rebecca Stevens against the ward should not be allowed, because they were improperly and unnecessarily incurred. The auditor states, that he is not aware of any defence that could have been made. But the defendant’s counsel thought differently, and’ the • auditor finds that the suit was defended in good faith, and under the advice of competent counsel. The case of Smith v. Bean, 8 N. H. Rep. 15, is conclusive upon this point. There the guardian prosecuted an unfounded claim on behalf of his ward, and the court express surprise that any controversy should have arisen. But the guardian believed the claim to be a valid one, and consulted counsel, who advised the prosecution of the claim. A re'sult was reached at first favorable to the ward, which the court considered “ sufficiently astonishing,” but further investigation showed that result to be incorrect. But it is said by the court, as we say here, “ under all these circumstances, can we say that the guardian acted in bad faith, or so imprudently, that the expenses of the litigation should fall upon her ? ” We think they should not. The appellant also objects, that the fees of the witnesses in the Court of Probate, should be only those taxable before a justice of the peace. The fees of witnesses in all cases, except when they .attend the Superior Court or Court of Common Pleas, must be those only which are taxed before a justice. This includes the fees of witnesses in the Probate Court, before auditors, &e. &c. This item must be disallowed, so far as it exceeds the amount taxable before a justice. The statute does not authorize such fees as are here charged, except in the Superior Court, or Court of Common Pleas. Rev. Stat. 472, § 12.

As to the Statute of Limitations, which the appellant contends should apply to all the guardian’s charges more than six years .old, we are not aware that it has been applied to such cases, and the counsel refers us to no authorities. But does the Statute of Limitations ever apply where no action is brought ? We are not aware that it does. Here no action is brought, and no plea could be pleaded of the Statute of Limitations. It could not be given in evidence under the general issue, upon filing a brief statement pursuant to the statute, for there is no general issue in the case, and we think the statute does not apply to cases of this description..

The decree of the judge of probate, which finds a balance due the guardian of $283.62, must be reversed.

The decree of this Court is, that there is a balance due her of $447.73, which is to be allowed her upon the final settlement of her account, deducting therefrom, however, the difference between the sum of $17 allowed by the auditor for fees of witnesses in the Court of Probate, and the amount of such fees taxed as if the witnesses had testified before a justice of the peace.

The decree of the judge of probate is affirmed as to the other matters specified in the appeal. Costs are to be taxed for the guardian, and the case is remitted to the Court of Probate for farther proceedings.