Neill v. Neill

31 Miss. 36 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

The appellant, by her next friend, filed her petition in the Probate Court of Noxuba County, alleging among other things, that the appellee was in 1853, by the said court appointed her guardian; she being then a lunatic. That her said guardian has failed to make a true and perfect inventory of her estate, &c. The object of the petition is to compel him to make such inventory, and either to take the money himself at interest, or to put the same at interest, on good security.

The facts as shown by the petition and proof are these. The appellee in 1846, received as the attorney in fact of the petitioner, the sum of $2507 92, due to the petitioner from the estate of her father; of this sum he only offers to account for and inventory the sum of $2105 without interest, and the court below decided that he was only liable to this extent. The position assumed in behalf of the guardian is, that as he was not guardian of the petitioner during the period between 1846 and 1853, while the money was in his hands, he cannot be compelled to account to the Probate Court for the same, or in other words, the court must be satisfied with such inventory as the guardian may choose to make. This position is wholly untenable. It is true, he is not accountable as guardian during the above period of time; but he must still make a true inventory of the ward’s estate, and the question is, what is a true inventory ? The answer is, that which includes the whole estate under the jurisdiction of the guardian. Being himself the ward’s debtor, he must account to the court, according to his legal liability, or to the same extent that the ward could compel him to account, if she were mentally capable of asserting her rights. When he received her money he became her debtor, and retaining it in his hands, or failing to pay it over to her, the law fixed his liability in this respect, and declared that being a debtor in default, in discharging his obligation, he must pay interest until the obligation should be discharged.

We are therefore of opinion, that the court below erred, and that the guardian ought to be held liable for the said sum of $2507 92, and interest thereon, from the time he received the money, at eight per cent, per annum, according to the laws' of Alabama, to the present time. The other question is almost a matter of course. The guardian must either agree to pay interest on the money, or place it at interest.

In conclusion we will merely remark, that the guardian is entitled to any just or legal set-off for services rendered to the ward, or expenses necessarily incurred in her behalf while the money was in his hands.

Decree reversed; and decree directed to be made in the court below, according to the principles settled by this opinion; and judgment in both courts against the appellee for costs.