219 Wis. 322 | Wis. | 1935
By proper proceedings, a judgment entered by default against respondent was vacated, and the ruling of the trial court with respect thereto was a correct one.
The conceded facts do not establish any claim in appellant's favor against any of the defendants other than respondent Olson. It appears that this respondent, several times, although in different capacities, performed some acts with relation to the funds of appellant. As a bank official he issued certificates of deposit, acknowledging the receipt by his bank of the funds or some portion thereof. As administrator of a deceased guardian’s estate, he came into possession of those certificates of deposit and also of a note upon which there was an unpaid balance due and owing to appellant and his brother Orville, both of whom were at the time minors. As such administrator, it was respondent’s duty to hold these evidences of indebtedness and make proper account thereof. He was not, by virtue of his appointment as administrator of the Nybroten estate, entitled to act as the guardian of Orville and Julian Rear who were minors. Sec. 287.07, Stats.; Gary v. National Bank, 26 S. C. 538, 2 S. E. 568; Schouler, Wills, Executors and Administrators (5th ed.), § 1245; Matter of Hayden's Account, 204 N. Y. 330, 97 N. E. 718. The evidence sustains the findings made by the trial court that as such administrator respondent properly acquitted himself. But his connection with the funds did not end there, and losses subsequently occurred. He was appointed, on or about February, 1927, guardian of Orville Rear, the older of the two minors. After this appointment, the evidence shows that respondent dealt with the interests of Julian, the appellant here, as well as with those of Orville, for whom he was guardian. Although he intended to serve only as guardian for Orville, he collected the note and cashed the certificates of deposit belonging to both the minors for the purpose of more readily meeting the requirements of the
The steps taken to collect and place in Orville’s hands a proper share of the money represented by the note, certificates of deposit, and checking account, are relied upon by appellant to establish the fact that respondent was an inter-meddler so far as appellant’s funds are concerned, and that by reason thereof, the bank having failed to pay in full, respondent is liable as one having converted funds to his own use. The liquidation proceedings in connection with the bank have resulted in a payment of $1,462.84 on the claim, which sum appellant has accepted since becoming of age. . The appellant is entitled, under the evidence, to a recovery of the balance.
Respondent was duly appointed guardian of Orville. This appointment did not include appellant, and did not confer upon respondent any rig-ht or authority to act for or bind appellant. The reasons which must have suggested the necessity of having a guardian appointed to protect the interests of one, would seem to furnish a pointed suggestion at least, that guardianship of the other ought to be arranged for. Respondent, as guardian of Orville, assumed to act for Julian too, in handling- evidences of indebtedness of which Orville and Julian were co-owners and tenants in common. He collected money, placed it in the Union State Bank, and paid Orville his share. A question now arises as to the position respondent has placed himself in with relation to appellant and his property. A guardian de son tort, sometimes described as a quasi guardian or guardian by estoppel, is one who assumes to act as a guardian without valid authority.
It is unnecessary to treat further the character of the position resulting from respondent’s actions with relation to the fund. Whatever it was, it was not a formal trust initiated by a grant or declaration of trust. It had no definite period of contemplated duration. It would seem that respondent’s duty was either to accept the full responsibility thereof, or terminate his relation to the fund by seeking out the proper person to whom he could make delivery. Pie must proceed properly to unload the burden he has taken upon himself, or continue in the character he has assumed with the knowledge that he may be called to account as a tort-feasor, unless intervening circumstances create conditions which equity will recognize as establishing a trust relation, or the minor, upon becoming of age, elects to treat the matter as a trust. Spencer, Law of Domestic Relations, § 736; Sherman v. Ballou, 8 Cow. (N. Y.) 304. Linton v. Walker, 8 Fla. 144, 71
“If a man who has no title to be guardian, enters as guardian into the lands of an infant, it. is at the election of the infant to make him a disseisor, ... or else to dissemble the wrong and call him to an account as a guardian.”
Had respondent refused to proceed with the converting of the evidences of indebtedness into cash until Julian’s interests were properly represented, the troubles now encountered could not have arisen. Had he properly or reasonably proceeded in the matter of securing a guardian for Julian, or had he taken the money into court and left it there, the result would of necessity be different. In 1927 or 1928, appellant could not take the money and no one stood in his stead who could. The respondent, having assumed to act, certain responsibilities immediately attached. He could not throw the money away or hand it to a chance' passer-by, and thus escape a liability. Here no steps were taken by respondent to fend the relation which the circumstances of the transactions had created, or to relieve himself in a lawful way from the responsibilities entailed by his acts.
While the default arises from a misconception of his duties, and from his conclusions that his obligations were fully discharged by leaving the funds as completely as possible in the state he found them, this fact is of no legal materiality. He had a duty so long as he was thus legally charged with the possession of the estate. He made no effort whatever to meet this duty, and his liability is based on this default.
He placed the money in a bank of which he was an official, and the great weight and clear preponderance of the evidence shows that he then entertained the intention of leaving the
The acts of respondent brought upon him a liability to the appellant for the funds with which he intermeddled. The appellant being within his strict legal rights in demanding judgment for the amount of loss sustained by the closing of the bank, is entitled to the relief sought. Judgment should be for the amount of the funds July 18, 1928, less payments made, with interest from July 18, 1928.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion.