Royston v. Royston

29 Ga. 82 | Ga. | 1859

— Stephens J.

By the Court.

delivering the opinion

This is a bill by Cyrus A. Roysfon and wife,.against the administratrix of George D. Royston, who was guardian of the wife, for an account of his ward’s estate. Each party brings a writ of error, but by combining the two cases, each side assigns error in this case, wherein the complainants below are plaintiffs in error.

[1.] The first assignment of error by the complainants, is the refusal of the Court to strike out, as impertinent, a portion of defendant’s answer, instituting an invidious comparison between this complainant and one Swain, who stood in the same position, but who is represented as having'acted a much more generous part. It was conceded in the argument that this portion of the answer was not pertinent, and was calculated to injure complainant’s case, but it was insisted that the motion to strike it, coming after replication, was too late. Such seems to be the rule under the English system of equity, but the reason for the rule under that system does not apply under ours. There to have an answer purged of impertinence or scandal, it must be referred to a master. This involves delay, and hence will not be allowed generally, after the case is ready for a hearing. But here it is done by the Judge, on motion, at any time before the case is submitted to the jury, and one time for it involves no more delay than another. Cessante ratione legis, cessat lex. We think the Court erred in refusing to purge the answer.

[2.] The next assignment of error by the complainants, is the refusal of the Court to strike from the answer a calculation which formed, a part of it. The calculation is not before us, it having been voluntarily withdrawn by the complainants, as we learn from the argument, and we cannot, therefore, form a very satisfactory opinion as to whether it was obnoxious to objection or not. Rut we think its withdrawal cured whatever objection there might have been to it. It is said that counsel were allowed to argue upon it after it had been withdrawn. Argumentativeness may 'be a good objection against an answer, but it will scarcely serve against a speech. We think there is no error apparent in this assignment.

[3.] The contested items in the account were mainly rent and interest, and the next assignment of error is the allowance by the Court of evidence to show, by way of reducing rent, how much value was added to the ward’s land by improvements put on it by the guardian, while it was in his hands. We think there was no error here. It was proper that the guardian should be credited with the value of the improvements made by him, but at the same time he should have been charged with the rent as increased by that super-added value to the land.

[4.] We think the next assignment of error is bad. It was proper to admit evidence showing that neighboring plantations lay idle during some years while the guardian had possession of this plantation, for this was a circumstance legitimately tending to lessen the rent, by showing the dull demand for lands. Nor was there any error in admitting evidence that it was very common for renting plantations to be rented once in every four or five years, for no price but repairs, nor in admitting evidence of what rent other similar-lands, in the same neighborhood, brought during the same years. The thing to be proven was the market value of the rent — a matter of judgment, and he who has reasons for his judgment is, at least, as good a witness as he who has none.-' All these things are only reasons for the judgment of a witness.

[5.] The next assignment of error is by the defendant She, as administratrix of the guardian, offered to put in evidence returns made by her of moneys paid out by her after the death of the guardian, and also of moneys paid out by the guardian in his life-time, but not returned by him to the Court of Ordinary. We think this evidence was properly rejected by the Court. There is no law' authorizing the administrator of a deceased guardian to make returns for him. These items ought to have been proven in the same manner as all other unreturned items.

[6.] The defendant was allowed, against the objection of complainants, to give in evidence the sayings of the guardian to show at what rate of interest he had lent his ward’s money, and also to show that in relation to a certain sum which he had lent to Chaffin, and for which the ward was seeking to hold him liable on account of his negligence, he had used the same care and diligence that he had used with his own money. A fatal objection to the evidence is, that it was his sayings in his own favor, offered by himself. It was improperly admitted.

[7.] The defendant was allowed, against the objection of complainant, to give evidence of her having to resort to law in order to collect the money which had been lent out for the ward by the guardian, and of reasonable attorney’s fees for these collections. We think this was proper evidence, taking strict care to confine it to collections of moneys which were certainly the ward’s.

[8.] The evidence being closed, the complainants asked the Court to charge the jury, that if the guardian had failed to make return of his acts by the 10th day of January, for any year prior to 1850, he had forfeited his commissions on the whole estate. The Court refused so to charge, but charged instead that he was entitled to commissions on all returns which had been made in time. We think the charge asked was properly refused, and that the charge, as given^ was less than the defendant was entitled to have had. The Act of 1792, (Cobb Dig. 306,) is the only one providing for a forfeiture of commissions on account of a failure to make returns; and, singularly enough, it does not embrace guardians in that provision. Guardians, therefore, are left to stand on the Act of 1764, (Cobb Dig. 304,) prescribing commissions without regard to the making or omission to make returns.

[9.] On the charge in relation to interest both sides assign error, and without repeating what the charge was, I will state what we conceive the true rule of interest to be. Up to the 1st of January, 1848, when the Legislature prescribed a rule from that time forth, we think simple interest the rule, and compound interest the exception — simple interest unless there be fraud or gross negligence on the part of the guardian, and' in case of such fraud or gross negligence, then compound interest, the compounding to be done at the end of each six years. And therr.ie of interest, whether simple or compound, is eight per cent, per annum up to the 1st January, 184'6, and after that, seven percent, per annum up to the 1st of January, 1848. After 1st January, 1S4S, the Legislature has prescribed a rule of its own. For trustees, who were such at the passage of the Act, (as this obe was,) that rule is seven per cent, per annum for the first six years from and after the 1st January, 1848, without compounding, and afterwards six per cent, per annum, compounded annually.

[10.] We think the Court properly refused to charge the jury, as he was asked in substance to do, that the guardian’s failure to make returns of the accumulating interest in his hands was a circumstance by itself, authorizing them to find fraud and charge compound interest. It is very seldom that trustees do make returns of such interest accumulating in their hands. It is very proper they should do so, but their failure is not sufficient ofitself to authorize the conclusion of fraud. To so hold, would be to taint nine-tenths of all tho returns in the country with fraud, at a single blast. Wo think, also, that the Court was right in refusing to charge the jury, that the fact of the guardian’s having, in 1840, rented out a part of the land for @160 or @200, returning only @24 65 rent for that year, was strong evidence of fraud. The jury ought not to have been instructed that that single fact was “strong evidence of fraud,” for it was open to explanation from other circumstances, as for instance the improvements which he had put on the place that year, and the jury ought, therefore, to have been left to consider that fact in connection with all the rest, in making up their judgment as to fraud or no fraud, and so compound or simple interest.

[11.] We think the disbursements of the guardian ought to have been made out of interest, and not out of the principal. There is some difficulty in understanding what the charge was on this point, and we simply pass it with stating what it ought to have been.

[12.] We think the Court committed no error in charging ' the jury, that the guardian was entitled each year to retain in his hands, without interest, from the beginning of the year, enough of the funds to cover his disbursements for that year. It would be unreasonable to charge him with interest on a fund which he must hold and not use, in order to meet, as is his duty to do, the current expenses of the year.

[13.] Another point in the record is, in relation to the guardian’s commissions upon interest. The conclusion to which this Court came on this subject is as follows: It is not a matter of course that the guardian is to have ten per cent, commission on all interest. The lowest limit is two and one-half per cent., for by the statute he is entitled to two and one-half per cent, on all sums “ paid away in debts, legacies, or otherwise,” and as the interest must be paid away by him in his settlement with his ward, he is entitled to two and one-half per cent, on that, as on principal. On the other hand, ten per cent, is the highest limit to which he may reach or not, according to the opinion which the jury may entertain of the skill and fidelity with which he has managed the estate-The provision in relation to ten per cent, on interest, does not confer that amount of commission, but is only a. proviso that the commission shall not exceed ten per cent, on the interest When the guardian simply allows the money of his ward to remain in his own hands without lending out, and thus renders himself chargeable with interest, this is a case for two and one-half per cent, only; but when he lends out the money to other people he is entitled to five per cent, commissions on interest, for in this case he receives interest and (on final settlement) pays it away, and on each operation he is entitled to two and one-half per cent., or which is the same thing, five per cent, on the two together. Such is the conclusion to which this Court came, upon the subject of commissions on interest; but while I avow, as the truth requires I should do, my full share of the responsibility of that conclusion, candor demands that I should say that subsequent examination and reflection have satisfied me that the conclusion is an erroneous construction of the Act of 1764. It is needless to state here what I now deem to be the true construction, for stated under these circumstances it would be a mere dictum, I might want to take it back at some other time. This branch of the case was was not discussed at all in the argument, and the decision, therefore, is scarcely to be regarded as a well considered one. I make this remark simply by way of protesting against its being drawn into an authoritative precedent. A decision pronounced upon full argument and consideration, is justly entitled to great weight; indeed, to a controlling influence on subsequent decisions; but such decisions as this Court, from the nature of its organization, is sometimes obliged to render, without argument, and on short consideration, ought, in my judgment, to carry but slight authority for subsequent decisions.

Judgment reversed.