23 Utah 564 | Utah | 1901
It appears that in March, 1888, Morris Livingston was appointed guardian of the plaintiff’s estate by the probate court. Plaintiff was then a minor of ten years, and became of age on August 26, 1900, and was substituted as plaintiff in this case during its trial. On August 16, 1898, the said guardian filed in the probate court an inventory of the ward’s estate. Such estate consisted of $812 in cash in the hands of the guardian. This inventory was the last paper filed or proceeding had in the estate. No accounting was ever had or report made thereafter. Sis hundred dollars of the money so coming into the hands of the guardian was by him, without any authority of the probate court, invested in the purchase of a house and lot on the thirteenth day of August, 18883 the deed to which was taken in the name of the plaintiff, then a minor. The money so held by the guardian could have been loaned during the period aforesaid a,t a rate of ten per cent per annum. In September, 1891, the plaintiff made a demand on the defendant, as executor, to make an accounting of the said fund, which he, as said guardian, had failed to account for, and such request was refused. The plaintiff occupied the premises with his mother, who was in very poor circumstances, from August 16, 1888, to March 16, 1889, during which time the rental value thereof was six dollars per month, and from March 1, 1895, to the time of the trial, the rental value was four dollars per month. During the period when Livingston was acting as guardian he paid $50 for attorney’s fees necessarily expended by him, $20 probate costs, and $1.10 for recording the deed to the plaintiff. Some additions had been made to the building during the plaintiff’s minority, and a well was constructed on the premises at a cost of $15. The value of the real estate varied according to the condition of the times, and was shown to be from $450 to $650 during the plaintiff’s minority. The plaintiff is shown to have offered during the trial to convey the property to the defendant.
The court found and decreed: “(1) That plaintiff was entitled to receive from the estate of Morris Livingston, and from the executor thereof, the sum of eight hundred and seventy-two dollars, with interest thereon at the rate of ten per cent per annum from August 16, A. D. 1888, to the date of this finding, and the further sum of $15. (2) That defendant is entitled to set off against said amounts due plaintiff the sum of $388.90, to-wit: On account of rent, $42.00; on account of rent, $275.20; for attorney’s fees, $50.00; for court costs, $20.00; for recording deed, $1.70 — $388.90—and interest on $71.70 last mentioned. (3) That defendant is entitled to a reconveyance of said real property by proper deed from plaintiff. (4) That neither said Morris Livingston, as such guardian, nor his representatives, are entitled to any commissions on account of said guardianship.” From this judgment both plaintiff and defendant appeal.
We are satisfied that the decree appealed from, with the exception that compound interest is not allowed, is correct. While it does not appear that the guardian acted in bad faith when he purchased the real estate, or that he failed to make his accounting with any dishonest motive, yet it does appear that he had no order from the probate court authorizing the purchase of the real estate, nor that he ever made an accounting or report of his doings to the court, as required by law. Section 4346, Compiled Laws Utah 1888, empowers the court, on application of the guardian, or any other person interested therein, to authorize and require the guardian to invest the proceeds of the sales or any other of his ward’s money in his hands in real estate, or in any other manner most to the interest of all concerned therein. An order thus obtained would protect the guardian even if misfortune were to follow such investment. But when the guardian acts upon his own judgment
The plaintiff and cross-appellant contends that the interest should have been compounded annually. For the reasons given, we concur in this view. The judgment and decree must be modified so as to charge the defendant and appellant with interest at the rate of ten per cent per annum with annual rests. Section 4327, Compiled Laws Utah 1888, requires annual inventories and reports from the guardian to the court. When such accountings are to be so rendered, interest may be properly computed annually for sums not imported. Jones v. Ward, 10 Yerg. 160. In such cases this is the rule independent of the statute. State v. Richardson, 29 Mo. App. 595; Bradford’s Heirs v. Bodfish, 39 Iowa 681; Frost v. Winston, 32 Mo. 489; Stark v. Gamble, 43 N. H. 465; Davis v. Combs, 38 N. J. Eq. 473; In re Eschrich’s Estate, 85 Cal. 98, 24 Pac. 634.
The defendant, as appellant, complains that the legal fees or statutory commission was not allowed the guardian. Such compensation is only properly allowable to a trustee or guardian who faithfully and honestly discharges the duties of his office. When such guardian converts the estate, or is guilty of gross negligence and failure in the management of the estate, compensation should be refused. In re Thompson’s Estate, 101 Cal. 349, 35 Pac. 991, 36 Pac. 98, 508. The money actually paid out by the guardian for court costs, attorney’s fees, and for recording the deed was properly allowed. The amount of rent, as allowed, was supported by the proof.
Upon a careful examination of the questions raised, we are not able to find any reversible error in the record. The judgment and decree of the district court must be modified so as to charge the appellant (executor) with interest at ten per cent per annum, compounded annually. As so modified, the judgment is affirmed. Costs to be paid by appellant, as executor.