39 Ill. App. 382 | Ill. App. Ct. | 1891
The questions here presented arise under Sec. 22, Chap. 64, Starr & C. Ill. Statutes, imposing the duty upon a guardian “to put and keep his ward’s money at interest.” Exceptions were taken by both parties to the decree below, and error is assigned by appellant for allowing interest upon uninvested funds of the ward. Appellee assigns for cross-errors the allowance of $20 attorney’s fee, failing to charge the guardian with interest on balances as shown by his reports, and in considering the evidence of Steyer. Appellant’s counsel contend, under the facts proven, it was error to allow any interest upon uninvested balances in the hands of the guardian, because he did not wrongfully or negligently fail to reinvest the same, but held the same to meet anticipated necessary expenditures for the care and maintenance of his ward, taxes, insurance and repairs. We can not sustain this contention. The record does not disclose any reason preventing appellant from loaning the ward’s funds, and unless the contrary appears, the presumption is lie could have done so. Appellant had the use of said funds and the receipts w.ere always in excess of the expenditures every year, from the time he was appointed, in April, 1878, up to July 9, 1888. By his report of September, 1878, the balance in his hands was $155.36; by report of July, 1879, $108.96; by report of July 19, 1880, $143.62; by next report, May 21, 1883, $133.49; by next report, May 18,1885, $108.42; by the report of August 16, 1886, $145.98, and by the report of July 9, 1888, $96.70. With these facts, established by appellant’s own reports, and the other facts above mentioned, also appearing, the duty of appellant to put and keep his ward’s money at interest, as required by said Sec. 22, is quite apparent, and failing to perforin such duty he must be held liable for interest on such money after the lapse of a reasonable time allowed him to effect the loaning thereof. Rowan v. Kirkpatrick et al., 14 Ill. 1; Cummins v. Cummins, 15 Ill. 33; Bond et ux. v. Lockwood, 33 Ill. 213; Gilbert v. Guptel, 34 Ill. 112; Mclntire v. The People, 103 Ill. 142; Wadsworth v. Connell et al., 104 Ill. 369. The error is not well assigned. The two cross-errors we shall notice are well assigned.
It was error to allow $20 attorney’s fees as a credit to appellant. The services were rendered on his behalf in contesting the exceptions to his final report, among which was the omission to charge himself with any interest upon unexpended balances held by him, and this exception was well taken. The litigation was occasioned by his fault and the ward’s estate should not be charged with the services of his attorneys in the County Court rendered for himself alone. The Circuit Court, by its decree, allowed this fee and found the balance due the ward to be only $38.82, and the court also refused to charge appellant with interest on balances shown by his reports. This was error. We have examined the record and are satisfied that, commencing with the balance of $155.36, reported September 17,1878, and computing the interest on it and subsequent balances in his hands up to June 11, 1889, the amount due the ward, after allowing all just credits, is at least $114, the sum for which, with interest, judgment is asked on behalf of appellee. The order and decree of the Circuit Court is reversed, except so much thereof as orders the costs of the Probate Court to be taxed against the estate of Amelia Keller, and paid by the guardian ad litem out of assets in his hands, and except also so much thereof as orders said Theodore Steyer to pay the cost in the Circuit Court in this case; and the cause is remanded with directions to the Circuit Court to enter an order and decree that said Theodore Steyer pay to W. S. Morris, guardian ad litem of Amelia Keller, the sum of $124.26, and the costs of the Circuit Court in this case, and in said order and decree also provide that when said Theodore Steyer shall have so paid the same as herein ordered, to said W. S. Morris and to the clerk respectively of the Circuit Court and to the clerk of this court, the costs of this suit in this court, and shall deliver proper and sufficient receipts, evidencing such payments, to the said County Court of Pope County, he shall be discharged from further liability as guardian of said Amelia Keller.
Reversed in part and remanded with directions.
