92 Ala. 545 | Ala. | 1890
The single question presentefl by the record is; should appellant be charged, on his final settlement as guardian of William N. Richardson, a person of unsound mind, with interest on the moneys of his ward, which were not invested or loaned out ? The statute defines and fixes the duty of the guardian as to the management and improvement of his ward’s estate, and as to making the surplus money productive. Section 2412 of the Code declares : “ It is the duty of the guardian to manage the estate of his ward frugally, and to improve it to the best of his skill and ability. He must, if practicable, lend out all surplus money of the ward on bond and mortgage, or on good personal security, and, if the bond is not renewed annually, require the interest to be paid at the
It may be difficult to lay down fixed rules, by which to adjudge in each case the liability of the guardian for interest. It may, however, be stated as a general principle, that he is chargeable with interest, whenever it appears that he has been guilty of neglect in failing to put out his ward’s money at interest' — has not exercised the prudence and diligence which a discreet man would have exercised in respect to the management of his own surplus money under like circumstances. — McLean v. Hosea, 14 Ala. 194. The applicability of this principle is necessarily dependent upon the particular circumstances of each case. It has been correctlj' said : “A jealous severity which would deter prudent men from accepting these trusts, and a lax indulgence which would invite men to accept them for gain, are extremes which are equally inexpedient.” — Clarkson v. DePeyster, Hopk. Ch. 424.
Appellant was appointed guardian Feb’y 9,1875. -He made
However, the onus was on the guardian to show that it was not practicable to invest the surplus money of his ward, ascertained to be in his hands on the last partial settlement, July 9, 1886, in the securities authorized by the statute, after the making of that. settlement. The record shows, that in the general management of the estate the guardian has acted with good faith, and has managed it frugally, accumulating a considerable cash fund from the income and rents of the plan
The evidence as to the comparative security of keeping the money in his own house and depositing it in a bank, was irrelevant and immaterial. He kept it safely, and there is no ■effort to charge him with neglect in the manner of keeping the money. The same observation applies to the evidence in relation to the practicability of investing the money in real estate; for, while the statute authorizes a guardian to invest the money of his ward in real estate, situated in any part of the State, and exempts him from responsibility, if he acts in good faith, for depreciation in the value of the land purchased, it makes him liable for any loss sustained by a failure or defect of title— a warrantor of the title. — Code, §§ 2441, 2443. The law does not exact of the guardian such duty, nor require him to ■assume such liability.
Reversed and remanded.