43 W. Va. 529 | W. Va. | 1897
On the first Monday in March, 1895, Sallie A. Wallis filed her bill in the Circuit Court of Mason county against E. L. Neale, her guardian, and William E. Gunn, seeking thereby to surcharge and falsify the account of said Neale as her guardian. The bill alleges : That one J. D. Withers was appointed, qualified, and gaye hondas her guardian, and served as such until July 7, 1892, when he resigned, and the defendant E. L. Neale was appointed such guardian in the room and stead of said Withers. That on July 7, 1892, said Neale qualified as her guardian, and gave bond as such, with the defendant William E. Gunn as his surety thereon. That on November 15, 1893, she intermarried with-Wallis, her maiden name being Sallie A. Col-well. That on January 8, 1894, said E. L. Neale, as her guardian, made a settlement of his accounts as such guardian before John E. Beller, one of the commissioners of accounts of Mason County, wherein he charged against the plaintiff’s estate one note and interest paid E. J. Jones, one hundred and twenty-three dollars, which she alleges was an improper charge against her or her estate. That neither she nor her estate ever owed such a note or interest thereon, and therefore said item was improperly allowed by said commissioner, and that said credit should be deducted from said settlement. And the plaintiff' designates
The plaintiff further alleges that, she ivas twenty-one years of age on the-day of November, 1894, and is therefore entitled to the possession and control of her estate, both
These assignments may be considered together. It appears, from the testimony in the case, that J. D. Withers was appointed guardian for the appellant in December, 1886; that she owned a tract of land containing one hundred and fifty acres, about thirty of which were under cultivation; that said Withers lived near this tract of land, and looked after its management and cultivation for his ward, but made no settlement of his account as such guardian ; that on the 7th day of July, 1892, said J. D. Withers resigned his guardianship of said ward, and the defendant E. L. Neale was appointed her guardian in the room and stead of said Withers; and that'said Neale received nothing belonging to the estate of said ward from said Withers, but proceeded at once to control and cultivate said tract of land. On the 11th day of'March, 1890, J. D. Withers, who was then guardian of the appellant, in pursuance of her written request, purchased for his said ward from F. J. Jones a horse, for the consideration of one hundred and ten dollars, executing his note as of that date, for one hundred dollars, with interest from date, which note was signed, “J. D. Withers, Guardian for Sallie A, Oolwell,’?
Now, as between J. 13. Withers and the appellant, if he had paid F. J. Jones the notes he executed for this horse, there can be no question that in the circumstances shown by the testimony said Withers would be entitled to be reimbursed out of the estate of his ward. It appears, however, that F. J. Jones assigned this bond and duebill to Neale Bros., and the defendant E. L. Neale paid them before he was appointed guardian for appellant, and was entitled to step into the shoes of Withers with reference thereto. This bond and duebill represented a debt, for which, although Withers was personally liable, yet the estate of his ward was also liable, and the defendant, E. L. Neale, by paying the purchase • money for said horse, became the owner of that debt against the estate of said ward, and she became liable to reimburse him the amount he had paid F. J. Jones for her. In the case of Barnum v. Frost's Adm'r 17 Grat. 398 (third point of syllabus), it was held that “bonds executed by the guardian as guardian, showing on their face that they are given for the ward’s expenses, and which, at the time, he promises to pay out of the profits of the ward’s estate as soon as he can collect them, will relieve the ward’s estate from liability for these expenses.” Iir that case the guardian gave his bonds for the payment of his ward’s expenses while living with a relative in the city of Norfolk for her education and support, undertaking to pay as soon as he could collect the funds of the estate. Rives, J., in delivering the opinion of the court, says, speaking of the lady with whom the ward lived, and to whom the debt ivas coming: “Perhaps she might have enforced a personal liability on
It is claimed by the appellant that she ought not to pay for the horse because the debt is evidenced by notes, and that E. L. Neale, as guardian should not be allowed credit for the amount paid on the purchase money of the horse, and for necessaries for her, because he paid for them out of the income of succeeding years. In the case, however, of Barton v. Bowen, 27 Grat. 849 (third point of syllabus), it was held that, “in paying the ward’s expenses for board and tuition, the guardian expended the principal of her personal estate. As a court, of equity would have authorized the expenditure, if application had been made to the court, for authority to do it before it was done, a court of equity will approve and confirm it after it is done.” Under our statute (Code, c. 82, s. 8), the principal or a
The next exception to the coimnissioner’s report is claimed because said commissioner allowed said guardian for an account of Neale Bros. This firm was engaged in selling merchandise at a store in the neighborhood of the appellant, and the defendant E. L. Neale was one of the firm. The account referred to consists of articles furnished his said ward from this store which account was paid by said E. L. Neale, and an itemized account is filed, which shows on its face that the articles sold appellant from said store were necessaries, and the proof shows that they were suitable to her condition in life.
The next exception is claimed because the commissioner had allowed the guardian á sum for looking after the real estate of his ward. The commissioner in the case under consideration allowed the guardian ten per cent, for his trouble in looking after and managing her estate. This sum the commissioner thought reasonable, and the court below has approved his finding. Prof. Minor,- in his Institutes (volumne 1, p. 490), says: “A commission of 7-J and even 10 cent, has been allowed under peculiar circumstances, -where the estate Avas troublesome to manage, and the amount of money received small” (AAdiich comports with the facts in this case), citing Fitzgerald v. Jones, 1 Munf. 156; McCall v. Peachy's Adm'r, 3 Munf. 306; Cavendish v. Fleming, Id., 202.
The remaining exception to the commissioner’s report is claimed to consist in the fact that the commissioner has al-loAved said guardian a greater price for hauling than he charged in his settlement, surcharged and falsified in this case. It is true that the guardian, in making his ex parte settlement, Avas liberal with his ward, and charged her less for hauling than the proof sIioavs it Avas really Avorth; but the appellant was not satisfied with that settlement, and, having filed her bill to surcharge and falsify it, the account had to be stated de novo, and in so doing the commissioner must rely upon the evidence, and we see nothing in the evidence sufficient to. disturb his findings. The rule in re
My conclusion, therefore, is that the circuit court committed no error in over-ruling the exceptions to the commissioner’s report and in dismissing the plaintiff’s bill. The decree is affirmed, with costs and damages.
Affirmed.