43 W. Va. 711 | W. Va. | 1897
TMs is an appeal from a decree in a chancery suit by Ingaby M. Windon against William A. Stewart to surcharge and falsify ex -parte settlements made by Stewart as guardian of Ingaby M. Windon, nee Stewart, in which those settlements were reviewed, and a liability larger than that shown by them imposed on the guardian, and he appeals.
The first assignment of error is that the order of reference to a commissioner was improper when made, because at that time prima facie evidence to impugn the former settlements had not been adduced. In the first place, the last or final ex p.arte settlement was never confirmed. Again, evidence tending to show that rent for the land of the ward was too little had been given before the reference. And again, these settlements show errors on their face in allowing principal of the ward’s estate to be used in improving land and in maintenance of the ward, without order of court. Under these circumstances, point 2 in Seabright v. Seabright, 28 W. Va. 412, would justify the reference, as it holds that, if errors appear on the settlement, even the bill need not specify those errors, but there may be at once a review of such settlement; and, more
The second assignment of error is that the decree charged the guardian with four hundred and sixty-five dollars and ninety-six cents additional rent on the ward’s land beyond that charged in the former settlements. I shall refrain from detailing under this head, or any other, the large volume of differing and conflicting oral evidence, since it is cumbersome and improper to load opinions with such evidence, as they are intended only to lay down principles of law. The guardian rented the land, in which the ward had a third interest, to the father of the ward, Robert M. Stewart, who is brother to the guardian, for five years, at one hundred and seventy-five dollars per year, and two years at two hundred dollars, and the decree charged two hundred and sixty dollars. A quantity of evidence given to show the number of cattle which the land would sustain, and probable profits therefrom, and what land was cropped, and opinions of witnesses as to the rental worth, tend to show by a preponderance that the land was worth a larger rental; but men would differ so much on such a matter, as is strikingly manifest from the estimated rent by fourteen witnesses in this case, ranging from one hundred to four hundred dollars. The commissioner did not really pass on this matter himself, but, adding, the aggregate estimates of all the witnesses, and dividing by their number, took the quotient as a finding. This was held in Thompson's Case, 8 Grat. 637, not to vitiate a verdict, but it is hardly a proper process for a commissioner. The same reason does not apply. But the fact that it is not to be regarded as a definite finding by the commissioner is shown by the fact that, after stating the process by which two hundred and sixty dollars rental was reached, he said, “if the court adopts this as the proper amount,” then a certain statement would be right, thus submitting the matter to the court. Where a commissioner finds neither way, but submits to the court, it is not such a finding as requires any exception. Only a finding needs an
When this guardian rented, he is presumed to have acted bona fide, and it must clearly appear that he did not, to charge him with greater rent than he received." The office of guardian is rarely lucrative, and is generally undertaken from motives of duty on account of kinship or kindness, rather than for profit, and we ought not to be so strict with them, or other trustees, where mere judgment and prudence are involved, as to strike terror into mankind when acting for others, and deter cautious, prudent., business men from taking upon themselves offices of kindness and humanity. If there is no mala fides, nothing wrongful in the conduct of the trustee, the court will always favor him. Trustees acting with reasonable care and prudence, and with the best judgment they can upon the occasion, will be. protected, notwithstanding an unforeseen loss of the trust subject, or it may turn out not to be for the very best. See Judge Lee’s opinion, Elliott v. Carter, 9 Grat. 557. “It is a general principle, apiflicable to fiduciaries of all kinds, and, among others, to guardians, that no more shall be required of them than that they act in good faith, and with the same prudence and discretion that a prudent man is accustomed to exercise in the management, of his own affairs.” 3 Minor, Inst. 448; Myers' Ex'r v. Zetelle, 21 Grat. 758. Common skill, common caution, common prudence, are all that can be required. The tract was two hundred and twenty acres farming land, of which one-third belonged to the ward. Much evidence shows it was in bad condition from filth, bad fences, etc. The guardian took the opinion of three persons, who
It is contended that, the commissioner and court erred in charging any rent at all from the date when the land was divided, and Mrs. Winclon’s part set. off to her, to the clay of her majority. It is contended that she and her husband had possession during that, period. The evidence does not show this. There is conflict here, but the preponderance is the other way. For only a few months before majority was she in actual possesion, and then only of a part. The commissioner found one way, charging rent at one hundred dollars per year, — the lowest sum fixed by any witness,— and we cannot disturb the decree for this. Besides, the statute gives the guardian possession until the ward’s majority. ¡She cannot contract with him. Her husband had to support her outside her land. Under circumstances of his inability, it might be said that, as she was entitled to the rents, if she got them by possession, they might be
The third point assigned as error is that the guardian is charged four hundred and ten dollars and twelve cents as principal improperly disbursed, as well as two hundred and sixteen dollars and twenty-nine cents interest thereon. This was money paid to the guardian, not from rent of land by him, and is principal. The guardian claims that it was expended in improvements on the land, and in the maintenance of the ward. The improvement on the land was cutting filth, some new fence, and a small shed annexed to the barn. The law requires a tenant for years to make repairs and keep land in tillable or pasturable condition, by removing what is commonly called filth, such as elders, briers, and like growth, unless otherwise stipulated in the lease. He must repair existing fences. He must fence with new fences, so far as may be necessary to his use of the land. Hoyleman v. Railway Co., 33 W. Va. 489 (10 S. E. 816); 2 Minor, Inst. 682, 686; Tied. Real Prop. §§ 77, 189; Tayl. Landl. & Ten. 327, 343. Of course, a tenant cannot build new houses, or make permanent improvements beyond what falls on himself as a duty to repair, and charge the ward for it. Tied. Real Prop. § 189; 12 Am. & Eng. Ene. Law, 720, 728. If the rent were to be thus absorbed, or it had been so Agreed, it would be grossly inadequate rent, virtually giving the use of the land. Even with this it is pretty difficult to uphold the
The fourth assignment, of error is that the decree charges the guardian with one hundred and fifty-six dollars and fifty-four cents, and interest thereon, as improperly credited to the guardian in the former settlements, for boarding and clothing his ward. The ward was thirteen or fourteen years of age,when the guardianship commenced. Her father was a large, stout, man, engaged in farming, and later in butchering and storekeeping in Clarksburg. He was in middle life, and in active business. He
Appellee’s counsel cross assigns error in that the guardian is charged with one-third instead of one-half a certain sum of three hundred and nineteen dollars. The mother of these Stewart children, as legatee of one Devers, was entitled to certain money, and .Devers’ executor gave her a note therefor, and on her death, supposing the children entitled to all of it, not regarding the husband, as he was, entitled to a third as a distributee of his wife, took up this note, and gave his note to this guardian of Mrs. Windon and her sister, and when this new note was paid, Stewart, the guardian, paid one-third to Kobert M. Stewart, as husband of his deceased wife, and accounted to Mrs. Windon for only a third of the money. The first question is, had the husband any claim against the guardian, — aiiy legal demand? The administrator of the wife was the one to collect the note given her, and out of it pay the husband one-third and the balance to the children, and his demand was against the administrator. The husband, through her administrator, could still look to her debtor, the payment to the guardian not being good against him. But the guardian did, in fact, receive money from a debt, part of which belonged to the husband, and I suppose the dis-tributee. can follow it into the guardian’s hands, without calling on his wife’s administrator to do so. If one of two distributees equally entitled receive from the administrator of a decedent a sum belonging to both, I should say that the other could sue either the administrator wrongfully paying to one, or sue the distributee receiving the whole, for money had and received to his use. Is it different where a guardian receives? I suppose if a guardian or other trustee or fiduciary, receives money to which his
But counsel bases his position on -the theory that, when the guardian paid to the husband, his claim as distributee of his wife had become barred by limitation. He wants to count from the death of Mrs. Stewart, saying that then his right, as distributee accrued. This is not tenable. That might'be as against Devers’ estate, less one year, but not as to a demand for money had and received by the guardian. Did the statute of five years begin on February 21, 1884, when the old note was settled by a new note to the guardian? If so, the demand is barred, and the guardian could not pay a barred demand, as section 5, chapter 87, Code 1891, says a guardian paying a barred demand shall have no credit for it. That new note was a payment for some purposes, perhaps, but not, I think, such payment, as between the husband and guardian, that we can say that the husband could then sue, as no money was then actually paid to warrant him in suing for money had and received to his use. His action accrued only on actual collection. In this view, the demand was not barred, and there is no ground for this cross assignment of error.
Appellee excepts to the report because it allowed for improvements. This exception was well taken, for reasons above given. The report charges the increased rent at two hundred and sixty dollars one-tliird being eighty-six dollars and sixty-seven cents, and credits the guardian with fifty-eight dollars and thirty-three cents, the third of rent of one hundred and seventy-five dollars, thus allowing the guardian for improvements; and the ward loses this, unless the charge of four hundred and ten dollars and twelve cents for improper disbursements, operates to repair this loss. No improvements or repairs are to be allowed. Appellant claims that, as there is a charge of four hundred and ten dollars and twelve cents for money received and improperly disbursed, and a charge for two hundred and fifty-six dollars and thirty-six cents improperly allowed for board, he is doubly charged, and he pays this two hundred and fifty-six dollars and thirty-six cents twice. If that four hundred and ten dollars and twelve' cents be items improperly credited the guardian in the former settlement,
'Reversed.