[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69 The defendant was, during the whole time in which the several payments were made, an administrator of the deceased, and during the greater part of that time was the general guardian of his infant children. He might have lent these sums, which he claims, to the plaintiff in his individual character, and he might also have advanced them, after he became general guardian, in that character and on account of the plaintiff's services and expenditures in supplying food, clothing, schooling and other necessaries for her children, who were his wards. The question on the trial was, in which character the advances were made; and the only point now is, whether the evidence which he offered to give, and which was excluded, had a legitimate bearing upon that question. We may assume that the object of the question, which was excluded, was to show that he had received only a small sum as guardian, and that it was less than the sums which he had expended for other purposes, and that he had, therefore, no trust funds in his hands, and must necessarily have made these advances to the plaintiff out of his own moneys. It is obvious enough that, having the power, with the authority of the court, which could be readily invoked, to bring the real estate of his wards to a sale, to raise funds for their support, he might have advanced moneys to a person who had been employed in taking care of them and supplying their necessaries, in anticipation of the proceeds of the sales, and of the collection which he might expect thereafter to make from the rents of the productive property. Whether the advances in question were made with such views, or were individual advances which created an indebtedness in his favor as soon as they were made, would depend upon the circumstances *Page 72 under which the payments were made, and mainly upon the communication between the party paying and the party receiving the money. The defendant could not recall the payments if they were really made as guardian, on the ground that he was not in funds for that purpose at the time they were made. If the case were equivocal and uncertain on the primary evidence, it would, no doubt, incline the mind one way or the other, according to the fact, to show that he had or had not trust funds in his hands. But I am of opinion that the inference which would arise would be a conjectural and not a legal one. In the judgment of the law it would be too remote from the issue.
If the evidence had been received, the plaintiff should have been permitted to show that he was greatly attached to his infant wards, and was of a disposition which would lead him to make personal sacrifices or incur liabilities for their benefit in anticipation of expected funds. The loaning of money is a contract, and whether a particular advance was a loan or a payment on account, must depend upon the facts and circumstances having a direct bearing upon the question; and the ability or disposition of the party paying, though it may lead to a presumption of a certain kind, does not, as I think, raise legal presumption.
The defendant did not put any question which tended to discriminate between those payments made before and those made after he was appointed guardian.
I am in favor of affirming the judgment appealed from.
HOGEBOOM, J.
The facts alleged in the complaint, and not denied by the answer, are substantially as follows: The plaintiff is the widow of John H. Elliott, and entitled to dower in the lands whereof he died seized, and also to a life estate in the share of one of his children.
Application having been made to the county court of Kings county, on behalf of the infant children of Mr. Elliott, by the defendant, as their general guardian, for authority to sell the interest of the infants, in three several parcels, of their real estate, such proceedings were had that that court *Page 73 ordered their sale; and that the defendant pay to the plaintiff, out of the purchase-money paid him therefor, for her dower right and life estate, upon her releasing the same to the purchaser, three several sums, amounting in the aggregate to $2,770.62.
The plaintiff released her dower and life estate, and defendant received the money therefor from the purchasers and refused to pay the same to the plaintiff.
The answer alleges, that at the time when these moneys were received by the defendant, the plaintiff was indebted to him for moneys lent and advanced to her, and paid, laid out and expended for her, to the amount of $2,665.97, and insists that they constitute a counterclaim.
The issues were referred to George G. Reynolds, Esq., to hear and determine, who, by his fifth finding of fact, finds that the defendant did not lend and advance to the plaintiff, or pay, lay out or expend for her, any greater sum than $105; but by his sixth finding of fact, finds that the defendant did advance to the plaintiff, and pay, lay out and expend the whole amount claimed in the answer and the bill of particulars, $2,665.97; but that the whole of such advances and moneys paid, except the above $105, were made by him to and for the use and benefit of the minor children of the plaintiff, and not to or for her use.
To these findings of fact, exceptions were taken.
For the purpose of proving that the defendant had had no moneys in his hands as general guardian to advance, the question was asked by and of the defendant, to wit, how much money he had received on the 15th day of September, 1857, from the real estate and such of the property as came into his hands as general guardian. The question was objected to and overruled and the defendant excepted.
The questions of fact having been decided against the defendant, the question of law arising on the appeal turns on the admissibility of this evidence.
The sole point made on this appeal is, that the referee erred in overruling the foregoing question proposed by the defendant. *Page 74
The main controversy before the referee was, whether the moneys advanced by the defendant to the plaintiff were advanced to her for her own use, or as compensation for the board of defendant and the children, or by the defendant, as general guardian, for the use of the children.
It had already appeared, as the defendant claims, that the personal assets of Mr. Elliott were insufficient to pay his debts; that there was only one piece of real estate productive besides the homestead; that the homestead was occupied by the plaintiff; that there were twenty-six or twenty-seven vacant lots, all of which were mortgaged but four; that the defendant had advanced money to reduce the mortgages and to pay interest, taxes, assessments, c., and the object of the question is claimed to have been to show that, at the time when the advances set forth in the bill of particulars were made by the defendant, he had no moneys in his hands as general guardian, and it is claimed that that would have been an important fact for the referee to have considered in determining the question, whether these advances were made to the plaintiff for her own use, or by the defendant, as general guardian of the minors.
Notwithstanding this argument, I am unable to see the pertinency of this question. The true question was, not how much money the defendant had in his hands, but how much he had advanced to the plaintiff, and on what account. It was not material whether he had funds in his possession when he made the advance, but for what reason and on what account he made it. Nor is the date fixed in the question material, for it would seem that the conveyance of the plaintiff's interest was at a subsequent date. At all events the pertinency of the question is not apparent on the face of the record, and it should have been shown by an offer to prove additional facts, or an explanation to the referee of the manner in which it became material. Unaccompanied with such explanation, I think the referee was right in rejecting the evidence. The judgment should be affirmed.
All the judges concurring in this opinion, the judgment was affirmed. *Page 75