Fuller v. Wing

*224The opinion of the Court was drawn up by

Weston C. J.

By the act regulating courts of probate, statute of 1821, c. 51, § 49, guardians of persons non compos, are to be required to make a true and perfect inventory, under oath, of the estates of their wards. In the performance of this duty, their creditors have an interest. The plaintiff, for whose benefit the suit is brought, claims to charge the defendants, upon the failure of the guardian to return an inventory, and upon his refusal to pay to the plaintiff the money in his hands, belonging to his ward, at the time when payment of his execution was demanded.

That money was part of the pension, granted by the United States to his ward. It was competent for the government, to determine for what purposes their bounty should be applied. It was manifestly intended for the personal comfort and support of the pensioner. That this object might not be defeated, the act of Congress provides, that it shall not be attachable or made liable for the payment of debts. .This was no injury to creditors. The pension had not been provided at their expense. And we are of opinion, that this immunity exists, so long as the fund can be identified ; and the guardian was therefore well justified, in refusing to apply the money to the payment of the plaintiff’s execution.

The statute of 1821, before cited, <§> 72, provides, that whenever any administrator shall have received the personal property of the intestate, and shall not have exhibited on oath a particular inventory thereof, execution shall be awarded against him for such part of the penalty of1 his administration bond, as the supreme court of probate shall on full consideration of all the circumstances of the case, judge reasonable. And the like judgment and proceedings (so far as they can with propriety take place) are to be had upon the bonds of the guardians. We are not satisfied, that the household furniture of the ward, necessary for his domestic comfort, if an inventory of it had been returned, could have been made available to creditors. It was not liable to their execution. Nor could it have been the duty of the guardian to strip him of it, for the payment of his debts. Upon the failure therefore of the guardian to return an inventory, the court could not deem it reasonable, to award execution in favor of a creditor, for any thing more than nominal damages.

*225Having considered the case upon its merits, it remains to be determined, whether the amendment moved for by the plaintiff’s counsel, is essential to the maintenance of the action, and if so, whether such amendment can or ought to be allowed. The statute of 1830, c. 470, §> 1, expressly provides, that in suits on probate bonds, the name, place of abode and addition of the person, for whose benefit it is instituted, shall be inserted in the writ, otherwise the same shall abate. This positive enactment, we are not at liberty to disregard. Without a compliance with its provisions, no judgment can be rendered for the plaintiff. It is made a condition of which the Court will take notice, ex officio ; and it cannot be regarded as rendered unnecessary, by any implied waiver, on the part of the defendant.

It is not one of those circumstantial errors or mistakes, for which, by the act regulating judicial process, statute of 1821, c. 59, § 16, no process shall be abated • for the law is imperative, that such shall be the effect of the deficiency under consideration. Such however is the liberality, with which amendments are allowed, that wo incline to the opinion, that the Court might, in its discretion, grant the motion to amend ; but upon this point it is not necessary to speak decisively, as the justice of the case does not require its allowance on the present occasion to sustain a claim for nominal damages. And it is accordingly refused.

Writ abated.