Window v. Stewart

Dent, Judge,

(Concurring) :

The sole question presented in the petition for rehearing is relative to the matter of alleged double charges against the guardian. To properly present this question it becomes necessary to *494review the whole of the guárdian’s accounts. These show the following charges against and disbursements by the guardian:

Rent of land, 1884, .$ 58.33 1-3
“ “ “ 1885, 58.33 1-3
“ “ “ 1886,. 58.33 1-3
“ “ “ 1887,. 58.33 1-3
“ “ “ 1888, 58.33 1-3
“ “ 1889, 66.66 2-3
“ “ “ 1890, 66.66 2-3
Total to last settlement,.$425.00
Disbursements:
Officers’ fees, including clerk, sheriff, commissioner and printer,.$ 75.10
Taxes paid,.•. 185.37
Guardian’s charges and commissions,. 55.38
Amount paid Bassel, Atto.,. 100.00
Saddle,. ■ 5.90
$421.75
Balance, .$ 3.25
Horse retained by ward,. 80.00
Disbursements in excess of rent,.$ 76.75

The officers’ fees and taxes are legal charges against any fund the guardian may have in his hands, whether principal or income, although primarily they should be paid out of the income including rents, profits and interest. The guardian’s charges for ms time and trouble, to-wit, fifty-five dollars and thirty-eight cents, are certainly reasonable. While he may not have made all his settlements strictly in accordance with the law, yet the letter of the law must bond to its spirit as it was made to govern all estates, both large and small, and it operates harshly as to small estates sometimes to the injury of both guardian and ward. Myers v. Myers, 35 S. E. 868; Maquire v. Doonan, 24 W. Va. 507. The amount paid the attorney is a just disbursement, acknowledged by both the plaintiff and her husband. The saddle the plaintiff acknowledges to have been purchased for her at her *495instance, and was a necessity for her use, she residing in the country and needing it. The horse was furnished the plaintiff shortly before she became twenty-one years of age, and she has retained it since and ratified and confirmed its purchase. “Where the act of the guardian is not fraudulent, but is unauthorized, the ward at his majority may elect either to ratify or reject it, unless the court has previously confirmed it. If he repudiates the transaction he must first resign whatever benefit he has received through it.” 9 Am. & En. En. Law, 150; Wallis v. Neale, 43 W. Va. 529. The only other fund that came into the guardian’s hands and for which he was chargeable is the sum of three hundred and sixty-nine dollars and ninety-nine cents received from Bassel,his collecting attorney at different times, who retained forty dollars and thirteen cents presumably as the commissioner reports as fee for his services in making the collections. This . makes the sum of four hundred and ten dollars and twelve cents charged by the circuit court as principal received by him which he was not authorized to disburse, and applying the rent as above indicated leaves this as the only fund out of which the guardian could have paid the one hundred and ninety-six dollars and seventy-seven cents improvements and the two hundred and fifty-six dollars and thirty-six cents education and maintenance. Deducting from the two hundred and fifty-six dollars and thirty-six cents the compound interest leaves only the sum of one hundred and seventy-nine dollars and forty-two cents as the actual disbursement by the guardian. Adding together these two sums makes the total sum of three hundred and seventy-six dollars and nineteen cents hold to have been disbursed by the guardian improperly out of said sum of four hundred and ten dollars and twelve cents, and when the guardian has been charged up with this full sum of four hundred and ten dollars and twelve cents he should not be charged with either of the sums representing improvements or education and maintenance; otherwise there is a double charge against him. The result is the same, it matters not which fund we charge his just disbursements. The law applies them to the fund from which they should be primarily paid, to-wit, the rent of the land. The total charges against him up to and including 1900, is the rent account, four hundred and twentjr-five dollars, and the cash account, four hundred and ten dollars and twelve cents, making a total, eight hundred and thirty-five dollars and twelve cents. Deducting from this his dis*496bursements without the horse, four hundred and twenty-one dollars and seventy-five cents, and we have a balance, four hundred and thirteen dollars and thirty-seven cents, three dollars and twentjr-five cents of which is disbursable on the horse, leaving the four hundred and ten dollars and twelve cents from which deducting the retained attorney’s fee, forty dollars and thirteen cents, leaves the proper principal with which the guardian is chargeable the sum of three hundred and sixty-nine dollars and ninety-nine cents. The guardian having no funds to apply to these improvements or for the education and maintenance of the plaintiff, he should not be charged with them for he can only be charged with the funds received by him, or lost by his negligence. This attorney’s fee of forty dollars and thirteen cents is not shown to have been received by him or lost by his negligence, but could be easily established by the commissioner taking the evidence of the attorney who retained it. The guardian is further chargeable with one hundred and sixty-five dollars and fifty-five cents rent accruing after the land was divided, the same now being res adjudícala, having been settled by the former appeal. This amount is due from her father to her guardian, as he occupied and used the land while she and her husband resided with him, and was supported by him during pregnancy. This, however, would be subject to a credit of the balance due on the horse as heretofore shown. Simple interest only can be calculated on any of these sums after the ward arrives at maturity. The same may be said with regard to the improvements and also the maintenance and education, including clothing. All these sums, to-wit, the sum of one hundred and seventy-nine dollars and forty-two cents for clothes and schooling, one hundred and ninety-six dollars and seventy-seven cents for improvements, and one hundred and sixty-five dollars and fiftj'-five cents, amounting to five hundred and forty-one dollars and seventy-four cents are proper charges in favor of the guardian against the father of the plaintiff, Robert M. Stewart, who is a party to this suit as one of the sureties on the guardianship bond, and as to this amount with proper interest thereon he should be treated as the principal debtor to the plaintiff to the relief of the guardian and the other surety. These being trust funds paid to the father for the benefit of the daughter, and she now repudiating such payment, they should be repaid to the guardian at the same rate of interest the guardian is compelled to pay. Including such interest they will *497greatly exceed in amount the sum that may be due from the guardian. Equity having the parties before them places the liability where it ultimately belongs'.

The whole truth of this case is that the guardian virtually permitted the plaintiffs father to have the full benefit of plaintiffs estate, believing it to be beneficial and satisfactory to all the parties in interest, the father being of limited means and the daughter’s duty toward him being mutual and reciprocal with his towards her. From her deposition she is only a nominal' party to this suit, and had she fully understood it,' she would probably never have instituted it, but she seems to have married a man who is willing to be supported by his wife’s relatives. Many careful saving parents have had their declining years made unhappy by the grasping ingratitude of such thankless children by blood or marriage. Myers v. Myers, cited.

There is included in the guardian’s account the sum of eight dollars and twenty cents for locust posts and coal sold off the land. Since he receives no allowance for repairs and improvements, he should not be charged with this amount, which is virtually covered by the rent.

To recapitulate, the guardian should be charged in this case as it now appears with the sum of four hundred and ten dollars and twelve cents, less forty dollars and thirteen cents, or three hundred and sixty-nine dollars and ninety-nine cents and one hundred and sixty-five dollars and fifty-five cents with legal interest on each of such sums, less seventy-six dollars and seventy-five cents, the balance due on the horse as credited as aforesaid, all of which, if he asks it, he will be entitled to recover back from Eobert M. Stewart, one of his sureties and the father of plaintiff. In addition the guardian will be entitled to credit for his costs in his former appeal, three hundred and eighty-seven dollars and fifty-five cents, less sixty-two dollars hnd forty cents, or three hundred and twenty-five dollars and fifteen cents.

The decree is reversed according to the former holding of ibis Court and remanded to the circuit court to re-state the guardianship account as herein heretofore indicated and for further proceedings according to the rules and principles governing courts of equity.

Reversed,