Harbin v. Bell , 54 Ala. 389 ( 1875 )

MANNING, J.

Appellee, O. B. Bell, having procured himself to be appointed guardian of James Y. Cloud, a minor, and in that capacity received money of the said minor, and made returns thereof as guardian to the court, cannot, when sued by the administrator of the minor, exonerate himself from liability by alleging that he was not legally appointed guardian. He assumed the office, undertook to perform its duties, obtained by means thereof the money of Cloud, and must be held accountable, as other trustees, therefor.

Appellee received the funds of the ward in April, 1862, in “Confederate currency.” And the administrator now seeks to make him liable for the value of those funds at the time they came to the guardian’s hands, less any proper credits to which he may be entitled.

The guardian seems not to have made any profit to himself by the trust he assumed. All the Confederate money he received he immediately lent, except a part retained to supply the ivants of his ward, to Mrs. E. L. Bell, a sister of the minor, and with whom he lived, and a sister-in-law of appellee, the guardian. Whether the minor, who died in 1864, had any other surviving relation who could take as distributee of his estate, does not appear. But Mrs. Bell is also dead, and the money lent to her was never collected. Nor was proper security taken from her for the re-payment, or reason shown why she should be allowed to retain it. The law expressly required that good security should be taken, when the money was lent, or that the money should be, in good faith, invested in real estate purchased for the ward. — Bev. Code, §§ 2426, 2437, et seq. Not having complied with the directions of the law," the guardian became liable for the money as taken or borrowed for his own _ use, and disposed of as his own. He is personally responsible for the money at its value at the time when he so undertook to treat it as belonging to himself. 1

It is objected, however, that as no exceptions were taken to the second report of the register as master, it cannot be insisted in this court that the report was incorrect. This would be so if the error in disallowing to the complainant below the value of the Confederate currency, were the error of the master. But this is not so. In his first account he charged the guardian with it, and upon exceptions by appellees, the chancellor ruled that this was not correct, and referred the matter again to the master, with instructions that the guardian was not to be charged with that amount. It would have been a contempt on the part of the master to disregard these instructions, and might have been supposed to be hardly respectful, perhaps, in the counsel for appellants to have renewed the contestation before the chancellor, as they must have done, if they had excepted to the report for the same matter which he had already decided. At any rate, it was not necessary they should have done so.

We are of opinion that the guardian, Bell, should be credited with the value of the horse furnished to his ward when the latter was compelled, by conscription, to enter the Confederate army, and joined a cavalry company. Bell having become liable for the payment of the horse and given his note therefor, no question properly arises between him and the ward’s administrator, whether the note was paid or not. The horse was paid for, so far as the latter was concerned. And while the guardian is not allowed by law to make a profit out of the ward by his dealings with the latter, and will not be allowed to charge him with more than an article is, under the circumstances, worth, although the guardian should give more than such value for it, the ward cannot be heard to object that his guardian has not paid the promis- ■ sory note he had given for such article, if-there was no fraud or bad faith toward, or imposition upon the ward. — See Peter v. Beverly, 10 Peters, 567.

The decree of the court below is reversed and the cause remanded, to be proceeded with according to the views expressed in this opinion.

Stone, J., not sitting.