Brewer v. Ernest , 81 Ala. 435 ( 1886 )

STONE, C. J.

— We will confine our rulings in this case to the errors assigned. There are five special assignments, which we will take up in their order.

Brewer, as guardian of Miss Ernest, made an annual or partial settlement of his trust in January, 1886, at which time there was ascertained to be a balance of personal effects in his hands, amounting to a fraction over three thousand dollars ; all of which was reported to be out on loan, secured by mortgages. In filing his account for final settlement, the guardian debited himself with said balance of three thousand dollars, ascertained to be in his hands in the partial settlement of January, charged himself with some small cash receipts, and claimed credits for said loans secured by mortgage, for some small disbursements, for certain commissions, and for the costs and expenses of settlement. The final settlement was had in July, 1886, and from the decree on that settlement this appeal is prosecuted.

In the final settlement, several exceptions were filed to allowances which had been made in the partial settlement of January, and the rulings on them are the subject of some of the errors assigned. The first error assigned is the dis-allowance of a credit of $43.10, claimed and allowed as voucher 10 in the January settlement.

We think the Probate Court erred in disallowing this credit. True, it was paid in the first instance by Kendall; but Kendall did not lose it. As tenant in common, and agent, he had collected rents, in which Miss Ernest, the ward, had a half interest. The sum of half the collections of rent made by Kendall, he become, at once, liable to pay to Brewer as guardian. When he came to pay Brewer, he did not pay in full. He claimed, and was allowed certain cross demands against Miss Ernest, the ward, and among the rest, the account, voucher 10, paid to A. Meyer. Instead of paying any money to Brewer, his charges against Miss Ernest — and no objection is raised to them — exceeded her share of the rents for which he was liable, by $183.56. So, Kendall in fact did not pay the rents to Brewer, but Brewer paid him this excess of charges he had against Miss Ernest. This reached the same result as if each had paid the other the full amount of his claim in money. It follows that if Brewer was charged in settlement with the rents Kendall had collected and accounted to him for, he was entitled to a credit for all proper claims Kendall had against Miss Ernest, which had been allowed as cross demands in Kendall’s settlement with Brewer. The testimony of the latter is positive that he had charged himself with all the rents collected, either through Kendall, or otherwise, and there is no testimony to the contrary. The account current shows considerable collections of rent during that time, with which the guardian was charged ; and we find nothing to weaken the force of his testimony stated above. If there was a failure by the guardian to debit himself with any of the rents collected, we are unable to detect it from the record.

The second assignment of error complains of the action of the court below, in disallowing $10.00 of the fifteen dollar credit, which had been allowed in the partial settlement as voucher 29. We do not think the Probate Court erred in this. That charge was based on the following state of facts:

Under the administration of the ward’s estate by a former guardian, a debt had been created for her education, on which a balance of some five hundred dollars was claimed to be due. This account was paid by Brewer as guardian, and the charge of ten dollars is made for auditing said claim, and advising whether it should be paid. It is neither shown nor pretended that any legal question was involved in the inquiry. It would seem that the only matters to be inquired into were whether the debt was contracted, whether the charges were fair and reasonable, and whether or not the claim had been paid. These are questions which a personal representative must often decide and act upon in the administration of estates, and if there be nothing more in the transaction, no charge can be made for their performance beyond the commissions the law allows him. Such services are among the considerations for which commissions are given. We find nothing in this record to justify us in reversing the court’s finding on this item. We must not, however, be understood as disallowing all counsel fees, even where no suit has been instituted or defended. — Munden v. Bailey, 70 Ala. 63, declares the correct rule.

The third assignment of error is based on the refusal of the probate court to allow to the guardian commissions on the value of the ward’s real estate, surrendered to her on the termination of the trust. The statute, Code of 1876, § 2793, makes provision for such allowance, “if the judge of probate shall be of opinion that the same are not unreasonable under all the circumstances.” This statute clothes the probate court with a very large discretion in all such inquiries, and matters of pure discretion can not be reviewed.

There is nothing in this assignment.

The fourth and most important assignment of error complains of the refusal of the court to allow the guardian a credit for the note and mortgage of McQueen, given to secure the repayment of the money of the ward, loaned to him by the guardian. In form, the mortgage was not objected to. The real objection was and is, that the security was insufficient when taken, and yet is insufficient, and that the guardian knew the embarrassed condition of the borrower at the time the loan was made.

In making a loan of the mouey of his ward, the guardian must be as circumspect and prudent as an ordinarily prudent man would be in the loan of his own money. It is common knowledge, with which we must be supposed to be familiar, that there is, and for many years has been, little or-no difficulty in finding a customer of first class, and with the best of security, who is willing to borrow money at lawful interest. And in placing a loan of this kind, the guardian should look, not alone to the sufficiency of the security, but should also consider whether or not, when the money shall be wanted, it can be probably realized without the expense of litigation; or, he should provide in the mortgage that any expense attending the foreclosure shall be secured by the premises mortgaged. — 2 Jones Mort. § 1606.

There is testimony in this record that the security, when taken, was sufficient,-and that it is yet so. There is also testimony tending to show that the mortgaged lauds, at forced sale for cash, would not yield enough to pay the debt. The testimony was given orally before the court, and the court, ruling upon it, held that the guardian did not take sufficient security. The testimony was not entirely in harmony, and it was alike the province and duty of the court to weigh it and determine its value. When a fact is thus found by the trying body on oral testimony, the rule is not to reverse, “unless it is so manifestly against the evidence, that a judge at nisi prius would set the verdict aside, rendered on the same testimony.” — Nooe v. Garner, 70 Ala. 443, and authorities cited. If the issue on this item had been tried by a jury on the testimony brought to our view, and the jury had found in favor of the ward, we do not think the presiding judge on such trial would have felt himself called upon, or justified in setting the verdict aside. There is nothing in the fourth assignment of error.

The fifth and last special assignment objects to the charge of interest against the guardian, after the making of the partial settlement in January, 1886. Our ruling on the fourth assignment of error disposes of this objection. By that ruling it is ascertained that the guardian, when he made the loan to McQueen, did not make it within the scope of his duties as trustee. He must, therefore, be held to have used the money on his own account. So using it, he must account for interest upon it, and the probate court did not err in charging him with interest.

The McQueen mortgage is not brought before us, and we can not know its provisions. This renders it improper for us to correct and render the decree the probate court should have rendered. The true inquiries on another trial will be, was the security when taken clearly and manifestly sufficient ? Was it likely, when the loan was made, that the security could be made available without expense; and if not, was provision made in the mortgage that the expense of foreclosure should become a charge on the mortgaged premises ? — 2 Jones on Mort. § 1606 ; McLester v. Somerville, 54 Ala: 670; Munter v. Linn, 61 Ala. 492.

Reversed and remanded.