Magruder v. Darnall , 6 Gill 269 ( 1847 )

Archer, C. J.,

delivered the opinion of this court.

The court below did not err in directing the account to be taken from the date of the bond given by Darnall as guardian. However Darnall might be responsible as bailiff, or guardian before he bonded as guardian, for an entry on the estate of the complainant, and for any perception of the rents and profits before such bonding; if it was designed to charge him in this case for such profits, it was indispensable that the entry upon the estate should have been distinctly charged. Instead of this, the whole bill is framed in reference to his duties as guardian, deriving his authority as such from his appointment.

It is said he was in possession when he applied to be appointed guardian, but when he took such possession, does not appear by the bill. It is afterwards averred, that being appointed guardian, he took possession of the real and personal estate. To allow an account to be taken from a period anterior to the defendant’s appointment, would operate as a surprise, and as there are no allegations on the subject, we do not think the question is in issue before the court. The same remarks may be made in reference to the attempt to charge the defendant, the husband of Mrs. Darnall, with the perception of the profits by her, anterior to her marriage with the defendant. She was administratrix of her husband, (Hill,) and although as husband he may be responsible for her acts, she should have been made a party, and some charge should have been made in the bill, which would have given notice to the defendant of the claim, and have put in issue the perception of the profits by her; nothing is said in the bill looking to this subject, and no account was properly, therefore, taken of this matter in the court below.

In relation to the value and hire, or profits, of the personal property of the female complainant, bequeathed to her by Mrs. Magruder, of whose estate the defendant was executor, with which the complainant seeks to charge the defendant, it will be unnecessary for us to examine the question whether the bill is so framed as to admit of such a charge; because we think there is no proof in the cause of any value, to be attached to the use of this property, beyond its expense, and in relation to the delivery of the property itself, the release given by the ward may be relied on as evidence of that fact.

It is urged that the defendant should be charged with the appraisement made 20th March, 1820, by authority of the Orphans Court, upon the ground that such evidence ought to be conclusive against the guardian of the value. The act of 1798, ch. 101, sub chap. 12, sec. 6, does not make it conclusive evidence. It only declares it shall be evidence against the guardian, and we think it may be rebutted by evidence. That there are inaccuracies in this appraisement is unquestionable, and there is much evidence going to show that it was an inflated valuation.

The Chancellor was right in pronouncing that the guardian’s account staled and passed by the Orphans court of Prince Georges County, as of the 8th January, 1821, was to be received as a judicial act of the court, and as prima facie evidence of the matters therein contained. Evidence w“hich has been offered to impeach it is entirely inconclusive, and cannot form the basis' of any judgment against it.

It has been urged as a seventh reason for the reversal of the Chancellor’s decree, that the defendant ought not to have had the credit for the full share of the ward’s personal property. This point is made on a misconception of the evidence. It is proved by Joseph Wilson and William Hill, that this property was passed over to the female complainant.

Errors have been committed in the mode of averaging the proof, in relation to the board and maintenance of the ward, and in the mode of averaging the proof in relation to the expense of maintaining and raising the young negroes; but we think that circumstance ought not to occasion the reversal of the decree, as we feel assured the evidence in the cause fully justifies the credits which have been allowed to the defendant on these accounts.

Nor do we feel disposed to charge the defendant with more interest than he is charged with in the account which had been ratified. The whole evidence in the cause which has been carefully examined, induces us to believe that the estate in the hands of the defendant was not greater than was necessary to pay expenses, and necessary and proper to be made.

So far, therefore, as the appeal of Magruder and wife is concerned, we affirm the decree of the Chancellor, with costs.

With regard to the appeal of Darnall, we think he was entitled to higher commissions. The Chancellor has allowed only five per cent, commissions. This amount of commission was allowed in Diffenderffer vs. Winder, notwithstanding there was such conduct on the part of the trustee, as induced the court to charge him with compound interest. This has been a trust of considerable duration, and the guardian seems to have performed his duties, except in a failure regularly to pass his accounts. He has, however, promptly answered: appears to have thrown no obstacles in the way of the investigation, and has rendered a general account. We think he is at least entitled to as great a rate of commission as was allowed in the case of Hatton vs. Weems, which was seven and a half per cent. Allowing to him this commission, the balance found against him by Account E, would be more than satisfied. The decree must therefore be reversed, with costs, and the bill dismissed, with costs.

DECREE REVERSED AND BIEL DISMISSED, WITH COSTS.