Garland v. Norman , 50 Miss. 238 ( 1874 )

SlMRALL, J.,

delivered the opinion of the court.

Garland complains of the decree of the chancery court, because he was charged interest on the funds of his ward, at six per cent, from the time the money was received by him.

Emily Norman, on her cross appeal, alleges that she is prejudiced by the decree, because it does not charge Garland with a-high enough rate of interest.

In 1859 Emily Norman being then eighteen years of age, selected Garland for her guardian, who was duly appointed and qualiBed. In the same year Garland, under the order of the probate court, sold the real estate of his ward on a credit of twelve months for $1,500. The money was collected by Garland in 1867.

The chancery court, by decretal order, directed the account to be settled on the basis of charging Garland interest at six per cent, up to each payment, a credit, then deduct such credit, etc. The final decree was made accordingly.

Both parties are dissatisfied with the decree and have appealed.

Prior to the decision of Reynolds v. Walker, 29 Miss. Rep., 262, there had been conflict in the cases as to the circumstances-under which a guardian was chargeable with interest. In that cause the authorities were reviewed, and the court returned to the doctrine laid down in Hendricks v. Huddleston, 5 S. & M., 422, and Austin v. Dean, 23 Miss., 189, and announced these principles: The guardian must account for interest, where he has consented to take the ward’s money as a borrower, where he has loaned it out with the sanction of the probate court or. without its permission, or has used it in his own business, or has in any way made profit out of it. So where he has failed to account for the profits and income of the estate, and thereby prevented a profitable investment of such income. These principles were reaffirmed in Roach v. Jelks, 40 Miss. Rep., 756, and Crump v. Gerock, ib., 768, and Coffin v. Bramlitt, 42 Miss., 208.

But the ward had obtained her majority several years before Garland collected the fund. The powers and duties of a guardian terminate and cease when the ward attains majority, and he shall forthwith deliver all property to the ward, and shall also make a final settlement with his ward. Code, 1857, art. 148, p. 462.

When the money was received by Garland in 1867, his powers and duties as statutory guardian had ceased; the principles, therefore, which apply in reference to interest upon funds in his hands, whilst his powers as guardian were in existence, do not' apply in this case.

He, however, filed, as required by the statute, his final settlement, and included in it the fund in controversy, deducting from it sundry credits and payments made for Emily Norman. He voluntarily submitted to the court the adjustment of a proper balance on account of this money. If he accounts for it at all in this proceeding and in the chancery court, it must be according to those rules which apply to the accounting. He cannot be permitted to claim that he can account on this settlement for the principal, but if he is liable for interest, that must be determined in another forum. He ought to have paid over this money so soon as he received it. It was in his hands a trust fund. The rule applicable to trustees is, if they neglect for a long time to settle their accounts or to pay over money when they ought to do so, they are liable for the legal rate of interest. Perry on Trusts, § 468, and cases in note 2.

We think that justice has been done by the chancellor, and affirm bis decree.