Stark v. Gamble , 43 N.H. 465 ( 1862 )

Bellows, J.

The first question that arises is as to the effect of the settlement with the three wards. On this point it is quite clear that such a settlement is not a compliance with the condition of the bond ; which requires the guardian to render an account when called upon in the probate court. Kittredge v. Betton, 14 N. H. 401; Clark v. Clay, 31 N. H. 393. So if there has been a manifest mistake in an account settled in the probate court, it is competent for the judge, at any time before a final settlement of the estate, to correct it in a subsequent account, provided there does not appear by the record to have been a particular adjudication upon the subject; as mistakes will unavoidably occur, and it is just and reasonable that they should be thus corrected. Allen v. Hubbard, 8 N. H. 487, and cases cited. In Kittredge v. Betton, before cited, which was also an appeal from the decree of a judge of probate, a settlement had been made by the guardian with the ward, more than three years after he became of age, but it appearing that there were some errors in it, although its fairness was not impeached, the court held (Parker, C. J.) that the settlement ought not to protect the guardian in charging what was not due, or more than was due, and that all claims arising from errors, mistakes, omissions and even overcharges should be accounted for, and that the account might be considered as in the probate court, and the appellant might object to it as on leave to surcharge and falsify. In Clark v. Clay, 31 N. H. 393, the only heir to an estate had certified to the correctness of the administration account; but the court held that a settlement with an administrator or guardian is not conclusive, but will'be evidence for the consideration of the court in deciding whether a further settlement shall be ordered ; and in this case the accounts were still reexamined and corrected. A similar doctrine is recognized in Bond v. Ward, 3 Met. 74, where there was a receipt in full from all the heirs ; and it was held to be no bar to an application for a settlement in the probate court, the receipt being nothing more than prima facie evidence of payment, which might be controlled.

In the case before us, the settlements and receipts wrere had immediately upon the coming of age of Susan and John, and two years and seven months after the majority of Eleanor, and at the time the shares of Eleanor and Susan were delivered over to them. It appears that no accounts were rendered, or explanations given, nor were any advisers on the part of the wards present; but they were told by the guardian that the balances stated were correct; and upon the subject of interest being named, he declined to allow interest; and to two of the wards said he was not bound to pay it. The wards thereupon closed the settlements in the manner stated.

As a general proposition, courts of equity are extremely watchful to prevent a guardian taking an advantage of his ward by a settlement immediately on his coming of age, and although there may be no other evidence of undue iufiuence, or unfairness, yet upon grounds of public utility the courts will take care that the ward does not suffer by such settlement; and especially is it the case, where the settlement is made at the time the estate is delivered over to the ward. 1 Story’s Eq., secs. 317, 320, and cases cited. Hylton v. Hylton, 2 Ves. 547; Wood v. Downes, 18 Ves. 119. "Where a guardian, within a month after the ward became of age, settled an account with him when the ward had no friend or adviser on his part, the account was ordered to be opened. Revett v. Harvey, 1 Sim. & St. 502, cited in 2 Kent’s Com. 253, and a similar doctrine is announced in Kittredge v. Betton, before cited.

Upon the authority of these cases, we think it quite clear that any errors or omissions that are shown to exist in the former settlement, should now be corrected ; and the omission of the guardian to charge himself with interest, when he should have done it, stands, for aught we can see, upon the same ground as the omission to charge himself with the principal of moneys received; and so it is decided in Boynton v. Dyer, 18 Pick. 1.

The question then is, whether, under the circumstances of this case, the guardian should have charged himself with any interest on moneys in his hands, and if so, what interest. Until November 11, 1843, the amount of money received by the guardian was very small, and but a trifle more than his expenditures ; but at that time he received from the sale of a farm of his wards $985, and at the close of that year, on the first day of January, 1844, there was in his hands $895.03, after deducting the expenditures of the year 1843. This sum was mingled with his own funds, which he was accustomed to loan upon bond and mortgage, having, as the auditor finds, invested in that way in his own name, more than $25,000, during his said guardianship ; and although the creditor also finds that he always had on hand money sufficient to meet any demand that might be made on him on account of his wards, we think he should be chai’ged with interest from the first day of January, 1844. Por five years the balance in his hands remained nearly stationary, being gradually diminished to $828.04 in 1849, and it w$s not until 1854 that it fell below $500.

Nor do we think there was occasion to retain so large a sum unemployed to meet contingencies, inasmuch as the wards appear to have lived at home with their mother, and for many years the payments by the guardian for their support wore mainly to her, and quite small; in some years in fact nothing. The other expenditures were mainly for taxes on lands of the wards, which were tolerably uniform.

Our conclusion, therefore, is, that separate guardian accounts be rendered with each of said wards, or their representatives, and that interest be credited to them from January 1,1844, upon the moneys received by the guardian, at the rate of five per cent per annum,' with annual rests, deducting the interest on the expenditures made by him, reversing so much of the decree as directs interest to be credited prior to January 1,1844. This will be equivalent to charging the guardian with six per cent interest and allowing him a commission upon it of one per cent, as seems to be the ordinary rule in this State. Gordon v. West, 8 N. H. 455; Wendell v. French, 19 N. H. 211.

Let a decree be entered according to these views, and the matter remitted to the probate court for further proceedings.