Smith v. Davis , 45 N.H. 566 ( 1864 )

Bartlett, J.

The only objection made by the defendant to the maintenance of this suit is unfounded in fact, for the defendant was not under guardianship at the time it was commenced, as- the appeal in. this-case had vacated the decree of the probate court made in 1861,, which was reversed by the appellate court at the December Term, 1861, though not till after the commencement of this suit. Arnold v. Sabin, 4 Cush. 46; Mathes v. Bennett, 21 N. H. 203; R. S. ch. 170, sec. 12. Although "a guardian can maintain no action against his ward for money advanced or services rendered as guardian to the ward, until he has settled his guardianship account in the probate court,” Smith v. Philbrick, 2 N. H. 396, Phelps v. Worcester, 11 N. H. 54, Davis v. Drew, 6 N. H. 400, yet the note in suit does not fall within that rule or its reason. Flint had ceased to be guardian before he transferred the note to the plaintiff, and it was in no way connected with his guardianship, but had been given to him before he held that trust. The reason of the rule is, that, by the policy of our law, the probate court is made the tribunal for the settlement of all guardianship accounts, R. S. ch. 150, secs. 14, 17 &31, ch. 152, secs. 4 & 9; but the present case does not come within that reason. The inconveniences that would follow from an extension of the rule to cases like the present seem to us greater than any advantage likely to be gained.

Upon the report, as it now stands, the plaintiff cannot recover for the charges in relation to the complaints and warrants, and the petition; for the referee has not found that any of these expenses were necessaries, as he has neither allowed the items nor reported that there were reasonable grounds for instituting the proceedings. Morris v. Palmer, 39 N. H. 128; Morrison v. Holt, 42 N. H. 480. See Chester v. Rolfe, 23 L. & Eq. 100; In re Cumming, Ib. 120; Palmer v. Palmer, 38 N. H. 420; Hospital v. Belgrade, 35 Me. 497; R. S. ch. 150, sec. 10.

No question is, submitted by the referee or made by counsel as to the defendant’s competency to contract for the services charged in' the 5th and 6th items of the plaintiff’s specification, other than might arise from the appointment of a guardian by the probate court in March, 1861, and that has. already been disposed of. Upon this report the plaintiff may recover for these items, as the referee has found them reasonable charges for the services, and the defendant’s objection, that no such charges can be legally made, is not well taken. Wells v. Hatch, 43 N. H. 247. The tender was insufficient because the first four items of the plaintiff’s account are not shown to have been due, and therefore we need inquire no further as to it. See Cary v. Bancroft, 14 Pick. 315; Bank v. Howard, 13 Mass. 235. We can see that other questions might have arisen upon the trial, but as they have not been raised here by the parties or submitted to us by the referee, we have not examined them.

The plaintiff is entitled to recover for the amount of the note and for the 5th and 6 th items of his account; while the defendant, according to the report, is to be allowed upon his set-off §60.41, with interest from Oct. 1, 1861, upon the balance of his set-off over the plaintiff’s account thus allowed, if there be any such balance, and there is to be judgment Tor the plaintiff for the sum remaining due upon such a computation.