Muir v. Wilson ( 1825 )

The Court.

Wilson as general guardian by the appointment of the surrogate, was authorized to receive the rents and profits of the lands of the complainant, during her minority ; but he had no power to dispose of those lands, in fee. The bond directed by law and taken by the surrogate, is adapted to the powers and duties of the guardian, and to the amount of the property of his ward, which his trust authorizes him to receive. Its penalty is equal to the value of the personal estate of the minor, and the rents and profits of the real estate, during the minority ; and it does not include the value of the lands of the minor; that value being a subject which the guardian can not receive.

It is because the general guardianship does not extend to a disposition of lands, that the act for the partition of lands, provides, that where minors are parties, special guardians shall be appointed ; who shall give sufficient security, for the faithful discharge of those special trusts. In like manner, the statutes concerning the sale of the lands of infants, require, that when a sale is authorized, a special guardian shall be appointed, and special security for the faithful discharge of the particular trust, shall be given.

Two distinct guardianships here existed ; and Wilson was appointed to both. They were nevertheless, distinct trusts ; and the requisite security for the faithful discharge of each of these guardianships, was duly given. Our statutes, the rules of law concerning the powers and duties of guardians, and the different bonds here given, all, clearly distinguish these different trusts, from each other ; and it is impossible, to confound them into one office. The general guardian had no power to convert these lands into money; and the bond given to secure a faithful performance of the general guardianship, can not embrace a transaction so entirely foreign to the powers and duties of that trust.

The sale of the lands of this minor, was ordered by a competent court, in a due course of law; Wilson was appointed her special guardian, in that proceeding; security for the faithful discharge of that trust, was taken from this special guardian, according to the statute ; and that security must answer for the moneys arising from the sale and belonging to the complainant. The sale of the lands, the receipt of the moneys arising from the sale, and the misapplication of those moneys by Wilson, being acts wholly foreign to the duties of his general guardianship, are not embraced by the bond given for the discharge of those duties. The representatives of Steele, are therefore, not responsible for the receipt or disposition by Wilson, of the moneys arising from the sale of the lands.