Eyster's Appeal ( 1851 )

The opinion of the court was delivered, June 27, by

Chambers, J.

The first question raised in this case is, was Mr. Eyster the legal guardian of William Adams ?

Mr. Eyster was appointed by the Orphans’ Court of Franklin county, on petition, the guardian, of which the record is evidence; and whether a certificate of his appointment was issued by the clerk of the court is not material. The act of 1832 makes it discretionary with the Orphans’ Court to require bond with security from the guardian of a minor; and the omission to require or to give such bond does not vitiate the appointment. Did Mr. Eyster accept the appointment ? It was rightly said by Justice Kennedt, in Neutz v. Rutter, 1 Watts 235, that any act as guardian, was an acceptance of the appointment generally, and he thereby became responsible as such. After his appointment, Mr. Eyster assumed to act in leasing the property of which the ward was part owner, and gave his assent to the binding of him as an apprentice. His authority to act in these matters could only be derived from his appointment as guardian, and is considered as evidence of an acceptance of the guardianship with its responsibility,. That responsibility was to attend to and manage the interests of the ward with reasonable attention, and account for them with fidelity.

William Adams, the ward, was of seven or eight years of 'age, the only child of his mother, a widow, at the time of the appointment of Mr. Eyster. The only property of the mother and son consisted of a small house and lot, the rents and profits of which were estimated at fifty dollars per year. At the time of the appointment of guardian, it appears there was a balance due the administrator of the estate of Johnston’Adams, the father of the ward, of $31.46, and which there were not personal assets to pay. The whole property of the ward consisted of his share, being two-thirds, of the house and lot referred to, to be applied to his maintenance and education, and which was subject to the charge stated in favor of the administrator. The comfort of the mother and child would require her to retain, for their shelter and home, a part of the dwelling-house. This she did, and the property, so far as could be rented out, was rented for thirty dollars. ‘ The income from this property for the support of the mother and child would be only so much as was left of the thirty dollars, after any charges of repairs, taxes, &c. The ward’s share of this small patrimony would not have afforded the guardian the means of supporting him anywhere else than with his mother, whose affection would secure her attention and means of support not to be had from a stranger. We can well suppose that Mr. Eyster, as the guardian, to promote the best interests of his ward, and for her accommodation and the convenience of all parties, would allow the mother to maintain and school her youthful son, receive as she could the small rents receivable, and apply her son’s share to that maintenance and education. The mother has continued to reside in the house from the decease of her husband, and with her the son has had his residence and home, whilst he resided in Chambersburg, which vras for many years. So far as Mr. Eyster may have allowed the mother thus to act for her child, it was to the benefit of his ward. Her industry would have to supply the means of support, to which we cannot but suppose his share of the rents was inadequate. The widow, with propriety, paid the balance to the administrator, which was a charge on the realty, and, if not paid, might have been increased with costs, and for which she was fairly entitled to a credit out of the rents receivable.

If the rents receivable were faithfully applied by the widow to ,the maintenance and education of her son as long as he was a charge to her, and it is not pretended that she acted with imprudence or without frugality, this ward has had the advantage of them, and it would be unconscionable and unjust that he should now make Mr. Eyster, his guardian, pay them over to him, though he never received any part of them. We cannot see that it was to the disadvantage of the ward that his small income was applied to his support, by permission, through the hands of a faithful mother, rather than through the hands of his guardian. The fifty dollars she advanced to relieve him of his apprenticeship, with which we suppose he was dissatisfied, could not have been saved from rents, but must have been the earnings of her own employment. If Mr. Eyster is chargeable with the rents to his ward, the mother, who received all that were received, would be chargeable for the same to the guardian.

It has been said in this court, to be the harshest demand that can be made in equity, to make a trustee answerable for what never was in his hands, or to make up a deficiency not owing to his wilful default. More ought not to be expected of guardians than common prudential care : they should not be made liable, unless under unfavourable circumstances : their acts expose them to the animadversions of the law for supine negligence, shoiving carelessness of duty and of the ward’s interests: Johnson’s Appeal, 12 Ser. & R. 317; Konigmacher v. Kimmel, 1 Pa. Rep. 213. If guardians are to be held responsible for all negligence, and are not to be allowed the exercise of reasonable discretion and prudential care in managing the property of their wards, it will deter prudent men from assuming the office, which in itself is sufficiently onerous, and already undertaken by such men with reluctance.

The intelligent auditor who reported the account in this case charging the guardian with all the rents, expresses “his opinion of the extreme hardship of it,” under all the facts of the same, and to which he felt himself compelled by the decisions on the subject. We are not aware of any decisions in this court that would subject a guardian to such “extreme hardship,” unless he was a wilful defaulter, or guilty of gross negligence, and which do not appear in this case from the facts on the record.

The facts necessary to the proper consideration and decision of this case were not presented as fully to the auditor by the parties as they ought to have-been, and are wanting to enable the court to decide on or reform the account; and for want of testimony, the case will stand over, and it is committed to an auditorio ascertain the facts of the time of residence of William Adams with his mother, during his minority and after — his maintenance and education, and by whom, during his minority — the amount of rents received or receivable by the guardian, or by whom, during the same time — and payments and disbursements for and in behalf of said William by his mother, or for and on account of the property; and report the same, together with an account of the indebtedness of George S. Eyster, as guardian, if there be such indebtedness under the facts and circumstances. Thomas B. Kennedy, Esq., of Franklin county, is appointed auditor for the purpose, who will make report to this court.