Brigham v. Wheeler

A testator, by his will, gave real and personal property to the children ot ms nephew, and their heirs and assigns forever, and appointed their father to be their guardian, without giving bonds, a for the purpose of receiving and managing said property so given.” Held, that said appointment of a guardian was void, for want of authority in the testator $ and that the will could not be so construed as to vest an estate in trust in the father of the children.

Appeal from a decree of the judge of probate. The parties submitted the case to the court upon the following facts: Jonathan Wheeler, of Grafton, by his last will, (which was duly proved and allowed,) after disposing of part of his property, made this provision ; to wit, “ the residue and remainder of my estate I order divided into two equal shares, and give and devise the same as follows, viz. one share or half to the child or children, now born or hereafter to be born, of my niece, Hannah A. Mills, (wife of Lewis Mills,) their heirs and assigns forever; and the other share or half to the children, now born or hereafter to be born, of my nephew, Jonathan D. Wheeler, their heirs and assigns forever. And I hereby appoint the said Lewis Mills, and the said Jonathan D. Wheeler, to be guardians of their respective children, without giving bonds, for the purpose of receiving and managing said property, so given to their respective children.” Said “ residue and remainder ” consisted of real and personal property, and money. The executors of said will (the appellants) presented to the judge of probate the first account of their administration, and therein charged the sum of $ 500, paid to Jonathan D. Wheeler, as guardian or trustee of his minor children, under said will. The judge appointed for said children a guardian ad litem, to appear in their behalf, and, after a hearing, disallowed said charge. The executors thereupon appealed to this court. It was agreed by the parties, that if said executors could .awfully pay said money to said Jonathan D. Wheeler, and if his receipt therefor would be a good discharge to them for said sum, the decree of the judge, disallowing said charge, should be reversed ; otherwise, that it should be affirmed.