Blakeney v. Wyland

Weaver, I.

As will be seen from the foregoing statement, the only resistance which the guardian makes to the demand for an accounting is based on the statute of limitations. Under the circumstances disclosed by the record, this plea will not avail. For this conclusion there are two very satisfactory reasons:

2 I. His wards resided in a distant state, but his statement that he made diligent search for them in order to pay over tire funds, and failed to ascertain their residence, cannot be credited. He knew where they resided when he secured appointment as their guardian. He claims to have served notice upon them at their home, in Michigan, in the proceedings to sell their land. The father of the wards lived at the same place until his death, in 1896. The oldest ward has also lived there during the entire period from the inception of the guardianship to the present time. The slightest effort upon the part of the guardian would have put him in communication with these young people. They unite in testifying that they never knew .of the appointment of the guardian, or that they had inherited any interest in land in Shelby county, until in 1896 one O. P. Wyland wrote a letter seeking a conveyance from them, to cure some defect in the record title. How they could have been ignorant of these facts, if notice of the sale proceedings was in fact served upon them, is not made clear; but the very fact that they did nothing to protect their rights until the letter was received, and that upon receiving such information they acted promptly, is evidence of ihe good faith of their statements.' At any rate, there is *611 nothing to show that prior to 1896 any information was> over conveyed to them that there was money in Wyland7s; hands for their use or benefit. It was his plain duty, as soon as his wards reached their majority, to apprise the court of that fact, and to' notify and settle with those to whom the money belonged. This he did not do. He left his wards in ignorance of their rights, made no report to the court for a period of 12 years, kept the money in the bank, and passed it to the credit of his private account, — an account which closed with a balance of over $5,000 on the' wrong side. The relationship of guardian and ward is one of peculiar trust and confidence, and the guardian will bo held to the strictest good faith in dealing with the ward of with his funds. The suppression or withholding from his wards of the fact of the existence of the moneys in his hands for their benefit must be treated as a fraud upon them, and prevents the running of the statute in his favor. Hoyle v. Jones, 35 Ga. 40 ( 89 Am. Dec. 273 ). This is true irrespective of the statutory provisions as to fraud and mistake. District Tp. of Boomer v. French, 40 Iowa, 601 ; Wilder v. Secor, 72 Iowa, 161 .

3 II. The statute .of limitations provides as follows (Code, section 3456) : “Causes of action founded on contract are revived by an admission in writing signed by thé party to be charged, that the debt is unpaid.” Aplying this rule to the facts of the case at bar, we hold that the written statement or account signed by Wyland, and filed in the district court November 20, 1899, is an admission that the debt is unpaid, and revives the- right of action, even if otherwise held to- be barred. He there states, in express terms, that he received the money, that he placed it to his own account in the bank, and that the bank has failed, and gives the alleged reasons why the money has not been paid over. This paper was signed and presented by him as an accounting, and it was not until after the Blakeneys appeared to that report, and sought to have- him *612 charged with interest, that by an amendment he raises the question of the statute of limitations. It would be inequitable and unjust to permit this plea to relate back to the original admission and rob it of its legitimate effect, thereby permitting the guardian to escape the payment of a just debt, which he does not pretend to have discharged. It is suggested that the claim of the wards is not founded on contract, within the meaning of the statute above quoted, but we do not regard the objection as well taken. The guardian’s principal undertaking is to safely care for the trust funds coming into his hands, and to account therefor to the ward, or to the court for the ward’s benefit, and an action or proceeding to enforce that duty is founded on a contract of the most solemn nature.

4 III. Objection is also made that the amount found by the district court to be due from the appellant is excessive. The amount so assessed was found by taking the sum which appellant’s report showed was on hand September 22, 1881, and adding interest thereto at 6 per cent., with annual rests. In view of the fact that appellant did not do his full duty in notifying his wards of their right to the moneys in his hands, and that he wrongfully mingled the trust funds with his own, we think the rale applied by the court below is right, and the judgment is aeeirmed.