Summary
This is an appeal from the decree of the judge of probate allowing the account of M. Currier as guardian of Walter II. French.
The grounds of the appeal as filed are :
I. Because the said guardian in said account has not charged himself, nor was he charged by said court with the full amount of dividends received by him from bank stock and gas stock transferred to him by Abram French, administrator of the estate of Walter French, late deceased ; said stocks being received by said guardian as part of the interest of the petitioner in the estate of his father, said Walter French, tó be held in trust by him for his benefit.
II. Because said guardian in said account has not charged himself, nor was he charged by said court with the full amount of money received by him as interest upon the money of his said ward in his hands, said money having been by him intermingled with his own.
III. Because the said guardian has not in said account charged himself with the full amount of interest or dividends received by him from investments made with the money of his said ward in his hands.
IY. Because the said guardian was allowed the gross sum of twenty-five dollars for his services as guardian, there being no specification of what those services were or when rendered.
Y. Because there is an error in the computation of the interest, the said guardian not having computed the full amount of interest, with which he should have been charged.
YI. Because the said guardian was allowed interest on the several amounts paid out by him for his ward during each year.
The guardian has stated his account, charging himself with all sums received, and adding interest from the date of the receipt, to the end of the year at 5 per cent., and claiming an allowance for payments made, with interest on the same, at the same rate, to the end of the year, and carrying the balance forward at the end of the year, according to the practice of the courts of this State. Gordon v. West, 8 N. H. 455 ; Wendell v. French, 19 N. H. 211; StarlcY. Gamble, 43 N. IT. 465.
He has not claimed any allowance for the time the fund remained uninvested, after its receipt, as he might reasonably have done when the sums were less than $500, as was the case in many instances. Btark v. Gamble, 43 N. H. 465 ; Robbins v. Hayward, 1 Pick. 528, note; Karr v. Karr, 6 Dana. 3 ; White v. Parker, 8 Barb. Sup. Ct. 48; WorraWs Appeal, 23 Penn., (11 Harris) 44; Armstrong v. Walk-up, 12 Gratt. (Va.) 608 ; Ringold v. Ringold, 1 Har. & G. 11; Huffer's Appeal, 2 Grant’s Cases, (Penn.) 341.
The administrator of Walter French’s estate caused the estate of the deceased to be appraised. And. he took the whole of the estate at the appraisal (not having procured license to sell within six months) and accounted for it as cash at the appraisal in the settlement of his administration account in the probate court. Rev. Stat. ch. 159, sec. 5.
After that settlement which left a balance in the hands of the administrator, he paid that balance over to the guardian, June 6, 1855, the sum of $10,500, part in money, part by note, and part by stocks.
The auditor, to whom the cause was referred, attempts to report the evidence on the question how the stocks were taken by Mr. Currier, leaving that question of fact to be determined by the court.
Upon the first ground of appeal, the question is presented, did Mr. Currier take the bank stock and gas company stock as part of the estate of the late Walter French, and to be held by him in trust for his ward or was it simply a payment to him of so much money by the administrator, wherein he took the stocks as the representative of so much money? The auditor’s report shows that he took them from-Abram French, as being the balance in the hands of the administrator, and not as property specifically held by the administrator.
The administrator had taken the whole estate at the inventory, including these stocks. He had disposed of part pf them by sale, and accounted for those transferred to Mr. Currier as cash. In effect the administrator had paid for the stocks, and they were his property. Nor was there any authority of law to warrant the administrator in turning over the stocks to the guardian otherwise than as cash.
The receiving the stocks by the guardian otherwise than as cash, or the investing the funds of his ward in such stocks on any pretext, was a breach of trust. Hill on Trustees, 378 and note ; Pamphlet Laws, ch. 1963, June, 1857; Pamphlet Laws, June, 1866, ch. 4250. The guardian testifies that he received the stocks as a payment as cash, and his whole course of action, subsequently shows that he so understood the transaction. He had his attention called to the fact that such investments were not permitted by the court. The transfer was to him as an individual, and not in his representative capacity. The receipt given was for money. He charged it in his cash account as money (merely noting the fact how much was cash, notes, &c.) He refused to take it at the appraisal, but did take it at a different rate — refused to take some part of the stock the administrator had taken of the estate, at any price. He took it at a premium, which he would not have done if he was to account for it specifically, leaving the loss, if any, to fall on himself. The dividends due soon after, he took to his own use, charging himself with the interest on the sum. due from the administrator. And the whole course of the transaction shows that the parties then all understood it as a payment.
The action of Walter H. French shows that he understood it the same, as did his agent, Luther H. French, both when he settled his own account and when he settled that of Walter, and transmitted a copy of the account to him, in both instances treating the $10,500 as a cash payment. The attention of both Luther and Walter being then called to the fact that the stock was treated as cash and the dividends not included in the account, and explanation given as to the mode in which the account was made up, and particularly by the fact that Luther then claimed that the guardian should have accounted for 8 per cent. No ob - jection was made then to the correctness of the account, nor for more than five years after the account of Walter was settled, and about seven years after the settlement with Luther.
Their statements, after that lapse of time, as to the manner they understood the transaction was to be, before it was actually completed, are not entitled to much weight when they are clearly contradicted by their whole course of action, while the affair was comparatively recent, and at a time when they were informed of all the facts or had such information as should have put them on inquiry.
Upon all the evidence in the report, and in the supplementary report, it is clear that the stocks were the property of Abram French, and that Mr. Currier received them as a payment, as the equivalent of money, as he would have taken bank notes, legal tenders, checks or other evidence of property for the same amount.
The investments of trust funds in bank and other stocks being illegal, Hill on Trustees, 378, &c, and those here in question being then the property of Abram French, it will be presumed that the administrator and guardian both understood the law and made the transfer in accordance with it. The stocks were not then the property of the estate, nor of the wards, and the guardian, after they came into his hands, was under no obligation to account for the dividends. The correctness of this position is fully shown by the enactment of the statute of June session, 1857, ch. 1963, authorizing such a transfer to be made under a decree of the probate court.
The general principle that courts of equity will scrutinize all settlements made out of court by a guardian with his ward at or about the time of his coming of age is not controverted. But it is equally as well settled, that, if there is no substantial unfairness, the court will not disturb such settlement after a lapse of many years, and an acquiescence on the part of the ward with full knowledge of the facts, or with such information at the time of the settlement as should have put him on inquiry. Boynton v. Dyer, 18 Pick. 1; White v. Parker, 8 Barb. Sup. Ct. 48; Wheclbee v. Whedbee, 7 Jones’ Law (N. C.) 14.
The stocks were not in the hands of the administrator as trustee for the heirs. And the case of Perry v. Hall, cited by defendant does not sustain the proposition. It was the duty of the administrator either to have sold them by license or to account for them at the appraisal. Itev. Stat. eh. 159, sec. 5. If sold by license he is to account for the proceeds of the sale ; if taken at the appraisal they become the property of the administrator. No harm occurs to the estate or to the heirs by the latter course, as all the value such property is understood to have by reason of the amount of income it produces, is included as a premium in the sum at which it is appraised.
The stocks not being the property of the wards nor held in trust for them; their use as a mode of payment by the administrator to Currier was a transaction neither void nor voidable any more than a payment in any other kind of funds.
The eases cited by the defendant to sustain the position that a purchase by a guardian of his ward’s estate is voidabie, fail to have any application, because the facts do not show such to have been the nature of the transaction.
The question is raised, if the guardian did not invest the funds of his ward in these stocks, where did he invest them? It was used by him, as his own funds were, and constituted the larger part of the estate for which he was taxed, and which was principally in land and buildings, which probably did not yield an income exceeding four per cent.
There was no evidence to show that the funds in the hands of Mr. Currier have been made to earn more than 6 per cent. He made some good investments and some bad ones in stocks. He has investments in real estate to a considerable amount, as the amount for which he is taxed shows. Since the stock in the Print Works, in the Amoskeag Manufacturing Co., the Stark Mills, and Amoskeag Gas Lt. Co., and the Blodgett Edge Tool Co., being-all manufacturing corporations, are not taxed directly to him, but the taxes are paid by the corporations respectively. Compiled Statutes, ch. 41, sec. 3, ch. 42, sec. 5. And the amount of those investments forms no part of the sum for which the taxes against Mr. Currier were assessed, while in. fact a large part of the fund for which they were a-ssessed, is derived from the "estate of these wards in his hands.’■’
An argument is attempted that because the guardian did not specifically render an account of the taxable estate of his wards so that it might be taxed separately, that he is lacking in honesty and integrity towards his wards. He inadvertently fails to render to the assessor a statement of his wards’ estate and his own separately, by reason whereof the whole burden of the tax falls on himself, and that is claimed to be dishonesty towards his wards : and on the other hand when in 1865 he did return his wards’ estate separate from his own so that it was taxed to them, that is also claimed as unfair dealing toward his wards.
The ward’s property was liable to taxation. Rev. Stat. ch. 40, sec. 12; Pay sony. Tufts, 13 Mass. 493. The taxon the ward’s estate was in fact paid by the guardian; who, in the settlement from which this appeal is made, claimed no allowance for such payment, and yet the counsel for the ward claim that it was the duty of the guardian to have in some way sheltered the ward’s property from taxation, and for the pecuniary benefit of his wards to have adopted a course of dishonesty from year to year and cheated the assessors and the public in the assessment of taxes on hjs ward’s estate.
The moral sense must be strangely obtuse which permits a party to gravely come into court and present such a scheme, as being the care, prudence and good faith in the management of the funds of his wards which honesty, integrity and the law required the guardian to exercise.
In the defendant’s brief it is said, that, in the matter of the taxation, the guardian was guilty of unfairness and dishonesty ; there would be as much reason and honesty, and probably as mnch truth, if it were said that this whole matter of appeal were a speculation, and attempt to satisfy an old grudge, in which, if successful, there is no reasonable pause for belief that these wards will be in any way benefited.
None of the other grounds of appeal are insisted upon in the argument, and it may be assumed, that those discussed are the only ones on which the defendants claim to maintain their appeal.
In the matter of the $25.00 charge for services. It was allowed by the judge of probate as being a reasonable sum in his discretion upon consideration of the facts that from December, 1853, to June, 1855, the guardian had paid out for his wards more than he had received, and had made no other charge for services and expenses in procuring the appointment, attending probate court, settling with the administrator and the services which must necessarily have been rendered. For these services and the expenses necessarily incident thereto, it is apparent the sum claimed is no more than a fair equivalent.
The effect of the mode of stating his account adopted by the administrator is to give him one per cent, as his commission, and no reason is shown why he is not entitled to retain that sum as a fair compensation for his services.
A question is raised in the defendant’s brief as to the amount of compensation to be allowed to the guardian. No appeal was claimed on that ground, except as to the $25 claim. Beyond that the question is not open. Mathes v. Bennett, 21 N. H. 200 ; Hatch v. Purcell, 21 N. H. 544.
If the guardian should be held to account for these stocks as taken by him specifically, he should be credited by delivering them to the heirs, at the same rates that he took them from the administrator, and Luther H. French and Walter H. French should account to him for the difference between the price at which they took the stock transferred to them and the price allowed in the transfer from the administrator. The evidence and the facts reported by the auditor show that the account as rendered by the guardian and allowed by the probate court is substantially correct, and that there is no just ground for the defendant’s appeal.
Should the opinion of the court be that the account ought to be corrected, no difficulty will arise in settling the accounts of this defendant and the other wards under the guardianship of the plaintiff, upon such principles as the court may determine to be just.
"The relation existing between guardian and ward is such, that the principles of a sound public policy require a close and rigid supervision on the part of courts of equity, of all gifts or conveyances to the guardian by his ward, on coming of age. The case is much stronger for relief, than is that of parent and child; because the guardian is not supposed to be under the influence of that affection for his ward, which the parent has for his child ; and, consequently, has not that check upon his selfish feelings. The court acts upon the broad principle of public utility, for the purpose of discouraging all such transactions ; and will relieve against them, although in the particular instance, there be no actual unfairness or imposition.” The Law of Trusts and Trustees, Tiffany and Bullard, 134.
In the case of Hylton v. Hylton, 2 Vesey 547, Lord Hardwicke said : "Where a man acts as guardian or trustee in the nature of a guardian, for an infant, the court is extremely watchful to prevent that person from taking any advantage immediately upon his ward coming of age, and at the time of settling accounts or delivering up the trust, be-See also Stark v. Gamble, A3 cause undue advantage may be taken. N. EL 467.
The parties in this case stand in the relation of guardian and ward; and two questions arise upon the facts found by the auditor in his report :
First. Who is entitled to the dividends received upon the bank and gas stock by the guardian during the continuance of the guardianship ?
Second. ' What commission is the guardian entitled to retain as compensation for his services, upon the facts shown in the case?
I. As to the bank and gas stock. By the report of the auditor it appears that on the sixth day of June, 1855, the administrator of the estate of Walter French transferred to the guardian, 50 shares of the Amoskeag Bank stock, 20 shares of the Appleton Bank stock, and 20 shares" of the Manchester Gas Light Co.’s stock, and the guardian charged himself on his book of accounts, under that date, with these stocks. The auditor also finds that these stocks were all retained by the guardian, up to the time of the settlement with Luther H. French, one of his wards, of his account as guardian of the said Luther H. and Walter H. French, when 20 shares of Amoskeag Bank stock were transferred by him to said Luther, and 10 shares of the same stock to said Walter, and the residue of said stock still remains in said guardian’s hands. The auditor also finds that at the time of the transfer of the stock by the administrator to the guardian, June 6, 1855, it was understood by the administrator and the heirs that the stock was to be held by the guardian for the benefit of the heirs, that it was a transfer or assignment merely, and not a sale of the stock to the guardian, but that the guardian understood that it was a sale of the stock to him. The evidence upon this point is reported by the' auditor, but we do not regard it material, because upon the facts found by the auditor there was no legal sale of the stock. To constitute a sale, both parties must have understood and intended the transaction as a sale.
While these stocks remained in the hands of the administrator, they were held by him as trustee for the heirs. Perry v. Hale, 44 N. H. 369. And even if he had undertaken to sell them, Currier, being at that time the guardian, could not be the purchaser of the property of his wards. The sale might not have been absolutely void, but it would have been voidable, and the heirs would have been at liberty to avoid it, as the appellant in this case now seeks to do. Wormley v. Wormley, 5 Curtis 469, 8 Wheat. 421; Michoud v. Girod al., 16 Curtis 188, 4 How. 513; Sparhawk v. Allen, 21 N. H. 9, and cases cited.
But if the guardian purchased the stocks, with whose money did he pay for them ? Whose money did he invest ? Clearly that of his wards. If he did not invest it there, where did he invest it ? And if their funds were invested in these stocks, then, upon the facts found in this case, they are entitled to the dividends which accrued upon the stocks, according to the rule laid down in the cases already cited.
The principle applicable to this case is, we believe, correctly laid down in Barney v. Saunders, 16 Howard 535 ; Curtis’ Decisions of the Supreme Court of the IT. S., vol. 21, page 292, in the following language: "It is a well settled principle of equity, that wherever a trustee, or one standing in a fiduciary character, deals with the trust estate for his own personal profit, he shall account to the cestui que trust for all the gain which he has made. If he uses the trust money in speculations, dangerous though profitable, the risk will be his own, but the profit will enure to the cestui que trust.”
II. What commission is the guardian entitled to retain as compensation for his services upon the facts shown in this case ?
Section 36 of chap. 159 of the Compiled Statutes, provides that "every guardian shall be allowed a reasonable compensation for all proper expenses and services in the discharge of his trust.”
In cases where the guardian has faithfully discharged the duties of his trust the rule seems to have been adopted in this State, of allowing’ him a commission of one per cent, for taking care of the funds of his wards : or, in other words, the legal rate of interest being six per cent, the guardian is charged five per cent, on the funds in his Sands, when nothing appears to show that the funds have earned more than the legal rate of interest. And when it appears that the funds have in fact earned nothing, but have been suffered by the guardian to lie idle in his hands, the guardian will be charged with interest at the rate of five per cent, on the ground that he should have invested them, and he is charged with the legal rate of interest and allowed his commission of one per cent. Stark v. Gamble, 43 N. H. 468.
But if it appear that the profits of the funds have in fact exceeded six per cent., then the excess belongs to the wards according to the doctrine of the cases we have already cited.
The auditor reports that "the guardian has not kept the funds of his wards separate from his own, except such as remain invested in said stocks, but mingled the mone)is received from the administrator indiscriminately with his own, which he invested in stocks, some good and others not good.” The report also shows that with a single exception, that of the Blodgett Edge Tool Co., the guardian’s investments have yielded large dividends, amounting to eight per cent, semi-annually, and some much larger than that. Upon these facts the wards are entitled to the benefit of the best investments of the guardian, so far as he has mingled their funds with his own. The law will not allow the guardian to say that he has invested his own funds to more advantage than he has those of his wards. 2 Kent’s Com. 229 and 231: Tiffany and Bullard’s Trusts and Trustees, 594.
The guardian in this case cannot claim that the court should exercise any unusual leniency, or in any degree relax the rule in his behalf. The balance of funds in bis hands at the end of each year, the amount of property for which he was taxed in the city of Manchester, the amount of the taxes assessed against him, and the amount of the taxes charged by him to his wards during each year from 1855 to 1865, as reported by the auditor, furnish abundant evidence that the guardian has failed to exercise that care, prudence and good faith in the management of the funds of his wards, which honesty, integrity and the law required him to exercise.
In 1864, the whole amount of property for which said Currier was taxed, including the funds of his wards, was $25,150 ; and at that time he had in his hands funds of his wards, as shown by his own books, to the amount of $26,095.77. The taxes upon the whole property for that year amounted to $363.17, and he charged to his wards, as their portion of the taxes for 1864, $379.92, sixteen dollars and seventy-five cents more than he paid up>on their property and his own. That ho had a large estate of his own at that time is shown by the fact that the next year, 1865, he returned his own taxable property, separate from that of his wards, at $21,600. By a comparison of the other years his unfairness and dishonesty will be equally apparent though perhaps in a less degree. The burdens of taxation which the law imposed upon him, he endeavored to transfer to his wards. His own estate, already large, he has attempted to increase by withholding from his wards, funds which legally, equitably and morally belonged to them. It does not now avail the guardian to say that his account of taxes charged was withdrawn at the hearing before the judge of probate. He had charged them year after year and had settled with Luther H. French upon that basis; and his withdrawal of the claim before the judge of probate, when he found that a full examination of his acts as guardian was to be made is only a confession that his attempt to defraud had not succeeded.
The decision of the court in this case will determine the basis upon which the settlement of the guardian’s account, in the case of the other wards, is to be made; and it will be necessary that a master should be appointed to state the accounts between the parties, when the principles applicable to this case have been settled.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
