Opinion
10-13-1885
ELSTON'S EX'R v. CARPENTER and others.
Roe & Shepherd, for complainant. James F. Conklin, for defendants.
Roe & Shepherd, for complainant.
James F. Conklin, for defendants.
BIRD, V. C. Jesse R. Little was guardian of Lizzie Andrews, now Carpenter, one of the defendants; and John R. Elston, the complainant's testator, was one of the sureties. Little gave a bill of sale of certain property to Elston, as security against loss. It is claimed that this property was worth $1,500. It appears that, after the ward attained her majority and was married, her husband undertook, with her consent, the management of her affairs, and endeavored to procure a settlement of the account of the guardian, and payment of what was due the ward. This effort resulted in the execution of a chattel mortgage on the goods of Little to Mrs. Carpenter, many of which goods, if not all, were the same that Elston had taken a bill of sale for. After the time fixed for payment had expired, Mrs. Carpenter advertised that she would sell the goods named in her mortgage. But few if any of the goods were taken possession of by her until the day of sale. On that day her husband collected some of the goods at a place where others then were, and offered them for sale. When they were offered for sale, a third person, claiming to have a lien on the same goods by virtue of a judgment and execution, gave notice thereof, and forbade the sale. Upon this notice the sale was abandoned, and from that time Mrs. Carpenter had nothing more to do with the goods.
If I understand the argument of the complainant, it is that Mrs. C. having accepted the chattel mortgage of these goods, and formally taken possession of part of them, and offered all of them for sale, she is chargeable with the fair value of them, and that to that extent the estate of plaintiffs testator is discharged. It is urged that the creditor could not accept this chattel mortgage, take possession of the goods, and then abandon them with impunity. I think the exact question is, was Mrs. C. obliged to proceed further than she did? There being a claim to the goods under an alleged superior lien, was it her duty to resist that lien, and take all the consequences of such resistance? In my judgment she was not bound to proceed any further. It was not her duty to run the risks of the costs which attend litigation. The courts were open, both to Little and to Elston and his representatives. It was competent forthe latter to discharge the obligation, and take an assignment of the securities held by Mrs. C, and realize on them what he could. This I think is the law in America. See Rees v. Berrington, 2 White & T. Lead. Cas. Eq. 1903. This view commends itself. It casts the burden where it belongs. I can find no good reason in this case for requiring the ward to bear any further burdens.
But counsel have agreed that, in case I should conclude as I have, I should also ascertain the amount of damages sustained by virtue of the breach of the bond. It seems that such sum as I shall find will be used to settle the amount of the judgment in the suit now pending at law. It is quite evident that this court has no jurisdiction for that purpose, and that consent does not remove the bar. However, I will submit what seems to be the right of the case, which is as follows:
Jacob R. Little, as guardian, is chargeable and entitled to be credited, viz.:
| Dr. | ||||
|---|---|---|---|---|
| 1869 | April 1. | Rent, | $ 33 00 | |
| Sale of property, | 671 44 | |||
| Cash from ward's father, | 9 00 | |||
| $713 44 | ||||
| Cr. | ||||
| May 23. | Cash for letters, | $ 5 50 | 5 00 | |
| Balance due April 1, 1870, | $707 94 | |||
| 1870 | April 1. | I charge no interest. | ||
| Cash for tax, | $ 5 70 | |||
| Cash for counsel fee, | 3 00 | 8 70 | ||
| $699 24 | ||||
| Add int., | 48 94 | |||
| Due April 1, 1871, | $748 18 | |||
| Cr. | ||||
| 1871 | Box, | $ 95 | ||
| Railroad fare, | 3 25 | |||
| Freight, | 3 25 | |||
| Goods, etc, | 39 49 | |||
| Taxes, | 5 70 | 41 64 | ||
| $706 54 | ||||
| Add int., | 49 45 | |||
| Due April 1, 1873, | $755 99 | |||
| Cr. | ||||
| 1872 | Acct. cash paid, | $ 30 00 | ||
| Tax paid, | 4 15 | 34 15 | ||
| $721 84 | ||||
| Add int., | 50 52 | |||
| Due April 1, 1878, | $772 36 | |||
| Cr. | ||||
| 1873 | Acct. cash paid, | $ 70 97 | ||
| Taxes, | 5 11 | 76 08 | ||
| $696 23 |
| 1873 | Amount brought forward, | $696 28 | |
| Add int., | 48 73 | ||
| Due April 1, 1874, | $745 03 | ||
| Cr. | |||
|---|---|---|---|
| 1874 | Acct. cash paid, | $47 12 | |
| Taxes, | 4 15 | 51 27 | |
| $693 78 | |||
| Add int., | 48 56 | ||
| Due April 1, 1875, | $742 32 | ||
| Cr. | |||
| 1875 | Acct. cash paid, | 40 00 | |
| $702 32 | |||
| Add int., | 49 16 | ||
| Due April 1, 1876, | $751 48 | ||
| Cr. | |||
| 1878 | Acct. cash paid, | 84 02 | |
| $717 46 | |||
| Add int., | 50 22 | ||
| Due April 1, 1877, | $767 68 | ||
| Int. one yr. at 7 pr ct., | 53 73 | ||
| Int. 7 yr. 6 mos., 6 pr. ct., to October 1, 1885, | 845 47 | ||
| $1,166 88 | |||
| Cr. | |||
| 1879 | May 8, cash, | $ 8 00 | |
| June 15, castings, | 3 00 | ||
| Aug. 16, note, | 9 51 | ||
| 1879 | Nov. 29, note, | 22 44 | |
| 1880 | April 12, castings, | 3 98 | |
| June 2, cash, | 30 00 | ||
| Buck sleds, | 20 00 | 96 93 | |
| $1,069 95 | |||
| Commissions on principal, | $713 44 | ||
| Commissions on int., | 744 78 | 88 32 | |
| Whole balance due October, 1885, | $981 63 |
I think it is fair and lawful to make annual rests until the ward arrived at age; and after that not to do so, but to charge the guardian with the interest for the whole time. I have found myself unable to follow or to be guided by the alleged accounts of the guardian, since he made no pretense of keeping full accounts until a very long time after the principal matters had transpired. When a guardian comes into court under such circumstances, he must expect to be charged with the last cent. I have rejected all claim for board except the one charge. I have been urged in brief of counsel not to allow commissions. I would not feel satisfied to accede to this. The stronger reason seems to be in favor of commissions.
Perhaps I should add that I have not been influenced by the statement of the amount due in the affidavit to the chattel mortgage. Whenthe circumstances under which that was given and the affidavit was made, and the fact that the guardian had not only kept no accounts, but never rendered any, even to the court, and, when he undertook to do so, was wholly unable, it will become quite apparent that the court ought not to permit the guardian to take any advantage of that circumstance.
In my opinion the complainant's bill should be dismissed, with costs.