Opinion
06-14-1873
SAYERS v. CASSELL & als.
Crockett, Blair and Caldwell, for the appellant. Kent, for the appellee.
1. A guardian of an infant having, when he was appointed, given a bond with sureties, afterwards without a rule upon him or order of court, requiring it, comes into court and gives another bond with other sureties. The last bond is valid and relates back to his appointment as guardian; and the sureties in the first bondare discharged; and are not necessary or proper parties to a bill by the ward against the guardian and his sureties for the settlement of his accounts.
2. The guardian not having been allowed anything for the board, clothing and schooling of his ward, under the circumstances of this case should not be charged with interest upon the small amount of the money of his ward in his hands.
This was a suit in equity in the Circuit court of Wythe county, brought in March 1861 by David Cassell against Leonard G. Bailey, his former guardian, and Robert Sayers, jr., and John R. and Henry W. Richardson, as the sureties of said Bailey, for a settlement of the guardian's account. It appears that Mrs. Cassell, the mother of the plaintiff, owned a small farm of about one hundred acres, and some stock, on which farm she lived with her three children, two sons and a daughter. Previous to 1852 she married Leonard G. Bailey; and in November 1852 Bailey was appointed guardian of the children. At this time the plaintiff was about thirteen years old; the other two were younger than the plaintiff.
In November 1854, one of Bailey's sureties requiring counter security, Bailey executed another bond with other sureties. In February 1856, he executed another bond with other sureties; and in February 1857 he executed a fourth bond with the defendants as his sureties. This last bond seems to have been executed without a previous rule upon him, or order, requiring him to give counter security.
Sayers having answered the bill, insisting that the last bond was not valid, and that the sureties in the second bond should be parties, a commissioner was directed to settle the guardianship account; and he made his report, in which he charged the guardian with the sum of $345 18, as received the 10th of January 1855; and not allowing him any credits for expenditures or commissions, he stated the account by making annual rests, and charging compound interest upon the principal fund, up to the termination of the guardianship in December 1860, when the plaintiff attained the age of twenty-one years, the whole amounting to $502 46, of which $157 28 is interest. The commissioner reported that he considered the services of the ward rendered to the guardian, were a full and ample set-off against all and every charge for board, clothing and tuition; and that he did not allow the guardian commissions because he had not settled his accounts annually before a commissioner, as the law requires.
Bailey excepted to the report: 1st. Because no account is taken of the necessary expenditures made by the guardian for the boarding, clothing and schooling of the plaintiff,. 2d. Because no commissions are allowed. 3d. Because the guardian is charged with compound interest, whilst he ought not to have been charged with any. 4th. For improperly charging him with any balance. 5th. In allowing the labor of the complainant as a set off to the amount expended in necessaries for him.
From the evidence returned by the commissioner with his report, it appears that Bailey and his wife and her children lived on her farm in Wythe county until 1856, when the farm was sold and another was purchased in the county of Carroll, to which they removned. The plaintiff lived in the family and was treated as one of it, and he worked on the farm, when he was not at school. Bailey who was a carpenter, worked at his trade; and all the profits of the farm as also that of his labour, were expended in the support of the family, and they all including the plaintiff derived their support from it.
As to the value of the services of the plaintiff some of the witnesses thought they were worth fifty cents a day, others thought they were worth his board and clothing.
The cause came on to be heard on the 8th day of December 1861, when the court held that the bond executed by Bailey and the other defendants was valid, and that they were responsible to the plaintiff for whatever might be found due upon a settlement of his guardian accounts; and overruling the exceptions to the report, and confirming the same, decreed in favor of the plaintiff against the defendants for the sum of $502 46, with interest thereon from the 17th of December 1860 till paid, and costs. And thereupon the defendant Robert Sayers Jr., applied to this court for an appeal; which was allowed.
Crockett, Blair and Caldwell, for the appellant.
The bond executed by L. G. Bailey, as guardian, & c., with M. B. Tate and A. S. Arnold as his sureties, on the 13th of November, 1854, is the last valid bond given by the said guardian. The other two subsequently executed by him as guardian, & c, are void as statutory bonds.
The county court is a court of general jurisdiction; but prior to the statute authorizing it to appoint guardians and other fiduciaries, and to take bonds from them, had no power to do so. This case comes, then, within the rule " That if a special statutory authority be conferred on a court of general jurisdiction, the court, as to that authority, is a court of special jurisdiction, and the authority must be strictly pursued." Creps v. Durden, vol. 1, pt. 2, Smith's Leading Cases, p. 1073, 1095; Ransom v. Williams, 2 Wall. U.S.R., 313; Hollins v. Patterson, 6 Leigh 457. If jurisdiction is given by act of Assembly, the court cannot go beyond it. Delany v. Goddin, 12 Gratt. 158; Thatcher v. Powell, 6 Wheat R. 119.
In taking the two last bonds, under § 11 of ch. 122, Code of 1860, the court clearly exceeded its jurisdiction, and the bond of the 13th of November 1854 is the only valid and binding one in this case. The bill ought, therefore, to be dismissed.
If the above view of this case should not prevail with the court, it is respectfully referred to the following authorities to sustain the exceptions endorsed upon Commissioner Holbrok's report.
When a guardian has admitted by parol declarations, that he intended to make no charge for his ward's board, yet he ought not to be charged with interest on a sum of money received for his ward, unless such interest would exceed a reasonable compensation for board. Hooper v. Royster, 1 Munf. 119.
2. A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and in fact kept no accounts against them. Armstrong's heirs v. Walkup, 9 Gratt. 372.
3. When it cannot be shown by the guardian the amount of advances made for the support of each child the guardian should have reasonable allowance for the support of the ward. Cunningham v. Cunningham, 4 Gratt. 43.
4. Guardian keeps his wards in his family and treats them as his children; but they are required to work as other children might be, though the condition of his family did not require their services. The guardian is to be allowed a reasonable compensation for their board and clothing, and he is not to be charged for their services. Armstrong's heirs v. Walkup, 12 Gratt. 608.
5. For the grounds on which an encroachment on the principal of a ward's estate will be justified--see 2d Lead. Cases in Eq. pt 2d 163-169-170; in the matter of Bostwick, 4 Johns. ch. R. 100.
Kent, for the appellee.
The 6th section of ch. 127, Code, directs the mode in which a guardian gives his bond: the 11th sec. ch. 132 provides for the mode in which a new bond may be given; and the 12th of the same declares its effect.
It is submitted that whilst the statute points out the mode in which a guardian may be forced to renew his bond, it was never contemplated he might not voluntarily come into court and upon his own motion renew his bond.
In this case the bond sued upon is regular and in due form. No objection can be urged against it upon the ground that it does not, in form, comply with the requirements of the statute; and it is submitted, that the court in which it was taken, being a court of record, the action of the court in taking this bond was a judgment rendered upon a subject cognizable before it, and is conclusive, and cannot be questioned incidentally. Its judgment is binding till set aside or reversed, though erroneous. Acts done and bonds taken by it bind the obligors and securities as well as principals. Gibson v. Beckham, 16 Gratt. 321, 6, 7, and 34; and the cases there cited; Hollins v. Patterson, 5 Leigh 437.
Every intendment will be made in favor of the validity of the acts of a court within the scope of its powers, whether those powers are limited or general; and when jurisdiction has once attached it will not be lost by an irregularity in the mode of executing it. Crepps v. Durden, vol. 1, part 2, Smith's leading cases, p. (top) 1073, 1075; Voorhees v. Bank United States, 10th Peters R. 449.
The appellee was thirteen years of age at the time appellant qualified as his guardian. If the income from his estate in the hands of his guardian was insufficient for his support, the law required the guardian to apprentice him. It never sanctions an encroachment upon the principal of the ward's estate, except the assent of the chancellor be first obtained; and then only to a limited extent and under very peculiar circumstances. For mere maintenance, even upon petition filed, it is very doubtful. In the matter of Bostwick, 4 Johns Ch. R. 102 (top; ) Evans v. Pearce, 15. Gratt. 513; Myers v. Wade, 6 Rand. 444.
It is submitted upon the proof that so far from the guardian supporting the ward, the reverse was the case; that the labor performed by the ward for his guardian during the whole of his minority, the property acquired by him from extra labor performed for others, and from the generosity of friends, was all appropriated by the guardian to his own use, and was more than equivalent for any expense incurred by him for the ward's benefit. It is further submitted, this case does not fall within the principle of Armstrong v. Walkup, 12 Gratt. 608, but rather within the spirit of Evans v. Pearce, 15 Gratt. 513; where the court says it will look with liberality to the circumstances of each case.
OPINION
ANDERSON, J.
By section 11, of chapter 132 of the Code, (Code of 1860, p. 603,) the court, under the order of which any such fiduciary derives his authority, may order a guardian, whether he shall or shall not have before given a bond, or whether he shall have given one with or without sureties, to give before such court a new bond, in a reasonable time to be prescribed by it, & c. But no such order shall be made, unless reasonable notice appear to have been given to such fiduciary, & c. But, surely it would be competent for the fiduciary to waive his right to such notice and come into court with his sureties, and execute a new bond, which would be as binding on him and his sureties as if such notice had been given. And the statute authorizes the court to make such order, " requiring a new bond to be given, when it appears proper from the report of the clerk or a commissioner, or on evidence adduced before it by a surety, or the representative of a surety for such fiduciary, or by any other person interested." And the court can perceive no reason why the bond shall not be binding upon the guardian and his sureties executing it, if they come before the court, in anticipation of such order, and dispensing with it, and execute the new bond, without the guardian being specially ordered thereto. His act of giving the new bond is a confession that the court may properly and lawfully require him to do it, and he would be thereby estopped from afterwards denying it. The court is of opinion, therefore, that the bond executed by the defendants, Bailey, Sayers, and the two Richardsons, on the 10th of August 1857, was lawfully executed, and is binding on them.
The court is further of opinion, that by virtue of the 12th section of the aforesaid statute, the said bond relates back to the time of the qualification of the guardian, and binds the obligors for the faithful discharge of the duties of guardian by the said Leonard G. Bailey, from that time, as effectually as if it had been then executed; and that the sureties in the former bonds, and their representatives, upon the execution of the new bond, were discharged. And, consequently, it was not necessary, nor proper, that they should have been made parties to this suit.
The court is further of opinion, that although the guardian has admitted to the friends of his ward that he did not intend to charge him board, he ought not to be charged with interest on the sum of money he reeived for his ward during his minority; the guardian having kept him in his family and treated him as one of his children, boarding, clothing and schooling him, and he working for the family as one of the children. The court is of opinion, that under the circumstances of this case, it would be extremely harsh to disallow the guardian's account for board, clothing and schooling, and also to charge him with interest on the sum of money he received for his ward. The interest does not exceed a reasonable compensation to the guardian, taking all other matters into the account. The court is of opinion, therefore, that the commissioner erred in charging the guardian with interest, and that annually compounded from 1855 to 1860; and that the court erred in overruling the defendant's exception to the commissioner's report on this ground, and in decreeing the same. The court is, therefore, of opinion that the said decree must be reversed on this ground; and will now proceed to enter such order or decree as ought to have been made by the court below.
Having maturely considered the record in this cause, for reasons assigned in writing and filed therewith, the court is of opinion that the decree of the Circuit court of Wythe county be reversed and annulled; and that the appellee pay to the appellant his costs expended in the prosecution of his appeal here. And this court, now proceeding to pronounce such decree as should have been made by the Circuit court, it is adjudged, ordered and decreed that the defendants in the court below pay to the plaintiff below the sum of three hundred and forty-five dollars and eighteen cents, with interest thereon at the rate of six per centum per annum, from the 11th day of December, 1860, till payment, and the costs of the plaintiff in the prosecution of his suit in the said Circuit court.
DECREE REVERSED.