Ide v. . Brown

Section 1022 of the Code of Civil Procedure, prior to its amendment by chap. 85, Laws of 1903, provided that "the decision of the court or the report of a referee, upon the trial of the whole issues of fact, may state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, or the court or referee, may file a decision stating concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereupon." Here were two forms of decision provided for which were known by the profession respectively as the long and short form. The two forms thus provided for differed in this respect: under the long form the material facts were specifically found and then the question of law arose as to the judgment that should be entered thereon; while under the short form it was not necessary to find the facts, the trial court being required to state the grounds or reasons upon which judgment was directed, and upon review we were required to assume that the necessary facts to support the judgment were found, treating the decision similar to that of a verdict of a jury. In the case under consideration all of the material facts have been specifically found and separately numbered. The decision conforms, in every particular, to the provisions of the Code formerly known as the long form, and in view of the fact that the judgment entered upon the decision has been unanimously affirmed in the Appellate Division, the facts, as found, are established, and the question with reference thereto for the determination of this court, is whether such facts authorize the judgment that has been entered. It appears from the facts found that on or about the 20th *Page 30 day of August, in the year 1900, one Colvin, acting as guardian of the plaintiff, who was then sixteen years of age, entered into an agreement with George W. Lee, whereby it was mutually agreed that the plaintiff should continue to live with him as a member of his family and in the position of a daughter during his lifetime and at his death he would bequeath to her the sum of twenty thousand dollars and in addition would devise to her the house and lot in which they resided in the village of Glens Falls; that in pursuance of the agreement she continued to live with him as his daughter for the period of about eight months, when he died, leaving a will in which he bequeathed her only the sum of five thousand dollars. The judgment entered directs specific performance of this contract. My attention has been called to no case in which the question here presented has been the subject of adjudication in this court. There are numerous cases in which persons have entered into agreements to live with or take care of an aged person during the remainder of his or her life for a consideration promised to be made by bequest or devise, but the contracts in those cases have been made by adults, and not by minors who were incapable of entering into a valid contract. There is another class of cases in which infant children have been taken under agreements with their parents to be supported and maintained as the children of the foster parent during their minority, with a covenant to provide for them by will, but in these cases the custody and control of the infants terminated upon their arriving at their majority and the contract was made by parents who were entitled to the society and services of their children. In the case under consideration the plaintiff was sixteen years of age and had always lived in the family of the decedent. The contract was oral and made by her guardian. The agreement bound her to continue to live with George W. Lee during the remainder of his life, whatever that period should be. She was to assume the character of a daughter, thus undertaking a daughter's duty to serve and care for an aged and decrepit parent. Had he continued to live *Page 31 until she became twenty-five or thirty years of age she would have been still obligated to continue to live with and care for him. It was in consideration of this agreement that Lee promised to bequeath to her the sum of twenty thousand dollars and to devise to her the real estate mentioned. Had the agreement been that she should continue to live with him during her minority or for the period of five years it is quite possible that Lee would have fixed a different amount as measuring the consideration for her time and services during that period. But, as we have seen, such was not the contract and the question, therefore, arises as to whether the guardian had any power to make the contract in question. As guardian we assume that he had the power to provide for her support and maintenance during her minority, but upon her arriving at the age of twenty-one years his power as guardian terminated and he had no power, by contract or otherwise, either after or before her arriving at her majority, to bind her thereafter in the disposition of her time, services or property. It is true that Lee died a few months after the contract was made, but the happening of that event could not affect the validity of the contract which speaks as of the time that it was made, and at that time it was not possible to know but that his life would continue until long after she should become twenty-one years of age. A guardian is not entitled to the services or society of his ward, and ordinarily, he has no power to make a contract binding upon the person or property of the ward unless authorized by a statute. (Wuesthoff v. Germania L. Ins. Co.,107 N.Y. 580, 588.) Woerner on Guardianship (§ 49) says: "Neither can a guardian bind his ward either as to the person or the estate by any contract, but contracts entered into by the guardian in performance of his duty to educate and maintain his ward bind him personally and alone, save that the ward's estate is liable to reimburse him for reasonable expenditures made for his benefit." In 15 American and English Encyclopædia of Law (2d ed. p. 70) it is said: "The prevailing doctrine is that a guardian has no power to make a contract binding upon the ward or *Page 32 upon his estate however proper and beneficial the contract may be, but the contract made by him imposes a personal liability upon himself and his protection from loss lies in his right to charge the expenditures to the ward's estate, in his account." (See Andrus v. Blazzard, 54 L.R.A. 354; Copley v. O'Niel, 57 Barb. 299; Warren v. Union Bank of Rochester, 157 N.Y. 259. ) There is no statute in this state authorizing a guardian to enter into a contract of this character. The only statute upon the subject appears in our Domestic Relations Law (Chap. 272 of the Laws of 1896, § 72) under which a minor may bind himself or herself as a servant in any profession, trade or employment for a term "not longer than the minority of such minor;" but contracts of this character are, by the statute, required to be in writing and signed by the minor as well as by his guardian and they are, as we have seen, expressly limited to a period within the minority of the minor. There is but one exception provided for in the statute and that is in case of a minor coming from a foreign country, who may, for the purpose of paying his passage, make an indenture for a term of one year, although such term extend beyond the time when he will become of age. It appears to me that the contract being for the life of Lee, was one that the guardian had no power to make for his ward or in her behalf, and that it was, therefore, void. The judgment should be reversed and a new trial granted, with costs to abide event.