Culp v. . Stanford

Clare, J.: The defendant guardian should have collected for his wards two-thirds of the fund. Culp v. Lee, 109 N. C., 675. Instead thereof he collected only one-third. In Harris v. Harrison, 78 N. C., 202, it is said: “Both by *669 statute and the decisions of the Courts * * * the guardian shall endeavor to collect by all lawful means his ward’s estate upon pain of being liable if. he neglect.” It is doubtful, 'to say the least, if the advice of counsel could be a defence where the law in favor of the ward’s right to the fund had been so clearly settled by the authorities (cited in Culp v. Lee, ante) and the amount collected was only one-half of that due the wards, since the construction of the Court could have been readily had and would have been full protection. Freeman v. Green, 41 N. C., 373; Batts v. Winstead, 77 N. C., 238; Boulton v. Beard, 3 DeC. M. & G. R., 608. In the latter case it was held that the defendant, who made an error in the distribution of the funds of the residuary estate, could not defend himself by reason of having acted upon the advice of two eminent counsel of the chancery bar. To similar purport is Wade v. Dick, 36 N. C., 313. Luton v. Wilcox, 83 N. C., 20; Lawrence v. Morrison, 68 N. C., 162, and other cases cited by defendant, were instances where the facts were doubtful or the chances of recovery uncertain, by reason of the insolvency of the defendant. In those cases where the fiduciary uses his best judgment and acts upon the advice of good counsel he will not bo held liable if the event should show he might have recovered more. But in the present case there is simply a proposition of law which he could have submitted to the Court. AVe would not be understood as holding that a fiduciary should litigate every legal question arising. In the majority of instances the advice of counsel will correctly settle the matter. There are others so doubtful or so contingent upon doubtful and unsettled facts, or the amount is so small, that ho should compromise the matter. But the present was not a compromise. If it bo conceded *670 tliat the guardian would have been relieved if he bad acted upon the advice of counsel, still lie did not show reasonable care in this case. Pie did not apply to his own lawyer nor seek out counsel and lay the case before him. When the fund was ready to be paid over he simply, according to his evidence, asked the counsel of the party paying it over what part thereof was coming to his wards, and claims that he paid five dollars for the reply. The counsel himself says he has no recollection of being asked any question bj7 the guardian and was not paid any fee. Though the counsel was a gentleman of recognized eminence in the profession the opinion (if given) seems to have been a reply made, without deliberation or reference to the authorities, to one who was not his client, and for which he says he was not paid. The advice (if given) seems to have been off-hand, and what is known in the profession as a “horseback opinion.” It was negligence in the defendant to surrender one-half of the fund which he should have collected without more care, deliberation or thought given to the subject than this evidence discloses. The party paying over the fund was-solvent, and .there was no such doubt as to either the law or the facts as called for a compromise. There was, in fact, no compromise. The guardian simply, carelessly, and without deliberation, and, at the most, upon the hasty opinion of counsel, till then employed by the debtor, not by himself, accepted half the sum he should have collected. He is responsible for his want of due care. Error.