Moore v. Hazelton

Gray, J. The relation of a guardian to his ward is not that of an ordinary trustee to his cestui que trust; but the title to the property is in the ward; the trust of the guardian consists in the control and management of the ward while under age, and of the property until he discharges himself of his duty by accounting for it according to law. If he continues in the possession and management of the property after the ward has come of age witnout settling his accounts, it is in effect a continuance of the guardianship as to the property. Mellish v. Mellish, 1 Sim. & Stu. 138. Morgan v. Morgan, 1 Atk. 489. Among the duties undertaken by a guardian on assuming his trust, as set forth in 105 the conditions of his bond, are, “ at the expiration of his trust to settle his accounts in the probate court, or with the ward or his legal representatives, and to pay over and deliver all the estate and effects remaining in his hands or due from him on such settlement to the person or persons lawfully entitled thereto.” Rev. Sts. c. 79, § 5. Gen. Sts. c. 109, § 16. If the guardian fails or neglects to account, the ward’s only remedy against him, at law or equity, is upon this bond. Brooks v. Brooks, 11 Cush. 20, 21. Conant v. Kendall, 21 Pick. 36. And the settlement of an account out of court by the ward, on coming of age, does not prevent him from afterwards, within a reasonable time, citing the guardian to render an account before the judge of probate. Wade v. Lobdell, 4 Cush. 510. 2 Kent Com. (6th ed.) 229. In the case before us, although the ward was of age at the time of the execution of the assignments to him, the relation of guardianship, so far as property was concerned, still continued, because the guardian had not been discharged from his trust by accounting according to law. And his power and duty to separate the ward’s property from his own, or to make good any part of it which he had lost or wasted, was the same after the ward had come of age as it had been during his minority. See Yerger v. Jones. 16 How. 37. The .assignments executed by Chamberlain to the plaintiff do not stand upon the footing of voluntary assignments; for the previous receipt of the ward’s money and the fiduciary relation between the parties were a sufficient consideration. It appears by the original assignments (which there is nothing to contradict) that they were executed and delivered in the presence of an attesting witness in the form required by law to pass such property. As the title to the ward’s estate was in him and not in the guardian, the evidence of the trust in the securities in question would properly be in the form, which was actually adopted, of an assignment to the. ward himself, rather than a declaration of the trust upon which the guardian should continue to hold it for the ward’s benefit. Yet so long as the guardian had not settled his accounts, but continued in the relation of guardian so far as related to property, he would 106 naturally keep these assignments, like other property of the ward, until he should account for them in the probate court. His retaining possession of the instruments of assignment was therefore in perfect accordance with the nature of his trust. When an instrument of conveyance is sealed and delivered, with an intention on the part of the grantor that it should operate immediately, and there is nothing to qualify the delivery but keeping the deed in the hands of the grantor, it is a valid and effectual deed, in law and equity; and execution of the deed in the presence of an attesting witness is sufficient evidence from which to infer a delivery. Shelton’s case, Cro. Eliz. 7. Doe v. Knight, 5 B. & C. 671; S. C. 8 D. & R. 348. Hope v. Harman, 16 Q. B. 751, n. Jeffries v. Ahxander, 8 H. L. Cas. 649, 667. Hall v. Palmer, 3 Hare, 532. Fletcher v. Fletcher, 4 Hare, 79, 80, Bunn v. Winthrop, 1 Johns. Ch. 329. Scrugham v. Wood, 15 Wend. 545. Proof of the ward’s assent to these assignments was therefore unnecessary to give them effect. The assignments to the ward having been made lor a valuable consideration, and completed more than a year before the institution of proceedings in insolvency, the assignor’s insolvency at the time of making the assignments to the ward is immaterial, and the assignee under those proceedings has no title to these securities as against the ward. Demwrrer overruled.