Simmons v. Almy

Colt, J. The property of a person under guardianship may be taken on execution issued against him. It may therefore be attached on mesne process in all the usual modes, including the trustee process. The remedy to recover a debt against the ward by suit upon the guardian’s bond is not exclusive. Hicks v. Chapman, 10 Allen, 463. Spring v. Woodworth, 4 Allen, 326. Guardians are not invested with the legal title of the ward’s property. They have only the control and management of it, a power not coupled with an interest. They can make no contract binding upon his person or estate. The funds here disclosed in the hands of the trustee we think must be regarded as the property of the defendant, and liable to this process. There is nothing to show an intention on the part of Osborn, the first guardian, to appropriate to himself the money deposited so that he could only be made accountable for it upon settlement of his guardianship accounts. And the same is true of both the succeeding guardians. On the contrary, the form in which the deposit is made ; the manner in which it has been since treated, the bank itself dealing with the successive guardians as entitled to the control of the same, though not 241 changing the account in their books; and the fact that no demand has been or appears now to be made by Osborn upon the bank for the fund; are decisive, in our opinion, that it is the property of the defendant, and so to be treated in this proceeding. Farrelly v. Ladd, 10 Allen, 127. Raynes v. Lowell Irish Benevolent Society, 4 Cush. 343. Moore v. Hazelton, 9 Allen, 104. It does not seem important to inquire whether Osborn was legally appointed guardian or not; for, if he was not, the position that the trustee ought not to be charged is not strengthened by the fact. Trustee charged.