Holbrook v. Brooks

Carpenter, J. Jonathan W. Brooks, one of the defendants, and Mary N. Lord, were the owners, each of an undivided moiety of a piece of real estate. The said Mary was a minor, and Brooks was her guardian. The court of probate decreed the sale of the minor’s interest in the property, which the guardian sold, together with his own interest therein, and also three separate parcels of land owned by himself in severalty, for the sum of three thousand dollars. His separate property was worth $900, and the common property was enhanced in value some • $200 by certain improvements made by the guardian at his own expense, leaving the sum of $>1,-900, which should have been equally divided between them. The guardian arranged with the purchaser to call the minor’s [351] interest worth $800, and gave a deed, and made return of sale to the court of probate, accordingly. The return of sale was duly recorded. The guardian then resigned, and paid over $800 only to his successor. He rendered no account to the court of probate, and never settled with his ward. A guardian is bound to use reasonable and prudent care in the management of his ward’s property ; and the law justly requires the utmost fairness in all his dealings with the ward. He shall 'under no circumstances be permitted to reap any personal advantage from the use of the ward’s money or other property, but all the income and profits thereof shall be faithfully accounted for. And when land is sold at private sale, as in this case, he sells at his peril, if he sells for less than a fair price. In view of these familiar principles how does this case stand ? At the same time that the guardian sold his ward’s property for $800, he sold to the same purchaser his own property, identical in quantity, quality and value with his ward’s, for $1,100. If he received only a fair price for his own, he was guilty of gross negligence in selling his ward’s property for so much less than a fair price; if he received more, it was at the expense of his ward. In either event his liability must be conceded, unless he is saved by the action of the court of probate on the return of sale. This is claimed by the defendants, and that presents the principal question in the case; which is, what effect is to be given to the doings of the court of probate, in receiving and recording the return of sale ? To sustain the position that the court thereby conclusively determined the value of the minor’s interest in the property to be $800, several cases are cited. But these cases go no further than to establish the doctrine, which is not denied, that a matter once passed upon by the court of probate, in the settlement of an administration or guardian account, is conclusive, unless appealed from. It is difficult however to see how that doctrine applies to the present case.. The statute, Title' 13, chap. 5, sects. 77 and 85, expressly requires [352] the guardian, who sells his ward’s land, not only to make a return of sale, hut also to render an account of the funds received. The return of sale “ shall be recorded, ” is the simple requirement of the statute. It cannot be rejected, and it is not required even that it shall be formally accepted. The court can exercise no discretion, but must receive and record it. The action of the court is ministerial, and not judicial. The account shall be rendered “ for adjustment. ” The court can then judicially investigate all tlie guardian’s dealings with the ward, so far as they pertain to the account, and the rights of the parties relative thereto can be conclusively determined. And the court cannot be precluded from this inquiry by any action had on the return of sale. A glance at the proceedings in this case will show the absurdity of the defendants’ claim. The guardian made return that he sold the property — bona fide, and at a fair price, if you please, —for a certain sum: which return was recorded. Though required by law, and entered of record, it was, nevertheless, but the naked declaration of the party in interest, not under oath, and not subject to the usual tests of a cross-examination ; the adverse party was not present, had no notice to be present, and had no opportunity even to tell her own story; and the court in no way or manner found the declaration to be true. To give such a proceeding the force of a judgment, conclusively binding upon the parties, would sanction a manifest fraud in the present case, and open a wide door to fraud in the future. The plaintiff claims that the defendants are not entitled to an allowance in this action, for the improvements made on the property, and that the evidence offered on that subject was inadmissible under the pleadings. We think this claim is not well founded. The defendants’ rejoinder to the replication is a general denial of the allegations therein, and accompanying it is a written notice that this special matter will be offered in evidence on the trial. Now if this mode of pleading is allowable in a case like this, and we are inclined to think it is, the evidence was clearly admissible; but if not, the evidence was admissible on the question of damages. [353] The improvements were not made against nor without the consent of the co-tenant, but under the circumstances must be presumed to have been made by her consent. It is manifestly equitable that the ’ guardian should be paid for the permanent improvement of the property, and we see no objection to allowing it in this action. The superior court is advised to render judgment for the plaintiff for .f 150, with interest from the date of sale. In this opinion the other judges concurred.