Davenport v. Olmstead

Carpenter, J. The only question we care to consider under the motion for a new trial for a verdict against evidence, is that relating to the time when the money of the minor came into the hands of the guardian. It seems that the father, before his appointment as guardian, drew for the money, and the draft, endorsed by the defendants, was discounted by the Fairfield County National Bank. That draft was ¡accepted by the Charter Oak Life Insurance Company, payable ¡at their office. After his appointment, and [75] after having given the bond in suit, the insurance company paid the amount of the policy, but took the precaution to require a receipt from the father as guardian. Upon these facts the jury very properly found that the money was received as guardian, and after the bond was given. ■ v The other questions arising under this motion are disposed of by the conclusion to which wo have come on the motion for a new trial for a misdirection of the jury. The court below practically rejected evidence tending to prove that the guardian laid out and expended a portion of the money for the necessary support of the minor during his minority; also evidence that one of the defendants, since the minor arrived at full age, had paid to him different sums of money; also that Mr. Pope, the agent of the guardian, who invested a portion of the money in land in some of the western states, paid to the minor certain sums of money, the avails of the sale of said lands; and instructed the jury that all such evidence should be laid out of the case. This ruling was on the ground that these claims can only be allowed by the court of probate upon the settlement of the guardian’s account. t No such account has ever been rendered. The guardian is ■ dead, no one has ever administered on his estate, and this.suit, is brought against his sureties. The question is, whether they ■ can show, in mitigation of damages, expenditures by the guardian, and others for him, for the benefit of the minor. This court has uniformly refused to allow the account of an; executor or administrator to be settled in the Superior Court, either upon a bill in chancery, or upon a suit on the administration bond. The court below, not adverting to the distinc-. tion in this respect between an executor and a guardian,, applied the same rule to this case, and instructed the jury that, the court of probate alone had jurisdiction of the matters, claimed to have been proved by the defendants. But there is a material difference between an administration account and a guardian’s account. • The court of probate alone has jurisdiction of the settlement of estates, including necessarily the settlement and allowance of the administrator’s, account. It is the policy of the law to require all the pro [76] ceodings relating to the settlement of estates to appear upon the probate records. Our statute makes no provision for an ■executor or administrator to settle his account with the heirs ■or legatees. In most cases such a settlement would bo impracticable, and if practicable in any case, it would not be desirable. ■ With the account of a guardian it is different. In order to insure fair dealing and secure the rights of ihc minor, it may be advisable in some cases that the guardian should settle his account with the court of probate, but it is not indispensable. At common law a court of chancery entertains jurisdiction and settles a guardian’s account. In this state an action of account will lie, and of course the account must bo settled in the court to which the action is brought. If in any case an action at law would not afford an adequate remedy doubtless a court of equity would have jurisdiction. - The statute (Gen. Statutes, page 192, sec. 9,) requires that a guardian’s bond shall bo conditioned “ for a faithful discharge of his trust according to law, and for accounting to the minor when he arrives at full age, or at such other time as the court 'shall order.” When the statute so clearly contemplates a settlement with the minor it is difficult to see how the claim that a court of probate alone has jurisdiction can bo successfully maintained. Unlike an executor or administrator the duty of a guardian is owing primarily to the minor rather than the court of probate. That duty, if neglected, may and should be enforced in the ordinary tribunals. Aside from the guardian but one person is interested in the account. If he, when he becomes of age, settles with the guardian and gives a receipt, and the settlement is a fair one, it ismonclusive, and the bond is discharged. If the guardian ' refuses to settle, the minor may compel a settlement by an action of account. In that action all the transactions of the guardian with the estate of the minor may be investigated, and the minor will recover only what is justly due. ' A suit may also be instituted upon the bond. That bond is : security for whatever amount may be justly due. Under our statute, (Gen. Statutes, tit. 19, chap. 14, sec. 1,) judgment [77] should he rendered only for that amount. That can only he ascertained by deducting from the amount received the amount legally expended; and that involves substantially a settlement of his whole account. Under proper pleadings there can bo no valid objection to that course. Justice requires it, and it is attended with no special inconvenience. For these reasons we think the court erred in excluding from the consideration of the jury the evidence offered, and in the instruction given. We will not attempt to say to what extent the defendants’ claims ought to be allowed. The facts may differ somewhat upon another trial, and we must leave that question to he determined upon the facts as they may then appear. A new trial is advised. In this opinion the other judges concurred.