In re the Guardianship of Thurston

Lyou, J. The only question presented by this appeal is,Did the circuit court adopt the proper rule in stating the account of the appellant, the late guardian, and ascertaining the sum for which he is chargeable? The respondent, the present guardian of the minor, maintains that the proper rule was adopted - while the appellant claims that, if any interest is allowed, it should be simple interest only, and that it was error to compound the interest by making semi-annual rests in the account. The question in issue was very ably argued by the respective counsel, who cited and commented upon numerous adjudicated cases bearing upon it. The re108 suit of all the authorities seems to be that only in cases of fraud or flagrant breach of trust should the guardian be charged with compound interest. But if he fails to invest the trust fund in his hands so as to derive an income from it when he should have done so, he should be charged with simple interest at the legal rate, although such failure may not have been the result of any fraudulent intent or wilful disregard of his duty. These are believed to be just and salutary rules, and we do not hesitate to adopt them as the law of this case and other cases like it.' The testimony taken on the accounting has not been preserved in the record. Hence all we can properly know of the facts is what is com tained in the findings or shown by the record. There is no finding that the late guardian was guilty of any actual fraud, or any flagrant or wilful breach of duty in respect to the trust funds. It is only found that he retained the estate of his ward in his own hands. Hence on the finding alone it would seem that this is not a case in which the guardian should be compelled to pay compound interest on the fund, but that it is a case in which he should be charged with simple interest thereon. There are cases which hold that the computation of interest should not commence until a reasonable time has elapsed after the trustee receives the fund, to enable him to invest it properly. Many of the cases name six months as such rear sonable time. This is not an absolute, unvarying rule. There may be considerations which render it inapplicable to a given case. We think there are such considerations in this case. The fund might have been invested by the guardian at once in government securities, and, if no better investment offered, he should have so invested it. Moreover, the court allowed the guardian, in addition to actual disbursements, four dollars per week for the'board of his ward for over five years. The record shows that the ward was about eight years of age when such maintenance commenced. [109] Considering the age of the ward and the limited value of his estate, we think the allowance very liberal to the guardian. This may well have been one of the reasons which, induced the circuit judge to charge interest from the date of the receipt of the fund by the guardian; but, however that may be, the matter rested in the sound discretion of that court, and in the absence of a bill of exceptions containing the testimony we. cannot say that such discretion was erroneously exercised. The same observations are applicable to the claim that, for the purpose of computing interest, the expense of maintenance for each year should have been deducted in advance at the commencement of the year from the amount of the estate in the hands of the guardian. On that basis the guardian would have been paid in advance each year for the maintenance of his ward. We find nothing in the case which required the court to adopt so liberal a rule in favor of the guardian. It only remains to consider whether the erronéous rule of compounding interest adopted by the circuit court has resulted in any substantial injury to the appellant. The semi-annual rests during the period the appellant maintained his ward was favorable to the appellant. For the purpose of deducting the sums allowed for the maintenance of the ward, the rests and deductions should have been made annually; and on the balance remaining in the hands of the appellant when he ceased to maintain the ward, which.was June 15, 1815, simple interest should have been computed to the date of the findings and judgment, August 26, 1881. That is the rule for computing simple interest, for the expenditures in each year exceeded the interest. Computing the interest on the above basis, we find in the hands of the guardian, August 26, 1881, $673 — only $1T.35 less than the amount found by the circuit court, for which judgment was rendered. In determining the effect of this excess on the judgment, [110] it is proper to refer to a fact disclosed in the record. In September, 1874, the appellant presented to the county court a sworn account of his charges against the estate of his ward, amounting to $1,678.65. This account covers a period of four and one half years, and mates the cost of maintaining his ward during that period more than one dollar per day. Considering the age of the ward and the very limited value of his estate, that this was an enormous overcharge, evincing an entire disregard of the rights of the ward, admits of no question or doubt. With this fact in the case, and in view of the very liberal allowance to the appellant for the board of his ward,— an allowance which, in our opinion, is considerably too large,— while we do not charge the appellant with compound interest, we cannot reverse the judgment because it is a few dollars in excess of what it would be had simple interest only, been computed on the fund. Under all of the circumstances of the case, we do not hesitate to dispose of this trifling excess by applying to it the maxim de minimis non curat lex.' By the Court.— The judgment of the circuit court is affirmed.