State ex rel. Manning v. Baker

Le Grand, C. J., delivered the opinion of this court. We are of opinion that the court below erred in refusing to allow the evidence offered by the plaintiff to be given to the jury. There can be no doubt, and it was not questioned in the argument, that the accounts of a guardian settled in the orphans court are but prima facie evidence of their correctness. The testimony proposed to sustain the case of the plaintiff had for its object the falsification of the accounts settled by the guardian, by showing that ho was appointed such expressly on the ground that he was not to receive any allowance for tuition, board, &c., &c. We think such a contract binding. Such an appointment of guardian operates as a contract between the person applying for the trust and the orphans court acting for the minor, which the latter may claim the benefit of in the manner sought here; the orphans court, in such a case stands in loco parentis to the infant. It is not, as was supposed by counsel, like the case of the allowance of commissions to an executor. In the case of McKim & Marriott, vs. Duncan, et al., 4 Gill, 72, the Court of Appeals field, it was not competent to a testator to deprive his executor of his commissions by anything he might put in his will. That decision, however, was based on the peculiar language of the act of 1798, chapter 101, which provides, that the commissions of an executor shall be, at the discretion of the court, not under five nor exceeding tender centum. The law commands an allowance to a certain amount, and it is not within the power of either court or testator to defeat it. The case before us, although not precisely the same in principle, is somewhat analogous to that of Stockett [50] vs. Jones, 10 Gill & Johns., 278. There the court gave efficacy to what they considered an understanding between brother and sister, that the former should make no charge for the board of his sister. The proof in that case was not near as strong as the evidence offered in this. These observations dispose of the question presented by the first bill of exceptions. The court having refused to allow the evidence mentioned in the first exception to be given to the jury, there was of course nothing to justify the granting of the prayer contained in the second exception. Even had the testimony been in the case the prayer ought not to have been granted, inasmuch as by its form it took away from the jury the finding of the truth of the facts set out in it. Judgment reversed and procedendo awarded.