Carlysle v. Carlysle

Eccljeston, J., delivered the opinion of this court. The present case is designed to settle the question, whether the loss resulting from the loan to Kridier, by 13. Carlisle, the guardian of D. Carlisle, shall fall upon the guardian or on his ward ? The decision below was in favor of the ward, throwing the loss on the guardian. It will be proper, in the first place, to notice certain acts of Assembly having an important bearing upon the matter in controversy. The act of 1816, ch. 154, which relates to sales of the real estate of minors, by the 5th section, directs the proceeds of such sales to be paid over by the trustees to the guardians, — 446 — and by them to be “vested in such public stock, or other permanent funds, as will, at least, net six per centum per annum, at the time of the purchase, and as the orphans court of the county, by whom such guardian or guardians shall have been appointed, shall direct.” And the 7th section enacts: “That all moneys vested by an'd in virtue of this law, shall be vested in the name of such infant or infants, and shall be transferable only by virtue of an order of the orphans court aforesaid, and all transfers, without such order, are hereby declared void to all intents and purposes.” By the 2nd section of the act of 1816, ch. 203, it is provided: “That the orphans courts shall have authority to empower any guardian to sell any leasehold estate belonging to his ward, if the court shall think such sale advantageous to such minor, and shall order the proceeds of such sale, or any surplus money belonging to said minor or orphan, to be invested in bank stock, or any other good security, which investment shall be made in the name of the minor or orphan, and that no sale, transfer or disposal of the stock of such minor or orphan, shall be made without the concurrence of the orphans court.” The provisions of the act of 1816, ch. 154, respecting the sales of real estate of minors, are extended to personal estate of such minors, by the act of 1819, ch. 144, section 2. By the 5th section of the act of 1831, ch. 315, the orphans courts are authorized, in their discretion, and whenever to them it shall seem proper, to order “any guardian whom they may have appointed, or whose bond they may have approved of, if it be a natural or testamentary guardian, to bring into court, or place in bank, or invest in bank or other incorporated stock, or in other good sécurity, any money or funds received by such guardian, and the court shall direct the manner and form in which such money or funds shall be placed in bank, or invested as aforesaid, and the same shall, at all times, be subject to the order and control of such court.” The act of 1843, ch. 304, sec. 1, provides, that it shall not be lawful for any guardian “to sell any property” of his ward, — 447 — without an order of the orphans court “first had ahd obtained, authorising such sale or removal, and any sale made without an order of court previously had,” is made void. These laws manifest a clear intention, on the part of the Legislature, to protect the property of a Ward against the mismanagement of his guardian, by placing not only the sale of property, but also the disposition or investment of money, under the control and direction of the orphans court. And these provisions afford the guardian ample and convenient means of securing himself from loss. If; therefore, he thinks proper to disregard them, and chooses to assume the responsibility of investing the money without the sanction of the court, he should be held answerable for any loss which may result from such an imprudent course. The principle thus announced renders it necessary to inquire, whether the appellant made the loan complained of by the appellee, under the authority or order of the orphans court? It is alleged, by the appellant, he had authority from the court to make the loan; admitting, however, that the authority was not in writing but merely verbal. And, in fact, the proof offered to sustain the allegation is nothing more than parol evidence, which proof shows there was no written order-passed on the subject, that no direction was given to the register to make any entry of it upon the minutes or proceedings of the court, and that no such entry ever was made. The appellee insists that this parol evidence is inadmissible for the purpose for which it has been introduced; and, consequently, there is no proof showing that the court ever authorized or sanctioned the loan. The appellant denies this, insisting that the orphans court is not a court of record, and when it appears any of its proceedings have not been reduced to writing, they may be established by parol proof. This, he says, must be so, especially when (as in this case) it is shown the court were not in the habit of reducing such things to writing. The adoption of the appellant’s doctrine, in such a case as this, would establish ¡1 most dangerous principle. Under such — 448 — a rulé;,Unsafe; indeed, would be the rights of persons, in regard to property, when those rights have been acted upon by these very important courts. We call them important, because, the swift messenger of death is annually bringing within their jurisdiction large amounts of personal property. We have seen no authority, and can perceive no good reason, for admitting, that the orders of these courts may be merely verbal, and may be proved without any written evidence. Such a doctrine we consider at variance with the law creating and regulating the courts, contrary to the authorities in reference to courts of similar character, and contrary to sound legal principles; The law providing for the organization of our orphans courts, certainly makes them so far courts of record as to require, that their proceedings shall not rest in parol, but shall be reduced to writing; and for the purpose of having proper entries made of them; and certified copies given; under seal, when demanded, a clerk has been provided. The act of 1798, ch. 101, sub-ch. 15, section 9, requiies the register of wills diligently to attend each meeting of the orphans court, and under their direction, to make full and fair entries of their proceedings; to make a fair record in a strong bound book or books; of all wills proved before him, or the said court, or authenticated according to the act, and of all other matters by law directed to be recorded in the said court, or in his office; to make out and issue every summons, process or order of the court; that he shall, in every respect, act under their control and direction, as the clerk of a court of law is under the direction of a court of law; that' he shall give out and certify, under the seal of the court, any copy of any part of the proceedings in the court, or in his office, which any person may demand. Now, with such provisions in regard to the proceedings of the orphans court, what propriety or necessity can there be for holding that their orders or proceedings may be merely verbal,- and evidenced, or established in any subsequent suit or controversy by parol proof only? We cannot recognize a doctrine which assumes the propriety or necessity for so doing.- — 449 — The case of Chase vs. Hathaway, 14 Mass. Rep., 222, involved an inquiry, whether a decree deciding Chase to be incapable of taking care of himself, was valid or not ? The ground on which the court held the decree to be invalid was, that Chase had no notice of the proceedings either before the select men who made the inquisition, or in the probate court, in which the decree was passed. We have referred to this case for the purpose of quoting, as applicable to the subject before us, the following language of Chief Justice Parker: “A court of probate, although not technically a court of record, ought to have a perfect record of ail its orders and decrees; and it was for this purpose principally, that the constitution established the office of register. Orders of notice, among other things, should be recorded, or if not, should be filed, with the return upon them.” In Weatherhead’s Lessee vs. Baskerville, et al., 11 How. S. C. Rep., 360, the Supreme court say: “By the law of Tennessee, such a partition is a judicial act and becomes a record. It can only be proved as such records may be. .....The rule in respect to judicial records is, that, before inferior evidence can be received of their contents, their exis- ‘ tence and loss must be clearly accounted for. It must be shown that there was such a record, that it has been lost or destroyed, or is otherwise incapable of being produced; or that its mutilation from time or accident, has made it illegible. .....The burning of an office and of its records is no proof that a particular record had ever existed. It only lays the foundation for the inferior evidence. If that cannot be got, the result must be, and is, that there has been an allegation of the existence of a record, without proof.” Whether a certain order might be proved by parol, was made a question in the case of the Heirs of Ludlow vs. C. & J. Johnston, 3 Ohio Rep., 577. There the Supreme court of the State say: “The court of Common Pleas, whether acting as a court possessing common law jurisdiction, or as a court of probate, is a court of record. The proceedings, orders, judgments, decrees of such courts, do not rest in parol. It is by their records they speak - -and there is but one mode, — 450 — as a general rule, known to the law, by which their acts can be proved-, and this is by the record itself. True, there are cases, where, after the loss or destruction of a record, you may prove its contents. In such case all has been done by the court which could be done — a record, which is the legal evidence to prove its acts, has been made. The rights of all parties concerned are fixed, and those rights ought not to be affected by time or accident. 'But before the contents of a record can be proved, it must be shown that it once existed and has been lost by time or accident. This shows that the evidence is not introduced to prove the proceedings of a court as resting in parol, but as they once existed of record. But to introduce parol testimony to prove the proceedings of a court of record, and then substitute this testimony for the record itself, would be a novel proceeding. It would be equally absurd as to sustain an action of debt upon bond, upon proof that the defendant promised to make such an instrument as is set forth in the declaration, although the fact should be admitted, that the instrument was never executed.” The appellant in the px-esent case relies upon parol evidence, only, for the purpose of proving that he was authorized by the court to make the loan in controversy, which authority was not in writing, nor was any entry of it directed to be made by the register, and in fact it xiever was entered or recorded by him, among the proceedings of the court. Under these circumstances we must treat the case as if no such authority or order ever had existence; and, of coui-se, as if the guardian made the loan without the sanction of the court. The result of which is, the appellant should be held responsible for the loss. And the court below having so decided, the order appealed froxn will be affirmed without costs in this court. Order affirmed.