Bennett v. Hanifin

Mr. Justice Sheldon delivered the opinion of the Court: The claim of appellant is, that he made a full and final settlement of his guardianship account with his ward, after she came of age, before the county court, which then found and adjudicated that the sum of $128.88 was the whole amount due, which he paid over to appellee; and that this adjudication is to be held conclusive between the parties, of the amount due, except in a direct proceeding 'on appeal or error to reverse it, or upon a bill in chancery to impeach it on the ground of fraud or mistake. Appellant takes his stand upon this order of the county court of August 5, 1868, and the payment made thereunder, as a full bar to the present proceeding. In view of the testimony of the circumstances under which the receipt of August 8, 1868, was given, that receipt is entitled to very little effect as evidence of any settlement. The testimony introduced to contradict the statement in the record of the county court of the appearance of appellee, we hold to be insufficient to that end. The verity of a record in such respect is not to be thus lightly impeached. We must take it, then, as the order states—that appellee was present in court at the .time of the making of it; but we are unable to assign to the order the character which appellant would attribute to it. There is nothing which indicates that there was a final settlement on August 5, 1868. The guardian’s report, upon which the order was made, in no respect purports to be a final report. It says nothing as to the ward being of age, does not ask a discharge of the guardian, but is a simple account of receipts and disbursements. An inspection of the report shows that the court found nothing except what appeared upon the face of the report. The order contains no intimation of a final settlement, does not direct that the guardian be discharged upon the payment of the balance found to be due, in his hands or otherwise, but merely approves the report. The sixth section of the Guardian and Ward act, Rev. Stat. 1845, provides for the rendering of accounts by guardians, from time to time, as they may be required by the court of probate, and the guardian’s bond contains a like condition as to rendering accounts. There is nothing to show that this report of August 5th was anything more than one of these ordinary accounts to be rendered from time to time, at least more than the circumstance of the ward appearing at the time, and it being about the time of her coming of age; but we can give to such circumstance no greater effect than that of a higher sanction to the approval of the report than if it had been upon an ex parte presentation. Section 18 of said act provides for the allowance to guardians, on final settlement, of fees and compensation for their services. The entire silence of the order and report in respect of any fees or compensation, and also of any former order or report, is an indication against this being a final settlement. There is no attempt here on the part of the appellee to go behind the order, or the report upon which it was made, or to contradict the same, or any former report, in the respect of receipts or disbursements, or any statement in regard thereto, but the claim is simply one for an allowance of interest. The order itself and the reports of the guardian show, that there has never been the allowance of one cent for interest, although there came into the guardian’s hands April 10, 1855, $61.75; December 29, 1856, $600; December 29, 1857, $600, and he had in his hands, on December 18,1866, a balance of $723.88, as shown by his own report. The finding of the order of August 5th, was of the balance in the hands of the guardian, $128.88. This was but a balance of receipts over disbursements, without any interest whatever included, as appears upon the face of the order and reports, the latter containing all the items of the receipts and disbursements, and no item of interest being among them. There are but two former reports, those of December 18, 1866, and August 5, 1868, and they bear intrinsic evidence that they are the only ones ever made. There is nothing more just than that there should be an allowance of interest on her money to the ward. The eighth section of the statute referred to makes it the duty of guardians to put to interest the moneys of their wards on mortgage security. There is no pretense of any excuse why interest was not realized from the ward’s moneys, and should not be accounted for, except the technical bar of the order, and the alleged settlement. This, we find to be insufficient. There having been no discharge of the guardian, and no final settlement of his accounts as guardian, as we find, the county court had the authority to require the guardian to render a final account touching his guardianship, and have a final settlement thereof made. In the adjustment of the accounts of guardians, the county court had equitable jurisdiction. Bond v. Lockwood, 33 Ill. 219; In re William Steele, Guardian, 65 id. 322. If, in any former report or action of the county court, there had been an omission or mistake in the non-allowance of interest, it might be rectified on such final settlement. There was some explanation of the delay in commencing the present proceeding, in the testimony given as to legal advice having been taken and given, that 'it would be useless to take any proceedings, on account of the pecuniary irresponsibility of the guardian and his securities. Appellee’s counsel state that the finding of the court below was for the amount of interest found to be due upon the basis of allowing the guardian six months in which to loan the money in his hands, and then computing compound interest at six per cent up to August 8, 1868, and after that time simple interest, only, to the day of rendering the final order, talcing'the receipts and disbursements as shown by the reports and vouchers; and a calculation is submitted by counsel, which seems to us correct, showing that a computation upon such basis, after the allowance of commissions to the guardian, will amount to a sum at least as large as that found by the court below. Of such a computation of the interest, appellant has no cause to complain. Bond v. Lockwood, supra; Gilbert v. Guptill, 34 Ill. 112; In re William Steele, Guardian, supra; Dunscomb v. Dunscomb, 1 Johns. Ch. 507. Objection is taken by appellant to the introduction in evidence of certain receipts and vouchers. These, it seems, were among the papers in the case in the probate court, some of which were not marked filed. They were resorted to, as appears, only for the purpose of fixing the dates of certain payments made by the . guardian, he giving no dates of the payments made by him in his first report. The items in the receipts corresponding with those in the report, the presumption should be that they were filed by the guardian as vouchers, and they might properly be referred to for the dates of the items. Finding no error, the judgment must be affirmed. Judgment affirmed.