Hughes v. People ex rel. Kerrick

Mr. Justice Mulket delivered the opinion of the Court: At the June term, 1874, of the county court of McLean county, William E. Hughes was appointed guardian of Ellen Murray, and entered into bond as such, with John F. Humphreys and others as his sureties. While acting as guardian, there came to his hands the sum of $8100 belonging to his ward, a considerable portion of which he appears to have loaned to different parties upon real estate security, without the approval of the county court, and the security thus taken as to some of the loans has since turned out to be insufficient, whereby a loss has occurred. In July, 1878, T. C. Kerrick succeeded Hughes as guardian, whereupon the latter turned over to him a part of the fund, and also tendered him the balance in notes and mortgages of the character just stated, hut Kerrick declined to receive them, on the ground they were not available, and that the loans had been made without the authority of the county court. Hughes insisting on his right to turn over these securities in discharge of his liability as guardian, Kerrick brought an action in the McLean circuit ■court, against him and his sureties on his guardian’s bond. The cause was subsequently removed from McLean to Livingston county, where a trial was had, Resulting in a verdict in favor of plaintiff for $3337.79, which, on appeal, was affirmed by the Appellate Court for the Second District, and the cause, by further appeal, is brought to this court. The errors of law complained of, arise on the rulings of the trial court. • That court, in effect, held that the statute requiring a guardian to keep his ward’s money at interest, upon good security, to he approved by the county court, is mandatory, and that a loan upon real estate security without such approval is made at the peril of the guardian, and that in such case, if a loss occurs, the guardian can not exonerate himself by showing he acted in good faith, or that the security was good when taken, but subsequently became insufficient in consequence of a general shrinkage of values. The court in thus holding but followed the express rulings of this court in McIntyre v. The People, use, etc. 103 Ill. 142. The decision in that case was reached after a very careful consideration of our statute, in connection with the common law doctrines relating to the same subject, and we have no disposition to depart from or in any manner qualify the rule as there laid down. The legislature, in adopting our statute requiring the approval of the county court to loans made by guardians on real estate security, was evidently intending to give additional protection to the estates of infants, and this intention on the part of the legislature can only be given effect by holding as we did in the McIntyre case, and do now, that the act is mandatory. To hold otherwise would leave the law. practically as it was before. The guardian, under such a construction, might obtain the approval of the county court of such loans, or not, just as he saw fit, which would make the statute practically a dead letter. It is also objected the guardian should only be charged with simple interest. We do not think so. By putting out the money in the manner he did, in violation of an express provision of the statute, he placed it beyond his power to make it bring compound interest, as it otherwise would have done if properly loaned. This violation of the statute was knowingly done, and therefore willfully done; and the law is well settled that where a trustee willfully violates a duty in respect to the trust estate, resulting in loss, he may properly be charged with compound interest. We perceive no cause to disturb the judgment of the court below, and it is therefore affirmed. Judgment affirmed. Mr. Justice Walkeb : I am unable to concur in all the doctrines of this case. I think it is in some respects opposed to the case of Bond v. Lockwood, 33 Ill. 212.