Markel v. Phillips

Hovey, J. On the 15th day of October, 1853, Markel filed his petition in the Court of Common Pleas of Allen county, against Phillips, representing that Phillips, on the [511] 13th day of August, 1852, was appointed guardian of the persons and estates of Frena Depler and Louisa Depler, infants; and that he had ever since had the management and control of their estates, amounting to several thousand dollars; and that he had faded and neglected, as such guardian, to file inventories; and prayed that he might be removed from his trust, &c. The defendant appeared and answered, 1. That he had not neglected his duties as guardian of said infants. 2. That the Court of Common Pleas, at the July term, 1853, ruled and decided that no reports would be required from any guardian until the January term, 1854; that he therefore supposed he was not required to make an inventory until that term, nor was he aware of the contrary until served with notice of the application in this case, when he was informed by his counsel that he should have made an inventory within one year from the date of his appointment. He admits that at the time of said advice from his counsel, he had not filed said inventory, but avers that he has since done so, and that his neglect was not intended to work injury to his wards or their estates, nor have their estates in any manner been injured or wasted in consequence of such neglect. The third paragraph states something about the rent of a certain house, but as no part of it can be regarded as responsive to the.petition, we do not deem it necessary to make any further comment upon it. The petitioner demurred to the answer, because it did not show that an inventory and appraisement had been filed within one year after the appointment of said guardian, nor within three months after the publication of the R. S. 1852. The Court overruled the demurrer “ on the ground that the R. S. 1852 are not applicable to guardians appointed before said statutes were in force, in reference to filing inventories of such guardians.” From the overruling of the demurrer, Markel appeals to this Court, under section 347, p. 116, 2 R. S. 1852, which [512] provides for bringing questions of law arising by demurrer upon the pleadings, to this Court, before final judgment. We think the Court erred in overruling the demurrer. The facts shown by the answer are no legal excuse for the guardian’s failing to file inventories. He failed to comply with the R. S. 1843, by filing his inventories within one year after his appointment, and as the R. S. 1852 took effect upon the 6th day of May, 1853, he also failed to comply with the provisions of that code. His whole defence is based upon ignorance of the meaning of the language of the order of the Court of Common Pleas, and ignorance of the law; and we deem it unnecessary to cite authorities, to show that such ignorance can not constitute a defence. The law in relation to the time of filing inventories, does not give the guardian a vested right to be governed by that law under which he was sworn, during his continuance in office, but it may be changed at the pleasure of the general assembly, and when such changes are made, they must be complied with. The 9th section, p. 324, 2 R. S. 1852, makes it the duty of the guardian to file inventories within three months after his appointment, and failing so to do, it provides that “it shall be the duty of the proper Court to remove him and appoint a successor.” The rigid rule laid down by this section was, no doubt, intended to apply to just such cases as this record presents. Here a guardian, with thousands in his hands, having taken an oath to perform the duties of his office, seems to be wholly ignorant of the duties enjoined upon him by the law under which he was appointed, and ignorant of the changes made in that law, which particularly require his attention and action. We apprehend that a rigid enforcement of the 9th section will have a very beneficial effect upon the interests of wards, and we do not feel disposed to impair its signification by construction. We are, therefore, of opinion that it should be applied to all guardians, whether appointed before or subsequent to its publication, who have not complied with its requirements, by filing inventories within three months after [513] their appointment, or within three months after it took effect. R. Brackenridge, Jr., for the appellant. J. L. Worden and C. Case, for the appellee. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.