Norton v. Ohrns

Ohamplin, J. This case comes before us upon demurrer for want of equity to a bill filed by the complainant as guardian of Ebenezer Hilliard to foreclose a mortgage given by the defendants to George L. Phelps, guardian of Ebenezer Hilliard, a spendthrift. Phelps died, and complainant was appointed guardian by the probate court to succeed him. The reasons upon which the demurrer is based are stated in the brief of counsel for defendants, as follows. “ 1. Because Phelps was a trustee, and after his death his only proper successor would be some one appointed for that purpose by the court of chancery to execute the trust. “2. Because Norton has not such an interest in the mortgage as to give him a standing in court as a complainant. “ 3. Because there is no averment in the bill that an order of the guardian, either written or verbal, was made at the dwelling-house on said premises, as required in the mortgage described in the bill. ”1 We think the bill of complaint sufficient. Complainant’s appointment by the probate court was proper, and the statute expressly authorizes the guardian to demand, sue for, and [614] receive all debts due to his ward. This authorizes him to collect moneys due upon bonds and mortgages. Livingston v. Jones, Har. Ch. 165. He may bring suit to recover personal property or debts due his ward in his name as guardian. The third objection is not available on general demurrer. The bill alleges that a certain amount is due and unpaid. If the money was not demanded at the place where it was payable, and defendants had the money there to pay it, the only effect would be that the guardian may not be able to recover costs against defendants. The demurrer is overruled, and the record will be remanded for further proceedings in accordance with the rules and practice of the court. The complainant will recover his costs. " Sherwood and Morse, JJ., concurred. Campbell, C. J., did not sit. Footnotes [1] See head-note 4.