Reynolds v. Walker

Mr. Chief Justice Smith delivered the opinion of the court. This is a controversy arising out of the final settlement of a guardian’s account; and is brought before us by writ of error from the court of probates of Hinds county. The principal question in the case is, whether a guardian is, by the statute, chargeable with interest upon the money of the ward remaining in his hands, unless he has consented to take it, or has been ordered'by the court to lend it on interest. This'question has arisen heretofore, on several occasions, and has been decided by this court. It arose, in the first instance, in Hendricks v. Huddleston, 5 S. & M. 422, decided at the November term of this court in 1845. It was next presented in Austin v. Lamar and Wife, and in Austin v. Dean, 23 Miss. R. 189, determined at the same time in 1851; and lastly, in Brown v. Mullins, 24 Miss. R. 204, decided in 1852. These cases do not harmonize, and we are now asked to review the question. In the case of Hendricks v. Huddleston, the court say, “by law a guardian is not chargeable with interest unless he has consented to take the money at interest, or unless it has been loaned out at interest under the direction of the court.” In the cases of — 263 — Austin v. Lamar and wife, and Austin v. Dean, the whole estate of the wards consisted of money which had remained for several years in the hands of the guardian. The guardian never applied for the consent of the court to take the money himself, nor for an order of court directing him to put it out at interest; and no order for that purpose was made. The guardian denied having used the funds of his wards, and there was no proof in support of the allegation by which he was charged with having done so. Upon this state of facts it was holden by this court, the late chief justice delivering the opinion, that “ a guardian is not liable for interest unless he is directed to loan the money of his wards, or to take it on interest.” “ If it were his duty,” say the court, “to obtain such order, the neglect to do so is a question sounding in damages to be tried in another court.” In the case of Brown v. Mullins, the doctrine was holden, that in cases in which the estate of the ward consists of money in the guardian’s hands, the guardian is liable to pay interest on such sum or estate, whether he may or may not consent to take it on interest, or whether he has or has not been directed to loan it at interest. In this case the court recognize the right of the guardian, and enjoin it upon him as a duty, to put out at interest the money of his ward, if it be principal, and not the annual product of his estate. The language employed is explicit and not to be misunderstood. The court say, “ the failure of the guardian to lend the money of his ward, in such a manner as to produce an annual income or fund for the education and maintenance of the ward, would be as much a breach of his duty as guardian, as a failure to hire out slaves belonging to his ward, or to cultivate his plantation. In our opinion, the words ‘balance of money’in the statute, simply mean the balance that may remain in his hands after the annual income of the ward over and above the disbursements for the education and maintenance of the ward.” It is manifest that the principles laid down in this decision are irreconcilable with the doctrine heretofore maintained by this court on the same subject. It hence becomes our duty to adhere to the decision pronounced in Brown v. Mullins, or to reinstate the doctrines previously recognized. The decision, in — 264 — Brown v. Mullins is of very recent date. It is not fortified by succeeding precedents; nor is it sustained by the transactions of society, which, when moulded and fitted to an established rule, regulating the rights of the community, give to it a vigor and strength, independent of any intrinsic merit which the rule itself may possess, and render the task of innovation one of delicacy and hazard. But it is a deliberate adjudication upon a question of great practical importance, made after a careful examination of the subject. Hence, independent of the very great consideration due to the opinions of the judges, whose decision it is, it demands from us the greatest consideration. The statute in reference to the subject under consideration, provides, that “ every account of a guardian shall state his expenditures in maintaining and educating the ward, not exceeding the income of the estate, unless allowed by the court; and for -no balance of money in his hands shall he be charged interest, unless he consent to take the same on interest; but the court may direct him to place the same at interest, taking bond to the orphan, with security approved by the court.” Hutch. Dig. 506, § 133. Several other provisions of the statute define additional powers and prescribe other duties of the guardian, a reference to which will enable us to ascertain with greater certainty the true interpretation of the provision under consideration. The 128th section of the statute provides that every testamentary or other guardian shall, within three months after his appointment and acceptance of such office, deliver into the office of the register of the orphans’ court, on oath, an inventory of all the estate, real and personal, which he shall have received or taken possession of, and shall exhibit once in every year, and oftener if thereunto lawfully required, an account of the product of said estate, and of the sale and disposition of such product and disbursements. Hutch. Dig. 505. By the next section it is provided, that any guardian who may fail to deliver in such inventory, or render such account, shall, by order of the court to which he is answerable, be summoned, and if he remain in default, his bond may be put in suit, directing, further that the court may, for any good and sufficient cause, displace such guardian. Ib. 505. — 265 — The 130th section, amongst other provisions, directs that any guardian having real estate under his care, shall either cultivate the same with the slaves, stock, and utensils belonging to the ward, or to be purchased with his or her money, with the approbation of the court; or he shall lease the same from year to year, or for any term not exceeding three years, and within the nonage of the ward; or he may, with the approbation of the court, undertake the estate on his own account, and be answerable for the annual value, which is to be ascertained under the direction of the court. These several provisions of the statute at once manifest the care with which the legislature guarded the rights of orphans, and illustrate the wisdom of that body. The perfect safety of the estates of minors was, as it should be, a cardinal consideration with the legislature. But whilst securing that object it was studious to make the fund productive. How did the legislature propose to effect this purpose ? Certainly not by committing the estate of the ward to the unrestricted discretion of the guardian. The perfect accountability of the guardian was designed to be secured, by placing him in almost every matter of importance under the supervision and control of the court. Nothing, scarcely, was left to his individual discretion. "Within a very limited time the guardian is required to return an inventory, on oath, of the estate. He is required yearly, or oftener if directed to do so, to account for the income and its disbursement ; and the court is armed with the authority to displace him for a failure or neglect to perform his duties. With reference to the real estate of the ward, the guardian is vested with the discretion to lease it for a limited time, or to cultivate it with the slaves and stock of his ward; but he cannot rightfully undertake it on his own account without the consent of the court. In these cases the estate itself is not put at hazard, and in the last instance the value of the income is to be ascertained by the court. Without these statutory provisions this power could have been legally exercised by the guardian. These provisions, specific and minute in their details, were not imposed, without an object. Not one wrord is said in the statute, from which the most remote implication can arise,’that it was intended — 266 — to vest the guardian with the authority, on his individual discretion, to use the estate of the ward, consisting of money, or to lend it out at interest. Indeed the very reverse is the natural inference. But that it was not intended to authorize a guardian, at his own discretion, to lend at interest any portion of the money of his ward, or to take it himself on interest, is not left to inference. The language of the 133d section, above quoted, is to our minds conclusive on the subject. Words usedin a statute are to be understood according to their usual interpretation, especially where there is nothing in the context which indicates a meaning different from the ordinary acceptation. When money of a ward is received into the hands of his guardian, he has, to the extent of the sum thus received, become the debtor of his ward. There is no conceivable method in which a guardian thus situated in rendering his guardianship account, would not appear the debtor of the ward for the sum thus received, standing on the account as a balance against him. It cannot be doubted, therefore, that in any sense in which the term “ balance ” is used in reference to an amount stated, it would properly express the amount due by the guardian on his account, whether such amount was composed of money received as a part of the estate of the ward, or as the income of his property. The terms, “ no reported balance-of money in his hands,” therefore, refer necessarily to any reported balance, whether consisting of principal estate, or of income, unless there is something which plainly shows that the legislature had reference exclusively to the reported balance of the annual income or product of the estate. We think there is nothing which indicates such an intention, but the contrary. The construction which would confine the terms used in the statute to the “ reported balances ” of the annual income, and authorize the guardian to lend out at interest the money received as a part of the ward’s estate is, manifestly, opposed to the spirit of the statute regulating the duties and defining the authority of the guardian. This construction makes the guardian answerable under all circumstances for interest on such part of the ward’s estate. It thus makes the guardian a forced borrower. It compels the guardian to use the money of the — 267 — ward to make a profit, in order to meet the charge of interest. It encourages him to risk the money by investment or in speculations, in which not only the income but the estate itself may be lost, and this he might do without any violation of his duties; for if he have the unrestricted right to lend it, he must have also the right to employ it in the manner which he deems the best. If this construction is the proper interpretation of the meaning of the legislature, cases might arise under its operation which would not greatly illustrate its wisdom or consistency. It may happen, as it has sometimes, that the entire estate of the ward will consist of money. In such a case, the guardian would have no right to .take the income at interest without the consent of the court, but he would -have the unquestioned right to use the whole estate without the consent or direction of the court. He could not lend the income reported as a balance without an order of court for that purpose, and an approval of the security offered by the borrower for its repayment; but he might lend the whole estate without the sanction of the court, and without taking any security whatever. Again, the estate of the ward, — and this we may imagine frequently occurs, — may consist of a productive plantation and slaves, producing an income which, after defraying the expenses incurred for his maintenance and education, leaves a large annual balance. In such case it would be neither consistent nor wise to require an order, of the court before the balance could be put out at interest, if it were wise and politic to vest in the guardian the unrestricted right, on his own discretion, to lend the whole estate, if it should consist exclusively of money. Let it be supposed, again, that the estate of the ward consists exclusively of money, which the guardian has deemed it expedient to lend out at interest. This act must be shown in his annual report. When the money thus loaned is repaid, the amount must be charged in his annual account, with his current disbursements and receipts. It will in this way constitute a part of the “reported annual balance.” Hence, under the plain and express language of the statute, he will no longer — 268 — have the right to lend it again, or to take it on interest, without the order or consent of the court. Upon the whole view of the subject, we cannot doubt that the construction of the statute applied in the cases of Hendricks v. Huddleston and Austin v. Lamar, is the true interpretation. But where the guardian has employed the money of the ward by lending it out at interest, or has used it in his own business, or has in any way made profit out of it, although he may not have done so with the sanction of the court, he is liable for interest. A guardian is bound by law to render an annual account, and oftener if required, showing plainly the condition of his ward’s estate. This is required in order to enable the court to discharge the duties imposed upon it, by ordering the funds of the ward to be loaned at interest, or invested for his benefit. Where, therefore, the guardian has failed to account for the profits or income of the estate, and thereby prevented a profitable disposition of such income, he should be held accountable for interest upon such income. In such cases the court may presume that he has used the money for his individual profit, or has consented to take it on interest, and may charge him accordingly. In th.e case before us, the estate of the ward consisted of land, slaves, and two hundred dollars in cash. The money was reported in the inventory. The land was sold under an order of the court, and the proceeds duly reported when collected by the guardian. No order of the court was made by which he was required to lend at interest any balance of money reported in any of his annual settlements, nor did he consent to take it at interest. The guardian is therefore not chargeable with interest on any money or balance reported in his annual settlements. The guardian failed to account for several years’ hire of the ward’s slaves, the aggregate amount of which, according to their average value as fixed by the auditors, amounted to the sum of $2,296. Upon that sum, or upon the amounts due for hire, and which the guardian failed to report and account for, the plaintiff in error is entitled to interest. — 269 — We are of opinion that the guardian should not have been charged with the notes made by McCall, one for $345, due in 1837 ; the other for $570, due in 1838. There is no direct proof that the notes were made to the guardian, that they were collected by him, or that he could have done so. It is highly probable that these notes were given in consideration of the hire of the ward’s slaves, as his whole estate consisted of the slaves returned upon the inventory, $200 in cash, and the land, the proceeds of the sale of which are. accounted for. And it was in proof that McCall had hired the ward’s slaves for several years. If these notes were in fact given for their'hire, the ward will be paid by the allowance for hire, and interest thereon, for the years in -which no hire was reported. Deducting the amount of these notes from the amount of the decree, and allowing interest on the amounts due "for hire which were not reported or accounted for by' the guardian, the plaintiff in error is still entitled to more than he has been allowed by the decree of the court of probates. We reverse the decree, order the account to be restated, and a decree entered in this court in accordance with this opinion.