Coffin v. Bramlitt

Peyton, Jl, delivered the opinion of the court. It appears from the record in this case that the appellee was appointed guardian of the person and estate of the appellant, by the Probate Court of Pontotoc county,-at the December Term thereof, 1858, and that he failed to render an inventory of — 205 — his ward’s estate, which consisted of notes, negro girl, a small interest in land. That on the 14th day of February, 1859, said guardian filed his first annual account, in which -he charges himself with a balance on hand in favor of his ward of $469.99^-, which consisted of notes for loaned money received from Mrs. A. C. Mattox, former guardian of said ward, and of a note for $80 for the hire of negro slave Ann, belonging to his ward, for the year 1859. That at the March Term, 1860, of said Probate Court the said guardian settled Ms second annual account, exhibiting a balance of $420.78£ in cash, in favor of his ward, on $309.69, of which he charged himself witli interest for the year 1859. That at the March Term, 1861, of said court the said guardian settled his third annual account, showing a balance due his ward of $599.22|-. In this account the guardian charged himself with the balance due his ward'on the last settlement of $420.78, with interest thereon for twelve months, and with his ward’s part of his brother Jack’s estate. That said guardian in his fourth annual account charged himself with the balance due his ward on the last annual settlement of $599.22, and interest on the same for twelve months. This account exhibits a balance due the ward of $597, and was approved and allowed by the court, and ordered to be recorded at the March Term of said Probate Court, 1862. And also in his fifth annual account the said guardian charges himself with the balance due his ward on his last annual settlement of $597, and with interest on the same for twelve months. This account was settled at the March Term, 1863, and sliows a balance due the ward of $598.94. In his sixth annual account, which was settled at the March Term, 1864, the said guardian charges himself with the balance on the last annual settlement of $598.94, and negro hire and rent amounting to $172.50. From which, after deducting expense account of $12.98, there remained a balance due the ward of $758.46. At the foot of this account is the following: “ Your money loaned to C. W. — 206 — Martin, 1st of April, 1863, at ten per cent, to be paid in Confederate money.” That the seventh annual account was never settled, and the eighth exhibits upon settlement a balance in favor of the ward of $814.66, which is stated-in the-account to bo “in Confederate bonds, bonded the 29th March; 1864.” This account was allowed and ordered to record at the May Term, 1866. And that the ninth annual account, settled at the May Term, 1867, brings the ward in debt to his guardian in the sum of $3.65. The ward having arrived at age, on the 5th day of March, 1868, said guardian filed his tenth and final account, in which, among other things, he charges himself with $814.66, and prays a credit for the same amount in Confederate money which had become worthless in his hands. To this account the appellant filed nine exceptions, all of which were overruled by the court, except the first, which was sustained by the court; and the account, as restated and allowed by the court, exhibits a balance against the appellant of $19.49. From the decree of the court, in overruling the exceptions and passing the re-stated account, the cause comes here by appeal. Of the various exceptions to the. account which were overruled by the court, we will only notice the seventh. Upon the settlement of the sixth annual account in the month of March, 1864, the guardian held his ward’s money to the amount of $758.46, in par funds. He has so' charged himself in that account, and he is not allowed to gainsay it. Where final or annual account of a guardian' states the balance against him, as in this'instance, in dollars and cents, lie cannot impeach or contradict it by proof that the balance stated was money collected in the depreciated issues of broken or suspended banks, or in’ Confederate money, or that the same was at the time invested in Confederate bonds. Annual accounts of guardians are final and conclusive against them in the court where rendered, and can only be set aside by due course of procedure. Inaccuracies in such accounts arising from sheer inadvertence or oversight, or from palpable mistake or miscalculation, may, in proper cases, be corrected. Where a guardian in — 207 — his annual accounts lias repeatedly stated the balance due his ward in dollars and cents, it will be regarded as constitutional currency, and he will not be permitted to show by parol testimony that such balances were in Confederate treasury notes or in Confederate bonds. Bailey v. Dilworth, 10 S. & M. 404; 33 Miss. 553; 35 ib. 540; Crump v. Geroch, 40 ib.; and McFarlane v. Randle, 41 ib. 411. The next question for our consideration is, had the guardian a right to invest his ward’s money in Confederate treasury notes or in Confederate bonds without the authority of. the Probate Court to do so ? The Nev. Code, 461, art. 147, provides that for no balance of money in his hands on (annual) accounts shall a guardian be charged interest, but the court may direct him to place the same at interest, taking bond with security for the payment thereof, or the guardian may consent to take the same at interest, with the approbation of the court. • His accounts show that the guardian did- take the money at interest, and kept it until 1863 or 1864, when he says that he loaned it, to be repaid in Confederate money, which was then greatly depreciated, and daily diminishing in value with great rapidity. This fact was notorious in this country, and must have been known to the guardian at the time he loaned the money. Assuming that he had tin's knowledge, we must say that he was not guarding very cautiously the interest of his ward, when he loaned good money for bad, when he lent the par funds of his ward to be refunded in Confederate treasury notes, which were then of little value, and becoming less valuable every day. - The single loan seems to have wiped out nearly the whole of his ward’s estate. This transaction cannot be reconciled with the faithful discharge of his duty as guardian, which requires him to carefully guard and promote the interests of his ward.. If a guardian assumes to loan out the money of his ward without the authority of the Probate Court, he does it at his own risk. In this case there was no authority of the court for the loan, nor does there appear to have been any bond or security of any kind for the payment thereof. — 208 — The interests of his ward required the guardian should have retained the money in his possession, and this the court would have permitted him to do without interest, upon a proper showing of great hazard of loss of the principal in loaning it, and that he had no use for the money himself; and in this way the money would have been saved to the ward, and.the hire of the negro girl, the rent of the land, and the portion he received from his deceased brother’s estate, would have defrayed the expenses of the guardianship. This court has decided that a guardian is not chargeable with interest for money in his hands, 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, or unless lieuses it himself. Hendricks v. Huddleston, 5 S. & M. 422. „ If a guardian, acting in good faith and with a due regard to the interests of his ward, should receive, in the usual course of liusiness, paper money, the circulating medium at the time, which should afterwards depreciate or become worthless in his hands, he would not be chargeable with the loss. It is a general rule, applicable to all persons standing in the relation of trustee, whether they be receivers, guardians, executors, or administrators, or trustees of any description, that so long as they keep themselves strictly within the line of duty, and exercise reasonable care and diligence, they cannot be made responsible for any loss or depreciation in the fund entrusted to them; but if they do not strictly pursue that line, and a loss ensue, they are liable to make that loss good, although such loss may have been wholly unexpected. If this rule be aj>plied to the case in handj it is clear the guardian must bear the loss which he seeks to charge upon the estate of his ward. Instead of depositing the funds to the credit of the estate. of his ward separately, or in his own name as guardian, he mingles them with his own; and in receiving a certificate for them in his own name, he created the relation of debtor and creditor between himself and the Confederate government. For it is a well-settled principle in equity, that trust funds are to be kept separate from the private funds of the trustee; and if mingled with his own, — 209 — he may be charged with such funds, as being himself the borrower. 11 Barb. 353. Where a trustee deposits' the funds of the trust estate in a bank, in his own name individually, and not as trustee, and with his own private funds, he thereby becomes the debtor of the estate, and the creditor of the bank; and in case the trust funds are lost, through the insolvency of the bank, the loss will fall upon the trustee. McCalister v. The Commonwealth, 30 Penn. 536. It has also been decided that an investment of trust funds in stocks, in the trustee’s individual name, was itself a breach of trust. Morris v. Wallace, 3 Barr, 319; Stanley's Appeal, 8 Barr, 432. As against an attaching creditor of the depositor, the putting the funds in bank in his individual name constitutes the deposit the property of the depositor’, whose name it bears, and prevents, from motives of legal policy, an explanation of its-true character. Jackson v. The Bank of The United States, 10 Barr, 61; Hart v. Buckley, 2 Edwards, ch. 70. In making a deposit of trust funds, the trustee should be careful to do it to the account of the trust estate, and not to his own account; for should he deposit the money to his own account, he would render himself liable for it, on the failure of the bank. If the trustee deposits the trust funds in his own name, he mixes them with his own private funds, which always renders him liable in case of loss. Tiffany & Bullard on Trusts and Trustees, 582. The apj>ellee, by loaning out the appellant’s money for Confederate treasury notes without the authority of the Probate Court, and by depositing the treasury notes in his own name for the purpose of investment in Confederate bonds, has made himself liable for the loss of the appellant’s money. The decree of the court overruling the seventh exception will be reversed, and the cause remanded for further proceedings in accordance with this opinion.