In re Estate of Kaufman

Goebel, J. Rosenfeld 'being Aow insolvent, and the Supreme Court having, held in'the. case of Braiden v. Mercer, 44 O. S. 339, fhát'in an action upon a guardian’s bond for the recovery of the amount found due ..the wards, upon a final' settlerrienf-of-.the guardian’s accounts in the Probate Court, the sureties are concluded-by the settlement,-, and will not be. heard, in the absence of fraud and collusion, to -question its- correctness or demand a rehearirig of the accounts, the question involved herein becomes a matter of some irnportance [102] to his sureties, who now appear, resisting the application of the present guardian. The first question that presents itself is, did Rosenfeld receive this money as guardian, for which he must now account and pay over, as provided by section 6269 of the Revised Statutes? For the solution of this particular question we must look to the agreement. By this agreement $5,000 was absolutely given to the four children, accepted by Rosenfeld as guardian, to be held and controlled by him in his office as guardian, as to the share of each of said minors, until he or she should attain majority. It will be seen that this agreement is signed by him as guardian; that he treated this money as having been received by him as such, having invested it in his name as guardian; and the evidence is too conclusive to admit of any doubt that he did receive it as such. This question being disposed of, the next question that presents itself is, could he legally, as guardian, enter into such an agreement? I think he could. As guardian it was his duty to receive any and all moneys coming to his ward from any and all sources. If it became necessary, in the receipt of money, to make an agreement with the donor, by which this fund should be held in trust for his wards; but to pay the interest and profits to the donor, then so much of that agreement as relates to the payment of the income and profits was made as trustee and [103] not as guardian, and such agreement being separable from the exercise of his power to receive, can not militate against that power; and he must account in the capacity in which he received it. By this agreement he is to hold the respective shares of the minors until the youngest shall become of age, and in the meanwhile as well as during their minority to pay the income to the mother. As the guardianship is co-extensive only with the minority of the ward, it must follow, from the agreement, that he held such share or shares after the termination of the guardianship, as trustee. In the case at bar there were two funds, one the principal and the other the income and profits arising from the principal; the former went to the children, the latter to the mother. The relationship of Rosenfeld to the former was that of guardian, to the latter that of trustee. Counsel have cited Quinby v. Walker, 14 O. S. 193. The principle there determined is, that an administrator can not treat as to property unless it came into his hands as administrator, and is assets in his hands, belonging to the estate. In the particular case the bonds were not received by Scott in the discharge of his duties as administrator, but came to him by virtue of an agreement of the widow and heirs on the one hand and the purchaser on the other, and he became trustee. The converse of this must be equally true, [104] that if the property was assets of the estate, notwithstanding the agreement, he would hold such assets as administrator and be liable as such. Apply this principle to the case at bar, and we find that this money was the absolute property of these children, which conld not have gone into any other hands but the guardian’s. That being the legal status of the parties, the agreement did neither contract nor enlarge the powers conferred by law. I am also cited to the case of Hindman v. State of Maryland, 61 Md. 471. The controlling question in that case was whether an executor, under a will, in • respect to a legacy of four hundred dollars bequeathed to a minor, to be paid to him on his attaining the age of twenty-one years, the interest in the.meantime to be paid to two other parties, Could legally pay the corpus to a guardian, for which, in default of payment by such guardian, his bondsmen would be liable; and it was held that no special direction being given by the testator as to who should invest the fund, it was the plain duty of the executors and no .one else. It followed by necessary implication, as one of the duties of their office, and they could not divest themselves of it while holding their respective relations to the estate, and the executors not having power to shift their responsibility, or to transfer this fund upon the same trusts, and the guardian hot having power to receive it, his sureties would [105] not be liable for his default. But it does not follow that if the testator had imposed upon the guardian this power, or had failed to bequeath the interest, and such executor should have paid the corpus to the guardian, that the sureties would not be liable on the bond of such guardian; "and this view is strengthened by the case of Gunther and Canfield v. The State of Maryland, 31 Md. 21. In that case the legacy was to be paid to the legatee in case he attained the age of twenty-one years. In the meantime the interest was not bequeathed, and the executor having paid such legacy to the guardian, and the guardian having defaulted, the court held that the payment to the guardian was legal. From these cases it must also -follow that a guardian may hold the corpus as guardian and become trustee as to the interest. These children being still minors, and their estate being still under the control and direction of this court, and the court having found that the guardian duly received the money as such, an order will now be made directing said Leopold Rosenfeld to account, as the late guardian, for said sum of $5,000, and ordering-him to pay the same to the present guardian. Note.— The judgment in this case was reversed by the Hamilton Common Pleas and affirmed by the Circuit Court, First Circuit, No. 602. In re estate Benjamin Kaufman et al,t unreported.