Holeman v. Blue

Citation10 Ill.App. 130,10 Bradw. 130
PartiesREUBEN HOLEMANv.VICTORIA BLUE.
Decision Date31 December 1881
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. JOHN G. GLENN, Judge, presiding. Opinion filed February 24, 1882.

Messrs. STEWART & GRIER, for appellant; that in such cases, courts will do what is equitable in the premises, cited 1 Perry on Trusts, 492; Bond v. Lockwood, 33 Ill. 212; In re Steele, 65 Ill. 322; Bennett v. Hanifin, 87 Ill. 31.

When trustees act in good faith, courts will treat them with indulgence: Thompson v. Brown, 4 Johns. Ch. 619; McElheny v. Musick, 63 Ill. 328; Osgood v. Franklin, 2 Johns. Ch. 1.

A trustee is only liable for a failure to use such reasonable care as a cautious man would use in the management of his own estate: Ferguson v. Lowrey, 54 Ala. 510; Christy v. McBride, 1 Scam. 75; Pierson v. Thompson, 1 Ed. Ch. 212; Wharton on Negligence, § 515; Carpenter v. Carpenter, 12 Rel. 544; 2 Story's Eq. § 1269; Whitney v. Peddicord, 63 Ill. 249; Kee v. Kee, 2 Gratt. 116; Gould v. Hayes, 19 Ala. 438.

A trustee is not an insurer against losses which ordinary sagacity could not prevent: Rubottom v. Morrow, 24 Ind. 202; Noble v. Jones, 35 Tex. 692.

Mr. I. M. KIRKPATRICK, for appellee; upon the liability of the guardian, cited 3 Wait's Actions and Defenses, 594; Scott v. Carruth, 9 Yerg. 418; Tuttle v. Robinson, 33 N. H. 104; Bond v. Lockwood, 33 Ill. 220; Jenkins v. Plumb, 6 Mod. 93; Moore v. Beauchamp, 4 B. Mon. 74; Schunler's Domestic Relations, 474; Hemphill v. Lewis, 7 Bush, 214; Story on Agency, § 452; Addison on Torts, § 1197.

A trustee is responsible for the criminal acts of agents employed by him: 1 Perry on Trusts, § 441; Rowland v. Witherden, 11 E. L. & E. 131; Ingle v. Partridge, 32 Beav. 661; Robinson v. Armstrong, 28 Beav. 123; Thompson v. Finch, 22 Beav. 316; Ghost v. Waller 9 Beav. 497; Moses v. Levi, 3 Y. & Coll. 359; Bostock v. Fleyer, 1 L. Rep. 28; Adair v. Brimner, 74 N. Y. 564; Chambers v. Minchin 7 Ves. 186; Shipbrook v. Hurchinbrook, 16 Ves. 478.

LACEY, J.

This was a case of citation commenced by appellee against appellant in the county court, to compel him to account for certain back pay and bounty due from the government of the United States to the appellee, as the heir of her father Wm. H. Smith, deceased, who was a private in Co. F., First Iowa Cavalry Volunteers.

The claim in question was $288.83, arising from an “Arrears of pay and bounty certificate No. 496,025,” payable to appellant as the guardian of Victoria Smith, which was the maiden name of appellee.

Appellant as the guardian of appellee had received a considerable amount of other moneys coming to her from the same source for pension and back pay, and on the 23d day of February, A. D. 1876, had made out and filed with the county court what purported to be a final report of all his dealings and transactions, and of all moneys and effects received and paid out on account of appellee, and in which report no account was made of the money in question, which report had been approved by the county court.

This proceeding was intended to open up the said report and to charge appellant with the sum represented by the certificate. The county court after hearing, allowed the claim and ordered the appellant to pay over the sum in question with six per cent. compound interest from Oct. 30, 1868, the day the money was received on the certificate, till Nov. 21, 1875, the time appellee became of age, and simple interest from that time to Feb. 25, 1880, amounting to $514.38 the amount to be paid within 30 days. From this order the appellant took an appeal to the circuit court, which, after a hearing, affirmed the order of the county court, and ordered the appellant to account for the sum of $506.06, from which an appeal is taken to this court.

In reference to the matter of the collection of the back pay and bounty in question, it appears that appellant was appointed guardian for appellee some time in the year A. D. 1866, and that prior to that time one James M. Skinner, an attorney-at-law and pension claim agent, had been employed by one John Duff, the step-father of appellee, to look after and collect her pension and back pay. It appears from the evidence that Skinner was a lawyer in good standing and of good reputation for honesty and integrity in his profession, doing business in the city of Monmouth, though not a man of much means.

The appellant employed him to collect from the government the various claims of appellee, and Skinner had done all the business faithfully and honestly, and paid over all the money until this claim was collected. The appellant made application for this claim through Skinner, and it was allowed, and the certificate issued payable to appellant. The appellant charges and claims that Skinner forged his name to the receipt and order for the payment of the money attached to the certificate, by which means the latter was enabled to collect the money. This question was submitted by the court to the jury, and the jury found the issue for the appellant; that Skinner had forged his name to the receipt.

We think the evidence amply sustains such finding. We are not informed whether the court below disregarded the finding of the jury and found differently, or whether it found that appellant was guilty of negligence outside of such finding in favor of appellant. But we are of opinion that such finding ought to be considered as correct, and the verdict of the jury sustained.

In order to come to a clear understanding of what should be the liability of the appellant it will be necessary to determine the rule applicable to the measure of the liability of a guardian in dealing with the trust fund in his hands, and the collection of funds due his ward.

It is not necessary to go outside of the decisions of the Supreme Court of this State to find what is or should be the rule. In the case of Whitney et al. v. Pedicord et al. 63 Ill. 249, Chief Justice Lawrence defines the rule as follows: “An executor or guardian must discharge the duties of his office with as much fidelity and care as prudent men ordinarily bestow on their own affairs.” “A degree of strictness is not to be applied in the construction of their acts which would deter responsible men from the acceptance of such positions.” When they have acted with reasonable diligence and honest desire to do their duty faithfully, a mere error of judgment in what was fairly matter of judgment or opinion, should not make them liable merely because subsequent events have shown they did not pursue the wisest course.

But on the other hand, they must be held to that degree of diligence which men ordinarily use in the management of their own affairs, and if through lack of that,...

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