Bond v. Lockwood

• Decision Date: 31 January 1864
• Citation: 1864 WL 2910,33 Ill. 212
• Parties: JOSHUA S. BOND and LAURA BOND, his wife,v.EBEN B. LOCKWOOD.
• Court: Illinois Supreme Court

33 Ill. 212

1864 WL 2910 (Ill.)

JOSHUA S. BOND and LAURA BOND, his wife,

v.EBEN B. LOCKWOOD.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit Court of Clinton County.

The facts are sufficiently stated by the court.

H. K. S. O'Melveney, for appellants.

Buxton & White and W. H. Underwood, for appellee.

BECKWITH, J.

On the 9th day of October, 1850, the appellee was appointed by the County Court of St. Clair county, guardian of Laura Hart (then between six and seven years of age), and of Lewis Hart (then about five years of age), the children of his wife by a former husband. Lewis Hart died on the 8th day of August, 1854; Mrs. Lockwood, the mother of the two children, died intestate August 26, 1854; Laura married Joshua S. Bond on the 18th day of October, 1860, and after she had arrived at the age of eighteen years, she and her husband filed their bill against the appellee for an account.

The bill alleges that the appellee received various sums of money belonging to his wards; and that they were the owners of a farm from which he, from time to time, received as rent various other sums of money. That on the death of Mrs. Lockwood, the appellee relinquished his claim, as being next of kin to his wife as to the share to which she was entitled as next of kin, to Lewis Hart, and gave Laura credit for, and allowed to her such share in his account rendered to the County Court. That appellee had neglected to put his wards' money upon interest when he might have done so at the rate of ten per cent. per annum; and had used the same for his own benefit in mercantile business and made large profits out of the same. That the appellee rented the farm for a sum less than he might have obtained therefor, and committed waste by cutting down growing trees and suffering an orchard to be destroyed. The bill further alleges that the appellee wrongfully seeks to charge his wards with divers sums of money expended in their nurture and education, without having procured from the County Court any order for such expenditures; that many articles of the appellee's account are charged at exorbitant prices; and that he has charged Laura for board when she was of an age and ability to earn, and did earn, the same by services rendered in his family.

The appellee, by his answer, admits that he received various sums of money belonging to his wards, amounting to $1,130.92; from the sale of lands the further sum of $255.35; and for rent of their farm, from year to year, the sum of $2,908.31. The answer sets forth an account against Lewis Hart for expenditures on his behalf of $529.45, and an account against Laura Hart for expenditures on her behalf of $2,424.79, in which she is credited with $571.12 for moneys in the appellee's hands belonging to Lewis Hart at his decease; that these accounts were rendered to the County Court of St. Clair county in November, 1853, and yearly thereafter, and were approved; that in the accounts the appellee charged himself with interest, at six per centum per annum, upon all moneys in his hands, making rests whenever the accounts were rendered. The answer denies the relinquishment of the appellee's claim as next of kin to his wife to the share she was entitled to as next of kin to Lewis Hart, and the allegations of waste. It admits that the appellee did not loan the moneys of his ward, and that he used the same in his own business. From the evidence it appears that the accounts of the appellee were rendered and approved of, as is stated in the answer.

The conclusion to which we have arrived renders an examination, regarding many items of these accounts, unnecessary. For example, the articles charged as having been furnished the wards are such as were suitable and proper for persons in their condition in life; and there is no evidence that the prices at which they were charged were exorbitant. The approval of a County Court of a guardian's accounts, regular upon their face, is prima facie evidence of their correctness. The authority of the County Court in this regard is similar to that of a court of chancery. The provisions of the statute in relation to guardians were not designed as a complete code, but were enacted to confer upon the county court power to appoint guardians, and to regulate their conduct in accordance with their duties at common law. Some imperfections in the common law were remedied, and a more simple and convenient mode of procedure was introduced. While some of its provisions were declaratory of the common law, and were appropriately introduced in conferring jurisdiction upon a new tribunal, it is evident that many of the powers and duties, rights and liabilities of guardians are not, by the statute, specifically defined. The statute contains such provisions as were necessary to define the nature of the jurisdiction conferred, prescribe the manner of its exercise, and correct some of the defects of the law as it then existed. In other respects, the common law regulating the powers and duties, rights and liabilities of guardians, was left in force. At common law all guardians were regarded as trustees, clothed with such powers and rights as were necessary for the discharge of the trusts imposed upon them, and they were held accountable for the faithful discharge of their duties. They were liable to be proceeded against for neglect of duty in the common law court, and courts of chancery from since the earliest times have exercised their jurisdiction to compel the discharge of the obligations which by law devolved upon them. A guardian in chivalry who became such upon the death of his tenant, holding by knight's service, had the custody of the person of the minor, and the right to take to his own use all the profits of his ward's land, inasmuch as he had to provide a substitute to perform the service due from the tenant, but he was bound to provide for the nurture and education of his ward and restore to him his lands when the guardianship terminated. A guardian in socage, who was the nearest relative of the minor to whom the inheritance could not possibly descend, was required to take charge of the lands of his ward; and was liable to account for whatever he received or might, but for his own willful default, have received from them. He was also bound to provide for the nurture and education of his ward, and was entitled to allowance of reasonable costs and expenses. Coke on Litt. 87, b. Guardians by the customs of Kent and of the manor, guardians by the custom of London and other cities and boroughs, guardians by election, such as was the guardian of Lord Baltimore, guardians appointed by the Ecclesiastical Court, strangers who entered upon the lands of minor, guardians per cause de ward, testamentary guardians appointed under the provisions 4 and 5 in Phil. and Mar. c. 8, and of 12 Car. II, c. 24, and guardians appointed by courts of chancery, were all compellable to render an account; and all of them excepting the guardian in chivalry might be compelled in a court of chancery so to do before, as well as after the guardianship terminated. Macpherson on Infants, 40, 108, 259. Even the guardian in chivalry might be removed for neglect of duty (Macpherson on Infants, 13; 2 Ch. Cases, 237; 1 Spence, 611), and the only reason why he could not be required to render an account was that the profits of the land were his own. The powers of the County Court to compel guardians to render an account of their guardianship from time to time are co-extensive with a court of chancery. The accounts are to be rendered upon oath and the court may require their settlement. 1 Purple's Stat. 595; 2 Id. 844.

The court may allow or disallow an account in whole or in part, and for that purpose may examine witnesses, may require the production of vouchers, and do all other acts necessary to enable it to arrive at a correct conclusion as to whether or not the account ought to be allowed. When allowed it is required to be entered of record. Laws of 1859, p. 94. The allowance of a guardian's account is a judicial act, and although it is necessarily made during the minority of the ward, ex parte, still we are to presume that the act was properly performed until the contrary appears. It is prima facie evidence of the correctness of the account allowed. If an account has been stated erroneously, the ward may have it restated correctly. If the guardian has omitted to charge himself with anything, or with a proper sum, the ward may make additional charges of such matters. If the guardian has obtained an allowance in his account apparently regular upon its face the ward should be required to rebut the prima facie presumption of its regularity before the guardian can be called upon to establish its correctness; but if it appears from the face of the account that items were improperly allowed, no such presumption will sustain them. In accordance with these general principles the appellee's account will be examined.

At common law the guardian was required to take possession of his ward's property, and he was not only liable for such property as actually came into his possession but for such as he might have taken possession of by the exercise of diligence and without any willful default on his part. So, in regard to the rents and profits of the ward's lands and tenements, and the...