Clemons v. Dennis

• Citation: 181 S.E. 387
• Parties: CLEMONS. v. DENNIS et al.
• Decision Date: 19 September 1935
• Court: Supreme Court of Virginia

181 S.E. 387

CLEMONS.

v.DENNIS et al.

Supreme Court of Appeals of Virginia.

Sept. 19, 1935.

Appeal from Circuit Court, Buchanan County.

Suit by Verdie Lee Clemons, an infant, by her next friend, against W. Clyde Dennis, guardian, and another. From a de cree for the defendants, the plaintiff appeals.

Decree affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, CHINN and EGGLES-TON, JJ.

R. E. Chase, of Clintwood, for appellant.

H. Claude Pobst, of Grundy, for appellees.

CAMPBELL, Chief Justice.

This suit was instituted by Mrs. Mary Clemons Estep as the next friend of her infant daughter, Verdie Lee Clemons, against W. Clyde Dennis, the duly appointed guardian of Verdie Lee Clemons, and the Fidelity & Casualty Company of New York, surety on the bond of Dennis, guardian.

These are the facts: Mrs. Clemons, who is now Mrs. Estep, as administratrix of her deceased husband, Henry Clemons, the father of Verdie Lee Clemons, recovered a judgment in the sum of $5,000 against Nelson, Chase & Gilbert Company for damages arising out of an accident which resulted in the death of Henry Clemons. W. Clyde Dennis and associates, as counsel for the administratrix, received the sum of $2,500, and the residue was apportioned between the mother and daughter as follows: $833.33 to the widow, and the balance to the daughter. There being no guardian for the infant, Dennis, to whom the money had been paid on the 25th day of August, 1930, deposited in the Bank of Grundy the sum held by him, to the credit of "W. Clyde Dennis, Spl." The money thus designated "Special" was placed by the cashier to the credit of Dennis in the savings account and drew interest at the rate of 4 per cent. until the failure of the bank on the 18th day of May, 1931.

On the 27th day of February, 1931, Dennis, apparently on motion of the mother, was appointed by the clerk of the circuit court as guardian for Verdie Lee Clemons, who was at the time under two years of age. On the day of his appointment as guardian, Dennis instituted a suit in the circuit court of Buchanan county, seeking confirmation of a contract which had been entered into by and between Martha and F. E. Morgan and Joseph Dotson and May Clemons and Dennis, guardian of Verdie Lee Clemons, for the purchase of a tractof land for the benefit of the infant. A guardian ad litem was appointed for the infant, an answer was filed by him, and depositions duly taken as to the value of the land and the propriety of the investment. When the cause came on to be heard, the court appointed F. W. Smith a commissioner to investigate and report as to the condition of the title of the land proposed to be purchased. After a period of time the commissioner filed an adverse report as to the title, and subsequently the court refused to confirm the contract. In the meantime, to wit, on the 18th day of May, 1931, the Bank of Grundy was closed and is now in the hands of a receiver.

It appears in evidence that immediately after Dennis was appointed guardian for Verdie Lee Clemons, he went to the bank and requested the cashier to change the deposit of the funds from "W. Clyde Dennis, Spl., " to "W. Clyde Dennis, Guardian." Mr. Belcher, the cashier, informed Dennis that the change in the account would be made. Pursuant to request, Dennis left his passbook with Belcher; but as a matter of fact, the transfer was not entered upon the books of the bank. It was further shown that no monthly statements were sent to Dennis, as it was not customary to send statements where deposits were on savings account. That Dennis was unaware of the bank's condition is evinced by the fact that he in his individual capacity deposited money in the bank on May the 16th, the last day the bank was open for business.

The prayer of the bill is that the guardian be removed and that a judgment be entered against the guardian and his surety for the amount which went into his hands as guardian of Verdie Lee Clemons. The court was of opinion, and so decreed, that the relief prayed for in the bill should be denied. It is from that decree that this appeal was allowed.

The facts as detailed are undisputed. There is no suggestion of mala fides on the part of Dennis. Therefore, the only question involved is whether or not Dennis is liable as a matter of law for the loss of the infant's funds.

While it is true, as held by this court in Strother v. Lynchburg Trust, etc., Bank, 155 Va. 826, 156 S. E. 426, 73 A. L. R. 166, that infants are the favorites of a court of equity, it is also true, as held in Watkins v. Stewart, etc., 78 Va. 111, 114, that courts of equity look with indulgence on the acts of fiduciaries, and if it is manifest that they have acted in good faith in the exercise of a fair discretion, and in the same manner in which a prudent...