Gott v. Culp

• Decision Date: 12 January 1881
• Citation: 45 Mich. 265,7 N.W. 767
• Court: Michigan Supreme Court
• Parties: GOTT v. CULP

7 N.W. 767

45 Mich. 265

GOTT v. CULP

Supreme Court of Michigan

January 12, 1881

It is error for the court to comment on the facts and testimony of a case in such manner as to prejudice the jury. A guardian is not to be held liable ex post facto merely because a more prudent or sagacious person might have invested the funds to better advantage. He is liable for interest not actually received only when he has been guilty of unreasonable delay in making investments, and he may properly retain in his hands moneys sufficient to make necessary outlays, and may wait until he can find safe investments in reasonable sums. In determining the amount to be expended in providing for the ward he may look not only to the present actual income of the estate, but also its future and probable resources, and if the income is insufficient to properly provide for the ward the principal sum may be drawn upon. The amount of the compensation of a guardian is to be dependent, not altogether upon the value of the services rendered, but also upon the ability of the estate to pay the same.

A guardian's accounting is an equitable and not a legal proceeding, and where an appeal n such case is taken to the circuit court, it is to be tried as an equitable proceeding. Mere failure of a guardian to account annually is not necessarily a cause for forfeiture of right to compensation.

Error to Washtenaw.

Frazer & Hamilton, Albert Crane, and E.F. Conely for plaintiff in error.

Chas. S. May, for defendant in error.

CAMPBELL J.

Plaintiff in error was appointed by the probate court for the county of Washtenaw in 1861, as guardian of defendant in error, then about six years old, her name being then Goodrich. In 1876 she married. Mr. Gott at the end of his trust filed his account which was allowed as presented, no contest being made in the probate court over its correctness. The ward, however appealed to the circuit court for the county of Washtenaw setting up four grounds of complaint, which were in substance that the guardian had failed to keep money invested, had charged for excessive expenditures and made over claims for compensation, and had in general disregarded his duty and thereby lost his right to compensation.

No issues were framed in the circuit court, but the appellant demanded a jury. The cause was in advance of any trial submitted to an auditor, Thomas Ninde, who formulated the account and reported it in accordance with the claim of the guardian. On the trial several questions were presented, all supposed to bear upon the grounds of appeal. By stipulation the auditor's report was made conclusive as to moneys received and expended, leaving the questions open as to the reasonableness and correctness of the payments and charges.

The finding of the jury charged the guardian with nearly twice as much interest as he is shown to have received, the difference being probably intended to include interest which might have been earned by more careful investments. The outlays for the ward and for trust purposes was allowed substantially as charged. His claim for compensation was left out almost entirely. The finding does not show the reasons for any of these results and is silent concerning facts.

As far as we can determine from a comparison of the report, which is part of the record, and the finding, in the light of the bill of exceptions, we infer that while all of the guardian's money expenditures were approved, he was regarded by the jury as having lost claim to compensation by reason of fraud, and as having subjected himself to a charge for interest because he did not invest promptly, and at the best rates.

The exceptions taken on the trial all bear upon the matters involved in these results, and may mostly be included under a few heads. They present the inquiry whether there was culpability in not accounting,--whether the guardian could rightly expend more than the ward's income,--whether he was not extravagant in allowing or making expenditures,--whether he was culpable in the training of the ward,--whether he was culpable in not making larger and more lucrative investments--whether he was entitled to furnish goods himself, or to charge for legal services, and whether neglect in any of the duties of his trust deprived him of a right to compensation. As these are all mixed up with each other in the record, and seem to have gone to the jury together, we shall not take up the exceptions separately where they can be dealt with together. The conclusions at which we have arrived concerning the proper form of the litigation will make some questions unimportant.

Before going into the specific subjects we may properly refer to some points made on the language used by the court during the trial. There is some reason to think that the course taken on the trial created a degree of impatience in the trial judge, which led him to rather sharp comments on facts and testimony, some of which we think had a necessary tendency to prejudice the jury. It is impossible for an appellate court to appreciate all the surroundings of a trial, and we are bound to believe that the trial judge would not intentionally make any remark provoked or unprovoked by the methods of the trial, or by his view of the testimony, which would deprive a party of his rights. We think, however, that remarks were made which could not fail to favor the motion that the guardian was culpably lax in his duties, and that relatives and others had supported the ward by reason of his neglect. This, on any state of testimony, was going too far. It was also error to intimate that proceedings in this case could properly be made to deter other guardians from doing as this guardian did. Every case must stand on its own merits. The effect of these suggestions was manifest from the verdict, which upon some points is not supported at all by proofs.

To appreciate the other questions a brief statement will be required. The ward, when the guardian was appointed, was of tender years and not enjoying any parent's care. The guardian made arrangements to have her cared for in the family of an uncle and subsequently in that of an aunt. The estate which she was presumably to enjoy was not productive or determined. It was about nine years before any considerable sum came from it into the guardian's hands. In 1871 he received from it $1,640, which with a few scattering payments made earlier barely repaid the previous outlays for her board, clothing, and other necessaries. After this the guardian received in 1873 from the same estate between $4,000 and $5,000, and this was all the funds which at the time of his appointment and for many years after, he had any right to expect would be received. The child, however, belonged by all her associations to intelligent and reputable people living in a comfortable way, and was entitled if possible to corresponding nurture,. In 1873, by reason of the death of a relative in New York, an additional fund was received of about $9,000. The death occurred a little earlier, and there were necessary delays in procuring the money, though no litigation. In 1873 the entire funds from all sources were realized.

For his services in going to New York and obtaining the possession of the fund there, the guardian in addition to his outlays charged $500 as extra compensation for his services as a lawyer in connection with his ordinary services as a guardian. Up to 1871 he charged $25 a year for his services. After that year he claimed $300 a year. When the ward became of proper age--about 15 or 16 years--he purchased a piano for her. During a portion of her minority he was in mercantile business, and furnished goods himself, instead of buying them. He also sent her to a boarding school in Canada. There was testimony introduced for the purpose of showing that he could have got board cheaper, and that she received more clothing and other supplies than some of the witnesses deemed necessary, and was not careful of them, and gave more or less away.

So far as her boarding and schooling expenses are...