Huntsman v. Fish

• Decision Date: 08 December 1886
• Citation: 36 Minn. 148,30 N.W. 455
• Parties: HUNTSMAN, GUARDIAN, ETC., v FISH.
• Court: Minnesota Supreme Court

36 Minn. 148

30 N.W. 455

HUNTSMAN, GUARDIAN, ETC.,vFISH.

Supreme Court of Minnesota.

December 8, 1886.

(Syllabus by the Court.)

A guardian of minors may properly maintain an action to recover money collected for her as guardian by an attorney, notwithstanding the fact that, after the collection and before the commencement of the action, some of the minors have become of age.

Proof of a demand upon such attorney for money collected by him is dispensed with in such action, when, in his answer, the attorney alleges that he has applied the money to the payment of a claim in his own favor against the guardian.

Before one's appointment as guardian, he has no authority to bind the estate of those who subsequently become his wards.

A guardian is not liable for services rendered or expenditures made in and abont the settlement of the account of an administrator of an estate in which his wards are interested.

Appeal from an order of the district court, Hennepin county.

Campbell & Biddle, for respondent, Huntsman, guardian, etc.

R. G. Evans and E. M. Torrance, for appellant, Fish.

BERRY, J.

This is an action to recover money collected by defendant as attorney of the plaintiff in her capacity of guardian of the four minor heirs of D. A. Huntsman.

1. After the collection was made, and before this action was commenced, two of the minors became of age, and the defendant contends that as to them the guardianship was at an end, and therefore the recovery by the plaintiff of the whole balance in his hands was wrong. But the money was collected and held by defendant for the guardian, and it was therefore entirely proper that she should reduce it to possession, get it into her own hands, in preparation for the settlement of the account required of her by law, and for the distribution, which, upon such settlement, it would be her duty to make. The case is no different in principle from what it would have been if the guardian had deposited the money in a bank in her own name, when certainly she would have had the right to check it out, or sue the bank for it, if necessary in order to get possession of it as preparatory to settlement and distribution. Though, as respects the minors who had reached majority, the guardianship was at an end in general, yet, as respected the matter of the settlement of the guardian's account, and the consequent distribution, it still survived. Jacobs v. Fouse, 23 Minn. 51.

2. Conceeding (without determining) that in general a demand is an essential prerequisite to the maintenance of an action for money collected by an attorney, we are clear that in this case the necessity of proving a demand is dispensed with by the ground upon which defendant plants himself in his answer. This ground is that, though he had collected the money as charged in the complaint, he had applied it to the payment of the plaintiff's indebtedness to him. This is, of course, in effect an absolute denial of plaintiff's right to recover under any circumstances. In face of such a position it must be assumed that a demand would have been unavailing,-an idle formality which the law does not require. The defendant, by his answers, estops himself from a contrary claim. See Kellogg v. Olson, 24 N. W. Rep. 364. This estoppel appearing upon the pleadings, it was not necessary for the trial court, for the purpose of sustaining its order for judgment in plaintiff's favor, to find that there was a demand, or that the necessity for one was dispensed with. Brainard v. Hastings, 3 Minn. 45, (Gil. 17.)

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