Pendexter v. Cole

• Citation: 22 A. 560,66 N.H. 556
• Parties: PENDEXTER et al. v. COLE.
• Decision Date: 31 July 1891
• Court: Supreme Court of New Hampshire

22 A. 560

66 N.H. 556

PENDEXTER et al.

v. COLE.

Supreme Court of New Hampshire. Carroll.

July 31, 1891.

Motion to amend petition; before Justice I. W. Smith.

Action on a judgment by Pendexter & Watson against Joseph B. Cole, by George L. Cate, his guardian.

Motion by the plaintiffs for leave to amend by making Cate, the defendant's guardian, a party defendant, and that execution issue against him de bonis propria. The action is debt on a judgment recovered in Maine by the plaintiffs against the defendant, Cole, in 1871. After the judgment was obtained, Cole moved to this state, and in February, 1889, was decreed a spendthrift, and Cate was appointed his guardian, and filed the inventory required by Gen. Laws, c. 186, § 6. The ward's property consisted entirely of pension checks that came payable to the guardian for the ward, as a soldier in the late war, soon after the guardian's appointment. The inventory showed the amount of the ward's estate to be $1,345, and that the estate was solvent, both at the time of making the inventory, and at the time of the commencement of this action, August 27, 1889, although at the last date the property had been largely changed from checks into a homestead, furniture, tools, and some other personal property connected with it, and that some of it had been otherwise expended in a manner that reduced thee state; still sufficient remained to pay the ward's debts, aside from the homestead. It did not appear that the guardian had license from the probate court to purchase the homestead, or the approval of the selectmen. The plaintiffs made a demand of payment on the guardian before bringing this suit. Since the commencement of the action the guardian has filed his account in the probate court, from which it appears he has expended all the funds of his ward, and that all the property of his ward at the present time consists of the homestead, valued at $600.

Frank Weeks, for plaintiffs.

Beacham & Foote, for defendant.

CLARK, J. No action can be maintained against a guardian personally for a debt of his ward. The guardian's duty is to take care of the person and estate of his ward, collect his dues, pay his debts, if he has sufficient assets, and protect his rights and interest generally. Gen. Laws, c. 184, § 3. The remedy for a breach of his duty is by an action upon his bond. Whether the ward 's property has been judiciously and legally managed and invested by the guardian is a proper subject of investigation and...