Rollins v. Marsh

• Decision Date: 12 January 1880
• Citation: 128 Mass. 116
• Parties: Emily R. Rollins v. Alexander Marsh
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 116

Emily R. Rollins v. Alexander Marsh

Supreme Court of Massachusetts

January 12, 1880

Argued October 1, 1879

Worcester. Contract in two counts. The first count was on an account annexed for board, lodging and care furnished Lucy A Rollins, an insane person, of whom the defendant was guardian. The second count was on a written contract, by the terms of which the plaintiff was to furnish Rollins with board, lodging and care during her natural life, in consideration of the use of certain real estate and personal property belonging to Rollins. The writ, dated November 23 1877, was against the defendant, "as he was the guardian of Lucy A. Rollins."

Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows:

The defendant was appointed guardian of Lucy A. Rollins, an insane person, in March, 1874. The defendant, on March 20, 1874, made with the plaintiff the written contract declared on; and the plaintiff then entered into possession of the real and personal estate therein named, and continued in possession thereof until April 1, 1877. The plaintiff assumed the care and support of Rollins on March 20, 1874, under the contract, and continued such care and support until December 11, 1876, when Rollins, with the consent of the plaintiff, left for a visit to her daughter, and died while thus absent, on October 27, 1877. The plaintiff contended that, a few weeks after March 20, 1874, she found the support and care of Rollins more onerous and expensive than she had anticipated, and more than it had previously been; that she requested the defendant to remove her, and declined to continue her future care unless the defendant would make a further compensation therefor; and that the defendant thereupon agreed to make her such further compensation as should be right. The making of any such contract was denied by the defendant.

The defendant contended that the plaintiff could not maintain an action in its present form against him for the care and support of his ward; that, if any contract was made by him as guardian, this action could not be maintained; that the remedy was either by an action against the ward or her administrator, or on the bond given by the defendant as guardian; and that there was no consideration for a new agreement while the written one was in force, for the care and support of the ward during her life.

The jury returned a verdict for the plaintiff; and the judge reported the case for the determination of this court. If the action could be maintained, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside.

Judgment on the verdict.

W. A. Gile, for the defendant.

B. W. Potter, for the plaintiff.

Soule J. Endicott & Lord, JJ., absent.

OPINION

Soule, J.

Guardians of minors, spendthrifts, or insane persons do not become owners of the property which is placed under their charge. The title thereto remains in the wards. The guardians have only a naked power, not coupled with an interest. The debts of the ward remain his debts, and can be recovered by suit against him, not by suit against the guardian. Brown v. Chase, 4 Mass. 436. Simmons v. Almy, 100 Mass. 239. Such suit may be defended by the guardian in behalf of the ward. The guardian cannot bind the person or estate of his ward by contract made by himself. Such contract binds him personally, and recovery for breach of it must be had in an action against him. Hicks v. Chapman, 10 Allen 463. Bicknell v. Bicknell, 111 Mass. 265. Wallis v. Bardwell, 126 Mass. 366. He cannot escape liability on such contracts by reciting that he makes them in his official capacity; and it is immaterial, in a suit brought against him thereon, whether he is described by his official title or not. The judgment in either case must be against him personally, and the description has no legal effect. It may be disregarded as surplusage. It is immaterial, therefore, that the cause of action is described in one count as a contract made by the defendant, and in another as a contract made by the defendant in his official capacity. The legal liability being the same in whichever form the contract is made, there is no inconsistency in the counts.

Accordingly in Thacher v. Dinsmore, 5 Mass. 299, the action was brought on two promissory notes, by which the defendant "as guardian to A. L., an insane person," promised to pay the plaintiffs or order one sum on a day certain and another on demand. There were two...