Roush v. Griffith

• Decision Date: 11 June 1909
• Citation: 65 S.E. 168,65 W.Va. 752
• Parties: ROUSH et al. v. GRIFFITH et al.
• Court: West Virginia Supreme Court

65 S.E. 168

(65 W.Va. 752)

ROUSH et al.

v.GRIFFITH et al.

Supreme Court of Appeals of West Virginia.

June 11, 1909.

1. Guardian and Ward (§ 33^*)—Guardian's Liability—Negligence.

A guardian is liable to his ward, on a final settlement, not only for such money and estate as actually came into his hands, but also for such additional money or property, lost by his negligence or failure of duty, as would have been received by him. had he exercised reasonable diligence and ordinary prudence in caring for his ward's estate.

[Ed. Note—For other cases, see Guardian and Ward, Cent. Dig. § 154; Dec. Dig. § 33.*]

2. Guardian and Ward (§ 33*)—Collection op Assets—Duty to Sue.

It is the duty of a guardian to cause actions, for the recovery of debts due the ward, to be instituted in the name of the ward, by himself or some other person as next friend, when such proceedings are necessary for the preservation of the estate.

[Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. § 33.*] 8. Guardian and Ward (§ 33^*)—Collection of Assets—Presumption of Negligence. The existence of a good debt or demand due to the ward, at the date of the appointment of the guardian, and subsequent loss thereof, having been established, it is presumed, as matter of fact, that the loss resulted from negligence and dereliction of duty on the part of the guardian, and he should be charged with the debt or demand, as if he had collected it, unless he shows the loss is not attributable to his negligence or failure of duty.

[Ed. Note.—For other cases, see Guardian and Ward, Cent. Dig. § 154; Dec. Dig. § 33.*]

4. Guardian and Ward (§ 157*)—Evidence —Settlement of Estate.

The settlement of the accounts of the administrator of the estate of the father of a ward, who has given a bond sufficient in penalty and with sureties approved by the probate court, showing indebtedness to the ward, constitutes sufficient ground for charging the guardian with the amount of such indebtedness, in the absence of evidence showing either collection or loss thereof without the fault of the guardian; it appearing that sufficient time has elapsed to raise a presumption of payment in favor of the administrator, and so establish prima facie the loss of the debt.

[Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. § 157.*]

5. Guardian and Ward (§ 157*)—Account-Recitals—Evidence.

Recitals in such settlement of payments from the administrator to the guardian, though operative as evidence of indebtedness between the administrator and ward, are not sufficient to prove payment to the guardian.

[Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. § 157.*]

6. Trusts (§ 365*) — Express Trusts —Enforcement—Laches.

Though laches will run against an express trust, courts of equity apply the rule, in such cases, less readily than in cases of constructive trusts, and rarely ever do so, unless the circumstances disclose a defense in the nature of estoppel, such as intervention of the lights of third persons, loss of evidence, death of parties and witnesses, settlement or disavowal of the trust, acquiesced in by the cestui que trust, or the like.

[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 573; Dec. Dig. § 365.*]

7. Laches—Enforcement of Trust.

As to what constitutes laches barring an express trust, no general rule, covering all cases, can be stated, and, for the most part, it depends upon the circumstances of the particular case.

8. Guardian and Ward (§ 146*)—Delay to Sue.

A ward is not barred in equity by delaying suit to recover her estate from her guardian for a period of 14 years after attaining her majority, it not appearing that any evidence had been lost, or the trust disavowed or a settlement claimed, at the time suit was brought; nor by delay in the prosecution of the suit after institution thereof for a period of 10 years, the guardian having been alive at the date of the institution thereof and for several fears thereafter, and failed to assert any deense to the bill.

[Ed. Note.—For cases in point, see Guardian and Ward, Cent. Dig. § 491; Dec. Dig. § 146.*]

Brannon, J., dissenting. (Syllabus by the Court.)

Appeal from Circuit Court, Berkeley County.

Suit by Margaret V. Roush and others against D. S. Griffith and other, as administrators of Moses S. Grantham, deceased. From a judgment for plaintiffs, defendants appeal. Affirmed.

Faulkner, Walker & Woods, A. C. Nadenbousch, and H. H. Emmert, for appellants.

A. B. Noll and H. B. Gilkeson, for appellees.

POFFENBARGER, J. The circuit court of Berkeley county having rendered a decree for $3,070.42 against the personal representatives and heirs of Moses S. Grantham in favor of Margaret V. Roush, D. S. Griffith and E. Boyd Faulkner, administrators of Grantham, and several of the heirs, have appealed.

The decree charges the estate, on account of Grantham's guardianship for the plaintiff, commencing on the 16th day of June, 1854. Mrs. Roush was then a little child, less than two years old, the daughter of William T. Seibert, who died some time prior to the date aforesaid. Grantham qualified as her guardian, and gave bond as such in the penalty of $3,200, with M. K. Seibert and B. Cushwa as sureties. The only evidence tending to show the amount of money that went into his hands as guardian is the settlement made by Barnett Cushwa, administrator of William T. Seibert, before Seaman Gerard, commissioner of the county court of Berkeley county, on the 12th day of August, 1854, showing that he had received on account of said estate $4,333.10, and, after having made certain disbursements on account of indebtedness, had paid to the widow $700 and to Grantham, as guardian, on the 12th day of July, 1854, $500, and on August 9, 1854, $900, and then had in his hands a balance of $290.12 due the estate. The court in its decree aforesaid charged the estate of Grantham with the $500 and $900 items and two-thirds of the $290.12 item. There is no evidence of Grantham's ever having paid anything to his ward, but in her bill she admitted payments of $600 at one time, $100 at another, and $50 at another. The administrator and heirs in their answers say they are unable to find among the papers of Grantham any books or memoranda of any kind showing either receipts or disbursements on account of said estate. After attaining her majority, Margaret V. Seibert, only heir at law of William T. Seibert, and ward of Moses S. Grantham, intermarried with Charles Roush, and in October, 1886, she and her husband brought this suit. Moses Grantham was then living and allowed the bill to be taken for confessed. Thereupon an order of reference was made on the 7th day or February, 1887. On January 30, 1890, U. S. G. Pitzer, the commissioner to whom the cause had keen referred, having ceased to be a commissioner of the court, it was order-ed that J. T. Picking, another commissioner, execute the order of reference. On January 28, 1891, the death of Grantham was suggested, and thereupon it was ordered that the cause proceed in the names of Faulkner and Griffith, administrators. On March 7, 1893, Picking, commissioner, was again ordered to execute the decree. Nothing further seems to have been done, except the summoning of the administrators to appear before the commissioner on the 31st day of March, 1893, to testify in behalf of the defendant, for a period of 10 years. At August rules, 1903, an amended and supplemental bill was filed, which differed from the original bill principally, in this: That it charges the guardian with neglect of duty in not having made any settlement of his accounts, nor rendered to the plaintiff any statement thereof, wherefore she is, and has been, unable to state what amount of money went into his hands; that "Book of Fiduciaries, Inventories, and Settlements" No. 18, in which was recorded the original account of the estate of William T. Seibert, showing what personal estate had been paid to Grantham by the administrator, had been lost or destroyed in the Civil War, so that the plaintiff had had no means of knowing the amount with which her guardian was chargeable; and that recently a search of the clerk's office of the county court had revealed the original settlement made by Barnett Cushwa, administrator of Seibert, showing the matters hereinbefore stated. The only depositions taken are those of C. W. Doll, proving the stated account of Cushwa aforesaid to be in the handwriting of Seaman Gerard, commissioner, and signed by him; Allen B. Noll, proving the loss of Record Book No. 18, and the finding on the 29th day of June, 1903, of the settlement of Cushwa, made before Gerard, in a package, indorsed, "Fiduciary Settlements for the Year 1854"; Margaret V. Roush, showing that she was 16 months old when her father died, that her mother is now dead, that she had delayed bringing her suit because she had been expecting Grantham to come forward and settle with her and waiting for him to do so, and had often called upon him for a settlement; and I. L. Bender, clerk of the county court, proving the appointment of Barnett Cushwa administrator, and the correctness of the copy of his settlement exhibited with the amended and supplemental bill. Before the filing of this amended and supplemental bill, the administrators brought a creditors' suit against the estate of Grantham, to which Margaret V. Roush and her husband, plaintiffs here, were not made parties, and in which all the real estate of the decedent was sold, and the debts paid, and $4,000, the proceeds of sale of a certain piece of property known as "Grantham Hall, " was, by agreement, held in the hands of a bonded commissioner in said creditors' suit, to await the decision in this cause. On finding the estate liable to the claim of Mrs. Roush, the two causes were consolidated, and it was adjudged, ordered, and decreed that the commissioner satisfy the same out of said sum remaining in his hands.

Insufficiency of the report of the settlement made by Cushwa, administrator, to...