Sommers v. Boyd

• Decision Date: 08 December 1891
• Parties: SOMMERS v. BOYD, County Treasurer.
• Court: Ohio Supreme Court

29 N.E. 497

48 Ohio St. 648

SOMMERS v. BOYD, County Treasurer.

Supreme Court of Ohio.

December 8, 1891

Error to circuit court, Butler county.

The facts fully appear in the following statement by WILLIAMS, C J.:

The original action was commenced in the court of common pleas of Butler county by W. M. Boyd, as treasurer of that county against David Sommers, as guardian of John McCleary, an imbecile, to recover the amount of the taxes charged against the defendant on the tax duplicate of Butler county for the year 1889. The petition, which was filed on the 13th day of June, 1890, is as follows:

‘ The plaintiff says that he is now the duly elected qualified, and acting treasurer of Butler county, Ohio, and that the said defendant, David Sommers, was by the probate court of Butler county, Ohio, on the 29th day of April, 1882 duly appointed and qualified as guardian of the person and estate of John McCleary, an imbecile; and that the said David Sommers and the said John McCleary, at the time of said appointment, both resided in Millford township, Butler county, Ohio. Plaintiff further says that said David Sommers accepted said trust, and a large amount of personal property came into his hands by reason of said trust, to-wit, the sum of $103,530 or more, subject to taxation in said county of Butler; and that afterwards, to-wit, on the 11th day of April, 1889, the said David Sommers, when called upon as such guardian by the assessor of said Millford township, Butler county, Ohio, to list for taxation the property in his hands as such guardian of said John McCleary, did then and there list, in writing, for taxation in said county, moneys property, and credits amounting to $103,530, and was duly affirmed to the same, and afterwards, to-wit, on the same day, the said assessor of Millford township, Butler county, Ohio, duly returned to the auditor of Butler county, Ohio, the list and return of property so made by said David Sommers as such guardian to said assessor, a certified copy of which said return of property so made by said David Sommers as such guardian of said John McCleary is hereto attached, marked ‘ A,’ and afterwards and before October the 1st, 1889, the same was duly placed upon the tax duplicate of Butler county, Ohio, by the auditor, and that said duplicate was afterwards, and before October 1, 1889, by the auditor of Butler county, Ohio, duly and legally delivered to the treasurer of Butler county, Ohio, for collection of said taxes; and by reason of the premises the said defendant, David Sommers, as guardian of John McCleary, now stands legally charged upon the tax duplicate of Butler county, Ohio, with the sum of $1,112.94 taxes, and five per cent. penalty, making an aggregate of $1,168.58, and that said sum of $1,112.94 taxes and said sum of $55.64 penalty are both now due and unpaid; and that the said David Sommers, as such guardian of the said John McCleary, is now justly indebted to the said plaintiff, as treasurer of Butler county, Ohio, for unpaid taxes and penalty in the sum of $1,168.58, same being for the year 1889. Wherefore plaintiff, as such treasurer, prays for a judgment against said David Sommers, defendant, as such guardian of John McCleary, for said sum of $1,168.58, and for costs of suit.'

To this petition the defendant filed the following answer:

‘ The defendant, David Sommers, says that it is true, as averred in the petition, that on the 29th day of April, 1882, he was duly appointed and qualified as guardian of John McCleary, an imbecile, and that he continued as such guardian thence until the death of said John McCleary, which occurred in Butler county, Ohio, on the 19th day of March, 1889, when his functions as said guardian were terminated by law. That on the 25th day of March, 1889, one James B. Duffield, who was then, and is now, a resident of Somers township, Preble county, Ohio, was duly appointed and qualified as administrator of the estate of said decedent, John McCleary, and has ever since been, and is now, the acting administrator of the estate of said decedent, and as such is the legal representative of said estate. He says that on the 11th day of April, 1889, as guardian of said John McCleary, upon notice and demand of one W. B. Stephens, township assessor of Millford township, in said county of Butler, being the township in which this defendant then resided, he made enlistment of the personal property and effects which were of the estate of said decedent, a true copy of which enlistment is set out in the petition and marked ‘ A.’ That, being uncertain as to his duty as such guardian at the time in the premises, he made said enlistment under protest. He says that at the date of said enlistment he had not made and filed his final account for settlement as said guardian, and had not transferred or turned over the property and effects set forth in said enlistment, of which said Exhibit A is a copy, to said James B. Duffield, as administrator of said estate, but that he did within two days thereafter, to-wit, on the 13th day of April, 1889, file his final account as such guardian for settlement in the probate court of said county of Butler, and the same was finally settled and approved by said court September 30, 1889. He further says that on or about the ___ day of April, 1889, on demand of the township assessor of Somers township, Preble county, Ohio, being the township in which said James B. Duffield, administrator of the estate of John McCleary, deceased, then resided, he also enlisted as such administrator the identical property and effects of said estate set out and described in said Exhibit A in the petition, and the said enlistment was duly returned to the auditor of said county of Preble, who duly placed against said property and effects the assessment of taxes proper to be assessed against the same for said year 1889, and which taxes so assessed have been paid by said administrator, Duffield, to the treasurer of said county of Preble. Defendant says that he, as such guardian, has made a full and final settlement with the probate court of Butler county, Ohio, of his accounts and transactions, and has accounted to said Duffield, as administrator of said estate, for all the property and effects of said McCleary that came into his hands as such guardian. Defendant says that he has no interest, right in, or control of any of the assets which were of the estate of said John McCleary, and that said James B. Duffield ever since the date of his said appointment as administrator of said estate has been the legal representative thereof, and in control of the property and effects thereof, and as such administrator is bound for the payment of all valid claims against said estate, including the taxes legally assessed against the aforesaid property and effects of said estate for the year 1889. Defendant denies that he, as such guardian, is bound for the payment of said taxes, but avers that, if the same are legally assessed, James B. Duffield, as such administrator, is bound for the payment thereof. He says that whatever claim may exist in favor of said plaintiff for taxes against the property belonging to the estate of said John McCleary accrued after the date of the death of said John McCleary, and are in law to be charged against and paid by the administrator of said estate. Defendant denies that he has any funds whatever belonging to the estate of said decedent applicable by him to the payment of the claim for taxes set out in the petition, or that plaintiff is entitled to a judgment against him for said sum of $1,168.58, as averred in the petition, or for any other sum. He denies that he has, as guardian of said John McCleary, any right, interest, or claim whatever in the subject-matter of this suit. He avers that he is not a proper party to this action. Therefore he asks to be dismissed hence with his costs.'

No reply was filed. The exhibit referred to in the pleadings contains a statement of the property belonging to the estate of McCleary, which, as it there appears, consists of credits to the amount of $103,000, and farming utensils, agricultural products, and some other articles amounting to $530. In the affidavit made by Sommers to the exhibit when the property was listed is the following statement: ‘ I further say that this assessment is made under protest on demand of W. B. Stephens, assessor, I not being advised whether I should make the enlistment or not.’ It appears from the record that, the cause coming on for hearing before the court, it was agreed by the parties ‘ that the petition and answer contain all the facts in the case, and said cause is submitted on said facts, and no further or other evidence is offered.’ The court gave judgment for the plaintiff for the amount claimed in his petition, with interest, and costs of suit. In due time the defendant filed his motion for a new trial, which being overruled, he prosecuted error to the circuit court, where the judgment was affirmed, and he seeks by the present proceeding to obtain the reversal of the judgments below.

In action by county treasurer to recover taxes charged on duplicate against defendant as guardian upon property listed by him as property of his ward, defendant is not estopped from making defense that, by reason of death of ward and administration granted on his estate before property was listed, he was without authority to list same for taxation, and it was properly listed for same year by personal representative, who has paid taxes thereon.

Syllabus by the Court

1. The death of the ward terminates the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver the same to the personal representative.

2. When...