State ex rel. Wiseman v. Wheeler

• Decision Date: 27 January 1891
• Citation: 26 N.E. 552,127 Ind. 451
• Parties: State ex rel. Wiseman et al. v. Wheeler et al.
• Court: Indiana Supreme Court

127 Ind. 451

26 N.E. 552

State ex rel.Wiseman et al.

v.Wheeler et al.¹

Supreme Court of Indiana.

Jan. 27, 1891.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

Booth & Potter, for appellants. Kane & Davis, for appellees.

McBRIDE, J.

This was a suit on a guardian's bond. The complaint charged the conversion by the guardian to his own use of a portion of the trust fund, and the unauthorized disbursement of a portion thereof, and that the guardian had failed and refused to account for or pay over the same to the relators, his wards, they having become of full age, and demanded settlement. The guardian answered by general denial and plea of payment. The cause was tried by the court, who, by request of the parties, found the facts specially, and stated his conclusions of law thereon. The finding and judgment were for the defendants, and the relators excepted to the conclusions of law, and moved for a new trial, which motion was overruled, and the relators excepted. Two errors are assigned: First, that the court erred in its conclusions of law; and, second, that the court erred in overruling the motion for a new trial.

The second error assigned is not discussed, and is therefore waived. Appellees insist that the remaining assignment is not sufficient to present any question to this court. Although some what informal, we regard it as sufficient. The facts as found by the court are substantially as follows: February 19, 1876, the defendant Phillip S. Wheeler was, by the Hamilton circuit court, appointed guardian of the persons and property of the relators, Sarah E. Wiseman and John P. Wiseman, with Luther J., Oliver E., and Henry F. Wiseman, all then infants, and with his co-appellees executed a bond as such guardian in the sum of $3,000. On the 21st day of August, 1876, there came to his hands as such guardian $1,464.87, which was the sole and only estate ever received by him. The father of these children died in 1874, and they thereafter resided with and were supported by their mother. In April, 1877, the mother made application to the circuit court of Hamilton county, representing that she was supporting them, but that her entire estate consisted of a house in which she resided, and 60 acres of wet and unproductive land, and that she was unable to support them without assistance from the guardian. On this application the court ordered the guardian to pay her $400, which he did, and thereafter continued to assist her. In April, 1881, he submitted to the court a report, charging himself with the sum of 1,700, being said sum of $1,464.87, with interest, and claimed credit for $733.99 as expended, leaving in his hands $966.01. This report the court approved. In 1879, the mother of the children voluntarily and without consideration conveyed her said real estate to her said children, reserving to herself a life-estate therein, and in February, 1884, she filed an application in the Hamilton circuit court, showing that there was no good house and barn on the land, and asking that the guardian be required to pay the balance yet in his hands, to be used in the improvement of said property, and the continual maintenance and education of said children. The court granted the prayer of the petition, approved all payments previously made by the guardian, and ordered him to pay the balance to the mother. Thereupon the guardian, in obedience to the order of the court, paid to the mother the entire balance remaining in his hands, with accrued interest. Incorporated in the special findings is an itemized statement of the several payments made by the guardian, from which it appears that the last payment was made in February, 1884,...