State v. Whitehouse

• Decision Date: 30 July 1907
• Parties: STATE ex rel. LYNCH v. WHITEHOUSE et al.
• Court: Connecticut Supreme Court

67 A. 503

80 Conn. 111

STATE ex rel. LYNCH

v. WHITEHOUSE et al.

Supreme Court of Errors of Connecticut.

July 30, 1907.

Appeal from Superior Court, Fairfield County; Ralph Wheeler, Judge.

Action by the state, on the relation of Thomas J. Lynch, as guardian of certain minors, against Eugene W. Whitehouse and others, on the bond of Eugene W. Whitehouse as administrator of the estate of Charles W. Savage, deceased. From a judgment for plaintiff, defendants other than Whitehouse appeal. Affirmed.

John H. Light and John J. Walsh, for appellants. Levi Warner and Louis Goldschmidt, for appellee.

HALL, J. This is an action upon a probate bond of $10,000, executed June 16, 1894, by Eugene W. Whitehouse of Augusta, Me., as principal, and three residents of this state as sureties, conditioned upon the faithful performance by said Whitehouse of his duties as administrator under an appointment by the court of probate of Norwalk, in this state, of the estate of Charles W. Savage, who died intestate at Norwalk on June 5, 1894, leaving property in this state and two minor children residing in Augusta, Me. The action is brought for the benefit of said minors upon the relation of Thomas J. Lynch, under his appointment as their guardian by the court of probate of Norwalk on December 13, 1899. The alleged breach of the administrator's bond is his failure to distribute the estate of said Charles W. Savage, of the value of about $0,000, which came into his hands as administrator, and his failure to pay over and deliver the funds and property of said estate to the plaintiff, Lynch, as guardian, in accordance with an order of the court of probate of Norwalk, and his conversion of said estate to his own use.

Only the sureties upon the bond defended the action. Among their answers to the complaint the defendants allege, in substance: (1) That on March 8, 1897, and after his appointment in this state as administrator of the estate of said Charles W. Savage, said Whitehouse was by the court of probate of Augusta, Me., duly appointed guardian of said minor children of said Savage, and that on March 10, 1897, he as such administrator transferred to himself as guardian all the said funds and property of the estate of Charles W. Savage; (2) that on March 13, 1899, one Seth C. Whitehouse, a surety upon the guardian's bond of Eugene W. Whitehouse, brought by his attorney, Leslie C. Cornish, a petition to the court of probate of Augusta, Me., in which he alleged, among other things, that since said Eugene W. Whitehouse was appointed guardian "he had received a sum of money as such guardian, and converted the same to his own use," and bad failed to file any account of the money or property which came into his hands as guardian, and in which he asked for the removal of said Eugene W. Whitehouse as guardian, and that said Whitehouse be required to file his account up to the time of his removal, and that some suitable person be appointed to succeed him; that on June 12th a hearing was had on said petition, and the allegations thereof found true, and said Eugene W. Whitehouse was removed, and was ordered to file his final account on or before the fourth Monday of June, 1899, and to transfer to his successor the balance of all property and funds belonging to said minors; that on May 6, 1899, Eugene W. Whitehouse filed his account with the court of probate of Maine, charging himself, as guardian, with all the funds and property described in the complaint; that on said June 12, 1899, the plaintiff, Lynch, was duly appointed guardian of said minors upon the petition of said Seth C. Whitehouse; that in the matter of said appointment and in the prosecution of the present action the plaintiff was and is represented by said Leslie C. Cornish as his attorney, and that by reason of these facts and the plaintiff's knowledge of them, and by reason of said judgment of the court of Maine, the plaintiff is estopped from claiming that said Whitehouse, as administrator, did not turn over to himself as guardian all the property described in the complaint.

The allegations of these answers, that Whitehouse as administrator has paid over or transferred to himself as guardian the funds and property of the estate of said Savage, and that the plaintiff is estopped from claiming the contrary, are denied by the plaintiff in his reply. The plaintiff claimed in the trial court that the evidence before the jury showed the following facts:

On February 20, 1896, the defendant Whitehouse filed in the court of probate of Norwalk his final account as administrator of the estate of said Savage, which was duly accepted and approved by said court, showing a balance of said estate in his hands as such administrator of $6,344.96, consisting of cash to the amount of $5,325.71 and of other personal property not material to the questions in this case. On said day the court of probate of Norwalk found that said minor children, James Savage and Charles W. Savage, were the distributees of said estate and entitled to receive the same. Said estate has never been distributed to said minor children of said Savage, but has been appropriated by said defendant Whitehouse to his own use. While acting as such administrator Whitehouse kept no separate account of the moneys of said estate, but deposited them in a bank in Augusta in his own name, and intermingled them with his own funds and funds held by him as trustee for other parties. With the funds of the estate so deposited he purchased no other property for the estate, and prior to some time in January, 1897, he had overdrawn his account in said bank, and had used said sum of $5,325.71 received by him as administrator for his own private purposes.

On March 8, 1897, the defendant Whitehouse was appointed guardian of said minors by the court of probate of Maine, and gave bonds as required by law, and on March 10, 1808, he wrote to the judge of the court of probate of Norwalk, Conn., inclosing the certificate of his appointment as guardian in Maine, and declaring that as administrator of the estate of said Charles W. Savage he had turned over to himself as guardian of said minor children said $5,325.71 in cash belonging to said estate. When he was so appointed guardian in Maine, and when he wrote said letter to the judge of the court of probate of Norwalk, Whitehouse had already used all said funds belonging to the Savage estate for his own private purposes, and had overdrawn his said bank account as before stated, and had no funds, securities, or other property which he could turn over to himself as guardian, and was unable to pay said sum due from him as administrator, and was then and has ever since been insolvent. Whitehouse in fact made no transfer of any fund or property to himself as guardian. He in no way charged himself as guardian with any of the funds or property of the Savage estate, except by writing said letter to the judge of probate of Norwalk, and by filing in the court of probate in Maine, on May 6, 1899, a sworn statement charging himself as guardian with said sum of $5,325.71 received from said estate and with the other property of said estate, and crediting himself with the sums expended by him for said minors. After his appointment as guardian by the court of probate in Maine on March 8, 1897, Whitehouse, on January 8, 1898, filed in said court of probate of Norwalk a sworn application representing that he had been so appointed guardian in the state of Maine, and that as administrator of the estate of said Savage he held in his hands the sum of $6,344.96, as shown by his final account accepted by the court of probate of Connecticut, which belonged to said minor children of said Savage, and asking for his appointment as guardian by said court of probate of Norwalk, and that he be authorized, as such guardian, to take such personal estate and remove it from the state of Connecticut. No action was ever taken upon said petition by said court of probate of Norwalk. On June 12, 1899, upon the petition of one of the sureties upon the bond given by Whitehouse upon his appointment as guardian in Maine, said Whitehouse was removed from said office of guardian by the court of probate in Maine, and the plaintiff, Lynch, appointed by said court in his place; and on December 13, 1899, the plaintiff, Lynch, was appointed guardian of said minors by the court of probate of Norwalk, and said Whitehouse was ordered by the court of probate of Norwalk to deliver, as administrator, all the estate of said Savage in his hands to said Lynch as such guardian. This order has never been complied with.

In addition to the facts that Whitehouse, from March, 1897, until his removal in June, 1899, was both administrator and guardian; that in March, 1897, he wrote to the judge of the court of probate of Norwalk, declaring that he had transferred the funds and property of the Savage estate to himself as guardian; and that in May, 1899, he filed an account in the court of probate in Maine in which he charged himself as guardian with the funds and property of the Savage estate—the defendants claimed to have proved in the trial court, as sustaining the allegations of their answer, that Whitehouse had transferred to himself as guardian all the funds and property which he had received from the Savage estate; that although, when Whitehouse was appointed guardian in 1897, he had already used all said funds of the Savage estate for his own private purpses, he was yet solvent at that time and owned unincumbered real estate of the value of $50,000, and rights of action and other personal property of the value of $30,000, and was able to meet the obligations of his business as the...