Windon v. Stewart.
| Decision Date | 10 November 1897 |
| Citation | 43 W.Va. 711 |
| Parties | Windon v. Stewart. |
| Court | West Virginia Supreme Court |
A guardian may Lease the land of his ward, either by private contract or public outcry. (p. 715.)
If a guardian lease the land of his ward in good faith for a rental believed by him to be fair, he can not be charged with a higher rental, unless it be so inadequate as to carry the conviction of bad faith, (p. 714.)
Where a guardian or other fiduciary or trustee does an act, and it is sought to make him liable for a, loss consequent thereon, on the theory that his act was injudicious and improvident, if the act was in entire good faith, and the fault only an error of judgment and want of sharp-sighted vigilance, and the act be one which, as a prudent man, he might have done in his own matters, he cannot he made liable, (p. 714..)
A tenant must make ordinary repairs to buildings, repair and keep up fences, remove and keep down filth growing on farming and grazing lands, at his own expense, unless otherwise provided in the lease, (p. 716.)
A tenant can not make permanent improvements, and charge the landlord therefor. without the latter's consent, (p. 716.)
A guardian can not allow the tenant for repairs which the tenant should make, and get credit in his account against the ward. (p. 716.)
A father, if of ability, must support his child, and can not charge him with maintenance, though the child have estate of his own. (p. 718.)
S. Guardian and Ward Ward's Personal Estcde Court, s A uthority.
A guardian can not, without a previous order of court, use any part of the principal of the ward's personal estate Cot" any purpose, and a court can only make such order for maintenance or education, not for improvement of land or other purpose. (No opinion is intended as to a child too young to be bound out.) (p. 718.)
9. Settlements Surcharge and Falsify Measure of Relief. Where a former settlement is surcharged and falsified, no new settlement covering and overhauling the whole transaction is to be made, but an account is made of items surcharged or falsified, and the sum of such items is the measure of relief to the party injured by the former settlement, (p. 721.)
Appeal from Circuit Court, Harrison County. Suit by Ingaby M. Windon agaist William A. Stewart, as his guardian. Decree for plaintiff and defendant appeals.
Reversed.
John Bassel, for appellant, Lewis C. Lawson, for appellee. Brannon, Judge:
This is an appeal from a decree in a chancery suit by Ingaby M. Windon against William A. Stewart to surcharge and falsify ex parte settlements made by Stewart as guardian of Ingaby M. Windon, nee Stewart, in which those settlements were reviewed, and a liability larger than that shown by them imposed on the guardian, and he appeals.
The first assignment of error is that the order of reference to a commissioner was improper when made, because at that time prima facie evidence to impugn the former settlements had not been adduced. In the first place, the last or final ex parte settlement was never confirmed. Again, evidence tending to show that rent for the land of the1 ward was too little had been given before the reference. And again, these settlements show errors on their face in allowing principal of the ward's estate to be used in improving land and'in maintenance of the ward, without order of court, Under these circumstances, point 2 in Seabright v. Seabright, 28 W. Va. 412, would justify the reference, as it holds that, if errors appear on the settlement, even the bill need not specify those errors, but there may be at once a review of such settlement; and, more- over, point 6 in that case holds that, even where there is no error apparent on the settlement assailed, and in a case where no reference is at the time proper, yet, if it turns out at last to have been proper from further developments in the case, the court will not, because of such premature reference alone, reverse a decree.
The second assignment of error is that the decree charged the guardian with four hundred and sixty-five dollars and ninety-six cents additional rent on the ward's land beyond that charged in the former settlements. I shall refrain from detailing under this head, or any other, the large volume of differing and contlicting oral evidence, since it is cumbersome and improper to load opinions with such evidence, as they are intended only to lay down principles of law. The guardian rented the land, in which the ward had a third interest, to the father of the ward, Robert M. Stewart, who is brother to the guardian, for five years, at one hundred and seventy-five dollars per year, and two years at two hundred dollars, and the decree charged two hundred and sixty dollars. A quantity of evidence given to show the number of cattle which the land would sustain, and probable profits therefrom, and what land was cropped, and opinions of witnesses as to the rental worth, tend to show by a preponderance that the land was worth a larger rental; but men would differ so much on such a matter, as is strikingly manifest from the estimated rent by fourteen witnesses in this case, ranging from one hundred to four hundred dollars. The commissioner did not really pass on this matter himself, but, adding the aggregate estimates of all the witnesses, and dividing by their number, took the quotient as a finding. This was held in Thompson's Case, 8 Grat. 637, not to vitiate a verdict, but it is hardly a proper process for a commissioner. The same reason does not apply. But the fact that it is not to be regarded as a definite finding by the commissioner is shown by the fact that, after stating the process by which two hundred and sixty dollars rental was reached, he said, "if the court adopts this as the proper amount," then a certain statement would be right, thus submitting the matter to the court. Where a commissioner finds neither way, but submits to the court, it is not such a finding as requires any exception. Only a finding needs an exception. Hence we can not apply, as we are urged to do, the principle laid down in Hartman v, Evans 88 W. Va. 669, (18 S. E. 810), that every presumption is made in favor of the correctness of the decision of a commissioner in chancery, and, if the testimony is conflicting, the court rarely interferes with his finding on facts, if he makes no error of law in the result. And, if we would, we could not ignore another very just and important rule or presumption of law, and that is that a sworn fiduciary's action, if bona fide, or, to speak more accurately, if not appearing to be mala fide, is upheld, and he is not placed under a greater burden than it imposes.
When this guardian rented, he is presumed to have acted bona fide, and it must clearly appear that he did not, to charge him with greater rent than he received. The office of guardian is rarely lucrative, and is generally undertaken from motives of duty on account of kinship or kindness, rather than for profit, and we ought not to be so strict with them, or other trustees, where mere judgment and prudence are involved, as to strike terror into mankind when acting for others, and deter cautious, prudent, business men from taking upon themselves offices of kindness and humanity. If there is no mala fides, nothing wrongful in the conduct of the trustee, the court will always favor him. Trustees acting with reasonable care and prudence, and with the best judgment they can upon the occasion, will be protected, notwithstanding an unforeseen loss of the trust subject, or it may turn out not to be for the very best, See Judge Lee's opinion, Elliott v. Carter, 9 Grat. 557. "It is a general principle, applicable to fiduciaries of all kinds, and, among others, to guardians, that no more shall be required of them than that they act in good faith, and with the same prudence and discretion that a prudent man is accustomed to exercise in the man agement of his own affairs." 1 Minor, Inst. 448; Myers' Ex'r v. Zetelle, 21 Grat. 758. Common skill, common caution, common prudence, are all that can be required. The tract was two hundred and twenty acres farming land, of which one-third belonged to the ward. Much evidence shows it was in bad condition from filth, bad fences, ete. The guardian took the opinion of three persons, who deemed one hundred and seventy-five dollars a fair rental. He did not rent at public renting, and this is complained of as a sign of fraud, but the law does not require a public renting. Some evidence was given that he was offered more, but he denies this, and there is some question as to the solvency of the parties offering more, and it is not clear that it was at the same time. It is said he did not seek to rent to any one but his brother. But the brother was the father of the children, and it is so natural that he should rent preferably to the father that we can hardly fault him for this. Two of the children were young girls, and no doubt all thought, as any of us would, that, as the father was of limited means, it was fair, reasonable, and not imprudent to let him have the land at a moderate rent, to help support the children, as more conductive to their interest. We must find him guilty of intentional corruption towards these children to compel him to pay them rent which he did not actually receive, The only sign of this is that the father owed this guardian a very considerable debt, and, it is claimed, designed by this cheap rental to enable him to profit by the farm so as to pay the debt. This is not a controlling or conclusive circumstance. So we think there is error in charging him beyond rent received, beyond the sum fixed in...
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