Opinion
(June Term, 1841.)
Guardians of lunatics are responsible for compound interest in the same manner and to the same extent as guardians of infants; and bonds, etc., payable to them as guardians, bear compound interest in the same manner as bonds payable to the guardians of infants.
AN account having been heretofore directed in this case (see 22 N.C. 60), and the master having now made his report, exceptions were taken by one of the defendants, and these exceptions now came on to be heard. The nature of the exceptions (427) and the evidence in relation to them are stated in the opinion of the Court.
Boyden for the plaintiff.
J. T. Morehead for the defendant.
When this cause was heretofore before us (see 22 N.C. 60), we directed an account to be taken of what was or ought to be in the hands of George Long, as guardian or executor of his father, Frederic Long, and that an account should also be taken of what might be due from John Long, former guardian of the said Frederic. This has been done by the commissioner, and no exception is made to his report by the defendant George, and, therefore, as to said defendant, the report must be confirmed. Several exceptions, however, have been taken thereunto by the defendant John.
The first exception is to so much of the commissioner's report as finds the defendant John indebted in the sum of $505.75, because of the personal funds which came to his hands as guardian and were not paid over to his successor. The exception takes three distinct grounds. In the first place, it is insisted that the commissioner erred in charging the defendant with annual interest upon the balance in his hands while he was guardian, because that guardians of lunatics are not, like guardians of minors, chargeable, in account with their wards, with compound interest. The liability of the guardian of a minor for compound interest results from the duty imposed upon him to lend out any balance in his hands upon bond, with security, and to account for the interest annually. Branch v. Arrington, 4 N.C. 230. This was the rule before the act of Assembly was passed directing that bonds, notes and other obligations taken to one as guardian should bear compound interest. Laws 1816, ch. 925; Rev. Code (Rev. St., ch. 54, sec. 13). Now, as the act authorizing the appointment of guardians to lunatics enacts that such guardians shall have the same powers to all intents, constructions and purposes, and shall be subject to the same rules, orders and restrictions as guardians of minors, there can (428) be no question but the same duty rests upon them of making profitable to their wards the annual balance that may be on hand, and, of course, that they are subject to the same rule of accountability. This would be the case, in our judgment, even if they had not the facilities of collecting interest given to the guardians of minors by the act of 1816. We think, however, that, by a fair construction of the law, guardians of lunatics are entitled to the benefit of the facilities given by the act, equally with all other guardians.
It is next insisted that the commissioner erred in charging the defendant compound interest after his guardianship ceased and while his brother George acted as guardian. Now, the decree that John shall account is based upon the declaration that John exercised a control and influence over George, so as to prevent the latter from calling him to account. And as the latter is insolvent, it is just that the former shall be responsible to the same extent as the latter would have been had he performed his duty in this respect.
It is objected that the commissioner has made no allowance to John for the charge of maintaining his lunatic father while he acted as guardian. As we concur in the main in the conclusion which the commissioner has drawn from the evidence, that the charge of maintaining the lunatic ought to be defrayed out of the profits of the real estate held by John, we hold that no credit, because of that charge, should be given to John in this account. The first exception is therefore overruled.
The remaining exceptions are so connected with each other that they may all be considered together. Before Frederic Long became a lunatic, he settled property upon several of his children, but it does not appear that he gave any absolutely to his son John or Henry. By his will, however, which was never afterwards revoked, he devised to Henry the land which is called in the report and spoken of by the witnesses as "the old place," and put him in the actual possession of part thereof, with (429) license to use and enjoy its profits. He devised also another tract, with an adjoining mill, to John, and put him in possession thereof and encouraged him to clear the land, which was then a forest, and to establish a settlement on it. After the father became a lunatic, John purchased from Henry the land devised to him, and it is in evidence that, until this time, John and Henry maintained and supported their father without charge. Now, we agree with the commissioner that it is a fair presumption of intent on the part of the father when this arrangement was made with these sons that he should have what he might need for his maintenance or support out of the profits thus permitted to be taken by them from property of which he had given them possession, but whereunto they had no present title, and the whole charge of maintaining the father after he became a lunatic ought, we think, to fall upon John from the time he succeeded to George's interest in the land whereof George had been put in possession. But we do not concur with him in charging John any further because of rents. We have many reasons for disallowing such charges, but mainly and especially because, on examining the mass of depositions, affidavits and examinations on which the commissioner reports, there can be found no satisfactory data upon which to state an account of rents and profits on the one side, and reparations, expenditures and charges on the other. The testimony seems to be almost universally that of opinion, and of opinion not a little influenced by the prejudices and wishes of those who testify.
We direct, therefore, all the other matters of account stated as to the defendant John, except the account for the personal fund which passed through his hands, and of which we have already expressed our approbation, to be corrected, by charging him only with the amounts, respectively, for which George, after he became guardian, has been credited for and because of the maintenance of the lunatic, and with interest thereon down to the present time, allowing him all the credits which have been found by the commissioner to which no exception has been taken by the plaintiffs.
To this extent these exceptions are allowed, and beyond this they are overruled. (430)
PER CURIAM. Order accordingly.