In re the Accounting of Bushnell

Zina Bushnell was a resident of the town of Sullivan, in this county, and died October 29, 1869, leaving him surviving his widow, Harriet L. Bushnell; two children, May and Belle Bushnell, by his last wife, and Horatio., H. Bushnell, Almanzo Bushnell and Armenia Tuttle, children by a former wife.

At the time of his death he was the owner of several hundred acres of land, and personal property to such an amount that upon the final judicial settlement of his estate the widow received $1,828.38, and the share to which May and Belle were severally entitled was the sum of $1,131.36.

Mrs. Bushnell was the administratrix of her husband and was appointed general guardian of her two children on the 22d day of January, 1870.

Upon the final settlement of the estate the amount due her as widow and to the two children, May and Belle, was set off in stocks, mortgages, money in savings banks and other satisfactory securities, and possibly some money, which she then, as widow and as guardian, accepted in full settlement and satisfaction of ’the amount due to all of them. As guardian she did not, upon the receipt of these

The evidence shows that Mrs. Bushnell, at the time of her husband’s death, owned in her own right a farm of fifty acres in the town of Sullivan; that after the partition of Zina Bushnell’s land she purchased so much of the land as her two daughters were entitled to in her husband’s real estate, amounting to 217 acres, and as security for the purchase price gave a mortgage on the land so purchased to the county treasurer of this county for the sum of $8,772.37, this sum being the value of her children’s interest in their father’s real estate.

Mrs. Bushnell, since her husband’s death, has continued to own and occupy all the land above specified, exóept so much thereof as she deeded to Belle a few years since in payment of the amount due her from Mrs. Bushnell as her guardian. We also understand Mrs. Bushnell has managed her farm, hiring a little help occasionally, but taking care of her stock generally during the winter herself, with the assistance of her two daughters, until they married and left home.

May remained at home till her marriage, at seventeen years of age, growing up a strong, healthy woman. Aside from four terms at Yates Union School at Chittenango_, and three terms of music lessons, no money was spent in giving her an education; she had no advantages save those of the district school. During the years she lived at home she • assisted her mother in doing house work and various kinds of farm work, such as driving the horse to take the milk to the cheese factory, assisting in planting, working in the hay field, driving horse to drag in grain, driving the cows to ancl from the pasture, and, from the time she was ten years old, assisting in milking the cows, taking care of the horse and cows and other stock during the winter time, by feeding them from the mows of hay, by cleaning the horse and cow stables, either by shoveling or wheeling the manure from such stables to the barn yard, doing, generally, aside from house work, such farm work as no girl of her age ought to ■ have been required to do, and which no woman ought to do except as a matter of necessity. We are surprised that persons who knew the class of farm work May did from the time she was ten years old till her marriage did not inform the surrogate of the facts and request him to cause an investigation to be made to ascertain whether Mrs. Bushnell

One item of this account is for twelve years’ board at two dollars per week, amounting to $1,248. This item we disallow because we think May, from the time she was ten years old till she left home at seventeen years of age, more than earned her board by the out-door work she did for her mother upon the farm. We disallow it also for the reason that Mrs. Bushnell misappropriated the $1,131.36 belonging to. May; converted it to her own use, instead of investing it and keeping it invested, thereby producing an income which could have been used, if necessary, for her support. Were she not her mother, and had not acted in good faith, as she supposed, towards her child, we should not hesitate to charge her with compound interest upon the sum she received, but, under the circumstances of this case, we shall hold that the benefits she has derived from the use of her ward’s money are more than an equivalent to the trifling

Another item of the account is the sum of $284.12 for clothing, $200 of which is charged in a gross sum without giving items or the cost of them, but it is claimed to be for hats, shoes, underclothing and dresses, simply a guess at what Mrs. Bushnell supposed she might have expended during twelve years of her guardianship. Even were we disposed to allow the $84.12 for wearing apparel, we should decline the $200, because she has kept no account of the items, nor of their cost. It is an imaginary sum for imaginary wearing apparel for a period of twelve years; whether she has furnished this amount of clothing we do not know, and "therefore have no reason to believe.

Where one, not a parent, is guardian, he will not be presumed to have made gifts of clothing to his ward; but we think where a parent is guardian, having sufficient means of his own, or sufficient property of his ward in his possession, which, if invested, will produce sufficient income for his ward’s necessary expenses, and, he under such circumstances, for many years supplies his child with clothing, without keeping an itemized account of it, he should be presumed to have given it to his child, and no allowance should be made for such gifts, unless the child’s estate is so ample, and the parent’s means so insignificant, that it would be a great hardship to compel the parent to support his child by his own exertions, or from his own property. We shall therefore hold as matter of law that where a parent is guardian, the child remaining at home, and the parent having the benefit of the society and services of the ward, and no account is kept of the items of wearing apparel furnished the child for a long period of time, the legal presumption of a gift to the child must be overcome by strong and undoubted evidence of a contrary intent. The bare fact of filing an account for such things, and making a claim for payment thereafter at the time of a final judicial settlement will not overcome the legal presumption we have suggested.

The balance of the account is made up, with the exception of an Estey organ at $130, a gold watch and chain, at $80, of articles of household furniture, amounting in all to $1,183.43, a partial list of the items being as follows: One French standing glass, $25; sixteen yards lace curtains, $8; sixty-seven yards of Brussels carpets, $71.45; one marble center table, $16; one parlor suit of furniture, $70; expense on trip to Michigan, $35; rag carpeting, $25; bed-quilts and comfortables, $25; coverlids and woolen sheets, $7; three feather beds, $25; three white bedspreads, $10; one pair white woolen blankets, $5.50; black walnut bedstead, and two tables, $11.50; one rocker and six chairs, $8.50; one couch and corner stand, $12.50; one bureau and looking glass,

If May at the time this class of articles was purchased had been married, or was about to be, and so would need this household furniture, or was living away from home, and desired to furnish a room for her use, the expenditure of money for the purchase of the articles we have named would have been entirely proper, but, at the time they were purchased, she was living, unmarried, at home. If Mrs. Bushnell’s house was reasonably well furnished with furniture, the articles purchased were unnecessary for her use. True, she might have desired her mother’s house better furnished than it was, but if Mrs. Bushnell was unwilling to expend her own money to gratify her daughter’s wishes, she had no right .to devote her ward’s funds to such a purpose. These articles were put to immediate use in Mrs. Bushnell’s-house, and used as household goods are ordinarily used by parents and children; there was no exclusive use of them by May, and although she is now married and living away from home, a large part of the articles charged against her by her mother have always remained at Mrs. Bushnell’s. It is true they may have been purchased by Mrs. Bushnell to gratify her daughter, but they were such goods as were necessary, probably, to adorn the house and make it a suitable and comfortable home for herself and daughter. They seem to be quite as appropriate and necessary for Mrs. Bushnell’s use and comfort as for her daughter. After remaining, most of them, in the house for a number of years, used by Mrs. Bushnell in common with her daughter, she now says she can take them at the prices she paid for them. All of the articles seem to be such as are usually purchased by parents with which to furnish rooms in their houses for their own comfort and enj oyment, as well as for their children. There are no articles exclusively adapted to the use of May. They are only such as parents usually buy, without any intent to compel their children to pay for them at some future time, even if designed for their use and comfort, and to gratify their taste for household adornment. We discover no evidence in this case showing any design on the part of Mrs. Bushnell to charge her daughter with the value of the articles mentioned at the time she purchased them, and we decline upon this accounting to permit her under the circumstances surrounding this case, or connected with her guardianship, to change into a debt what we believe was a gift to her daughter, or intended to be a gift at some future time, if she did in fact purchase them at her daughter’s suggestion, in order that her life might be made happier by having a few articles of household furniture suited to her station in life. We also make the same suggestion as to those articles that we did in regard to the wearing apparel, that there is no evidence showing that Mrs. Bushnell intended at the time she purchased the goods to make their

But aside from the special reasons we have given for disallowing the entire account of the guardian, there is another ground for its rejection. It appears from the evidence in this proceeding that on or about the 18th. day of October, 1870, Mrs. Bushnell purchased the 217 acres of land belonging to her two daughters, and gave a mortgage of $8,772.37 as security for the purchase-price thereof to the county treasurer for the benefit of her two children. As guardian. she makes no report to this court as to what has become of the interest which should have accumulated upon May’s undivided half interest in this mortgage for about seventeen years, nor does she give any information to the surrogate in relation thereto, or if no interest has ever been paid on the mortgage, does she account for the use of this land during all this time. As _ guardian she was not, probably, obliged to account for this mortgage or its income unless paid to her by the county treasurer, nor have we, as surrogate, any jurisdiction to inquire into the matter in this proceeding, the county treasurer’s office is the propeí place to make inquiry upon the subject, but, as surrogate of this county, we decline to be estopped by any technical rules of evidence

As guardian she has been credited by the several county treasurers with annual interest for sixteen years amounting at six per cent—less than the legal rate—to the sum of 44,470.49, but although she has neither paid to nor received from the county treasurer this amount of interest she has all this time had the sole use of the land upon which the mortgage was given for which as guardian she gives no account. May’s share of the mortgage was $4,386.18, her share of the personal estate $1,131.36, making in all the sum 45,517.54, which, at six per cent, would have amounted at this time principal and interest to the sum of $11,141.16, but if the interest had been collected on the amount, and reinvested since 1870, as it should have been, it would have amounted to a very handsome fortune when she became twenty-one years of age, not less than $15,000, and probably more. Unless May has some legal remedy for the damages she has sustained by the mismanagement of her property, by those to whom the law has entrusted it, she will, so far as the interest on the mortgage is concerned, be obliged to take the land her father left her, depreciated as it must necessarily be in value, and worth to-day less than the face value of the mortgage, at the time her mother gave it. So far as the interest on this mortgage is concerned it may be a wreck without a remedy, but so far as the personal estate is at issue we have seen our way clear upon technical, though, we think, clearly legal grounds to protect it from the acts of this incompetent guardian. Until Mrs. Bushnell can give a valid legal excuse for the non-payment of the interest which should have been paid annually to the county treasurer, or until she can show some legal ground why she should not account to this court, in some form, for the use of the real estate originally belonging to May, we must decline to allow her to take from a fund which is abundantly secured by her bondsmen, if she is not responsible, such expenditure as she claims she is entitled to and for which she has filed a claim. Her entire account, therefose, is rejected, nor will she be allowed any commission as

The duties of guardian are simple and easy to perform. Obedience to the law makes their task an easy one, they need not fear the result of their labor if, in the discharge of their duties, they have not listened to the voice of disobedience to the law and the plainest dictates of reason and honesty. The court, always lenient, striving to be just, will always look with kindly eye upon the dealings of guardians where the duties of the office have been properly discharged, but where they have been unfaithful, neglected their duties, violated the law, have been guilty of gross carelessness and negligence which is frequently but another name for dishonesty, no appeals to overlook such wrongs, and such injustice to their wards, should ever awaken the equitable powers of the court from their slumber to aid them in depriving these adopted children of the law from that which justly belongs to them.

A decree will, therefore, be entered directing Harriet L. Bushnell, as guardian of May Burlingame to pay her the sum of $1,121.36, with interest thereon at six per cent from the 18th day of September, 1871, to the date of this decision, amounting to the sum of $2,288.32.

Having disposed of the questions at issue in this proceedr ing, we take occasion to make some suggestions to guardians and their bondsmen:

First. A guardian, as soon as the property of his ward comes to his hands, should make and file with the surrogate an accurate inventory of the property.

Second. If the funds of the ward are not invested when they come to the guardian’s possession, he should invest them as soon as it can reasonably be done, and so far as possible keep the same and the income thereof invested till his ward becomes twenty-one years of age, or where, by reason of death, or other causes, he is sooner called upon to account and pay over the funds to others.

Third. He should procure a book and devote it exclusively to matters pertaining to the guardianship, and in it should be set down at the time of its occurrence every item of income and expenditure on behalf of the ward intended to be a credit or a charge against him.

Fourth. Receipts for all expenditures, except for trifling

Fifth. The guardian should expend no more than the income of the ward for his support and education, without an order of the court for that purpose obtained. Section 2846 of the Code is as follows: “Upon the petition of the general guardian of an infant’s person or property, or of the infant, or of any relative or person in his behalf, the surrogate, upon notice to such persons, if any, as he thinks proper to notify, may make an order, directing the application by the guardian, of the infant’s property, to the support and education of the infant, of such sum as to the surrogate seems proper, out of the income of the infant’s property, or where the income is inadequate for that purpose, out of the principal.”

Sixth. In 4 Redfield, 360, the following is stated to be the law when the parent is the guardian of his child: “It is then no part of the duty of a guardian, simply as such, to contribute to the support of the ward out of his own funds, but it is the primary duty of a parent, whether father or mother, if of sufficient ability. Without regard to this duty, imposed by the law of nature, our statutes expressly recognize the obligation of the parent to prevent the child from becoming a public charge. If, however, the parent be also the guardian of a minor, having an estate of its own, then the circumstances of the parent, as well as the amount of the estate of the ward, may be taken into consideration in fixing the degree of, and determining whether there is any liability of the former. Matter of Burke, 4 Sand. Ch., 617 ; Matter of Kane, 2 Barb. Ch., 375 ; Wilkes v. Rogers, 6 Johns., 566 . The same cases also establish the principal that an allowance may be made for past maintenance and support of a ward in a proper case. No inflexible rule can be established, but each case must be determined on the facts peculiar to it. The proper- course to pursue, when the income is insufficient, is for the guardian to make application to the court for leave to use so much of the principal as may be necessary; but in case he proceed without such leave, the court may, if the proceedings seem to have been wise, and for the welfare of the ward, sanction it.”

Seventh. We invite special attention to the following provisions of the Code:

Section 2842. A general guardian of an infant’s property, appointed by a surrogate’s court, must, in the month of January of each year, as long as any of the infant’s property, or of the proceeds thereof, remains under his control, file in the surrogate’s court the following papers:

First. An inventory, containing a full and true statement and description of each article or item of personal property of his ward, received by him since his appointment, or since the filing of the last annual inventory, as the case requires; the value of each article or item so received; a list of the

Second. A full and true account, in form of debtor and creditor, of all his receipts and disbursements of money during the preceding year, in which he must charge himself with any balance remaining in his hands at the conclusion ■of the year, to be charged to him in the next year’s account.

Section 2843. With the inventory and account, filed as prescribed in the last section, must be filed an affidavit, which must be made by the guardian, unless, for good cause shown in the affidavit, the surrogate permits the same to be made by an agent or attorney, who is cognizant of the facts. The affidavit must state, in substance, that the inventory and account contain, to the best of the affiant’s knowledge and belief, a full and true statement of all the guardian’s receipts and disbursements, on account of the ward; and all money and other personal property of the ward, which have come to the hands of the guardian, or have been received by any other person by his order or •authority, or for his use, since his appointment, or since the filing of the last annual inventory and account, as the case requires; and of the value of all such property, together with a full and true statement and account of the manner in which he has disposed of the same, and all the property remaining in his' hands at the time of filing the inventory and account; and a full and true description of the amount and nature of each investment made by him since his appointment, or since the filing of the last annual inventory and account, as the case requires; and that he does not know of any error or omission, in the inventory or account, to the prejudice of the ward.

The surrogate must annex a copy of this and the last section to all letters of guardianship of the property of an infant issued from his court. We do not think guardians appreciate the importance of conforming to these positive commands of the law. Such a sworn statement has a tendency to impress upon them the necessity of keeping accurate accounts, and of making legal investments. In the next place, in case of the loss or destruction of their securities or accounts they would find it not only a matter of convenience but of safety for them to have the annual records of their dealings with the trust estate in possession of the court, and besides this in case of their death their heirs would have no difficulty in ascertaining the liability of the guardian, they would know where to find a statement of the guardian’s relation with his ward. So too, if any friend of the minor had reason to believe the interests of the ward were not properly taken care of, he would

As near as can be estimated there is annually placed in

Eighth. Guardians should not loan the money of their wards upon personal security, for, if they do so, and the-maker of such securities subsequently becomes insolvent, they will be compelled to make good the loss to the estate, and in addition, will be compelled to bear the expenses of litigation made necessary to collect the funds thus improperly invested. While the statutes of this state have not specified any particular class of securities in which trust funds should be invested the courts have generally held that trustees must invest in loans on real estate, in the

Ninth. Guardians should deposit all trust funds as soon as received by them in some bank of good repute, because if kept about their persons or in their dwellings, and the money is stolen or lost, or destroyed by fire, they will be liable for its loss. In Cornwell v. Deck ( 8 Hun, 122 ), an administratrix who kept a large amount belonging to the estate in her house, and the same was stolen, the court held her liable therefor, and said that the trustee at the present time when banks and places of safe deposit so largely abound, would be held liable for negligence, because a man of common prudence, and acting with caution would not retain the custody of money or valuables liable to be stolen in such a place when he could easily deposit them in a place of safety. It is repeatedly held that if a trustee, in the exercise of his best judgment, deposits money in a bank of good repute that he is not liable in the event of the failure of the bank. In Wharton on Negligence § 519, and cases there cited it is held that a guardian having funds of his ward, should not keep them in his house, but deposit it in a bank.

Again these funds should be deposited to his credit as guardian, and not to his individual account in the bank or mixed with his own funds for if he mixes the trust funds with' his own and uses them in his business he is liable to pay compound interest not only as a penalty for his improper conduct in relation to the trust fund, but also to enable the ward to receive all the interest which his money would have earned if invested and its accumulations kept re-invested.

Tenth. Under no circumstances no matter how great the temption, should guardians appropriate the money of the ward to their own use. This fund should be regarded as sacred against their touch for such a purpose. In a legal sense the ward is their neighbor and his castle should be secure against the uninvited steps of him who seeks to enter for an illegal purpose. And yet men who would not for a moment think of taking another’s property without his consent, and devoting it to their own use do not hesitate occasionally to appropriate funds in their hands as trustees to their own benefit, or the benefit of others. In order that

“A person acting as executor, administrator, committee, guardian, receiver, collector or trustee of any description, appointed by a deed, will or other instrument, or by an order or judgment of a court of officers, who secretes, withholds, or otherwise appropriates to his own use, or that of any person other than the true owner, or person entitled thereto, any money, goods, things in action, security, evidence of debt or of property, or other valuable thing, and any proceeds thereof, in his possession or custody by virtue of his office, employment or appointment, is guilty of grand larceny in such degree as is herein prescribed, with reference to the amount of such property, and upon conviction, in addition to the punishment in the chapter prescribed for such larceny, may be adjudged to pay a fine, not exceeding the value of the property so misappropriated or stolen, with interest thereon from the time of the misappropriation, withholding or concealment and twenty per centum thereupon in addition, and to be imprisoned for not more than five years in addition to the "term of grand larceny, according to this chapter, unless the fine is sooner paid.

We have done. All the suggestions we have made in regard to the duties of guardians may be summed up in the words of Him who spake as never man spake—“Therefore all things whatsoever ye would that men should do to you, do ye even, so to them; for this is the law and the prophets. ” Do then unto these children thus placed in your ■care as you would that men should do to your’s, if you shall pass away from earth in their youth, and you will have discharged your duties with fidelity to the trust reposed in you, and all your acts will meet with the approval of the court.