Davis v. Davis

1 Del. Ch. 256

Opinion

Ridgely, Chancellor.

This is a case clearly within the jurisdiction of the Court. An infant, after he becomes of age, may bring a bill for an account against his guardian, and before he comes of age such bill may be brought by him, by his next friend. 2 P. Wms. 119. This is a matter of account, and is peculiarly proper for investigation in this Court. It was not in-intended by the Act of Assembly, requiring guardians to enter into bonds with sufficient sureties, to take away the jurisdiction of this Court, but the design of the Act was merely to obtain in favor of wards additional security for their estates. According to our practice the remedy under the bond, even with the aid of the Orphans’ Court, is not so complete as by a bill in this Court; for, in .such cases, at law, the burden of proof lies on the ward. In Chancery, the guardian may be compelled to give a full account, under oath, of the whole estate of the ward. The same powers which a court of chancery exercises in England, as a court of equitable jurisdiction, belong to this Court.

In the case of Robert S. Kirkwood vs. John Mitchell, administrator, d. b. n. of John Mitchell, deceased,

*who had been executor of Alexander Smith, which was a bill for a residuary legacy, the defendant demurred, among other grounds, because the complainant had a remedy at law. The demurrer was overruled. On an appeal,theHigh Court of Errors and Appeals affirmed the decree of this Court, among other reasons, because it was a matter of account.

In Killen et al. vs. John Adams, executor, &c.* on a bill for a legacy, the defendant pleaded in bar the Act of Assembly by which a legatee is required to give the executor security to refund in case of outstanding debts. ^ The plea was overruled and a decree made against the defendant. These are the only cases which have been decided, although bills of the same kind have been brought, in which the jurisdiction of the Court has not been questioned. Upon general principles, I am of opinion that the bill may be sustained. If we look into the particular circumstances of the case, the jurisdiction of the Court is less to be doubted. It is alleged that after the guardianship expired the defendant received the rents and profits, by color of the authority first vested in her as guardian. I will not say that the complainant could not sue at law for these rents and profits, but his remedy there could not be as certain ñoras effectual as in this Court. The decisions cited from Caines’cases in Error and Munford’s Reports, go upon the same principles which have been adopted in this Court.

Let a decree be entered for an account.

Ante, p. 130.

Ante. n. 184.