Davis v. Roberts

1 S. & M. 543

Opinion

Chancellor.

It is necessary, to a correct understanding of this case, that I should advert to its leading facts, and to the peculiar attitude in which it is submitted for final hearing ; as much of the embarrassment in its consideration arises from technical difficulties, which have grown up in its preparatory stages.

The substantial facts of the case, as disclosed by the pleadings and proof, are these : — The complainant (Jane Davis) in April, 1815, solicited and obtained the care and custody of the person of Matilda Vaughan*then a motherless infant, and continued that custody, as a kind of foster-mother, up to January, 1830, when she applied for and obtained an order for letters of guardianship to said minor, from the Probate Court of Wilkinson county, and thereupon took possession of eight negro slaves, belonging to her said ward ; and, in 1832, returned to said court an account of their hire, which appears to be the only account of the kind exhibited by her during the continuance of her guardianship. In March, 1834, Miss Vaughan died, and the defendant administered upon her estate, and. obtained an order from said court, requiring Mrs. Davis to deliver over to him all the property in her hands, as guardian aforesaid. This order was disregarded, and the administrator brought his action of detinue, to recover the possession of said slaves; whereupon, the complainants filed their bill in this Court, enjoining said action, and in which Mrs. Davis claims a large balance as due her, in her character of guardian, dating her account back with the commencement of her care and custody of the person of Miss Vaughan, and asking a decree for the sale of said slaves, to satisfy such balance. No account is asked for, but a specific balance is stated, in the shape of a fixed and ascertained debt. The answer of the administrator admits that Mrs. Davis took charge of his intestate (Miss Yaughan) in the year 1815, but states that it was done at her earnest solicitation, and with the promise that she would raise and educate her, at her own expense, and insists'that no charge can be made from 1815 up to 1830, when she became guardian ; and that, from that time to the death of Miss Vaughan, the use and hire of the slaves was more than sufficient to meet the expenses for board and education, and asks a decree against Mrs. Davis for the overplus.

In July, 1836, an interlocutory order for an account was made by Chancellor Turner, with the consent of the parties, in which the commissioner is instructed to state an account of the charges for board and education, and of the charges for the hire of the slaves, and to distinguish between such charges for board, &c. as accrued before the complainant’s appointment as guardian, and those which accrued afterwards. The commissioner made his report accordingly, showing a large balance due the complainant, accompanied by exceptions taken by both parties. By some oversight, as I presume, this report was subsequently confirmed, without any notice having been taken of the exceptions; and in this awkward and embarrassed condition, the case was submitted, at a former day, on final hearing. The counsel for the defendant insists, that the case should be dismissed, for want of jurisdiction; that the settlement of the account of the complainant properly belongs to the Probate Court in which the letters of guardianship were taken. If this objection had been taken by demurrer or plea, or had been insisted on in the answer, I should have held, in accordance with the course of decision in this State, that the bill should be dismissed; but the objection is not taken in either of these forms. It has been repeatedly decided, in this Court and elsewhere, that a defendant cannot, after general answer, raise the question of jurisdiction on the hearing, unless the defect of jurisdiction goes to the very subject-matter of the suit. The true contest is, whether the complainant is entitled to any portion of the account, reported as accruing prior to the date of her letters of guardianship. The complainant’s counsel insist, that that question cannot now be looked into ; that it became res adjudicata, by virtue of the interlocutory decree, and the confirmation of the report made under that decree ; neither of which, it is insisted, can be reviewed upon the final hearing. I cannot assent to these propositions, to the extent to which they go. Suppose (as will appear to be the case here), that an interlocutory order should be made, directing an inquiry into matters for which there was no foundation laid by the bill, must the Court necessarily decree upon those matters, because of such order, and a confirmation of the report thereon ? I think not. A general reference for an account is a mere decretal order, and has not the conclusive incidents of a decree. It is intended to ascertain mere matters of fact, pertinent to the case, and preparatory to a final hearing. 1 Hoffman, Ch. Pr. 501. And if, under such reference, the commissioner reports anything not warranted by the bill, the Court would, I conceive, be bound to disregard it upon final hearing ; and that, too, whether exceptions were taken or not, and even though the report had been confirmed; for the reason that the Court, in rendering a decree, cannot travel out of the boundary prescribed by the pleadings and proof. Such a report would be analogous, in its effects and consequences, to the finding of a jury, under an immaterial issue. I find express authorities (if indeed authorities were necessary on such a point), which warrant me in declaring that an interlocutory order, made in the progress of a case, is always under the control of the court rendering'it, and that it is not error to set it aside. Hays v. May’s heirs, 1 J. J. Marsh. 497. Such order maybe set aside for irregularity or other cause, showing that it should not be allowed to stand. 2 Mylne and Keene, 284 ; 4 Johns. Ch. R. 35.

There are many cases where the report of a commissioner has, under peculiar circumstances, been reviewed, even after confirmation. Adams v. Claxton, 6 Ves. 226; Turner v. Turner, 1 Jacob & Walker, 39 ; 1 Hoffman’s Ch. Pr. 549. I think the case before me presents the strongest ground for the exercise of that power. In the first place, it was certainly irregular to take a confirmation of the report, while exceptions were pending from both parties. In the next place, it appears from the complainant’s bill, that she claims alone in her character of guardian, without stating at what time she became such guardian. There is no claim, whatever, set up by the bill, except such as accrued to her in right of her guardianship. It is clear, therefore, that she cannot, by the form of any interlocutory order, nor by any proof, make her case broader than it is made by her bill. Now the proof shows, that she became the guardian of Miss Vaughan in the year 1830 ; the commencement of her account, as guardian, must necessarily be limited to that date. The rule, that the allegata and probata must correspond, has the same reason to support it in equity, as at law. The bill makes a claim for money alleged to have been expended upon Miss Vaughan, as the complainant’s “ ward,” and she exhibits an account which goes back to the year 1815, when the proof shows that the relation of guardian and ward did not commence until in the year 1830. There is no claim set up by the bill upon the principles of an implied assumpsit, on the part of Miss Vaughn, to account for money expended in furnishing her with necessaries. This might perhaps have been sufficient to authorize the complainant to go behind her letters of guardianship, in stating her account. But then it would have been confined to absolute necessaries, according to all the legal restrictions and qualifications upon that subject. The account is, therefore, erroneous upon its face, so far as it is allowed the complainant, prior to the year 1830, there being no foundation laid by the bill and testimony for that branch of the report. In such case it is well settled, that the report may be objected to at the hearing, even in the absence of exceptions. White’s exe’rs v. Johnson, 2 Munf. R. 285. The interlocutory order to account, instead of admitting the complainant’s right to an account, previous to the year 1830, contains a strong implied denial of such right, by requiring that portion of the account to be distinguished from the other, and reserving the question of its legality to be subsequently passed upon by the Court. This seems to me to be the scope and effect of that order.

And now, having freed the case from these technical difficulties, the question is, What decree should be rendered upon the merits of the case ? I have no difficulty in declaring, that if the bill had been broad enough to admit such inquiry, I should still have held, that that portion of the account embraced between the years 1815 and 1830 was improperly allowed. It is clear from the complainant’s own report, and from the deposition of Stafford (both of which were improperly excluded by the commissioner), that she took charge of Miss Vaughan from mere motives of friendship to her mother, without the intention, or expectation, of charging her with the expenses of board and education. The rules of both law and morality require, that what was intended as a mere gratuity, shall not be converted into a pecuniary demand. The idea of making a charge at all, was evidently an afterthought, and does not appear to have been suggested, until after the death of Miss Vaughan, or, at least, not until 1830, when letters of guardianship were taken. The report of Mrs. Davis, as guardian, made to the Probate Court of Wilkinson county in 1832, states, that she had kept no account against her ward, and that, from the strong ties of friendship for the mother of her ward, she had been induced to raise and educate the latter at her own expense. The deposition of Stafford proves, that he was desirous of taking the child, and offered to do so, and ■ raise her at his own expense, but that Mrs. Davis would not consent to it. Under these circumstances, there is no foundation in law or in fact, for any charge prior to the year 1830. 2 M’Cord, Ch. Rep. 56 ; 1 Munf. Rep. 119. But even if the complainant had been regularly appointed guardian, in the year 1815, still the prayer of the bill for the sale of the principal property of the ward could not be granted. A guardian who expends more money upon his ward than the income of the ward’s estate, does it at his peril. It is well settled that a guardian cannot trench upon the principal property of his ward by exceeding his income, without authority for that purpose from the appropriate tribunal. Here the complainant, if her accounts were allowed, having exceeded the income of her ward, has no claim to have the principal property sold to reimburse her in such excess, much less a right to retain the property for that purpose.

Upon the whole, I shall direct the order of confirmation to be vacated, as having been irregularly obtained ; and that the exceptions of the defendant to the report be sustained, as to so’ much of the account as goes behind the year 1830 ; and that the report as to the remainder of the pccount be confirmed: that the exceptions of the complainant be disallowed ; and that the defendant have a decree over against the complainant Davis, for the difference between the charge of hire for the negroes, and the charge of board, &c., from 1830, as reported; that the injunction to the suit at law be dissolved, and that the complainant, L. Davis, pay the costs of this suit.

At first, I had some doubt, whether, upon sustaining a part of the exceptions to the report, it would not be necessary to refer it fyack for a restatement of the account; but, upon an examination of the practice upon this subject, I find it is unnecessary. Where ex ceptions are allowed to a report, reducing the amount of the account reported, the Court can modify the report, and settle the true amount upon the evidence reported, without referring it back to a commissioner. Taylor v. Reed, 4. Paige, Ch. R. 561.

Let a decree be prepared in accordance with these views.