Sparhawk v. Allen

21 N.H. 9

• Court: Superior Court of New Hampshire
• Decided: July 15, 1850
• Status: Published

Opinion

Gilchrist, C. J.

The estate of the testator, according to the Inventory was as follows :

Personal estate, . . . $4,341.23

Deduct for debts, including Allen’s claim of $1000 . . 1,573.17 $2,768.06

Real estate, . . . . ' . » 15,152.84

$17,920.90

There was devised to Mrs. Sparhawk, by the will, one half the personal estate, . . . $1,384.03

One third of the real estate during her life . ' 5,050.94

$6,434.97

By the statute she would be entitled, on waiving the provision made her by the will, R. S. eh. 165, §§ 8 & 9, as her husband left no lineal descendants, to one third of the land during her life, as dower, ...... $5,050.94 also to one third of the residue in fee, which would be ... 17,920.90 — 5,050.90=12,869.96 one third of which =4,289.98 *

Deducting from the sum she would have in fee by the statute ...... $4,289.98

the sum given her absolutely by the will . . 1,384.08

she would receive the sum of ... $2,905.95

by the negotiation with Allen, more than the sum given her by the will, of which Allen would receive the benefit, and which must of course be deducted from the share of the orators, who are the residuary devisees.

Eor the purpose of determining the principles which should govern this case, it is necessary to examine the authorities at some length.

There is a certain benefit which a guardian may legitimately derive from his position in relation to his ward. He may receive a reasonable compensation for his services. But even this rule, when considered in relation to trustees, is of comparatively recent origin. In Robinson v. Pett, 3 P. Wms. 250, Lord Chancellor Talbot said it was an established rule, that a trustee, executor, or administrator, should have no allowance for his care and trouble. This rule has been changed for another, proceeding on more liberal principles, but its existence shows the extreme caution which has always been exercised by the courts in omitting to put any temptation in the way of persons occupying a fiduciary relation. Lord Sardwicke said, in Ayliffe v. Murray, 2 Atk. 58, that chancery looked upon trusts as honorary, and a burden upon the honor and conscience of the trustee, and not undertaken upon mercenary motives. Although all persons occupying these positions are now allowed a reasonable compensation, still the feeling of the necessity of watchfulness which dictated the original rule exists in all its force, and can be perceived in the reasoning of the courts whenever an inquiry is made into the character of transactions affecting the trust property. The conduct which the court of chancery intends to require is such as would result from the moral sense of a conscientious man. It frowns upon what, in the language of Chancellor Kent, “ is repugnant to a sense of refined and accurate justice.” 5 Johns. Ch. Rep. 407. So far has this doctrine been carried, that where there were two joint devisees of land in possession but the title was imperfect, it was held that one of them could not buy up an adverse title and expel his co-tenant, but that the purchase would enure to their common benefit. Van Horne v. Honda, 5 Johns. Ch. Rep. 388. Such conduct is said by Chancellor Kent “ not to be consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject created.” “ It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other’s equal claim which the relationship of the parties, as joint devisees, created.” “ There was a mutual obligation to deal candidly and benevolently with each other and to cause no harm to their joint interest.” We have given the language of this eminent lawyer, because it expresses the high standard by which the court tests the conduct of parties, and that too in a case where ordinarily no fiduciary relation is supposed to exist.

The following is, as we understand it, the substance of the acute and ingenious argument on the part of the defendant.

The defendant’s only duty arose from his position as guardian of the orators, or as executor of the will under which they were legatees.

He was not bound to endeavor to procure property for them, or to abstain from advising persons not to give to them, or from preventing property from coming to them, by any act which would be lawful in third persons.

He might have solicited the testator to give Mm his estate, and not the orators, and if successful, he would not have been chargeable.

Consequently, he is not liable on account of his suggestions and advice to Mrs. Sparhawk to exercise her legal rights, and convey the property to him, unless it had passed to them so that he was chargeable wjth its custody for their benefit, and in order to charge him they must show title under the will.

The property never passed to them so that he could be charged with any duty in respect to it. The devise was subject to her right to waive the provision in the will. Having waived her rights the devise to her became void, and she took by descent.

The waiver was before any title vested in them under the will, for that passed nothing until the probate, and the waiver was before that.

By the waive!*, the devise to her became void, and her title had relation back to the death of the testator, and she took under the Statute of Distributions.

Therefore he violated no fiduciary duty in relation to the estate which she took. All that can be said is, that he might have had some influence in preventing the property from coming to them, by a bargain with her which induced her to assert her legal rights. Most persons would not hesitate to do this, and why should the guardian ? There was no interest which' he was bound to protect, and he had no duty to perform in relation to the property.

It may be remarked that even in the absence of fraud, a person holding a fiduciary relation is precluded from doing certain things for his own benefit, which strangers might do for their benefit. If a guardian buy up the incumbrances on his ward’s estate at an under value he must not charge the ward with more than he paid. 2 Ch. Cas. 245. But a stranger may do this, and the reason why a guardian may not is derived from considerations of public policy. It is held in Hatch v. Hatch, 9 Vesey, 292, that such considerations should weigh in a case where a conveyance was made by the ward to the guardian, and upon considerations of public policy the conveyance was set aside after a great lapse of time. Lord Hldon said, — “ If the court does not watch these transactions with a jealousy almost invincible, in a great majority of cases it will lend its assistance to fraud.” In Whichcote v. Lawrence, 5 Ves. 750, Lord Loughborough said, — “ It is very plain in point of equity, and a principle of clear reasoning, that he who undertakes to act for another in any matter, shall not in the same matter act for himself. He is not acting with that want of interest, that total absence of temptation, that duty imposed upon him, that he shall make no profit. In whatever shape that profit redounds to him, whether by management, which is the common case, or by superior good fortune, it is not fit that the benefit shall remain to him.” So executors cannot for their own benefit buy the debts of the creditors, although the transaction may he morally right, because the policy of the law makes it impossible for them to do any thing for their own benefit. Lacey, ex parte, 6 Vesey, 628. A trustee in a renewable lease endeavored fairly and honestly to treat for a renewal on account of the cestui que trust, but the lessor positively refused to renew to him, and the trustee then took the lease for himself. But it was held to be so difficult to be certain that in such cases there was not management, that the trustee was not permitted to hold it, though, as Lord Chancellor King said, “ it might seem hard that the trustee was the only person of all mankind who could not hold the lease.” Keech v. Sandford, 3 Eq. Ca. Ab. 78. Speaking of this case Chancellor Kent says in Davoue v. Fanning, 2 Johns. Ch. Rep. 260, that the decision has never been questioned, and also says, “ if we go through all the cases, I doubt whether we shall find the rule and the policy of it laid down with more clearness, strictness, and good sense.” The case of Keech v. Sandford, is stated by Lord Eldon in Ex parte James, 8 Vesey, 345, and he says, that the doctrine as to purchases by persons having a confidential character stands much more upon general principle than upon the circumstances of any individual case. It would seem that after the refusal of the lessor to renew the lease, the trustee ceased to be such as to the lease, but that made no difference. In Whelpdále v. Oookéon, 1 Yes. Sr. 9. Lord Kardwicke said that where a trustee has a prospect of advantage to himself, there is a great temptation to be negligent, and to act in such a manner as not quite to fix an imputation upon him. In Davoue v. Fanning, Chancellor Kent, says, in speaking of a purchase by a trustee from a cestui que trust “ however innocent the-purchase may be in the given case, it is poisonous in its consequences.” In Fx parte James, a solicitor to the bankrupt commission was not permitted to purchase the property at auction, and this decision was expressly put, not on the ground of want of fairness, but on the general principle that the solicitor had a confidential character. In Davoue v. Fanning, Chancellor Kent says that the principle pervades the whole body of the cases, that the question is not whether there was or was not fraud in fact. The case of the York Buildings Co. v. Mackenzie, 8 Brown’s Par. Cases, shows how far the principle has been carried. The estates of an insolvent company were sold by auction at a price fixed by the court, and called the upset price, founded upon information procured by a person called in the Scottish courts “ the common agent.” He bid the upset price, no one offering more, and the sale was confirmed by the court, and he expended, in the course of eleven years, large sums for buildings and improvements, and there was no question as to the fairness and integrity of the purchase. The reasons stated by the appellant were, that he who is intrusted with the interests of others, cannot make the business an object to himself, because from the frailty of nature, one who has power will be too readily seized with the inclination to serve his own interest at the expense of those for whom he is intrusted ; that the danger of temptation, from the necessity of the case, works a disqualification, and that the wise policy of the law had therefore rendered the person who had the one part intrusted to him incapable of acting on the other side. All the principles above-stated are recognized in their fullest extent in the case of Davoue v. Fanning, where, after a very able analysis of the authorities, the Chancellor decided that if a trustee, or person acting for others, purchase the trust estate, the cestui que trust will be entitled to have the sale set aside as of course, however fair the transaction may have been. And in 1 Story, Eq. Jur. § 323, the same result is said to follow from the authorities.

The gist of the defendant’s argument is, that as the property never vested in the orators, he was not a trustee for them, and occupied no fiduciary position in relation to the property, and consequently was as free to make a bargain about it for his personal emolument as a stranger would be. If no broader view than this of the duties of a guardian can be taken, the position is correct. The authorities referred to, show the extreme jear lousy with which the courts watch the proceedings of any one, who, being intrusted with the charge of the interest of others, attempts to make his charge a source of personal profit. Nothing can be more pointed than the language of the eminent lawyers who have discussed the question. Some of the cases have a direct bearing upon the present one. In the York Buildings Co. v. Mackenzie the u common agent ” was not a trustee until, by making the business one of personal emolument, he made himself a trustee. He was merely appointed to look after the interests of the parties concerned... Was not Allen appointed to look after the interest of the orators, his wards ? In the case of the renewal of the lease, Keech v. Sandford, the cestui que trust was not injured because the lessor refused to renew it for his benefit, and it would seem that then the trust ceased, but the general interests of justice were held to require, as Lord Eldon said, that such transactions should not exist. Here, the wards were injured and the guardian was benefited. Is there nothing here by which the interests of justice may be supposed to be perilled ? In the case of the joint devisee who bought in the adverse title, Van Horne v. Fonda, the purchaser was not bound to look after the interests of his co-devisee, but he was not permitted to do any thing to injure them, and to benefit himself. Simply as a co-tenant he occupied no fiduciary position which did not exist much more decidedly in the present case.

But it is said that the orators had no vested interest in this property. Supposing this position to be sound, is this a safe criterion by which to judge of the propriety of the guardian’s conduct ? Is he not bound upon every principle to look after a contingent remainder, which may be of the last consequence to his wards ? It is said, also, that he was under no obligation either as executor or as guardian to endeavor to procure property for the orators except by way of income from their estate. Let us suppose that he had been guardian only, that a stranger had been executor of the will, and that the executor had omitted to cause the will to be proved, in a case where the whole interest of his wards was of such a character that it might have been defeated by the exercise of the legal rights of a third person. Would there be no obligation in common fairness and fidelity resting upon- the guardian to take some interest in the probate of that will; to exert himself somewhat that the affairs of his wards committed to his charge should be managed with, at least, that reasonable sagacity which is applied to the ordinary business of life ? It is going sufficiently far to say, that he, may fold his arms, and sit down and let the property go where it may without perplexing himself on the subject. It certainly is not requiring an unattainable degree of perfection, to ask that he shall at least be content with doing nothing, and that he shall not be the instrument by which the property is diverted from the channel in which, but for his interference, it might have flowed, and is made a source of profit to himself. It is said that this is not the case of an agent employed to make purchases who violates his duty by buying for himself. If he were not the agent for his wards, who was ? The law prohibited them from managing this property themselves. Their contracts would be invalid. To whom, then, were they to look with confidence that their interests would be protected - and their incapacity supplied, but to their guardian ? If the law requires in a guardian neither self-denial, nor an integrity that will be above mercenary motives, nor a diligent attention, nor a single eye to the interest of his wards, why is he appointed ? If any adult, of ordinary business capacity, had been in the situation of these devisees, he might, with perfect propriety and honesty, have advised Mrs. Sparhawk that, as she was comfortably provided for by the will, it would be fitting that she should pay some regard to the wishes of her deceased -husband and permit his will to be executed according to his intentions. The guardian not only did not do this, but he did the very reverse of it. Is it asking- too much of human nature to require that he should do this; or if it be, to demand of him that he should not aid in defeating the provisions of that instrument which he was doubly bound, as executor and as guardian, to enforce ? Let us suppose that the precise course of conduct followed by the guardian could have been foreseen by the Judge of Probate when application was made to him for the appointment of Allen. Let us suppose that his conversations with Mrs. Sparhawk, the concoction of the bargain, the execution of the deeds, the omission to inform the orators of the matters in progress, and the effect of the whole upon their pecuniary interests, had been all anticipated by the Court of Probate. Ih the face of all these, would Allen have been appointed to this trust ? Would any tribunal have fancied itself employed in the administration of justice by making such a decree ? If, as we believe, such conduct would not then have been deemed justifiable, as little can it be considered proper now. A guardian is a person upon whom the law imposes the 'duty of looking after the pecuniary interest of his wards. In doing this duty he is bound to exercise at least that ordinary diligence which is applied to the common affairs of life. This, the defendant did not do, for knowing from his own account that Mrs. Sparhawk intended to take a step that would injure his ward, he did not oppose it, or advise against it, or even inform his wards of it, that they might, if they should choose, procure some person who should manifest that interest in their affairs which their guardian did not seem to feel.

The evidence tends to prove, and we do not understand it to be denied, that Allen took an important part in the transaction from the first suggestion of the purchase to the final result. Suppose, for the sake of the argument, that he used no influence over her, that he did not thrust the plan upon her, that he did not weary her with his solicitations. Still, admitting all this, he was the passive recipient of all her ideas upon the subject; he made use of no argument to dissuade her from her purpose ; he did not remind her, as he might well enough have done, that the provision made her by the will was ample for all her wants ; and he omitted for several weeks, as he says at her request, to inform the orators of the projects which he and Mrs. Sparhawk had been discussing. If such facts only had existed, and the result had been to his profit, the authorities seem to settle that he could not retain the benefit of the transaction. But he went farther than this ; and to suppose that during all this period while the matter was yet incomplete, while he was preparing the various papers for her signature, it did not stimulate his exertions to reflect that all this was very much to his own personal profit, and did not induce Mm to use one argument in favor of her purpose, would be to put an unnatural construction upon Ms conduct, and to presume that he had a greater degree of self-denial than men in general possess. And if, in omitting to communicate the proposed purchase to the orators, he was actuated solely by a regard to her wishes and not to his own interest, he was remarkably free from selfishness. But it is enough that the whole was one transaction, in which, from the beginning to the end, he was concerned; that his interest as guardian was in opposition to the purchase, and his interest as an individual was in favor of it, and that the former gave way to the latter. He was, in the large sense of the word, an agent, intrusted with important interests, which, upon every consideration it, was his duty to guard. And we do not thiifk that the limits of his duty are to be determined by the technical character of those interests, or that he was free to act as he chose, provided they could not be transferred by deed, or recovered in a writ of entry.

The judgment of the court is, that the purchase by the guardian was, under the circumstances, illegal, and he cannot derive any benefit from it. He must be regarded as having purchased the property of Mrs. Sparhawk for the benefit of his wards. We shall not, of course, interfere with any contract he might lawfully make with her. The consideration for Allen’s contract was entire, and he should not be compelled to perform it if he is to lose any part of the consideration. If the orators adopt his contract they must take it cum onere. All the property he received from Mrs. Sparhawk is chargeable with the burden' of his contract, and the surplus income, after performing the contract, belongs to the orators. Under the circumstances, he should have an election. He may, within sixty days, elect to hold the property as trustee for the orators, charging the income with the support of Mrs. Sparhawk, and with the annuity to her brother, and accounting to them for the surplus ; or he may convey to them by a deed, with proper covenants against any incumbrances made by him, all the property he received from Mrs. Sparhawk, except so much as she would be entitled to under the will: and there must be a decree accordingly.