Willard v. Fairbanks

8 R.I. 1

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1861
• Status: Published

Opinion

Bratton, J.

This action is brought, not against the ward, but against the guardian personally, counting upon several promises of the ward. The defendant by his plea in bar alleges, that, as to the claim set forth in the first count, it was presented to him, as guardian, within the six months after his appointment, duly allowed by him, and reported to the Probate Court; and as to the other claims, that none of them were presented to him within the time allowed by law, and that he has not paid all the debts of his ward, — so that he does not know, and cannot tell, whether there will be. a surplus. To this plea the plaintiff has demurred.

The plaintiff, in support of the demurrer, objects to the sufficiency of the plea in this, that it does not allege that there is no surplus property in his hands, as guardian, and that it is not sufficient to allege simply that he cannot tell whether there will be a surplus or not, and that, because he has not paid all' the debts of the ward. If it were necessary for the defendant to aver this negative fact, and the burthen were on him to show that no surplus existed, we think, clearly, it is not sufficiently set forth in this plea,, and that the defendant should have averred directly the want of such surplus..

Section 24 of Chap. 138, Of Guardian and Ward, provides, that “ every creditor of the ward shall exhibit his claim to the guardian within the term of six months after notice given” to exhibit them, “ or he shall be forever barred of all claim therefor against the guardian, unless there shall be surplus property in his hands, after paying all debts, and expenses, and allowances .made by the Court of Probate.” It was not necessary for the plaintiff to anticipate the defence to be set up in the suit, by averring in his declaration the fact, that he exhibited his claim to the guardian within the time prescribed; though' he could not recover if his neglect to do so is made to appear, but it is matter of defence to be pleaded; and the terms of this section of the act declare, that such neglect shall bar the action, unless avoided by the fact, that there remains a surplus in the guardian’s hands, for the payment of the claim. If there be, in fact, such surplus, the-plaintiff may reply to the defendant’s plea, and.thus avoid the bar which the act provides.

It was quite sufficient for the defendant to have averred, that the plaintiff did not exhibit his claim within the time prescribed, since such neglect is declared a bar to his action; and all the other aveiments of the plea may be treated as surplusage.

Tbe defendant need not anticipate tbe plaintiff’s reply, any more tban the plaintiff - need tbe plea of tbe defendant. Tbe burthen is upon tbe plaintiff to avoid tbe bar, by showing that there is, notwithstanding bis neglect, in the bands of tbe guardian means to- pay tbe debt now demanded. Tbe plea, therefore, is sufficient, and would be, upon tbe assumption that an action-could be sustained against a guardian, personally.

But this demurrer brings in question tbe sufficiency of tbe declaration. Tbe plaintiff has counted against tbe guardian, personally, upon tbe promises of tbe ward, and not against tbe ward, who made them; and tbe question is, if such an action can be maintained. If this question were now for tbe first time raised, we should find no difficulty in overruling tbe position of tbe plaintiff, that tbe statute authorizes or requires a suit against a guardian, personally, for tbe ward’s debts. Tbe analogy upon which tbe plaintiff lays great stress, entirely fails; — that of executors and administrators. In such cases, tbe testator or intestate being no longer in esse, thei’e is no person, other tban tbe executor or administrator, against whom an action can be brought to try tbe right; — and so, from tbe necessity of tbe case, tbe action must be against him. In such case, also, tbe title and interest in tbe estate personally devolves upon, and vests in, tbe executor or administrator. But it is not so in tbe case of guardian and ward. Tbe original possessor and debtor is still in existence, and may be sued. Tbe title to tbe property, real and personal, remains in tbe ward, as before tbe appointment of tbe guardian. Though tbe guardian is vested with a power, over the person it may be, and over tbe estate of tbe ward, be has no interest in any portion of it. But we consider this point as settled in this court, long since, by tbe case of Arnold v. Angell, 1 R. I. 289 ; in which it was held, that, as tbe statutes then stood, all actions for tbe debts of tbe ward must be against tbe ward; and that tbe statutes did not intend to subject tbe guardian to a judgment for tbe ward’s debts. Since tbe decision referred to, tbe words “ against tbe guardian ” have been introduced into tbe 25th section of chapter 188 of tbe Revised Statutes. That section provides, that no action shall be sustained against a guardian within twelve months after his appointment, &c., unless the claim exhibited is wholly, or in part, rejected by the guardian, “in which case, the creditor may bring his suit forthwith.” Thus stood the provision, prior to the revision in 1857. After the word “forthwith,” were, in that revision, added, the words “ against the guardian.’’ It is insisted that these words, in this connexion, show an intent that the action should be against the guardian personally. The added words are no material addition to the implication arising from the limitation of suit for one year, in the former part of this section, and which were not held sufficient to warrant a suit against any other person than the ward. But if the language of the section should be held to require a suit against the guardian, personally, it must be confined to the cáse provided, viz.: one in which the claim has been rejected by the guardian, in whole or in part. We agree with the counsel for the defendant, that a right to sustain such an action must be given by statute, if it exist at all, and could not rest upon a rule of the common law. No one of the plaintiff’s claims has been rejected, either in whole or in part; so that she would not fall within this special provision, if held to be in her favor. The allowance, by the guardian, of a claim presented to him, as required, does not authorize, and was not intended to authorize, a suit for the' debt so allowed. It was intended as one mode of ascertaining the debt of the ward, so that thenceforth, it would be the duty of the guardian, to apply the property of the ward to its payment, as the Court of Probate should order ; and upon his refusal, to render him liable to suit upon his bond, for refusal to perform that duty.

Upon this demurrer, the declaration being found to be bad, judgment must be rendered for the defendant, for his costs.