« EelmineJätka »
concurring and three dissenting, he says: “It cannot GRAY, J. This is an appeal by the executor of a be said that the contract related to any estate she then
guardian from a decree against him upon a bill in held, nor in view the findings was it for the benefit equity filed by the administratrix of his ward. The of such estate.” This case was argued and decided in original bill, filed on July 1, 1875, by Ann C. Sims, a 1874. The later case of Tiemeger v. Turnquist, 83 N. citizen of Alabama, as administratrix of Martha M. Y. 516, where the wife bought groceries for the family Sims, in the Supreme Court of the State of New York, including her husband upon her sole credit, charging alleged that on December 11, 1855, the defendant's with the payment thereof her interest in a policy of testator, Gazaway B. Lamar, was duly appointed by insurance upon the life of her husband, payable upon the surrogate of the county of Richmond, in that State, his death to her if she survived him, but if not, then guardian of the person and estate of Martha M. Sims, to their children, decides that she was liable, although an infant of six years of age, then a resident of that the attempted charge upon her said contingent estate county, and gave bond as such, and took into his posshould be considered void as incapable of being legally session and control all her property, being more than charged. Finch, J., who delivered the opinion, says: $5,000; that on October 5, 1874, he died in New York, “The amendment of 1862 allows a married woman to and on November 10, 1874, his will was there admitted hold as her separate property that which she acquires to probate, and the defendant, a citizen of New York, by purchase,” meaning of both real and personal prop
was appointed his executor; and that he and his exerty, and without considering her liability in other ecutor had neglected to render auy account of his cases. And yet in the aforesaid case of the Manhattan guardianship to the surrogate of Richmond county, or Co., might it not well be deemed that the wifo to any court having coguizance thereof, or to the ward purchased said lamp cases, through the agency of her or her administratrix; and prayed for an account, and husband?
for judgment for the amount found to be due. Coulin v. Cantrell, 64 N. Y. 217, holds that the intent
The defendant removed the case into the Circuit to charge the separate estate may be inferred entirely
Court of the United States for the Southern District from the surrounding circumstances.
of New York, and there filed an answer, averring that But by force of the act of 1884 the law and learning in 1855, when Lamar was appointed guardian of Marupon this subject will soon be swept completely away,
tha M. Sims, he was a citizen of Georgia, and she was to join the great mass gone before, never to be resur a citizen of Alabama, having a temporary residence in reoted.
the city of New York; that in the spring of 1861 the J. B. DALEY. States of Georgia aud Alabama declared themselves to
have seceded from the United States, and to consti
tute members of the so-called Confederate States of TRUST AND TRUSTEE--RULE AS TO INVEST America, whereupon a State of war arose between the HEIT.
United States and the Confederate States, which con
tinued to be flagrant for more than four years after; SUPREME COURT OF THE UNITED STATES, that Lamar and Martha M. Sims were in the spring of DECEMBER 1, 1884.
1861 citizens and residents of the States of Georgia and
Alabama respectively, and citizens of the Confederate LAMAR V. Micou.*
States, and were engaged in aiding and abetting the The war of the rebellion, and the residence of both guardian
State of Georgia and the so-called Confederate States and ward in the enemy's territory throughout the war,
in their rebellion against the United States, and she did not terminate the obligation of a guardian appointed
continued to aid and abot until the time of her death, before the war in a State never within that territory, nor
and he continued to aid and abet till January, 1865; discharge him from liability to account to the ward in the
that the United States, by various public acts, decourts of that State after the war.
clared all his and her property, of any kind, to be liaA guardian, appointed in New York, before the war of the
ble to seizure and confiscation by the United States, rebellion, of an infant then temporarily residing there,
and they both were, by the various acts of Congress of but domiciled in Georgia, sold bank stock of his ward in
the United States, outlawed and debarred of any acNew York during the war, and there invested the pro
cess to any court of the United States, whereby it was ceeds in bonds issued before the war by the cities of Mo
impossible for Lumar to appear in the Surrogate's bile, Memphis, and New Orleans, and in bonds issued by
Court of Richmond county to settle and close his aca railroad corporation chartered by the State of Tennes
counts there, and to be discharged from his liability as whose road was in Tennessee and Georgia, and
guardian, in consequence whereof the relation of the railroad bonds indorsed by the State of Tennessee at
guardian and ward, so far as it depended upon the the time of their issue; and deposited the bonds in a bank
orders of that court, ceased and determined; that for in Canada. Ileld, that if in so doing he used due care and
the purpose of saving the ward's property from seizprudence, having regard to the best pecuniary interests of
ure and confiscation by the United States, Lamar, at his ward, he was not accountable to the ward for loss by
the request of the ward and of her natural guardians, depreciation of the bonds, although ono ohject of the sale
all citizens of the State of Alabama, withdrew the and investment was to save the ward's money from con
funds belonging to her from the city of New York, and fiscation by the United States.
invested them for her benefit and account in such seAn investment hy a guardian, of money of his ward, during
curities as by the laws of the States of Alabama and the war of the rebellion, and while both guardian and
Georgia and of the Confederate States he might lawward were residing within the enemy's territory, in bonds
fully do; that in 1864, upon the death of Martha M. of the so-called Confederate States, was unlawful, and the
Sims, all her property vested in her sister, Ann C. guardian is responsible to the ward for the sum so Sims, as her next of kin, and any acccounting of Lainvested.
mar for that property was to be made to her; that on March 15, 1867, at the written request of Ann C. Sims
and of her natural guardians, Benjamin H. Micou was States for the Southern District of New York.
appointed her legal guardian by the Probate Court of The opinion states the case.
Montgomery county, in the State of Alabama, which E. N. Dickerson, for appellant.
was at that time her residence, and Lamar thereupon S. P. Nash and Geo. C. Lloll, for appellee.
accounted for and paid over all property with which
he was chargeable as guardian of Martha M. Sims, to *S. C., 5 Sup. Ct. Rop. 221.
Micou, as her guardian, and received from him a full
release therefor; and that Ann C. Sims, when she be administratrix, of which one-third belonged to her as came of age, ratified and confirmed the same. To that his widow, and one-third to each of the infants. In answer the plaintiff filed a general replication.
January, 1836, the bank refused a request of Lamar to The case was set down for hearing in the Circuit transfer one-third of that stock to him as guardian of Court upon the bill, answer and replication, and a each infant, but afterward paid to him as guardian, statement of facts agreed by the parties, in substance from time to time, two-thirds of the dividends duras follows:
ing the life of Mrs. Abercrombie, and all the dividends On November 23, 1850, William W. Sims, a citizen of after her death until 1865. During the period last Georgia, died at Savannah, in that State, leaving a named, he also received as guardian the dividends on widow, who was appointed his administratrix, and two some other bank stock in Savannah, which Mrs. Aberinfant daughters, Martha M. Sims, born at Savannah crombie owned, and to which on her death her huso on September 8, 1849, and Ann C. Sims, born in Florida band became entitled. Certain facts relied on as showon June 1, 1851. In 1853 the widow married the Rer. ing that he immediately after his wife's death made a Richard M. Abercrombie, of Clifton, in the county of surrender of her interest in the bank shares to Lamar, Richmond and State of New York. On December 11, as guardian of her children, are not material to the 1855, on the petition of Mrs. Abercrombie, Gazaway understanding of the decision of this court, but are B. Lamar, an uncle of Mr. Sims, and then residing at recapitulated in tho opinion of the Circuit Court. 7 Brooklyn, in the State of New York, was appointed Fed. Rep. 180-185. In the winter of 1861-62, Lamar by the surrogate of Richmond county guardian of the fearing that the stock in the Bank of the Republic at person and estate of each child “until she shall arrive New York, held by him as guardian, would be confisat the age of fourteen years, and until another guard- cated by the United States, had it sold by a friend in ian shall be appointed;" and gave bond to her, with New York; the proceeds of the sale, which were about sureties, “to faithfully in all things discharge the duty 20 per cent less than the par value of the stock inof a guardian to the said minor according to law, and vested at New York in guarantied bonds of the cities render a true and just account of all moneys and of New Orleans, Memphis, and Mobile, and of the other property received by him, and of the application East Tennessee & Georgia Railroad ('ompany, and thereof, and of his guardianship in all respects, to any those bonds deposited in a bank in Canada. Lamar court having cognizance thereof;” and he imme from time to time invested the property of his wards, diately received from Mrs. Abercrombie in money $5, that was within the so-called ('onfederate States, in 166.89 belonging to each ward, and invested part of it whatever seemed to him to be the most secure and in January and April, 1856, in stock of the Bank of the safe-gome in Confederato States bonds, some in the Republic at New York, and part of it in March and bonds of the individual States which composed the July, 1857, in stock of the Bank of Commerce at Savan. confederacy, and some in bonds of cities, and of railnah, each of which was then paying, and continued to road corporations, and stock of banks within those pay until April, 1861, good dividends annually, the ono States. On the money of his wards, accruing from of 10 and the other of 8 per cent.
dividends on bank stock, and remairing in his hands, Iu 1856, several months after Lamar's appointment he charged himself with interest until the summer of as guardian, Mr. and Mrs. Abercrombio removed from 1862, when with the advice and aid of Mr. Micou, he Clifton, in the State of New York, to Hartford, in the invested $7,000 of such money in bonds of the ConfedState of Connecticut, and there resided till her death, erate States and of tho State of Alabama; and in 1863, in the spring of 1859. The children lived with Mr. with tho liko advice and aid, sold the Alabama bonds and Mrs. Abercrombie, Lamar as guardian paying Mr. for more than ho had paid for them, and invested the Abercrombie for their board, at ("lifton and at Hart proceeils also in ('oufederato States bonds; charged ford, from the marriago until her death; and wero his wards with the money paid, and credited them then removed to Augusta, in the State of Georgia, and with the bonds; and placed the bonds in the hands of there lived with their paternal grandmother and her their grandmother, who gave him a receipt for them unmarried daughter and only living child, their aunt; and held them till the end of the rebellion, when they Lamar as guardian continuing to pay their board. as well as tho stock in the banks at Savannah became After 1856 neither of the children ever resided in the worthless. State of New York. On January 19, 1860, their aunt Martha M. Sims died on November 2, 1861, at the was married to Benjamin II. Micou, of Montgomery, age of fifteen years, unmarried and intestate, leaving in the State of Alabama, and the children and their her sister, Ann ('. Sims her next of kin. On January graudmother thereafter lived with Mr. and Mrs. Vi- | 12, 1867, Lamar, in answer to letters of inquiry from cou at Montgomery, and the children were educated Afr. and Mrs. Micou, wrote to Mrs. Micou that he had and supported at Mr. Micou's expense. From 1855 to saved from the wreck of the property of his niece, 1859 Lamar resided partly in Georgia and partly in Ann ('. Sims, surviving her sister, three bonds of the New York. In the spring of 18ul he had a temporary city of Memphis, indorsed by the State of Tennessee, residenco in the city of New York, and upon the one bond of the city of Mobile, and one bond of the breaking out of the war of the rebellion, and after re East Tennessen & Georgia Railroad Company, each moring all his own property, left Now York, and for $1,000, and with some coupons past due and unpassed through the lines to Savannah, and there re collected; and suggested that by reason of his age and sided, sympathizing with the rebellion, and doing failing health, and of the embarrassed state of his own what he could to accomplish its success, until January, affairs, Mr. Micou should be appointed in Alabama 1855, and continued to have his residence in Savannah guardian in his stead. Upon the receipt of this letter, until 1872 or 1873, when he went to New York again, Alrs. Mioou wrote to Lamar, thanking him for the exand afterward lived there. Mr. and Mrs. Micou also plicit statement of the nieco's affairs, and for the care sympathized with the rebellion and desired its suc and trouble ho had had with her property; and Aun cess, and each of them, as well as Lamar, failed dur ('. Sims, then nearly sixteen years old, signed a reing the rebellion to bear true allegiance to the United quest, attested by her grandmother and by Mrs. Micou, States.
that her guardianship might be transferred to Mr At the time of Lamar's appointment as guardian, 10 Micou, and that he might be appointed her guardian. shares in the stock of the Mechanics' Bank of Au And on March 1.5, 1867, ho was appointed guardian of gusta, in the State of Georgia, which had belonged to her property by the Probate Court of the county of William W. Simis in his life-time, stood on the books Montgomery and State of Alabama, according to the of the bank in the name of Mrs. Abercrombie as his laws of that State, and gave bond as such. On May
14, 1867, Lamar sent to Micou complete and correct are not disputed; and upon the facts agreed, it is quite statements of his guardianship account with each of clear that none of the defenses set up in the answer his wards, as well as all the securities remaining in his afford any ground for dismissing the bill. The war of hands as guardian of either, and a check payable to the rebellion, and the residence of both, ward and Micou as guardian of Anu C. Sims for a balance in guardian, within the territory controlled by the inmoney due her; and Micou, as such guardian, signed surgents, did not discharge the guardian from his reand sent to Lamar a schedule of aud receipt for the sponsibility to account, after the war, for property of property, describing it specifically, by which it ap the wards which had at any time come into his hands, peared that the bonds of the cities of New Orleans and or which he might, by the exercise of due care, have Memphis, and of the East Tennessee & Georgia Rail obtained possession of. A State of war does not put road Company were issued, and the Memphis bonds as an end to pre-existing obligations, or transfer the well as the railroad bonds were indorsed by the State property of wards to their guardians, or release the of Tennessee, some years before the breaking out of latter from the duty to keep it safely, but suspends the rebellion. Micou thenceforth continued to act in until the return of peace the right of any oue residing all respects as the only guardian of Ann C. Sims until in the enemy's country to sue in our courts. Ward v. she became of age on June 1, 1872.
Smith, 7 Wall. 447; Montgomery v. United States, 15 id. No objection or complaint was ever made by either 395, 400; Insurance Co. v. Davis, 95 U. S. 425, 430; Kerof the wards or their relatives against Lamar's trans shaw v. Kelsey, 100 Mass. 561, 563, 564, 570; 3 Phillim. actions or investments as guardian until July 28, 1874, Int. Law (2d ed.), $ 589. The appointment of Micou in when Micou wrote to Lamar informing him that Aun 1867 by a court of Alabama to be guardian of the surC. Sims desired a settlement of his accounts, and viving ward, then residiug in that State, did not terthat he had been advised that no credits could be al minate Lamar's liability for property of his wards lowed for the investments in Confederate States which he previously had or ought to have taken possesbonds, and that Lamar was responsible for the secur sion of. The receipt given by Micou was only for the ity of the investments in other bonds and bank stock. securities and money actually handed over to him by Lamar was then sick in New York, and died there on Lamar; and if Micou had any authority to discharge October 5, 1874, without having answered the letter. Lamar from liability for past mismanagement of Before the case was heard in the Circuit Court, Ann either ward's property, he never assumed to do so. C. Sims died, on May 7, 1878, and on June 20, 1878, The suggestion in the answer, that the surviving ward Mrs. Micou was appointed, in New York, administra upon coming of age, ratified and approved the acts of trix de bonis non of Martha M. Sims, and as such filed Lamar as guardiau, fivds no support in the facts of the a bill of revivor in this suit. On October 3, 1878, the
The further grounds of defense, set up in the defendant filed a cross-bill, repeating the allegations cross-bill, that Micou participated in Lamar's investof his answer to the original bill, and further averring ments, and that Mrs Micou approved them, are equally that Ann C. Simy left a will which had been admitted unavailing. The acts of Micou, before his own apto probate in Montgomery county, in the State of pointment as guardian, could not bind the ward. And Alabama, and afterward in the county and State of admissions in private letters from Mrs. Micou to LaNew York, by which she gave all her property to Mrs. mar could not affect the rights of the ward, or Mrs. Micou, who was her next of kin, and that Mrs. Micou Micou's authority, upon being afterward appointed was entitled to receive for her own benefit whatever administratrix of the ward, to maintain this bill as might be recovered in the principal suit, and was es such against Lamar's representative, even if the topped to deny the lawfuluess or propriety of Lamar's amount recovered will inure to ber own benefit as the acts, because whatever was done by him as guardian ward's next of kin. 1 Greenl. Ev., § 179. The extent of Martha M. Sims in her life-time, or as guardian of of Lamar's liability presents more difficult questions the interests of Aun C. Sims as her next of kin, was of law, now for the first time brought before this authorized and approved by Mrs. Micou and her court. The general rule is everywhere recognized, mother and husband as the natural guardians of both that a guardian or trustee, when investing property in children. Mrs. Micou, as plaintiff in the bill of ro his hands, is bound to act honestly and faithfully, and vivor, answered the cross-bill, alleging tbat Ann suc to exercise a sound discretion, such as men of ordiceeded to Martha's property as her administratrix, and nary prudence and intelligence use in their own not as her next of kin, admitting Anu's will and the affairs. In some jurisdictions no attempt has been probate thereof, denying that Mrs. Micou was a nat made to establish a more definite rule; in others the ural guardian of the children, and denying that she discretion has been confined by the Legislature or the approved or ratified Lamar's acts as guardian. A gon courts, within strict limits. eral replication was filed to that answer.
The court of chancery, before the Declaration of In. Upon a hearing on the pleadings and the agreed dependence, appears to have allowed some latitude to statement of facts, the Circuit court dismissed the trustees in making investments. The best evidence cross-bill, held all Lamar's investments to have been of this is to be found in the judgments of Lord Hardbreaches of trust, and entered a decree referring tho wicke. He held indeed, in accordance with the clear case to a master to state an account. The case was weight of authority before and since, that money lent afterward heard on exceptions to the master's report, on a mere personal obligation, like a promissory note, and a final decree entered for the plaintiff for $18,- without security, was at the risk of the trustee. Ryder 705.19, including the value before 1861 of those bank v. Bickerton, 3 Swanst. 80, note; S. C., 1 Eden, 149, stocks in Georgia of which Lamar had never had pos note; Burney V. Saunders, 16 How. 535, 545; Perry session. The opinion delivered upon the first hearing Trusts, $ 453. But in so holding, he said: “For it is reported in 17 Blatchf. 378, and in 1 Fed. Rep. 14, should have been on some such security as binds land, and the opinion upon the second heariug in 7 id. 180. or sometbing to be answerable for it.” 3 Swanst. 81, The defendant appealed to this court.
note. Although in one case he held that a trustee, diThe authority of the Surrogate's Court of the county rected by the terms of his trust to invest the trust of Richmond and State of New York to appoint La money in government funds or other good securities, mar guardian of the persons and property of infants at was responsible for a loss caused by his investing it in the time within that county, and the authority of tho South Sea stock, and observed that neither South Sea Supreme Court of the State of New York, in which stock nor bank stock was considered a good seourity, this suit was originally brought, being a court of gen. because it depended upon the management of the gov. eral equity jurisdiction, to tako coguizance thereof, ernor and directors, and the capital might be wholly
lost (Trufford v. Boehm, 3 Atk. 440, 444); yet in another In New York, under Chancellor Kent, the rule seems case he declined to charge a trustee for a loss on South to have been quite undefined. See Smith v. Smith, 4 Sea stock, which had fallen in value since the trustee Johns. Ch. 281, 285; Thompson v. Brown, id. 619, 628, received it, and said that “to compel trustees to make 629, where the chancellor quoted the passage above up a deficiency, not owing to their willful default, is cited from Lord Hardwicke's opinion in Knight v. the harshest demand that can be made in a court of Plymouth. And in Brown v. Campbell, Hopk. Ch. 233, equity.” Jackson V. Jackson, 1 Atk. 513, 514; S. C., where an executor in good faith made an investment, West Ch. 31, 34. In a later case he said: “Suppose a
cousidered at the time to be advantageous, of the trustee, having in his hands a considerable sum of amount of two promissory notes, due to his testator money, places it out in the funds, which afterward from one manufacturing corporation, in the stock of sink in their value, or on a security at the time ap another manufacturing corporation, which afterward parently good, wbich afterward turns out not to be so, became insolvent, Chancellor Sandford held that there for the benefit of the cestui que trust; was there ever was no reason to charge him with the loss. But by the an instance of the trustees being made to answer the later decisions in that State investments in bank or actual sum so placed out? I answer, 'No.' If there | railroad stock have been held to be at the risk of the is no mala fides, nothing willful in the conduct of the trustee, and it has been intimated that the only intrustee, the court will always favor him; for as a vestments that a trustee can safely make without an trust is an office necessary in the concerns between express order of court are in government or real estate man and man, and which, if faithfully discharged, is securities. King v. Talbot, 40 N. Y. 76, affirming S. C., attended with no small degree of trouble and anxiety, 50 Barb. 453; Ackerman v. Emolt, 4 id. 626; Mills v. Hofit is an act of great kindness in any one to accept it. man, 26 Hun, 594; 2 Kent Comm. 416, note b. So the To add hazard or risk to that trouble, and subject a decisions in New Jersey and Pennsylvania tend to distrustee to losses which he could not foresee, and con allow investments in the stock of banks or other busiscquently not prevent, would be a manifest hardship, ness corporations, or otherwise than in the public and would be deterring every one from accepting so funds or in mortgages of real estate. Gray v. Fox, necessary au office." That this opinion was not based Saxt. 259, 268; Halsted v. Meeker, 3 C. E. Green, 136; upon the fact that in England trustees usually receive Lathrop v. Smalley. 8 id. 192; Worrell's Appeal, 9 Penn. no compensation is clearly shown by the chancellor's St. 508, and 23 id. 44; Hemphill's Appeal, 18 id. 303; adding that the same doctrine held good in tho case Ihmsen's Appeal, 43 id. 431. And the New York and of a receiver, an officer of the court, and paid for his Pennsylvania courts have shown a strong disinclinatrouble; and the point decided was that a receiver, tion to permit investments in real estate or securiwho paid the amount of rents of estate in his charge ties out of their jurisdiction. Ormiston v. Olcott, 84 to a Bristol tradesman of good credit, taking his bills N. Y. 339; Rush's Estate, 12 Penn. St. 375, 378. therefor on London, was not responsible for the loss In New England, and in the southern States, the of the money by his becoming bankrupt. Knight v. rule has been less strict. In Massachusetts, by a Plymouth, 1 Dick. 120, 126, 127; S. C., 3 Atk. 480. And usage of more than half a century, approved by a uni. the decision was afterward cited by Lord Hardwicke form course of judicial decision, it has come to be rehimself as showing tbat when trustees act by other garded as too firmly settled to be changed, except by bands, according to the usage of business, they are not the Legislature, that all that can be required of a answerable for losses. Ex parte Belchier, 1 Amb. 218, trustee to invest is that he shall conduct himself faith219; S. C., 1 Ken. 38, 47.
fully and exercise a sound discretion, such as men of In later times, as the amount and variety of English prudence and intelligence exercise in the permanent government securities increased, the Court of (han- disposition of their own funds, having regard not only cery limited trust investments to the public funds, to the probable income, but also to the probable disapproved investments either in bank stock or in safety of the capital; and that a guardian or trustee is mortgages of real estate, and prescribed so strict a not precluded from investing in the stock of banking, rule that Parliament interposed; and by the statutes insuranco, manufacturing, or railroad corporations of 22 & 23 Viot., ch. 35, and 23 & 24 id. 38, and by gen within or without the State. Ilarrard College v. Ameral orders in chancery, pursuant to those statutes, ory, 9 Pick. 416, 461; Lorell v. Minot, 20 id. 116, 119; trustees have been authorized to invest in stock of the Kinmonth v. Brigham, 5 Allen, 270, 277; Clark v. Garbank of England or of Ireland, or upon mortgage of field, 8 id. 427; Brown v. French, 1.25 Mass. 410; Bouker freehold or copyhold estates, as well as in the public v. Pierce, 130 id. 262. funds. Lewin Trusts (7th ed.), 282, 283, 287. In a very In New Hampshire and in Vermont, investments recent case the Court of Appeal and the House of honestly and prudently made, in securities of any kind Lords, following the decisions of Lord Hardwicke in that produce income, appear to be allowed. Knowlton Knight v. Plymouth and Ex parte Belchier, above v. Bradley, 17 N. II. 458; Kimball v. Reding, 31 N. H. cited, held that a trustee investing trust funds, who 352, 374; French v. Currier, 47 N. II. 88, 99; Burney v. employed a broker to procure securities authorized by Parsons, 51 Vt. 623. the trust, and paid the purcbase-money to the broker, In Maryland, good bank stock, as well as governif such was the usual and regular course of business of ment securities and mortgages on real estate, has persons acting with reasonable caro and prudence on always been considered a proper investment. Hamtheir own account, was not liable for the loss of the mond v. Hammond, 2 Bland, 306, 413; Gray v. Lynch, 8 money by fraud of the broker. Sir George Jessel, M. Gill, 403; Murray v. Feinour, 2 Md. ('h. 418. So in MisR., Lord Justice Bowen, and Lord Blackburn affirmed sissippi, investment in bank stock is allowed. Smyth v. the general rule that a trustee is only bound to con Burns, 25 Miss. 422. duct the business of his trust in the same manner that In South Carolina, before the war, no more definite an ordinarily prudent man of business would conduct rule appears to have been laid down than that guardhis own; Lord Blackburn adding the qualification that ians and trustees must manage the funds in their "a trustee must not choose investments other than hands as prudent men manage their own affairs. those which the terms of his trust permit.” Speight Boggs v. Adger, 4 Rich. Eq. 408, 411; Spear v. Spear, v. Gaunt, 22 Ch. Div. 1727, 739, 762; 9 App. C'as. 9 id. 184, 201; Snelling v. Jsc Creury, 14 id. 291, 1, 19.
300. In this country there has been a diversity in the laws In Georgia the English rule was never adopted ; a and usages of the several States upon the subject of statute of 18-15, which authorized executors, administrust investments.
trators, guardians, and trustees, holding any trust
funds, to invest them in securities of the State, was troduction Generale aux Coutumea, No. 19; 1 Burge not considered compulsory; and before January 1, Col. Law, 39; 4 Phillim. Int. Law (2d ed.), $ 97. 1863 (when that statute was amended by adding a pro The preference due to the law of the ward's domivision that any other investment of trust funds must cile, and the importance of a uniform administration be made under a judicial order, or else be at the risk of his whole estate, require that as a general rule, the of the trustees), those who lent the fund at interest, management and investment of his property should be on what was at the time considered by prudent men governed by the law of the State of his domicile, esto be good security, were not held liable for a loss pecially when he actually resides there, rather than by without their fault. Cobb Dig. 333; Code 1861, § the law of any State in which a guardian may have 2308; Brown v. Wright, 39 Ga. 96; Moses v. Moses, 50 id. been appointed or may have received some property 9, 33.
of the ward. If the duties of the guardian were to be In Alabama the Supreme Court in Bryant v. Craig, exclusively regulated by the law of the State of his ap12 Ala. 354, 359, having intimated that a guardian pointment, it would follow that in any case in which could not safely invest upon either real or personal se the temporary residence of the ward was changed curity without an order of court, tbe Legislature from from State to State, from considerations of health, 1852 authorized guardians and trustees to invest on education, pleasure or convenience, and guardians bond and mortgage, or on good personal security, with were appointed in each State, the guardians appointed no other limit than fidelity and prudence might re
in the different States, even if the same persons, might quire. Code 1852, § 2024; Code 1867, § 2426; Foscue v. be held to diverse rules of accounting for different Lyon, 55 Ala. 440, 452.
parts of the ward's property. The form of account. The rules of investment varying so much in the dif ing, so far as concerns the remedy only, must indeed ferent States, it becomes necessary to consider by be according to the law of the court in which relief is what law the management and investment of the sought; but the general rule by which the guardian is ward's property should be governed. As a general to be held responsible for the investment of the ward's rule (with some exceptions not material to the consid-property is the law of the place of the domicile of the eration of this case) the law of the domicile governs
ward. Bar Int. Law, $ 106 (Gillespie's translation), p. the status of a person, and the disposition and manage 438; Whart. Confl. Laws, $ 259. It may be suggested ment of his movablo property. The domicile of an in
that this would enable the guardian, by changing the fant is universally held to be the fittest place for the domicile of his ward, to choose for himself the law by appointment of a guardian of his person and estate;
which he should account.
The father, and although for the protection of either, a guardian may after his death the widowed mother, being the natural be appointed in any State where the person or any guardian, and the person from whom the ward derives property of an infant may be found. On the conti his domicile, may change that domicile. But the ward ment of Europe the guardian appointed in the State does not derive a domicile from any other than a natuof the domicile of the ward is generally recognized as ral guardian. A testamentary guardian nominated by entitled to the control and dominion of the ward and the father may have the same control of the ward's his movable property everywhere, and guardians speci domicile that the father had. Wood v. Wood, 5 Paige, ally appointed in other States are responsible to the 596, 605. And any guardian appointed in the State of principal guardian. By the law of England and of this the domicile of the ward has been generally held to country, a guardian appointed by the courts of one have the power of changing the ward's domicile from State has no authority over the ward's person or prop one county to another within the same State and unerty in another State, except so far as allowed by the der the same law. Cutts v. Haskins, 9 Mass. 543; Holcomity of that State, as expressed through its Legisla- | yoke v. IIaskins, 5 Pick. 20; Kirkland v. Whately, 4 ture or its courts; but the tendency of modern statutes Allen, 462; Anderson v. Anderson, 42 Vt. 350; Ex parte and decisions is to defer to the law of the domicile,and Bartlett, 4 Bradf. 221; The Queen v. Whitby, L. R., 5 to support the authority of the guardian appointed Q. B., 323, 331. But is very doubtful, to say the least, there. Hoyt v. Sprague, 103 U. S. 613, 631, and au wbother even a guardian appointed in the State of the thorities cited; Morrell v. Dickey, 1 Johns. ('h. 153; domicile of the ward (not being the natural guardian Woodworth v. Spring, 4 Allen, 321; Milliken v. Pratt, or a testamentary guardian), can remove the ward's 125 Mass. 374, 377, 378; Leonard v. Putnam, 51 N. HI. domicile beyond the limits of the State in which the 247; Com. v. Rhoads, 37 Penn. St. 60; Sims v. Renwick, guardian is appointed, and to which his legal authority 25 Ga. 58; Dicey Dom. 172-176; Westl. Int. Law (:22 is confined. Douglas v. Douglas, L. R., 12 Eq. 617, 625; ed.) 48-50; Whart. Conil. Laws (20 ed.), SS 259–268. An Daniel v. Ilill, 52 Ala. 430; Story Conf. Laws, $ 506, infant cannot change his own domicile. As infants noto; Dicey, Dom. 100, 132. And it is quite clear that have the domicile of their father ho may chango a guardian appointed in a state in which the ward is their domicile by changing his own;
and temporarily residing cannot change the ward's permaafter his death the mother, while she re nent domicilo from one State to another. The case of mains a widow, may likewise, by changing her domi such a guardian differs from that of an executor of or cile, change the domicile of the infants; the domicile a trusteo under a will. Iu the one case the title in the of the children, in either case, following the independ property is in the executor or the trustee; in the other ent domicile of their parent. Kennedy 7. Ryall, 67 the title in the property is in the ward, and the guardN. Y. 379; Potinger v. Wightman, 3 Mer. 67; Dedham ian has only the custody and management of it, with v. Natick, 16 Mass. 135; Dicey Dom. 97–99. But when power to change its investment. The executor or trusthe widow, by marrying again, acquires the domicile tee is appointed at the domicil of the testator; the of a second husband, she does not, by taking her chil guardian is most fitly appointed at the domicile of the dren by the first husband to live with her there, make ward, and may be appointed in any State in which the the domicilo which she derives from the second hus person or any property of the ward is found. The band their domicile; and they retain the domicile general rule which governs the administration of the which they had, before her second marriage, acquired property in the one case may be the law of the domi from her or from their father. Cumner v. Milton, 3 cile of the testator; in the other case it is the law of Salk. 259; S. C., Holt, 578; Freelown v. Taunton, 16 the domicile of the ward. Mass. 52; School Directors v. James, 2 Watts & S. 568; As the law of the domicile of the ward bas no extraJohnson v. Copeland, 35 Ala. 521; Brown v. Lynch, 2 territorial effect, except by the comity of the State Bradf. 214; Mears v. Sinclair, 1 West Va. 185; Pot. In where the property is situated, or where the guardian