Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-08-28

the property of said estate to the devisees
named in the will of said Jane Wilson, de-
ceased-two minors, who were the children
OF said deceased and said executor ". c.
Wilson. That decree of distribution,
through inadyertence, never was in fact
entered, although both Wilson and his at
tOTney supposed that it had been. Acting
under that impression, Wilson subsequently
applied for letters of guardianship of the
perst rs and estates of his said children,
and was by Judge Clark appointed such
and duly qualified, giving bond in the
sum Of $50, 600. That thereafter, and from
the time of his said appointment as guard
ian, Wilson acted upon the hypothesis and
in the belief that he held said property in
his character of guardian and no longer as
executor of the estate Of Jane Wilson, de-
ceased.
That subsequently, on the 18th day of Oc-
tober, 1882, the said property, exclusive of
124 shares of the capital stock of the Bank
OF Woodland, was as follows:
Cash on deposit in Bank Of Woodland. 1854 90
Principal due on notes past due....... Il, l9l So
Principal due on notes not matured.... 2, 493 81
Total of interest due on all notes to Oc-
tober 2,oZ5 81
One county warrant for small amount
was included in the above statement.
There were thirteen notes in ell, three Of
which were unsecured the others were Sc
cured by mortgages. Ten Of the notes were
past due and about to be taken up; two
were due in a few months, and one had
eight months to run before maturity. The
s., 544 cash on deposit had accumulated
within a short time before from payments
made from time to time upon notes due the
estate and was not earning any interest.
A ltiy,rr hiu OF ar,I aAvic
ing with the Cashier of the Bank of Wood
land as to whether an investment in United
States Government bonds would be a safe
and judiciOus investment of the funds in
his hands for his wards, and they advising
him that it would, and he being of that
opinion, Wilson, on the 9TH day of October,
1882, engaged the Bank of Woodland to in
vest the funds above stated, exclusive of
said bank stock, in United States 44-per-
cent. registered bonds, and directed that
such bonds be issued to him in his name as
guardian of said minors. The transaction
was this The bank took the notes and the
county, warrant and cash on deposit at the
sum of 80, 255 "A, that being their face
value, with the interest then due at that
date-the 18th of October-and with this
sum purchased sd, 900 OF United States
registered 4!-per-cent. bonds at the then
market price of 49,, which made them
cost 81, S34, and left balance to the credit
of the estate of $40 "A.
The bank purchased the bonds in the
city of New York by Geographic communi-
cation. The bonds were forwarded by mail
and were received at Woodland by the
bank somewhere between the Goth and 30th
OF October. Wilson being notified of their
receipt, called at the bank on the 30th of
October and found, upon inspection, that
the bonds had been issued to him in his in
dividual name, and not as guardian, as he
had directed. This, the Cashier explained,
had occurred through some mistake. Will
son had at this time made arrangements to
90 East on that day-the 30th of October
on a trip to Indiana. on private business, to
be gone an uncertain length Of time. He
expressed his dissatisfaction TO the Cashier
of the bank, as well as some concern lest
his bondsmen on his bond as guardian
might be displeased with the fact that
these bonds were in his individual name;
The Cashier suggested that he could avoid
any difficulty on that point, and then drew
UP a written declaration OF that date in re-
lation TO the ownership of said bonds,
which Wilson signed, and left the same
with the bonds and bank stock at the bank
for safe keeping, until he should return
from the East. This declaration was in the
following words:
WOODLAND, october So 1852.
To the Bank Of Woodland: The United States
AZ Government bonds, amounting TO 81 600, at
cost of 81 1877 per hundred, in your possession,
and ia shares of your bank stock belongs to
the heirs of Jane Wilson, deceased. You Will
please not deliver or assign the said bonds or
stock upon my order or the order OF anyone
without the full and free consent of the parties
who have signed my guardianship bond.
(Signed) W. C. WILSON.
OF the said bank stock 10 shares stood at
this time in the name Of Wilson, as guar
dian So shares of the same stood in the
name of George Snodgrass. Who was the
father of Jane Wilson: and 30 shares stood
in the name of Jane Wilson. The So shares
had been left by George Snodgrass, i'll his
last will, 10 Jane Wilson, and the latter
had acc aired the 90 shares in her lifetime,
and Wilson had left said stock standing I'M
changed during the administration.
1t is manifest from this evidence, and the
findings of the Court thereunder-which
in all material particulars are in substan-
tial accord there with-that the Court, in its
conclusion that Wilson had mismanaged
said estate, proceeded upon the assumption
that, as mater Of law, Wilson, at the date
of said transactions, still held said property
and was accountable for the same, as exc
cutor OF the estate of Jane Wilson, deceased;
and that, taking control OF the same in his
character OF guardian, and investing the
funds in other securities without any order
of Coart therefor, and afterwards deposit
ing the securities in his own name as
guardian, was wholly unauthorized, and
was i'll law conversion OF the funds oi
said estate to purpose other than that con-
templated by his trust as executor, and
! IF 4
estate.
But in assuming such to be the law, the
Court, in my judgment, fell into error. Al
this time Wilson's final account as executor
of the estate of Jane Wilson, deceased
showing payment of all debts and expenses
of administration, had been heard and set
tied, and the balance remaining in his
hands for distribution to the devisees def
nitely ascertained ard fixed. That balance
was entirely personal property, and the
persons 10 whom il was to go were def
nitely ascertained ky the will of the de-
ceased. Thereupon Wilson, the executor
of said will, was appointed the guardian oil
the persons and estates Of those minors
who were 10 take the property of the estate
of which he was the executor.
Under these circumstances, Immediately
upon his qualification as guardian of said
minors, Wilson became, by operation OF
law, invested with the possession of said
property and the right to manage and cen
troll the same in his character of guardian.
And the fact that the decree of distribution
hin the estate of Jane Wilson, deceased, had
not in fact been entered, and that Wilson,
by reason of not having been discharged,
retained his character of executor for GER
tain purposes, makes no difference in this
respect.
The rule is thus unequiyocally stated by
the Court in the case Of Seegar VS. the State
e Harris Il johnson, 1922, reported in IA
Am. Dec, 265:
- 1t is an established principle OF law,
that where the same person who acts as the
administrator of a deceased party is APP
pointed guardian of the representatives
that whatever balance is in his hands at
the rendition of final account land per
haps even prior to that time) is in his
/ hands and possession, not as administra-
tor Of the deceased, but as guardian 10 the
representatives. This transfer is by cper-
alton of law. The administrator having
in his hands a balance that ought TO be
paid over to the guardian. and one person
representing both those characters, he can
not pay the money over to himself; nor if
the payment was refused is there any per-
son who could enforce it. Under these
circumstances, the law by implication con-
siders it in the hands and possession of the
party in that representative character that
ought to receive it." (See also. Bell VS..
People 81 Ills. go; Taylor vs.. Deblois, 4
Mason, 131; Weir vs.. People, IS Ills. 1872. J
And under such circumstances the sureties
IN tho hoDd Of the eyprittor or aJr,;,;,,r,