Newton v. Nutt , 58 N.H. 599 ( 1879 )

It is the duty of the guardian to take care of the person of his ward, improve his estate, apply the income to his support, collect his dues, pay his debts, and protect his rights. Gen. St., c. 165, s. 3. It is the right of the ward to sue and be sued, prosecute and defend, by his guardian. Gen. St., c. 165, s. 4. The relation between the guardian and ward is that of a trustee and cestui que trust, but the trust is not one which gives to the guardian the legal title to the ward's estate, as in case of administrators, executors, and trustees appointed by deed, by will, or by the court. The guardian's duties entitle him to the possession of the ward's property, but his possession is the possession of the ward in whom the legal title remains. The power of the guardian is a naked trust not coupled with an interest. Tenney v. Evans, 11 N.H. 346; S.C., 14 N.H. 343,350, 351; Granby v. Amherst, 7 Mass. 1, 5; Manson v. Felton, 13 Pick. 206, 211.

When the right of action depends upon possession merely, and the possession of the property is actually with the guardian, the suit may be in the guardian's name. Pond v. Curtiss, 7 Wend. 45; Truss v. Old, 6 Rand. 556;; Bacon v. Taylor, Kirby, 368; Fugua v. Hunt, 1 Ala. 197; Sutherland v. Goff, 5 Port. 508; Field v. Lucas, 21 Ga. 447. So, too, if the action is on a contract to be performed with the guardian personally, or for the payment of money to him by name. Boardman v. Roger, 17 Vt. 589; Gage v. Kendall, 15 Wend. 640; Mauran v. Lamb, 7 Cow. 174; Pearce v. Austin, 4 Whart. 489; Joliffe v. Higgins, 6 Munf. 3; Baker v. Ormsby, 5 Ill. 325.

But debts and demands generally, in which the ward has a direct beneficial interest, should be sued in the name of the ward by his guardian. Hutchins v. Dresser, 26 Me. 76; Winslow v. Winslow, 7 Mass. 96; Blanchard v. Ilsley, 120 Mass. 487; Bradley v. Amidon, 10 Paige Ch. 235; Stratton's Case, 1 Johns. 509; Totten's Appeal, 46 Pa. St. 301; Longstreet v. Tilton, 1 Coxe 38; Carskadden v. M'Ghee, 7 Watts Serg. 140; Stewart v. Crabbin, 6 Munf. 280; Barnet v. Commonwealth, 4 J. J. Marsh. 389; Hoare v. Harris, 11 Ill. 24; Fox v. Minor, 32 Cal. 111; Hanly v. Levin, 5 Ohio 228; Hines v. Mullins, 25 Ga. 696; 3 Redf. on Wills, title Guardian, s. 55, 2; Schouler Dom. Rel. 462, 463.

The ward did not perform the labor sued for by the plaintiff as the plaintiff's servant, and the plaintiff had no interest in the claim which entitled him to sue upon it in his own name.

Demurrer sustained.

CLARK, J., did not sit: the others concurred.