Glassell v. Glassell

McFARLAND, J.

The deceased, Andrew Glassell, was the father and the guardian of the person and estate of the plaintiff herein, and this action is brought for the recovery of money alleged to be due from deceased as such guardian. The ease was tried without a jury, and the court made findings and rendered judgment in favor of plaintiff for a certain sum of money found to have been due. by the deceased as such guardian to the plaintiff. From this judgment and from an order denying their motion for a new trial defendants appeal.

The deceased was appointed and qualified as guardian of plaintiff .in September, 1880, at which time plaintiff was a

[511]

minor. He attained his majority on the twenty-fourth day of August, 1897. Deceased died testate on the twenty-eighth day of January, 1901; and this action was commenced on December 4, 1901; and appellants pleaded, and contend that the action was barred by subdivision 1 of section 339 of the Code of Civil Procedure, which provides that “An action upon a contract, obligation, or liability, not founded upon an instrument in writing, ’ ’ is barred in two years. It appears that when plaintiff became of age. the deceased did not render any account as guardian, but continued to manage the ward’s property as before; and although the strict relation of guardian and ward had ceased at the ward’s majority, still a fiduciary relation continued; and in such a case the authorities are. somewhat conflicting as to when an action against the former guardian will be barred. But in the case at bar we need not discuss this general subject, for, in our opinion, the will of the deceased settles the. question against appellants’ contention. The plaintiff was the son of the deceased, and he, together with eight brothers and sisters, all children of the deceased, became entitled to certain property as heirs of their maternal grandfather, Dr. H. H. Toland, and this was the property which went into the hands of the deceased as guardian—the deceased being also guardian for several of the other children who were minors. In his will the deceased refers to this property of his children and says: “After the payment of my just debts—inclusive of balances due. & payable to my children or any of them on account of moneys received by me for their use from property derived from their grandfather, Dr. H. H. Toland,” etc.; and he states certain balances due some of them, and, among others, a certain money balance due the plaintiff herein. Afterwards, in a codicil, he refers to a note which he owed to one 0. A. Ware, and says: “I hereby expressly request my executors to pay this and all other notes and obligations referred to in this will without reference to any law of limitations which I positively repudiate & waive.” This language clearly refers to all his obligations, including those to plaintiff and the other wards. It is not within the rule that a mere acknowledgment of a debt made to a stranger, and not to the creditor, is not binding; such an acknowledgment is generally made without reference to the statute of limitations, and with