« ForrigeFortsett »
judge within the limitations prescribed, there is to be a meeting of the family (conseil defamille) for the nomina
that the cases in which compound interest was to be charged against trustees for abuse of trust, were rather exceptions to a general rule than parts of one. So in Ringgold v. Ringgold, 1 Harr. tf Gill, 11, and Diffenderffer v. Winder, 3 ibid. 311. S. C. Raymond's Digested Chancery Cases, 363, compound interest was allowed in the court of appeals in Maryland, where a trustee speculated with the trust funds, and endeavoured to stifle inquiry; and in another case, where he was directed to invest funds, and receive dividends, and accumulate the fund, and when he had disregarded that duty, and applied the funds to his own use. It has also received the sanction of the court of appeals in Kentucky, of the supreme court of Massachusetts, and of the supreme court of North Carolina sitting in equity, as proper in certain cases. Fay v. House, 1 Pick. Rep. 527. Boynton v. Dyer, 18 Pick. 1. Hughes v. Smith, 2 Dana's K. Rep. 253. Hodge v. Hawkins, 2 Dev. 4> Batt. 566. Karr V. Karr, 6 Dana's K. Rep. 3. The principle on which the allowance of compound interest has been made, even in cases in which it has been allowed, would seem to be condemned in Pennsylvania, in tho recent case of English v. Harvey, 2 Rawle's Rep. 309, and especially in the elaborate review of the doctrine in the case of Peter M'Call, 1 Ashmead's Rep. 357. Compound interest, in any case of the kind, is regarded as too severe and penal upon defaulting trustees, and as being only imperfectly sustained by authority. It appears to me, on the other hand, that authority, both foriegn and domestic, and the reason of the thing, preponderate alike in favour of the allowance under the limitations stated, and that the total abandonment of the rule would operate, in many cases, most unjustly, as respects the rights of the cestui que trust, and would introduce a lax discipline that would be dangerous to the vigilant and faithful administration of trust estates. It would be tempting trustees to keep in hand, for their own speculation and profit, the interest moneys of others without interest, contrary to their duty. If a trustee might go and trade with trust moneys, and make no account of the profits and without any other penalty than the payment of simple interest, without annual rests, on the capital so corruptly perverted, the temptation to abuse would be irresistible. Such men ought to be dealt with by the plain but wholesome rules of Lord Eldon; and the legal responsibilities of trustees, as laid down in the text, is correctly stated. This doctrine has recently received the powerful sanction of the supreme court of Pennsylvania, in the opinion delivered by the chief justice, in the case of Harland's Accounts, 5 Rawle's Rep. The cases, both foreign and domestie, are in this opinion examined, and the argument in favour of the allowance of annual rests, or compound interest, when the trustee, be he executor, administrator, guardian, or other trustee, grossly disregards his duty, is conclusively stated, and it applies to those cases in which such an allowance becomes necestion of a guardian. The family council is composed of six relations, half from the paternal, and half from the maternal line, and the provision is very specific in its details. This provision has been incorporated, with some small variations, into the civil code of Louisiana.1 1
sary to place tho cestui que trust, in the condition in which a conscientious discharge of the trust would have placed him. See infra, p. 630, note. In the English Equity Court it seems to be unsettled what shall be the mode and extent of the responsibility of trustees where they are directed to invest trust monies in the public stocks or in real security, and they do neither. Sir John Leach, the V. Chancellor, in Marsh v. Hunter, 6 Madd.
Gel. 295, held that they should be answerable for the principal money only and not for the amount of stock which might have been purchased But in Hockley v. Bantock, in 1 Russ. 141, Lord Gifford, the master of the rolls held differently, and that the trustees were answerable in a way the most beneficial to the cestui que trust, and at his option either for the money or the stock which might have been purchased. Lord Langdale the master of the rolls in Watts v. Girdlestone, G Beae, 188, adopted the same principle of compensation. But again in Shepherd v. Mould, 4 Hare, 500, Sir James Wigram, the V. Chancellor adopted the precedent established by Sir John Leach, in Marsh v. Hunter. » Code Cieil, book 1. tit. 10. Cieil Code of Louisiana, art. 288, &c .
(1.) When of age.
The necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. The age of twenty-one is the period of majority for both sexes, according to the English common law, and that age is completed on the beginning of the day preceding the anniversary of the person's birth.» The age of twenty-one is probably the period of absolute majority throughout the United States, though female infants, in some of them, have enlarged capacity to act at the age of eighteen. In Vermont and Ohio, females are deemed of age at the age of eighteen.1" Louisiana follows in this respect the common law period of limitation, though entire majority by the civil law, as to females as well as males, was not until the age of twenty-five; and Spain and Holland follow, as to males, the rule of the civil law.0 By the French civil code, the age of full capacity is twenty-one years, except
» Anon. 1 Solk. 44. 1 Li. Raym. 480. Sir Robert Howard's case, 2 Sclk. Rep. 625. Hamlin v. Stevenson, 4 Dana's Kentucky Rep. 597. State V. Carke, 3 Barr. Del R. 557.
b 9 Vermont Rep. 42. 79.
» Inst. 1. 23. 1. Partidas on Obligations, 5. 11. 5. Institutet of the Cieil Law of Spain, b. 1. tit. 1. ch. 1. sec. 3. Institutes of the Laws of that twenty-five years is the majority for contracting marriage without paternal consent by the male, and twenty-one by the female. Code Civil, sec. 145, 488. Nor can infants do any act to the injury of their property, which they may not avoid, or rescind, when they arrive
at full age. The responsibility of infants for crimes *231 by them committed, depends less on their *age,
than on the extent of their discretion and capacity to discern right and wrong.
(2.) Acts void or voidable.
Most of the acts of infants are voidable only, and not absolutely void; and it is deemed sufficient, if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done, and
Holland, by Vanden Linden, book 1. ch. 5. sec. 7. Code Civil, art. 388. 488. 1 Toullier, p. 153. Civil Code of Louisiana, art. 41. 93. The law of the domicil of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority. Barrera v. Alpuente, 18 Martin's Louisiana Rep. 69. This is the rule, as understood by many continental civilians. A person being a minor or of majority by the law of his native domicil, carries that condition with him wherever he goes Huberus, lib. I. tit. 3. sec. 12. See also, Boullenois and others, cited in Story on the Conflict of Laws, p. 52. 69. 70. But this rule is to be taken with very important qualifications. The state and condition of the person according to the law of his domicil, will generally, though not universally, be regarded in other countries as to acts done, or rights acquired, or contracts made in the place of his native domicil; but as to acts, rights and contracts done, acquired or made out of his native domicil, the lex loci will generally govern in respect to his capacity and condition. If, for instance, a person be a minor by the law of his domicil until the age of twenty-five, yet in another country where 21 is the aje of majority, he may, on attaining that age, make in such other country a valid contract. Male v. Roberts, 3 Esq. Rep. 163. Thompson v. Ketchum, s Johns. Rep. 189. Story on the Conflict of Laws, p. 96. 97.364. Saul v. His Creditors, 17 Martin's Louisiana Rep. 597. Burge's Com. on Colonial and Foreign Laws, vol. i. 103—134. In respect to the control of real property, the law of the domicil yields to the lex rei siteThis is an acknowledged and universal principle. The continental authorities are cited numerously and at largo in the last work above mentioned on the subject of minors and the law of majority.
contracts made in infancy. But when we attempt to ascertain from the books, the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contradiction and confusion. A late writer who has compiled a professed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain whether the act of an infant be void or voidable, is, :: that acts which arc capable of being legally ratified, are voidable only; and acts which are incapable of beinglegally ratified, are absolutely void;"* But the criterion here given does not appear to free the the question from its embarrassment, or afford a clear and definite test. All the books are said to agree in one result, that whenever the act done may be for the benefit of the infant, it shall not be considered void, but he shall have his election, when he comes of age, to affirm or avoid it; and this, says Ch. J. Parker,b is the only clear and definite proposition which can be extracted from the authorities. But we are involved in difficulty, as that learned judge admits, when we come to the application of this principle. In Zouch v. Parsons,0 it was held by the K. B., after a full discussion and great consideration of the case, that an infant's conveyance by lease and release, was voidable only; and yet Mr. Prestond condemns that decision in the *most peremptory *235 terms, as confounding all distinctions and authorities on the point; and he says, that Lord Eldon repeatedly questioned its accuracy. On the other hand, Mr.
* Bingham on Infancy, 33.
t Whitney v. Dutch, 14 Mass. Rep. 457.
» 3 Burr. 1794.
e Treatise on Coneeyancing, vol. ii. p. 249. Treatise on Abstracts of Title, vol. L p. 324.