
    Charlotte D. Simmons vs. William F. Almy & trustee.
    Property of a ward may be attached on trustee process against him.
    Money of a ward was deposited in a bank by his guardian on an account to the credit of “A., guardian for B.;” the income of the fund was afterwards paid by the bank to A.’s successors in the trust, without any change in the title of the account; and A., after ceasing to be guardian, laid no claim to either capital or income. Held, that the bank was chargeable in foreign attachment as trustee of the ward.
    Trustee process for board furnished to the principal defendant, against whom judgment was entered on his default. Writ dated February 9, 1866. In the superior court, on the question of charging the Citizens’ Savings Bank, summoned as trustee, these facts appeared: The principal defendant was an adult, married, and having a family; but was under the guardianship successively of Joseph Osborn, Philip B. Chase, and Asa B. Anthony, from 1857 till after the service of process on the alleged trustee, Chase succeeding Osborn in 1863, and Anthony succeeding Chase later in the same year. Osborn, before resigning his trust as guardian, deposited with the bank, in 1858, upwards of six thousand dollars, the proceeds of a sale by him of his ward’s property. This deposit was credited to him on the books of the bank in an account under the caption, “ Joseph Osborn, guardian for William F. Almy,” and remained to his credit in the same account at the date of the service of the writ on the bank; and the bank “ recognized and dealt with Osborn, Chase and Anthony, as they successively exercised the office ci guardian of the defendant Almy, as having the control of said moneys deposited and kept to the credit of Osborn as aforesaid, and paid to them successively the income of the same, and they disposed of the income, as received by them, for the subsistence of the family of their ward.” Ever since 1861 Almy conducted business on his own account, and acquired and managed property, irrespective of and uncontrolled by either of his successive guardians, neither of whom ever exercised any guardianship over his person. On these facts, Brigham, J., ordered the discharge of the trustee; and the plaintiff appealed.
    
      L. Lapham, for the plaintiff.
    
      E. Williams, for the trustee.
   Colt, J.

The property of a person under guardianship may be taken on execution issued against him. It may therefore be attached on mesne process in all the usual modes, including the trustee process. The remedy to recover a debt against the ward by suit upon the guardian’s bond is not exclusive. Hicks v. Chapman, 10 Allen, 463. Spring v. Woodworth, 4 Allen, 326. Guardians are not invested with the legal title of the ward’s property. They have only the control and management of it, a power not coupled with an interest. They can make no contract binding upon his person or estate.

The funds here disclosed in the hands of the trustee we think must be regarded as the property of the defendant, and liable to this process. There is nothing to show an intention on the part of Osborn, the first guardian, to appropriate to himself the money deposited so that he could only be made accountable for it upon settlement of his guardianship accounts. And the same is true of both the succeeding guardians. On the contrary, the form in which the deposit is made ; the manner in which it has been since treated, the bank itself dealing with the successive guardians as entitled to the control of the same, though not changing the account in their books; and the fact that no demand has been or appears now to be made by Osborn upon the bank for the fund; are decisive, in our opinion, that it is the property of the defendant, and so to be treated in this proceeding. Farrelly v. Ladd, 10 Allen, 127. Raynes v. Lowell Irish Benevolent Society, 4 Cush. 343. Moore v. Hazelton, 9 Allen, 104.

It does not seem important to inquire whether Osborn was legally appointed guardian or not; for, if he was not, the position that the trustee ought not to be charged is not strengthened by the fact. Trustee charged.  