
    Champa, Gdn., Appellee, v. The New York Central Mutual Relief Assn., Appellant.
    
      (Decided December 21, 1936.)
    
      Mr. Leo E. Rossmann, for appellee.
    
      Mr. W. N. King and Mr. H. E. King, for appellant.
   Sherick, J.

Joe Brzin, during his lifetime, was the holder of a benefit certificate in the defendant association. The beneficiaries named therein are his brother and sister, Frank and Mary Brzin, who were to “share and share alike.” After the issuance of the certificate of insurance, the insured married Mildred Brzin. The beneficiaries named in the certificate were never changed. On June 6, 1935, the insured was killed in the course of his employment.

Thereupon the agent of the association procured Frank and Mary Brzin to execute an assignment of their interest in the benefit certificate to their sister-in-law, the widow of the decedent. The assignment recites that they are the beneficiaries named in the certificate and they voluntarily waive all their rights therein to Mildred Brzin, the deceased brother’s widow. Thereafter the association issued its check in the sum of $1500, payable to Frank and Mary Brzin, who endorsed it “pay to the order of Mildred Brzin.”

The facts further disclose that, at the time of the execution and delivery of the assignment and endorsement, and prior thereto, to wit, since September 24, 1932, appellee, Lonisa Champa, was the duly appointed, acting and qualified guardian of the persons and estates of Frank and Mary Brzin, then minors.

Upon trial, in the opening statement of counsel, the guardian’s claim was reduced to the sum of $750 for the reason that it was admitted that the beneficiary, Frank Brzin, was of legal age when the assignment and endorsement were executed. The remaining beneficiary, Mary Brzin, is now of the age of eighteen years.

Two further conceded facts are urged upon us by the appellant: First, that the appellee’s ward, Mary Brzin, has never disaffirmed or repudiated the settlement; second, that at the time of settlement Mary Brzin received the sum of $100 from Mildred Brzin, which amount is not deducted from the ward’s claim or now offered to be returned to the association.

Upon trial in the Municipal Court it was determined that the guardian was entitled to recover the full sum of $750. From this judgment the association appeals. It is advanced by the association that if> upon majority, Mary Brzin should repudiate her action, the association must again pay this claim, but not until then. It is further contended that disaffirmance of an act by a minor is a personal right exercisable by her alone; that by this action the guardian attempts a disaffirmance of the'settlement without the minor’s sanction, and that if the guardian is now permitted to recover, the judgment will not be a bar to a subsequent suit by the ward upon her disaffirmance when she arrives at majority and hence the association will be called upon thrice to pay the claim. It is said that infancy is now being used as a sword and not a shield.

On the other hand, the guardian takes the position that had the association exercised care by interrogation of the beneficiaries and search of the probate records, it would have been advised that one beneficiary was a minor, whose person and estate were then under guardianship; that as guardian, she was entitled to possession of her ward’s personal estate and to settle and adjust any claims due her ward, and that she, as guardian, by virtue of Section 11247, General Code, alone was empowered to bring an action for the ward’s benefit; and that payment of the obligation to another through the medium of the ward’s assignment and endorsement, cannot discharge' the obligation of the association due to her as guardian of her ward’s estate. In other words, settlement was attempted to be made with the wrong party and therefore the guardian is not bound.

Before proceeding to a determination of the problem confronting us, we conclude that Section 9392-1, General Code, can in no way aid the appellant. This section creates an exception to the rule that a minor’s contracts are voidable upon disaffirmance at majority by the minor. This section prescribes that minors between the ages of fifteen and twenty-one, may do certain things with respect to contracts of life insurance issued upon their lives. It does not, however, provide that a minor as beneficiary in a policy issued upon the life of another may contract with respect to the benefits thereof. The section may not be enlarged by judicial legislation.

When it is remembered that the appellant concedes that it probably will have to again pay the half of the benefits stipulated in the insurance certificate to Mary Brzin and that the settlement as made was not for or to her benefit but rather to the benefit of her sister-in-law, and that the insurance is now due her, it is hard to appreciate why payment thereof should be postponed until she arrives at legal age. We are unconvinced that in this instance infancy is being employed as a sword and not a shield. It rather seems to this court that infancy is being used to delay payment to the one now rightfully entitled to receive payment. If we were to exaggerate the facts by assumption, it may be reasoned that a debtor might settle a just claim by payment of a pittance to a minor of tender years and successfully plead the same for delay of payment for many years. It is our judgment that the rule of disaffirmance by an infant of his contracts made during minority had its origin in the thought of protection of the one of immature understanding and not for the benefit of him who thoughtlessly or purposely contracted with an infant.

It is the theory of the law of this state that guardians of the estate of a minor ward are appointed for the specific purpose of securing, preserving and accounting for the funds of the ward. To that end bonds are executed for the faithful performance of those obligations. In the cause before us, the appellee was the then duly appointed, acting and qualified guardian, which might have been ascertained by inquiry or examination of the public record. The fact is that the appellant would now plead its own carelessness and neglect as a bar to the present suit.

We perceive no sound reason why a guardian should not promptly disaffirm a ward’s disadvantageous contract or settlement. Such an action seems the very essence and spirit of the reason for the appointment of guardians. If the guardian should delay, the ward’s debtor might become financially irresponsible or die and his estate be fully settled, or evidence of the ward’s lawful claim be lost during the years. We appreciate the force of the general rule that disaffirmance of a minor’s act is a personal privilege, but that statement was not intended as a statute of limitations as against the accrual of an action for debt, or a disadvantageous contract or settlement. If such were not true, the rule insisted for would in fact repeal and nullify the statutes relating to guardianship.

The appellant relies upon three authorities to sustain its position. The first of which is Clap v. Houdlet, 13 Mass., 237, decided in 1816. It is said:

“But it has been further argued, that these sales, if voidable, may be avoided by the plaintiff, Clap, by virtue of his authority as guardian of the minor. No case has been cited in support of this position; and we know of no position of law, by which it can be maintained. The authority and interest of a guardian extend only to such things as may be for the benefit and advantage of the ward. If an infant makes a contract, from which he derives a benefit, it cannot be avoided by his guardian: for this, being injurious to the infant, would be a violation of the guardian’s duty.” (Italics ours.)

As we read this case, we are unable to perceive in what respect it sustains the appellant’s point. To our notion it holds adversely thereto. We are also directed to a case from the same state, decided almost a century later. Benson v. Tucker, 212 Mass., 60, 98 N. E., 589. In this case the court found as a matter of law and of fact that the infant derived no benefit from contracts entered into by his agent. The court held in substance that notice of disaffirmance of the appointment by an infant of agents to buy or sell for him, given in his behalf by his guardian, though delayed till all the transactions between the parties were adjusted, was a sufficient rescinding.

This holding, to our notion, likewise is at odds to the appellant’s claim. Downs v. Manufacturers Life Ins. Co., 18 Alberta L. R., 217, is also relied upon. But when the case is examined it appears that the guardian was denied recovery, because a special statute of that province prescribed that insurance due a minor as beneficiary should be paid to a trustee and not the guardian.

The court followed the general rule of statutory construction, well recognized in this jurisdiction, that special acts pertaining to a given situation must and do control over general acts intended to cover a general course of conduct.

Two Georgia cases are of interest. Social Benevolent Society v. Holmes, 127 Ga., 586, 56 S. E., 775, and Gonackey v. General Accident, Fire & Life Assur. Co., 6 Ga. App., 381, 65 S. E., 53, are persuasive. It is held in substance, in the first case that where a minor has a right of action against a benefit society, the suit may and should be brought by the guardian. In the second case suit was instituted by the minor’s next friend to recover an insurance benefit, which the minor had settled for a small sum. It was held that an infant beneficiary who has settled with the insurer in full for less than the face value of the policy may avoid his contract during his minority and sue by his guardian or next friend for the full amount payable under the policy and recover the same even though unable to make restitution.

It is the judgment of this court that the appellee, guardian, has capacity to disaffirm her ward’s settlement and maintain this action. That such is as effectual as if the minor had made a formal disaffirmance upon majority. We are unable to follow the appellant’s thought that if this judgment is affirmed that such is not a bar to a suit by the minor upon disaffirmance at majority. If it be now disaffirmed by the guardian for his ward and the profit thereby now goes to augment and benefit the ward’s estate, surely the ward at majority may not be heard to claim that which he has once received, by virtue of a legally recognized repudiation for his benefit. The judgment is affirmed.

Judgment affirmed.

Lemert, P. J., and Montgomery, J., concur.

Lemert, P. J., Montgomery and Sherick, JJ., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  