
    David Ellis versus The Proprietors of Essex Merrimack Bridge.
    Previous to St. 1817, c. 190, $ 35, which prohibits guardians from selling stocks with out a license from a judge of probate, a guardian of a person non compos mentis had a general authority to sell any personal property of his ward, and though he might improperly make a sale, a bond fide purchaser would have a good title.
    T. D. bequeathed to his daughter N. B. the improvement of shares in a bridge corporation during her life, and at her decease to be equally divided among her heirs—» and the residuum of his estate to S. L. B. and N. B. &c., but if they should die without heirs, &c. Held, that heirs meant children, and that N. B. took an interest for life in the shares, with remainder to her children.
    The corporation gave N. B. a certificate that she was a proprietor during life, pursuant to the will, and she being non compos mentis, her guardian, before the St. 1817, c. 190, made a deed of the shares themselves, in which the certificate was recited, to the p]aio4iff, a bond fide purchaser. The deed was left with the clerk of the corporation to be recorded, but no new certificate was issued to the plaintiff. Held that all N. B.*s interest passed by the deed, and that the plaintiff might maintain an action for money had and received against the corporation, to recover the divi dends.
    Assumpsit for money had and received, brought to recover dividends which had accrued on two shares in the Essex Merrimack Bridge and Deer Island. The case came before the Court upon a statement of facts.
    Timothy Dexter, by his last will, which was approved in 1306, made the following bequest : — “ I give unto my daughter Nancy Bishop, wife &c., the improvement of thirty shares in Essex Merrimack Bridge during her natural life, and at her decease to be equally divided between her heirs.” Nancy Bishop became non compos mentis, and Nathaniel R. Clark, the husband of her daughter and only child, was duly appointed her guardian in 1814.
    On the 29th of June 1816, Clark, being still guardian, for an adequate consideration, made a sale, bond fide, of two of the thirty shares to the plaintiff, by a deed reciting the certificates given by the corporation that Nancy Bishop was the proprietor of the shares, the form of which certificates was as follows : — “ This certifies that Nancy Bishop of &c. is the proprietor of share No. &c., pursuant to the last will and testament of Timothy Dexter &c., she being a legatee named in said will; to have and to hold the aforesaid share for her improvement during her natural life.” This deed was delivered on the same day to the clerk of the corporation, to be recorded, who gave a certificate thereof; but no certificate of ownership in the usual form was given to the plaintiff. This sale was not necessary for the support of the ward. Clark never exhibited an inventory nor rendered any account, as guardian, in the court of probate.
    
      S. Hubbard and Moseley, for the defendants
    Under this will Mrs. Bishop, and of course her guardian, had no control over the shares themselves, but either the executors or the corporation were trustees to pay her the income during her life. Saunderson v. Stearns, 6 Mass. R. 37. Although the guardian might dispose of chattels which pass by delivery, he could not, as incident to his power derived from St. 1783, c. 38, sell things which pass by deed, at least not unless it was for the benefit of the ward ; and by the recent statute of 1817, c. 190, § 35, a guardian cannot sell stock in a corporation, without license from .the judge of probate. He is a mere trustee ; Granby v. Amherst, 7 Mass. R. 6 ; 2 Dane’s Abr. 15 ; and it was a breach of trust to sell these shares. And the purchaser took with notice of the trust, for it appeared on the face of the assignment; so that he is guilty of a constructive fraud, which invalidates the sale. Wormley v. Wormley, 8 Wheat. 442 et seq. 1 Cruise’s Dig. 486.
    The plaintiff has no share standing in his name. The evidence of his ownership must be a certificate under the seal of the corporation. St. 1791, c. 35, § 4. The corporation refused to give him certificates, and he had no right to any, for such shares are indivisible, and if the plaintiff had any property here, it was only during the life of the legatee. But in truth, as the guardian attempted to sell the whole property in the shares, nothing passed by his deed ; 1 Cruise’s Dig. 93 ; and as he returned no inventory, perhaps he had no right to dispose of any of the ward’s property.
    The action will not lie, for want of privity betwéen the parties. The defendants could not make any set-off against the plaintiff, and if assessments should be made, the plaintiff might say he was not liable for them. The executors would have to pay them, and they are therefore entitled to the dividends, for the rights and duties should he reciprocal, They cited also Thacher v. Dinsmore, 5 Mass. R. 299, and Forster v. Fuller, 6 Mass. R. 58.
    
      Sohier, for the plaintiff.
    All the right which Mrs. Bishop had, passed by the guardian’s deed. If these shares gave but a small income, the guardian would have acted properly in disposing of them ; and if in any case he had a right to sell them without license, the purchaser was not bound to inquire whether it was discreet to sell them. Although the corporation might have objected to the division of the interest between the person entitled for life and the remainder-man, yet having agreed to hold according to the will, they are estopped from making the objection. By the terms of their charter they are bound by this transfer. St. 1791, c. 35, § 4. It cannot be pretended that the want of a paper, which is the evidence of a right and which the corporation improperly withhold, can go to the advantage of the corporation. The objection of want of privity cannot be sustained. The corporation have recognised the transfer to the plaintiff, and they are privy to such parties as are thus introduced to them. To the point of the guardian’s control over personal property, he cited Payson v. Tufts, 13 Mass. R. 493.
   Parker C. J.

delivered the opinion of the Court. The decision of this case depends upon the power of a guardian of a person non compos mentis over the chattels and personal estate of his ward, whether it extends to the transfer of such property without license from some judicial tribunal. The statute which creates this office of guardian does not limit or define his power in this respect, nor is there any thing in the common law from which his authority can be ascertained. It is only therefore by referring to the nature and duties of the office, and from such implications as are afforded by the statute, that any aid can be obtained in settling this question.

By the statute of 1783, c. 38, the power and duties of guardians are prescribed, and these are in very general terms, viz. “ to take care of the person and estate, both real and personal, of such person, and to make a true and nerfect inventory of the said estate, to be returned into and filed in the probate office in such county.” In the 4th section of the same statute it is provided, that the guardian shall improve frugally, and without waste and destruction, the estate of the person non compos, and apply the annual income and profits thereof for the comfortable support of such person and his family, and shall manage, improve or divide the real estate, in as ample a manner as the ward might do if of sound mind, and shall pay debts out of the personal estate, or if that is insufficient, then out of, the real estate, upon obtaining license for the sale thereof; and in case the income or improvement of the personal and real estate is insufficient for the support of the ward, the guardian may sell the real estate for this purpose also, upon license obtained for that purpose.

Without doubt it was contemplated by the legislature, that the guardian had power, by virtue of his office, to sell the personal estate, for with that he is to pay the debts of his ward, and it is only when the real estate is wanted for that purpose, or for the support of the ward, that it is to be sold under a license of the court. Indeed the application for leave to sell the real estate, is always founded upon a deficiency of personal estate for the purposes for which the sale is wanted, and a certificate' of the judge of probate to that effect is required. It is true, the guardian ought not to sell personal estate, unless the proceeds are wanted for the due execution of his trust, or unless he can by the sale produce some advantage to the estate ; but having the power without obtaining any special license or authority, "a title under him acquired ioná fide by the - purchaser, will be good, for the purchaser cannot know whether the power has been executed with discretion or not, and the estate is always supposed to be secure by the bond given by the guardian for the faithful execution of his trust and discreet management of the property. That this is the law in regard to personal property generally, cannot be doubted ; and we do not see any reasonable ground of exception in favor of the species of property transferred by the guardian in this case. If bank stock, insurance stock, stock in the public funds, could be disposed of by guardians, there seems to be no reason why the same power should not extend to the shares or rights in a bridge corporation ; and that all this kind of property was considered to be under the control and at the disposal of the guardian, under the general statute, admits of no doubt, when it is found that the legislature have since, but after the sale in question, prohibited the sale by guardians, of stock of any kind belonging to their wards, without license from the judge of probate of the county. St. 1817, c. 190, § 35. This is no doubt a wise provision, but the very enactment of it proves, that, before, no such authority was required by the law, but that it fell within the general authority of the guardian.

But it is thought by the counsel for the defendants, that the interest of Mrs. Bishop in this property was such, that neither she, had she remained a legal agent, nor her guardian, could sell it; that it was in the nature of a trust, of which either the executors of Timothy Dexter’s will, or the directors of the corporation, were the trustees, she having no other right than to receive the income. No such trust is created directly by the will, and we think none can be implied in relation to her interest in the property. The words of the will are, “ I give unto my daughter, Nancy Bishop, wife of Abraham Bishop, the improvement of thirty shares in Essex Merrimack Bridge, during her natural life, and at her decease to be equally divided among her heirs.” These words, strictly taken, would give her the whole property in the nature of a fee simple. But such was obviously not the intent of the testator. By the word heirs was intended children, as appears more clearly by a subsequent clause, in which he says he gives to his son, Samuel L. Dexter, and his daughter Nancy, “ all the rest and remainder &c., to them and their heirs ; but if the said Samuel and Nancy should die imthout heirs, then my will is, the same be divided between my two brothers and their heirs ; ” evidently in both cases using the word heirs for children. Nancy Bishop therefore took by the will an interest for life in these shares, with remainder to her children. She could not therefore, nor could her guardian, transfer any thing more than. her life estate. The capital or fund must remain under the control of the executors during her life. But her interest is transferable by law, and might be taken for her debts, if she were of capacity to be liable, by attachment. It is in the nature of an annuity, which is always transferable. The certificate issued by the president of the corporation, pursuant to their by-laws, shows correctly the interest of Mrs. Bishop.

A question is made, whether the instrument of conveyance given by the guardian is legally sufficient to pass the property. It purports to transfer the stock itself, which was not within the power of the guardian, his ward having only a life estate ; but the plaintiff being a bona fide purchaser, it shall hold all that the guardian had a right to sell. This is a common principle in relation to deeds and grants. As to the objection, that the plaintiff has no certificate of his ownership, we think that cannot prejudice his claim, as it is not in his power to obtain one without the consent of the corporation.

Nor do we think that the action should fail for want of privity between the plaintiff and the defendants. If he has established his right at law to the shares, the dividends belong to him, and are so much money received by the corporation to his use. The law establishes the privity, when one person has money in his hands which legally and conscientiously belongs to another. The conduct of the guar dian, in relation to this property, appears to have been indiscreet, if not dishonest. He probably thought, that as he bad married the only child of Mrs. Bishop, he had a right to dispose of the whole property in the shares. But the plaintiff appears to have acted fairly in his purchase, and the law will protect him. If the estate of the ward suffer, it must be for want of caution in taking the security ; which is always supposed to be adequate to any deficiencies occasioned by the waste, imprudence or unfaithfulness of the guardian.

Defendants defaulted. 
      
       See Field v. Schieffelin, 7 Johns. Ch. R. 150.
     