1 Rawle 266 | Pa. | 1829
The opinion of the court.was delivered by
The facts in this case, and there was no dispute or contrariety of testimony, were as follows:—Thomas Hughes died, leaving nine children, six by .a former wife and three by a second wife: of the six, one died after the sale hereafter mentioned, aged eight or nine years. •
The deed to Bonsall did not state the trust for his wards, but the proof was full, that the agreement and understanding, at all times were, that the purchase was for their use, and the payment was as above stated. The place required a.house and other improvements: these, by agreement of Bonsall with A?. B. Hughes and Hutchinson, were made by E. B. Hughes, who moved on the land, and cost, as he stated, twelve hundred and ninety-three dollars; one half of which was divided by Bonsall among his three wards, and one third charged to each. The land was sold,, subject, it seems, to a dower, and it has produced nothing .more than this dower and the taxes since. Bonsall. offered to each of his wards a deed for one third when they came of age, and they refused to accept them. On Hannah’s coming of age, he offered to settle his accounts, and the Orphans’ Court charged him with the price of the land, and of course, with the improvements, holding that he must keep the land and pay for it, and account for the money and interest;
As we had not the administration accounts, nor the state of the personal or real estate of the intestate before us, there is some difficulty in understanding how lands could be sold for debts, and the purchase money go, not to pay debts, but to children; and, if sold to support the children, it is not clear how it could be bought by the children and improved by them,[and never yield them any rent, and yet they be supported. It appears, however, from the guardian’s account, there was other estate; perhaps this land was but a small part of it. •
We have not considered this case as clear oí difficulty. The doctrine that a trustee cannot go beyond the line of duty prescribed by
To apply these remarks to the present case. The guardian did not expend money collected by the administrators; and paid, to him, in purchasing lands; but, when a part Was selling, and a portion of the purchase, money wo.uld come to his wards; and when, in the opinion of those children who were of age, it was selling at a great undervalue; when the administrators, one of whom was brothe'r-in law of the intestate, was so fully convinced of. this, that he would not agree to make a sale unless the wards of Bonsall were let in to partake of the advantage to be derived from a purchase at that price; and, when from all the testimony, and- all the.argument, it is proved and admitted, that in making this purchase, or rather, in agreeing to
Much was said at the argument, about this piece of land being taken bjr-five or six children, instead of nine; and of the proportion which Bonsall ought to account for in money, if he must account' at all. We do not know what other estate there was, nor whether any of it was bought for the other three, nor why the administrators, who insisted on the children being interested in the purchase, agreed to let these five have this land; but, as we have determined that Bonsall is not bound to keep it, the Orphans’ Court were wrong in deciding that he must pay Hannah, (whose case alone is before us,) her share in money: we need not diácuss-this part* The Orphans’ Court were.right in that part of the case, which related to the proportion of Hannah.
As to the rents since the sale, and the buildings, from the decision of the Orphans’ Court, it was immaterial for them to consider this part of the case.. If Bonsall must keep the lands, he must also be owner of the rents, and pay for improvements; but, from the decision of a majority of this court, these are now subjects of inquiry, and we have not- before us enough on which to decide We do not. know whether proper attention and care were exhibited; we do not, know whether- there was an old house or no house on this land; and we have only the testimony of Edward B. Hughes, who built the new one, as to its being proper for this land; or, as to the propriety of its cost: some more specific evidence on these points must be had. And, contrary to the usual course in such cases, we remand
Assenting, as I. do, most entirely to the perfect good faith and honesty of the proceedings of this accountant, in. point of law, I am not able to concur in the. result which the court has come to. It strikes me, that the money of the infant has been laid out imprudently; but,, whether'imprudently or not, if illegally, the guardian must, I think, bear the loss himself. The authority relied on by the counsel of Mr. Bonsall, is the case of Gelbach’s Appeal, 8 Serg. S,\ Raiole, 205. To my apprehension, Gelbach’s case is very unlike the present. There the land had been publicly taken for the infant in the infant’s own name. In that case, the act of assembly-expressly authorized the guardian to bind his ward. According to the practice, from the first.settlement of the country, a whole farm was taken, for a son, at the appraisement of a jury; a son who was . himself to be a farmer, who probably had no means of living except upon a farm, and who had every reasonable prospect of finding the purchase a good one,. In the present case, Mr. Bonsall, the guardian, appears tohave.acted without any, the slightest pretence of authority of law; With the visionary hopes of a great bargain, be enters into a speculation, altogether in his own name, purchasing one undivided half of seventy-three acres in Berks county, which land had/been part of the estate of the'father of his wards,-but which had been already sold at public sale by the administrators; under an order of sale by the Orphans’ Court, for the payment of debts and the maintenance of the minor children of the intestate.. This purchase -of the half in Mr. Bonsall’s own name, was, as it now appears, in trust for the three children, his wards, and. he paid for it with their money, or what is-the same thing, he gave receipts -to the administrators as for so much cash, the purchase money of the half of the land being seventeen hundred and seventy-two dollars. Thus, in lieu of her money, Hannah Hughes, the appellee, is now presented with a title to one undivided sixth part of seventy-three acres in Berks county: a sort of property, which, in my opinion, no rule of law or equity will oblige her to take.
The case, if it stopped here, would, I think, be conclusive in favour of the appellee. But, so far from stopping here, Mr. Bonsall went on to lay out almost the whole of the residue of the money of the three infants, in building a new house on the land, the children’s half of the cost of the house being six hundred and forty-six dollars and fifty cents, cash expended, not, as I understand it, by the guardian, but-at least forty miles from his residence; of course not under his view, nor under the-view of any body else, accountable as guardian, but by Edward B. .Hughes, one of the partners in the purchase, who occupied the house and the farm some four or five years, paying nothing except the taxes and the interest of the widow’s third.
As to the necessity imposed upon a guardian to interfere to prevent the .sacrifice of au estate, I would observe, this purchase by Mr. Bonsall, was a month or so after the public sale by the administrators. At any rate, from the proofs in the cause, there is not the least ground to suppose that money was wanted. Actually, the sale appears'to have been upon credit. Bui, suppose it to'have been compulsory, I would still insist that a guardian cannot be permitted to expose the whole patrimony of one child to the risk of destruction, to prevent imaginary loss to an estate in which that child has but a ninth share. :
There are some matters which, perhaps, the affidavits do not sufficiently explain: for instance, it might seem that Messrs. Hughes and Hutchinson, the original purchasers, had not the same faith in the profits of the bargain, which Mr. Bonsall appears to have-had. After getting a complete title, in the very next month, they gave up one full half of their purchase to Bonsall, without asking any premiums. I was at first concluding that this might have been done, because, they had promised the administrators to let .the rest of the children into a share of the profits. , But that ean.not' be. There-was no promise that any children should have -more than their equal share, and the three, wards of Mr. Bonsall have been loaded with one half of the whole bargain, when,' if the promise was the motive, three ninths of the speculation was all that could have been allotted to them.
The policy of the law, and a due regard to the protection of infants, seem to require that good intentions shall not excuse a guardian who takes in hand to risk his ward’s money without authority. But, granting such excuse may be received in some cases, the peculiar circumstances of this case are such, though they leave not
. It is said by the appellant’s counsel, that the Orphans’ Court have, upon their own principles, erred in charging him with one third of one half of the purchase money of the seventy-three acres: Whereas, at most, it could be but one third of one third, that being Hannah’s share in her father’s estate. ■ Evidently there is no such mistake. Hannah had other property in the hands of her guardian, and with it he purchased for her, not.one ninth part, but one sixth part, of the seventy-three acres. If the purchase is left upon his own hands; a? the Orphans’ Court decided that it ought to be, he then holds one sixth part of the land intended for Hannah, and is liable to her for one sixth part of the purchase money. In one word, whatever money of her’s he has received, or ought to have received, he is accountable for, and must restore in money, and not in real estate.'
Therefore, in my opinion, the decree of the Orphans’ Court should be affirmed. . - "