40 Pa. Super. 134 | Pa. Super. Ct. | 1909
Opinion by
Appellant’s counsel states the question involved as follows: "Liability of the testamentary guardian to be surcharged for the loss of $1,057.90 invested at four per cent interest in the Enterprise National Bank at the time of its failure and for almost two and one-half years prior thereto.” The assignments of error raise the question above stated.
Charles Glassburner died testate May 11, 1902, and by his last will and testament he appointed Henry Glassburner, his brother, executor of his said will and testament and testamentary guardian of his son, Harry Glassburner, in the following words: “And also testamentary guardian of my boy, Harry Glassburner, and authorize him to invest such money belonging to my boy that may come into his hands in such manner as will, in his opinion, be for the best interests of the boy.”
The guardian filed his first and final account on January 31,
If this were the case of a statutory guardian, the opinion and conclusion of Judge Hawkins would be very strong. But, in our opinion, having in view that the accountant was a testamentary guardian, vested with large discretion, and that he was a brother of the testator, a painter, not an active business man, and probably well known to the testator not to be an expert in financial matters, we do not think it would be just to apply to this guardian the strict rules pertaining to statutory guardians. The language of the will directed the guardian “to invest such moneys belonging to my boy as may come into his hands in such manner as will, in his opinion, be for the best interests of the boy.” It would be difficult to choose language more appropriate to empower a guardian to use his own judgment as to what character of investments would be for the best interests of the boy. Judge Hawkins 'only cites Law’s App., 144 Pa. 499, but we do not understand that case to be a review of the management of a testamentary guardian. Moreover, in that case the Supreme Court reversed the lower court for surcharging the guardian with money lost through the failure of the Bank of America. Upon the controlling facts of the present case, the opinion of the court, by Miller, J., is, in our opinion, much more convincing than that of Judge Hawkins. We think the opinion and decree of the court are in harmony with the general trend of the decisions applying to the case of a testamentary guardian.
Counsel for appellant cites Arthur’s App., 1 Grant, 55; Clark’s App., 18 Pa. 175; Law’s Est., 144 Pa. 499; Nyce’s Est., 5 W. & S. 254, but those are, all but one, cases of statutory guardians or executors, and they are not controlling in case of a testamentary guardian clothed with large discretionary powers. In Nyce’s Estate the testator directed that a sum of money should be put on interest to be well secured. The executors invested that sum in stock of the Bank of the United States, which depreciated during the life of the widow and afterwards, so that it was nearly lost. The executors were held liable because they did not invest the money well secured.
Arthur’s Appeal is not a case of a testamentary guardian. Clark’s Appeal is a case of statutory guardians; the same may be said of Law’s Estate. Counsel for appellant cites and relies on Estate of Lizzie Evans, 7 Pa. Superior Ct. 142, but it does not appear from that case that the guardian was acting under testamentary authority. The soundness of the opinion in that case can hardly be doubted in case of a statutory guardian or trustee, but we think the present case can be distinguished from the cases to which that doctrine is applicable, because of the discretion vested in the guardian by the testator’s will.
While this case has been considered on the theory that the guardian invested the money in question in the Enterprise National Bank, yet we do not understand that it was a per
Upon the whole case we are not convinced that the guardian ought to have been surcharged with the money in question and, therefore, the assignments of error are overruled, the decree affirmed and' the appeal dismissed at the costs of the appellant.