65 Pa. 433 | Pa. | 1870
The opinion of the court was delivered, July 7th 1870, by
On the 7th January 1865, the administrator of Charles Alburn, under an order of the Orphans’ Court, sold at public sale for the payment of debts the real estate of the decedent, Francis Hayman, who had agreed, with the minor children of the decedent, William and Henry Alburn, the night before, to purchase the property for them, attended the sale with the two minors, and stated publicly he wanted to buy it for them. Upon this announcement, one certainly of the bidders ceased bidding, who would have given more, but did not think it right to bid against the children. It was knocked down to Hayman for $700, and he immediately turned around and addressed the boys, Henry' and William Alburn, and said, “ the place is yours.” In different conversations he said the farm was bought for the boys.
On the 6th February 1865 the sale was confirmed, and on the 4th April the administrator made a deed to Francis Hayman for the premises, Hayman paying $600 in cash, and giving his obligation for the remaining $100. The administrator also testified that “ on the 31st March 1865, when I came up to make my return, Hayman told me to tell J. O. Kimmel, Esq., to make the deed to the Alburn boys (William and Henry): I told J. O. Kimmel, and he said that could not be; it must be made to correspond to the return; when I delivered the deed in J. O. Kimmel’s office,
On the 24th April 1865, Francis Hayman was appointed guardian of the two minors, William and Henry, and on the 12th March 1867 sold the farm to Frederick Bodie for $1200 — $800 on the 1st April 1867, and the balance in two annual payments without interest.
Upon citation, the guardian filed his account with Henry Al-burn, which was referred to an auditor, whose report was confirmed by the Orphans’ Court, from whose decree this appeal is taken.
It also appears, that in 1864, the boys wanted Hayman to be their guardian, and that in November of that year he said he had rather agreed to be so ; and Henry Alburn testified: “ I did appoint Hayman my guardian, and he was to act as my guardian before the sale.”
It is clear, therefore, that the appellant, before and at the time of the sale, and up to the time of his appointment as guardian by the court, stood in a fiduciary relation to the appellee, an infant, as quasi guardian or confidential adviser, and is bound to account for the profit made by him on the sale of the premises purchased by him for the'benefit of the two minors.
The guardianship account has been settled by the court upon this principle, and we see no error in the decree of the Orphans’ Court.
Decree affirmed and appeal dismissed, at the costs of . the appellant.
