| Pa. | Jan 14, 1867
The opinion of the court was delivered, by
The guardian of the estate has no further concern with or control over the real estate than what relates to the leasing of it and the reception of the rents and profits, and it is Ms duty to place the ward’s land upon lease. He has such an interest in the estate of his ward as to enable him to avow for damage feasant, maintain ejectment, trespass, debt and distrain for arrears of rent in.his own name. He is bound to keep safely the real and personal estate of his ward, and to account for the personal estate,, and the issues and profits of the real estate. If he neglects to put the ward’s money at interest, but negligently and for an unreasonable time suffers it to lie idle, or mingles it with his own, the court will charge, him with simple interest, and in cases of very gross delinquency with compound interest: Harland’s Accounts, 5 Rawle 333. A guardian is a trustee for persons whom the law regards as unable to act for themselves, and he is bound to use the same care and management that a prudent man would exercise over his own affairs. He must act for the ward, and not for himself.
The account in this case has been filed in direct contravention of the Act of Assembly as explained by me in Yeager’s Appeal, 10 Casey 176, and required an entire restatement at the hands of the auditor. This re-examination disclosed several matters, which were specially reported upon by the auditor in h very able and exhaustive report. The court disregarded the auditor’s report, and confirmed the original defective and improper account of the guardian, which should never have been permitted to be filed in the register’s office, it not being in any way or form in compliance with the express provisions of the law.
The error of the accountant in not presenting to the register for settlement “ a full and complete account of his management of the minors’ property under his care, including all the items embraced in each partial settlement,” prevented, of course, any examination by that officer of the account (as it should have been stated), with the necessary vouchers, of the several items contained in it.
The effect of this cardinal error, was to oblige the court to vest the auditor with full power to restate the account, that is, to make a full and complete account of the guardian’s management, including all the items embraced in each partial settlement. He was also to consider all questions arising from the exceptions filed by the attorneys for the minors, and to hear and determine the same.
1. As to the two quarters’ rent due from A. & A. Wood of the brewery, in the Fifth Ward, we think the guardian should be charged with the first quarter only, and not with the second quarter, under all the circumstances. If he had distrained in time, that quarter would have been secured; and this was clearly his duty, considering that the lease expired at the end of the next quarter, and the tenants were known to be in great difficulties.
2. A brewery has only a choice, if any, of a very limited number of tenants. No skill or industry can increase that number ; and in this case the guardian had tried the experiment without success. Besides, a brewery, however good, if not used, falls rapidly into decay, and it is absolutely necessary to let it even for a small rent to preserve it. This brewery was also known to the guardian to require a tenant, in order to preserve it, and the manner and situation in which the Woods left it made it a matter of the first necessity to lease it as soon as possible.
We agree with the auditor that the guardian should not be charged with the effect of his refusal of the offer of Messrs. Verner & Rhodes in 1856 or 1857, to lease it for a term of from seven to ten years upon the terms specified by them. But we also agree with the auditor, that in rejecting about two years’ afterwards the offer of Mr. Garrard, he was guilty of such want of ordinary care and diligence in the management of this property as no prudent man could justify, even if the property were his own, still less when as a trustee he was acting for others who could not act for themselves.
A trustee has only two offers in the course of two years for the lease of a brewery, and none afterwards — is not this such negligence (call it by any epithet you please), such neglect of duty, as to make him personally liable to his cestui que trust? We think the auditor has fairly made out such a case, and therefore approve this portion of the report.
The restatement showed what did not appear in the mode in which the account was filed, balances in the guardian’s hands, upon which the auditor properly charged him with interest.
The result is, the decree of the Orphans’ Court is reversed, and the report of the auditor (with the correction of not charging the guardian with the last quarter of the Woods’ rent of the brewery) is confirmed, all costs of all the -proceedings to be paid out of the funds in the hands of the guardian, including the costs of this appeal.