150 Pa. 261 | Pa. | 1892
Opinion by
It is the settled rule imthis state that the orphans’ court will always scrutinize a settlement made by a guardian with his ward shortly after the latter arrives at age, and where no account of the trust is filed with the register. In such cases the burden of proof is on the guardian to show that the settlement was a fair one, and that no fraud was practiced upon his ward. The rule upon this subject was fairly stated in Luken’s Appeal, 7 W. & S. 48, where it was said by Kennedy, J.:
. “ The ward, under the express provision of the Act of Assembly} has a right to require that such settlement shall be made by the guardian before the court; but if he chooses after his arrival at full age to make a settlement with his guardian without the intervention of the court, and, after having received the amount agreed to be coming to him, to give an acquittance or release, to the guardian, he ought not to trouble the court, or his guardian either, afterwards, without pointing out some mistake or other error in the settlement, or showing that a fraud has been practiced on him by his guardian whereby he has been prejudiced.”
We may add in addition to this that much depends upon the circumstances of the case. Where the estate is large, and the accounts complicated, especially if the settlement is made in the absence of a relative or a business friend of the ward, a stricter rule should prevail than where the estate is trifling, consisting of only a few hundred dollars, and the account correspondingly brief. In the latter class of cases a guardian may well avoid filing an account in order to save the expense to his ward, and the latter should not be allowed to disturb that settlement, especially after the death of his guardian, unless for clear mistake or fraud.
In the case in hand, the ward became of age on the 28th
The testimony of the ward himself shows that he was entirely satisfied with the settlement until he discovered, shortly after the death of his guardian, that the latter had received the sum of $266.67 which was not included in the account and settlement. This money was received by the guardian under the following circumstances: It appears that on the 15th day of April, 1878, John Upman, the step-father of the ward, paid this sum to the guardian, for which he received the following receipt:
“Received, April 15th, 1873, of John Upman, two hundred and sixty-six dollars and sixty-seven cents. To be applied to the fund of William Roth, a minor child of Adam Roth.
$266.67
George D. Ebert.”
It further appeared that on April 21, 1873, the guardian returned this money to Mr. Upman, and took his receipt therefor. The circumstances under which the money was paid to the guardian, and by him returned to Mr. Upman, do not very clearly appear. Both are deceased, and we have little but what appears upon the face of the respective receipts. There is satisfactory evidence, however, that Mr. Upman was an intemperate man, and that, if not insolvent, he left no propertv
When we reflect that this money never had formed any portion of the ward’s estate, and that the guardian had returned it to Upman in entire good faith within a few days after he had received it, it seems a harsh proceeding on the part of the ward, after the lapse of nineteen years, and after the lips of his guardian are sealed in death, to seek to hold him responsible for this money with its accumulated interest.
The right of the guardian to retain it is too uncertain to justify us in surcharging his estate with it after this lapse of time. Considering the evidence as to his habits, and his lack of means, we are justified in holding it to be an improvident gift which he had a right to revoke. It was without consideration, and, the payment a mere voluntary one; and, being to a volunteer, it was revocable by the donor: Russell’s Appeal, 75 Pa. 270 ; and is void, the gift being improvident: Rick’s Appeal, 105 Pa. 528 ; and where creditors are involved, it is fraudulent as to them. In Miskey’s Appeal, 107 Pa. 612, a man of intemperate habits, by which he had become enfeebled in mind and body, made a conveyance of all his estate to his father in trust for his (the grantor’s) father, mother and sister. The deed contained no power of revocation, yet it was set aside by this court. We need not pursue this branch of the case further.
The court also charged the appellants with the sum of one hundred dollars upon the ground that it was a duplicate charge. The only evidence to support this surcharge was the testimony of che ward himself, who was permitted to testify against the objection of the appellants. The admission of the ward as a witness forms the subject of the second specification of error. The learned judge below held that he was a competent witness
The decree is reversed; the costs of this appeal, and all other costs below, including the costs of audit, to be paid by the appellee.