Simon' Appeal

4 Sadler 573 | Pa. | 1887

Opinion by

Mr. Justice Green:

We find ourselves unable to agree with the learned court beIoav in the conclusion reached in this case. It appears by the findings of the auditor that the appellant Avas born in August, 1859, and that at about the same time in 1863 she Avas placed by her father Avith the deceased, William C. Mayer, upon AA’hat terms is unknoA\m, as there is no testimony on that subject.

The appellant’s father was killed in battle in May, 1864, and the appellant remained with Mayer thereafter until 187 6, when she left. In 1867, when she was eight years old and had been A?ith Mayer four years, he, as her guardian, made application for arrears of pay and bounties and received on August 8, 1867, from the United States, $125.87. He also received from the same source in October, 1868, $415.75, being arrears of pension money due his ward to that time. Thus when she was nine years and two months old he had received in his official capacity ■as her guardian $541.62 of her money, and had supported her ■after her father’s death four years and five months. In the meantime he could have placed her in 1866 with her uncle William Schaess, who came from Germany and offered to take her and raise her without any charge for her maintenance, but he refused to do so. This offer was repeated in 1871 and again refused. He could also have placed her in one of the Soldiers’ Orphan Schools in 1865, and she could have remained there until 1875 without any cost to her estate, but he did not do so.

The auditor finds as follows: “The whole testimony satisfies the auditor that the services which the girl rendered her guardian during the last six or seven years that she was with him, together with the use of her money which he received in various sums and which he or his estate has enjoyed during all these years, would be ample compensation for all that she ever received from him from August, 1867, (when her first money came into his hands) to the fall of 1876.”

A careful examination of all the testimony taken before the auditor convinces us that the foregoing finding is justified by the evidence and fully warranted as a just and sound conclusion.

The auditor did not allow any compensation to the guardian for the boarding and maintenance of the ward for any time, not even for the time from May, 1864, to August, 1867, and it is possible that the correctness of his action in this respect might be sustained in view of all the circumstances. But we think that during these very early years of her life an allowance may fairly be made for her maintenance, and we have concluded to allow the $541.62 received up to October, 1868, as compensation for her support to that time. After that time the service which she undoubtedly rendered in his house and saloon and the use of her money, which he subsequently received, we regard as adequate compensation for her support until 1876, when she left.

As a guardian he was entirely at fault in never filing any account or obtaining an order of court for her maintenance, and he should account now for the money received after 1868 with interest on it from 1876. We therefore allow her the sum of $889.25 with interest from September 1, 1876, as the witness Oedelstine testifies she left in August of that year. We cannot conceive of any reason for imposing upon the ward any part of the costs of this proceeding, the whole necessity for which was created by the default of the guardian.

The decree of the court below is reversed and the record is remitted, with direction that a decree be entered in favor of the appellant and against the estate of the guardian for $889.25, together with interest thereon from September 1, 1876, and all costs, including the costs of this appeal.