| Tenn. | Dec 15, 1878
delivered the opinion of the court.
This is an indictment under the act of 1875, against a guardian for converting funds of his ward to his own use.
The act is as follows: “ That any executor, administrator, guardian or trustee, holding trust funds, who shall willfully and maliciously convert to his own use and benefit any moneys, notes, stocks, bonds, or other evidences of value of whatever nature and description, the assets of the estate for which he is executor, administrator, guardian or trustee, and on final, settlement shall fail to pay to those entitled to the funds thus entrusted to and due from such executor, administrator, guardian or trustee, where the same are not paid and cannot be collected by due process of law, shall be adjudged guilty of a felony before any competent court, and on conviction, shall be punished by imprisonment in the penitentiary not less than one and not more than ten years.”
This indictment charges that defendant was appointed guardian of one Mary E. Richman (now Mary E. Browning), by the County Court of Sumner county, on the 3d day of November, 1851, and at that time there came into his hands and possession the sum of $2,600.72, money of his ward, Mary E. (since intermarried with T. C. Browning). That he made a final settlement on the 7th of August, 1875, (never having done so before that date), with the County Court, and was shown to be indebted in the sum of three thousand seven hundred and eighty-five dollars and forty-
The indictment was demurred to and the demurrer sustained. The question is, was this judgment proper?
From these facts it is certain the ward had been of age several years before the alleged conversion of the fund in the hands of the guardian, taking the fact to be definitely charged, that it occurred at date •of settlement, November, 1875, and after that. If an infant when appointed, she would have been twenty-one in 1871. It further appears, that she had married before the settlement, as it is averred that he was found indebted to her as Mary E. Browning on the settlement.
The question is, "Was he as guardian, as such, liable to indictment under the statute for conversion of the money due him, or the amount to which he was indebted to his ward, as shown ■ by the settlement ?
It is a question on the face of the charge as to whether the statement of the indictment, fairly construed, amounts to more than a charge of conversion of an indebtedness found on the settlement against him by the County Court; for it is only averred that he willfully and maliciously did convert to his own use and benefit the aforesaid trust fund, then held by him
But to the construction of the act itself. The party must be a guardian, having in his hands the funds, as stocks, notes, bonds, money, or other evidences of value of any kind, belonging to his ward, which he willfully and maliciously converts to his own use and benefit, and on final settlement fails to pay over, etc. What precise meaning is to be given to the words willfully and maliciously, in this connection, it is somewhat difficult to say. Waiving that, however, it is clear, giving the words their natural signification, the first mentioned elements of the * offense, must consist in using for his own benefit, the funds described, in violation of his trust. For instance, if he has stocks, his duty is to receive the dividends or profits, apply them to the support of his ward, and any surplus is to be loaned out or re-invested, so as to yield interest in the future as principal. To sell
If a note due his ward’s estate is in his hands,, his duty is to collect it, when due, receive the interest as it falls due, and apply as the law • directs. Selling this note, or receiving the proceeds and applying it to his own use, as forbidden, would be a violation of the statute — the other elements being shown. In case of money in his hands, his duty is to loan it on proper security, collect the interest and use as the law directs. To fail in this, and use the money so in his hands for his own benefit willfully and maliciously, is forbidden.
In other words, the statute operated prospectively, and was intended to forbid such uses of the fund of the ward in his hands, as we have indicated. The purpose was to enforce the performance of the duties of his trust, with reference to the funds of his ward in his hands, and to convert that identical fund to his own use, instead of using it as his trust required, is the' offense created and to be punished. In this view, it would be clear, that there could not be a conversion of a mere ascertained indebtedness as shown by a .settlement, nor the offense created by the statute be committed by simple failure to pay such indebtedness.
But again, the object of the statute is to enforce actively the performance of the duties of this trust, by a proper use of the fund, and to restrain and prevent an improper use of it. There must be the
Ve think it satisfactorily appears, that the offense created by the statute is not charged in this indictment, and affirm the judgment.