Stem's Appeal

5 Whart. 472 | Pa. | 1840

The opinion of the Court was delivered by

Sergeant, J.

This case does not seem to be distinguished from Konigmacher’s Appeal, (1 Penn. Rep. 207.) There the duty and liability of a guardian as to the investment of the money of his ward was carefully considered by this Court; and the rule is stated to be, that if a guardian has on hand money of his ward, and puts it out, he will generally be liable, unless he takes a surety in the note. Wherever he has the fund and disposes of it to another, he must do it with strict and proper caution, as a prudent man would, and is seldom safe unless he takes security. But where the fund never comes into the hands of a guardian, all the cases make a difference: he is not bound instantly, to sue in all directions. In that case the guardian, on the settlement-of the administrator’s account, received part in money, and took the administrator’s bond for the residue, and part of it was lost. Yet he was not held to be thereby chargeable, as having been guilty of negligence. In the present case, likewise, the money never actually came to the hands of the guardian. He received from the administrators, on his ward’s account, a new note of a former debtor in lieu of the old note, payable to himself, and endorsed as received on his ward’s account. It is true he was told by the administrators that he might take that, or if he did not choose to do so, they would go and collect the moneys; and there is reason to think they might have collected it. -But still the case is not the same as that of money actually put into the guardian’s hands, of which he makes a new investment. For in Konigmacher’s Case, the guardian received, the bond of the administrator, a new security, instead of the money which the administrator was liable to pay, and for aught that appears, might have been compelled to pay. I do not see any principle applicable here that did not apply in that case. At the same time I would not be willing to extend the decision further; and wherever the money came into the gurdian’s hands, or immediate control, would hold him strictly to the rule that requires him to take security. And even in cases of a continuing or renewed security, he may, under the particular circumstances, make himself responsible for laches in receiving it, or not collecting it in due season.

■ On the whole, we think the decree of the Orphans’ Court must be affirmed, with the exception of the- interest on this money down to Heimbach’s death, which the guardian ought to have collected, and for which therefore he is chargeable.

Decree accordingly.