247 Pa. 478 | Pa. | 1915
Opinion by
If it were at all important to a proper determination of this case, we would at greater length express our dissent from the conclusions reached by the learned court from the facts as they are found to be. For reasons which will appear later it is only necessary now to say, that where the good faith of a guardian in making an investment of his ward’s money in a mortgage upon real estate is conceded, and where it is found that the guardian was a man of large experience in the real estate business, and that in making the particular investment complained of, he relied not simply upon his own judgment, but was supported by the advice and judgment of a reputable real estate appraiser of equal experience, more is required to justify a surcharge! against the guardian, because of failure to realize from the mortgaged premises the full amount of the investment, than an opinion expressed by three witnesses called by an exceptant, that in the original transaction there was not sufficient margin between the amount invested and the actual value of the premises to make it a wise and prudent investment. Where good faith is conceded a guardian’s liability in such case as this arises only as want of common skill and prudence has been shown. Accepting the findings of fact made by the auditing judge, nothing more prejudicial to the guardian can be inferred than that his judgment — as well that of
“The doctrine that a trustee cannot go beyond the line of his duty described by law, and make changes of trust property from money to lands, or lands to money, is well settled; and generally, if the trustee invests money in lands, the cestui qué trust may, at his option, accept of the lands or refuse them and demand his money.” Bonsall’s App., 1 Rawle 265. It is no answer to say that the property is worth more than the price paid. Of that the ward has the exclusive right to judge and determine for herself. The guardian and the witnesses he called testified alike to a value far in excess of the price paid. Why not leave it at that? The guardian has the property ; his ward is entirely willing that he should retain it upon paying her the amount owing her upon the mortgage. He need feel no embarrassment in realizing for himself the profit he is so confident of, and which his