Appeal of Royer

The opinion of this court was delivered by Coulter, J.

To go no further back in the facts of the case than the investment of the funds of his wards by himself and partners in the transportation company — an enterprise of doubtful and equivocal safety — we find sufficient ground to impute culpable negligence and indifference to the guardian. Soon after this investment, which proved unfortunate, Royer, the guardian, sold to Thompson, one of his partners in the store and transportation company, his interest and that of his wards, for $5,111.57. Eor this sum and the amount of a note for $370, money which Thompson had borrowed from a former guardian, Thompson gave to Royer his judgment-note. One-third of the sum of $5,111.57 belonged to Royer in right of his wife, Mrs. M’Namara, the mother of his wards, he having married her before his appointment as guardian.

On the same day, at the instance of. Thompson (who seems to have acted throughout with good faith and tenderness towards the children of M’Namara, his former partner), the note was divided, and one note given to Royer as guardian for two-thirds of the sum of $5,111.57 (also including the $370 for money borrowed as above mentioned), for the other third a note was given to Royer in right of his wife. Thompson was also indebted in a large sum to Royer on his own account. It was then the duty of the guardian to have collected the judgment-note of his wards. Thompson at thattime had abundant means to secure the payment of the debt due the minors, if Royer had looked after it with any degree of vigilance. His *40 ability in real and personal property to answer the debt at that time is not denied. The judgment-note was given by Thompson to the guardian the 11th July, 1839, and on the 3d day of October, 1840, Thomson executed to Royer, in his own name, a deed for what is called the Blairville property, consideration §5,865.53, a sum just equal to the amount due the minors, and Royer and wife, with interest. Here was another change of the fund, and a conversion of it into real estate, a proceeding which nothing but imminent necessity can justify. As the guardian took the deed in his own name, we may presume that if the land had appreciated in value, and turned out a good speculation, we should not have been troubled with this dispute. But as it has now depreciated to a considerable extent, we may suppose the guardian seeks to fob off his wife’s children and his own wards, with the land; and as a sufficient reason therefor, alleges and shows that on the 30th day of August, 1842, more than three years after he took the deed in his own name, he executed a deed of trust in favour of the minor children of James M’Uamara, deceased, for two-thirds of the Blair-ville property, which declaration was duly recorded in Indiana county, on the 15th May, 1843. I presume by that time the guardian had perceived some glimpses of the nature and value of the speculation which might be made in the lands.

For the §370,money borrowed from the funds of the wards, and which went into the purchase of the land by Royer, no provision was made in the declaration of trust — that being perhaps forgotten. The guardian now files his account and prays credit for the land, or rather declines and refuses to charge himself with the sum of §3,777.72, money belonging to his wards, which he put into that purchase.

Every doctrine of natural justice, every principle of judicial equity, and every sound maxim of laAV which can be brought to bear on the ease, require that the guardian shall account for the money.

Why did he not enter up the judgment-note when he was warned by Thompson that his condition was perilous, and that he wished to do justice to the minors ? Why did he take a conveyance of the land in his own name, and receive the personal property of Thompson in satisfaction of his own personal claim, separate from the claim he had in right of his wife ? There was a conflict of interests, and the guardian, it would seem, resolved to hold that of his wards in jeopardy, at the option of taking the land himself if it rose in value, and throwing it back on the minors if it fell; whilst the interests of the man were cared for by taking personal estate.

*41 A fiduciary relation requires vigilance as well as honesty. A dead and sluggish calm — a supine negligence — is full of peril to the minor: it is often as fatal as positive dishonesty. The guardian might have secured and collected the money by the means which Thompson put into his hands. All that was necessary for him to do was discreetly to use them. That he did not do, and, therefore, he ought to account to the minors.

The sum of $5,111.57 was due by the firm of Thompson & Oo. to the heirs of M’Namara, as the account was settled, in 1836, by John Thompson, the surviving partner; and, as Royer was appointed guardian in that year, he ought to be charged with interest from that date, on the sum of $3,407.72, up till the time of the decree. It is very probable that he ought to be charged interest for a much larger sum; but the paper-books do not furnish us the means of determining whether that sum included interest on what was due at the death of M’Hamara, up till 1836, or not. Perhaps it did, and perhaps it did not. He must also be charged interest on the note for $370, from the time it was payable, till decree made. I cite the case of Dietrich’s Appeal, 5 Barr, 78, as authority for charging the guardian with the price of the land; or, in other words, with the money of the minors which he converted, together with interest; as, also, the case of M’Cahan’s Appeal, 7 Barr, 56.

The evidence of facts in the paper-book does not furnish the materials for a decree, as the account of the guardian is not there; nothing but the disputed items. The record is therefore remitted to the Orphans’ Court, and a procedendo awarded, for the purpose of charging the guardian with the sum of $3,407.72, with interest from the 24th of March, 1836, till the date of the decree; and, also, with the sum of $370, the amount of the note, and interest from the time it was payable until the date of the decree.

As the wards appealed, and also the guardian, a decree on the basis above set forth covers the case on both sides.

Record remitted, and -procedendo awarded.