Totten's Appeal , 1863 Pa. LEXIS 235 ( 1863 )

The opinion of the court was delivered, November 5th 1863, by

Thompson, J.

We are unable to discover any statutory or common law, or practice of the courts, to convince or persuade us to an agreement in opinion with the learned judge below in these cases. The books are full of cases of a single guardian acting for several wards in all matters relating to their estates, including partition. By the 37th section of the Act of the 29th March 1832, ample provision is made for requiring security from guardians for the faithful performance of their duties as such; and the proviso to the section saves also to the ward his or her common law remedy, for injury by omission or commission of the guardian. One would think that in addition to the impulse of honour and humanity, to act with impartiality towards all the wards, the guardian was pretty well hedged in by the compulsory provisions of the law if he dared to be unfaithful. We -see not a shadow of ground for believing the guardian in this case did not do his duty faithfully, impartially, and to the best of his ability.

Nor can we assent to the right of the court, after so long a period had elapsed, and parties had made improvements, purchased adjoining lands, and adjusted their lines, to set aside the decree confirming the partition made, and the proceedings in partition themselves. If a new partition could be enforced under such circumstances, it is manifest that it would involve a partition of the labour and expenses put upon the purparts by those who took them on the faith of the decree of the Orphans’ Court. This would be manifestly unjust: Calhoun v. Hays, 8 W. & S. 127.

The decree of the Orphans’ Court, setting aside the inquest and partition and all subsequent proceedings, is reversed, and the original decree affirmed.

The costs of these appeals to be paid by the appellees.