Lukens's Appeal , 7 Watts & Serg. 48 ( 1844 )

The opinion of the Court was delivered by

Kennedy, J.

Elizabeth Lukens, the appellant, who was the complainant in the Orphans’ Court, and had been during the latter part of her minority the ward of the respondent in this case, attained full age on the 4th April 1838, and on the 12th January 1839 received from him the amount of what he represented to be in his hands and then held as. her guardian, and thereupon signed a release or an acquittance in his favour. This was done in the presence of her father; but it is said that he was rendered incapable at the time, by previous sickness, of advising or directing her in the matter, and of deciding whether all appeared to be right or not. It would appear, however, that no objection was then made to the amount of the moneys and the nature of the property, which the defendant represented he had received and held as belonging to the complainant, and actually paid and passed over to her. Nor has it been attempted to be proved or shown that his representation in regard thereto was in any particular untrue. The amount as well ,as the nature of the funds which he received as her guardian is stated in his answer, together with the amount of their accumulation under his care and management until he paid over and passed the same to her, some nine months after she attained full age. But it is required of him to state fully and particularly, and to give in detail an account of his administration of the funds belonging to the complainant during the time of his guardianship, showing from time to time, as the same came to his hands, what he did with them, and the profit that he thereby made on them; and again how such profit was disposed of, so that a further profit should appear to have been made thereon. This, however, he declares by his answer on oath that he is now unable to do after so great a lapse of time, as the securities upon which the trust moneys were let out have long since been all paid and given up by him, without his having made and preserved any memorandum thereof in writing.

We have reason to believe that it is the practice of guardians frequently to settle with their wards, after the latter have attained full age, without stating and settling their accounts in the Orphans’ Courts, and to take of them receipts in full or releases. Such practice, I would suggest, had better be avoided;,for it is obvious, if a settlement were first made by a guardian of his account in the proper Orphans’ Court, upon due notice given to his ward, so as to obtain the approval and sanction of the court, it would tend to promote the interest of the ward and the security at least of the guardian, and at the same time to prevent subsequent litigation, expense and trouble. The ward, under the express provisions of the Act of Assembly, has a right to require that such settlement shall be made by his guardian before, the court; but if he chooses, after he has arrived at full age,to.make a settlement with his guardian, without the intervention of the court, and, after having received the amount agreed to be coming to him, to give an acquittance or release to his guardian, he ought not to trouble the court or his guardian either afterwards, without pointing out some mistake or error in the settlement, or showing that a fraud has been practised on him by his guardian, whereby he is prejudiced. But more especially shall he not be allowed to call his guardian to account before the court after a lapse of nearly four years, as in this case, without pointing out or designating some mistake, or specifying a fraud alleged to have been committed, and undertaking to prove the same in some way. But suppose in this case that the complainant, before settling with and releasing the defendant, had cited him to appear in the Orphans’ Court and settle his account, and that he had filed an answer stating all the facts set out by him in his answer here, showing what he received belonging to her, when received, what it consisted of, and the increase on the same, together with the aggregate amount which then remained in his hands, and that he was unable to give a more detailed account of his administration, as he had given up all the bonds and securities taken by him from time to time as he lent out the moneys of the complainant to divers persons, and had no written memorandum of his doings in this respect from which he could make his account more perfect or full than stated in his answer; what would the court have done ? It certainly would not have attempted to have enforced, by means of an attachment, from the defendant a statement which he had* testified on oath he was unable to make. In such case, when, for aught that appeared to the contrary, the defendant had stated correctly all that had ever come to his hands or knowledge as guardian, and the profit made thereon, which appeared to be reasonable, the court would have approved and confirmed the account as stated by him in his answer, with the exception, perhaps, as to that portion of it which had been vested by the defendant in the stock of the Girard Bank, which the court might have said must be accounted for or paid in money, unless the complainant were willing to take the stock at the then market value, but not more; and if the complainant had been willing to do this latter, the court surely would not have interposed to prevent her doing so; and having done it, she would have been bound thereby afterwards, notwithstanding the subsequent great depreciation in the market price of the stock.

But seeing the complainant took the stock at nearly 10 per cent, above the market price at the time, which the court would not have compelled her to do, and that the defendant had no authority from the court to invest her moneys in such stock, it would seem right, especially when we take into consideration her want of experience in the nature and the liability of such property to change in value, so as to become sometimes even worthless, that the defendant should make good to the complainant the difference between what she took the stock at and the market value of it at the time of the transfer of it to her. It is pretty evident that the great fall which has taken place in the market price of this stock since it was transferred to the .complainant, has been the sole and only cause of her application to the Orphans’ Court against the defendant for a statement and settlement of his guardianship account. If the stock had not fallen, or had risen in value, there is every reason to believe that she would have remained perfectly satisfied with the account which the defendant had rendered, and what he had given her. In the first place, the great lapse of time which took place before she made any complaint goes to show this. And although it may be that her father, from sickness at the time she made the settlement, was not very capable of advising her for the best, yet in a very short time afterwards he was restored to his usual health, and when in that state the testimony on the part of the complainant herself shows that he was quite a man of business, so that if there had been any other ground for complaint it would have been heard of. But what seems to show conclusively that the great depreciation in the market value of the stock of the Girard Bank was the only cause of dissatisfaction on the part of the complainant afterwards, is the settlement made two years previously with her sister Sarah, when the father was in perfect health, and capable of advising and seeing that all wras' right, to whom the same amount of principal and interest made, thereon up to that time was rendered by the defendant, and the amount thereof paid to her in money instead of, stock, as no purchase had been made then of stock with the moneys of either, against which no exception or even murmur of complaint has ever been made.

The most exceptionable feature in the conduct of the defendant as disclosed by his answer, is the circumstance of his having invested the moneys of the complainant, when in his hands, in the stock of the Girard Bank in his own name, and not in that of his ward. This was wrong and ought not to be; for it may enable the guardian, if the stock should rise greatly in value, to claim and hold it as his own, but if it happens to fall in price he may then endeavour to throw the loss on his ward, by showing that he purchased the stock with the funds of his ward. Equity and courts too, I take it, would hold the guardian bound to transfer the stock to his ward whenever, in such case, it has risen in value so as to make it for the benefit of the ward to do so; but where it has fallen in value, and a loss would accrue to the ward by having it imposed on him, courts, from considerations of policy, with a view to prevent a guardian from making profit and gain of his ward’s moneys or funds without its being made known by him, as far as practicable, so that he may be readily made to account for the same, will never hold the ward bound to accept of a transfer thereof, but will on the contrary decree the money so invested in stock to be paid or accounted for by the guardian with legal interest. But there is reason to believe that guardians frequently purchase stock in their own names with the moneys of their wards, intending it honestly at the time for their exclusive benefit; so that it would be going too far to consider it per se such evidence of fraud as shall be deemed sufficient to set aside the settlement made by the ward with his guardian, without other circumstances being shown from which it may be inferred that the ward has not been fairly dealt with. If it appeared in this case that the defendant had traded with the moneys of the complainant, or used them for his own purposes in any way, whereby, for aught that appeared to the contrary, he had made gain or profit of the same equal to compound interest, and he had refused to render an account'theréofj he would, as it appears to me, have been justly and legáliy chargeable with compound interest, and the court below would have been bound to have directed him to be charged therewith accordingly. Schieffelin v. Stewart, (1 Johns. Ch. Rep. 620). See Ex parte Baker, (18 Vez. 246); Stackpoole v. Stackpoole, (4 Dow P. C. 209); Harland’s Accounts, (5 Rawle 323); Wright v. Wright, (2 M’Cord’s Ch. R. 185); Ringgold v. Ringgold, (1 Harr, & Gill 11). This is one of the few cases in which compound interest may with propriety be charged. But certainly the general rule seems to be in favour of simple interest merely. So» it may be right to charge compound interest where a guardian or a trustee is directed by the will of the testator creating the trust to place the trust funds at interest, to be paid thereon semi-annually or annually at most, and upon the receipt of such interest to put it again to interest in like manner, &c. In this latter case it may well be said that the guardian or trustee, by accepting the guardianship or trusteeship, has undertaken to do as directed by the will, which is in effect, if practicable, to make the trust money or fund produce compound interest; but having wilfully failed to do so, when practicable, he becomes fairly liable according to his special undertaking to make good the loss arising from the breach of his undertaking, or in other words to pay the amount of the profits which might have been derived from the trust fund had he done his duty. Raphael v. Boehm, (11 Vez. 92); 13 Ib. 407, 590; 2 Kent’s Com. 231, note (b). And it may also be, if a person acting in a fiduciary character shall be guilty of misfeasance instead of negligence merely, that he may be charged with compound interest, because misfeasance, when committed to the prejudice of another, is such a wilful and determined wrong as would seem to require greater severity of punishment than mere neglect of duty, though the neglect be of a gross nature. See Tebbs v. Carpenter, (1 Madd. Ch. Rep. 290).

Upon a full and deliberate consideration of this case, we are of opinion that the defendant ought to be charged with the difference between the market value of the Girard Bank stock at the time he transferred it to the complainant, and the value or price at which R was transferred to her; and that he ought to pay this difference, amounting to $253, with interest thereon from the 12th of January 1839, to her, beside the costs of this proceeding. The decree of the Orphans’ Court is therefore reversed so far as it is inconsistent with the opinion thus expressed, and affirmed as to the residue.

Ordered and decreed that James Paul, the appellee, pay to Elizabeth Lukens, the appellant, the sum of $253, with interest thereon, from the 12th day of January 1839, the same being the ■difference between the price at which the stock of the Girard Bánk was transferred and given by the appellee to the appellant, and the market price thereof at the time of the transfer; and further, that the said James pay the costs of the proceedings in this case, and that the decree of the Orphans’ Court is reversed so far as it is inconsistent with the decree of this court.