Kaufman v. Crawford , 9 Watts & Serg. 131 ( 1845 )

The opinion of the Court was delivered by

Sergeant, J.

It is clear that a trustee not specially authorized cannot go beyond the line of duty prescribed by law, and make changes of property from money into land, or from land into money. If he invest money in land, the cestui que trust may, at his option, accept of the land, or refuse it and demand the money. Bonsall’s Appeal, (1 Watts 274). The guardians are such trustees, and the wards here had the right, on coming of age, to exercise this option. For it is not a case where the guardian took the land at a valuation, or even bought it in at a public sale made in consequence of the refusal of the heirs to accept, as in Bowman's Appeal, (3 Watts 369). It was a volunteer purchase by the guardians at a public sale made by the administrator de bonis non in pursuance of the direction of the will, and was properly considered by the guardians as a purchase subject to the assent or dissent of the wards on their coming of age. The ward in question, then, might have exercised this right. When she married, her husband had the right to demand the money, and to make it his own by reducing it to possession, or by some equivalent act. It is contended that, being entitled to the money as his own exclusive property, if he relinquished that to the guardians, he stood in the place of his wife, and had the right to take the land as his own; and that he thus became a purchaser by a new acquisition. But that is not the case before us. The guardians purchased and paid for the land, and took the deed not to themselves, but in trust for the wards; so that the estate became vested in the wards by the deed from the administrator. There was no beneficial interest left in the guardians afterwards to convey, and their deed to the husbands transferred nothing, or, at most, the dry legal estate. After the estate had become vested in the wards, it could not be de-vested out of them by the will or act of the guardians or the husbands ; nor otherwise than by the conveyance of the wives, executed according to the forms prescribed by law. The husband’s relinquishment of the money could not of itself give the guardian power to convey an estate which belonged to his wife: it still remained in her, notwithstanding, precisely as it did before such conveyance, and unaffected by it.

This is not a question of election, properly speaking, but on the operation of conveyances, and must be governed by their legal effect. The case that comes nearest to it is that of Hannah v. Swarner, (3 Watts & Serg. 233), with the difference that there was no intervention of guardian in that case. The conduct of the guardians appears to have been fair, and they intended, perhapSj the security of the wards. Still I should say, as a general principle, that this kind of transaction by guardian, of converting the property of the ward, is one that ought not to be encouraged, as it has a tendency to produce subsequent confusion and litigation as to the title.

We think the court below erred in holding that the husbands became purchasers of the land in their own right: we are of opinion that the estate continued vested in the wives by virtue of the conveyance from the administrator; and she and her subsequent husband could lawfully convey it, if not otherwise devested.

Judgment reversed, and venire facias de novo awarded.