Roth's Estate

Opinion by

Mb. Chief Justice Paxson,

It is the settled rule imthis state that the orphans’ court will always scrutinize a settlement made by a guardian with his ward shortly after the latter arrives at age, and where no account of the trust is filed with the register. In such cases the burden of proof is on the guardian to show that the settlement was a fair one, and that no fraud was practiced upon his ward. The rule upon this subject was fairly stated in Luken’s Appeal, 7 W. & S. 48, where it was said by Kennedy, J.:

. “ The ward, under the express provision of the Act of Assembly} has a right to require that such settlement shall be made by the guardian before the court; but if he chooses after his arrival 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 the guardian, he ought not to trouble the court, or his guardian either, afterwards, without pointing out some mistake or other error in the settlement, or showing that a fraud has been practiced on him by his guardian whereby he has been prejudiced.”

We may add in addition to this that much depends upon the circumstances of the case. Where the estate is large, and the accounts complicated, especially if the settlement is made in the absence of a relative or a business friend of the ward, a stricter rule should prevail than where the estate is trifling, consisting of only a few hundred dollars, and the account correspondingly brief. In the latter class of cases a guardian may well avoid filing an account in order to save the expense to his ward, and the latter should not be allowed to disturb that settlement, especially after the death of his guardian, unless for clear mistake or fraud.

In the case in hand, the ward became of age on the 28th day of September, 1887. Between that day and the 1st day of January following, there was a settlement between the ward and George D. Ebert, his guardian. The settlement took place at the office of W. W. Moore, a justice of the peace, and in his presence. They went over the accounts of the guardian as •contained in his books, and found a balance due the ward of $445.61, which was subsequently paid to him. On the 20th day of February, 1888, he executed and delivered to his said guardian a release for the balance due upon said settlement, expressed to be, “ in full satisfaction and payment of my share of the estate, real and personal, of my late father, Adam Roth, deceased.” This release was recorded in the recorder’s office in York county. On the 14th day of July, 1888, George D. Ebert, the guardian, died. On the 15th day of September, •1890, the ward presented his petition in the orphans’ court, praying for a citation upon the administrators of the deceased guardian to file his account as such guardian. Upon this proceeding the court below ordered an account to be filed, which was referred to an auditor, and resulted in a surcharge of a considerable sum, besides the costs of the audit.

The testimony of the ward himself shows that he was entirely satisfied with the settlement until he discovered, shortly after the death of his guardian, that the latter had received the sum of $266.67 which was not included in the account and settlement. This money was received by the guardian under the following circumstances: It appears that on the 15th day of April, 1878, John Upman, the step-father of the ward, paid this sum to the guardian, for which he received the following receipt:

“Received, April 15th, 1873, of John Upman, two hundred and sixty-six dollars and sixty-seven cents. To be applied to the fund of William Roth, a minor child of Adam Roth.

$266.67

George D. Ebert.”

It further appeared that on April 21, 1873, the guardian returned this money to Mr. Upman, and took his receipt therefor. The circumstances under which the money was paid to the guardian, and by him returned to Mr. Upman, do not very clearly appear. Both are deceased, and we have little but what appears upon the face of the respective receipts. There is satisfactory evidence, however, that Mr. Upman was an intemperate man, and that, if not insolvent, he left no propertv when he died. The payment to the guardian was entirely voluntary, and under the circumstances we may fairly assume that it was improvident. It was moreover no part of the estate of the ward. Upman needed the money to pay a note in less than a week after he handed it to the guardian, and demanded it back and received it. There was a reference to this pay-, ment on the books of the guardian, but the amount was not carried out, and it appears to have been erased. The auditor and the court below surcharged the guardian with the amount of this money with interest thereon from April, 1878, upon the ground that it was an executed trust, and the guardian had no right to return the money.

When we reflect that this money never had formed any portion of the ward’s estate, and that the guardian had returned it to Upman in entire good faith within a few days after he had received it, it seems a harsh proceeding on the part of the ward, after the lapse of nineteen years, and after the lips of his guardian are sealed in death, to seek to hold him responsible for this money with its accumulated interest.

The right of the guardian to retain it is too uncertain to justify us in surcharging his estate with it after this lapse of time. Considering the evidence as to his habits, and his lack of means, we are justified in holding it to be an improvident gift which he had a right to revoke. It was without consideration, and, the payment a mere voluntary one; and, being to a volunteer, it was revocable by the donor: Russell’s Appeal, 75 Pa. 270 ; and is void, the gift being improvident: Rick’s Appeal, 105 Pa. 528 ; and where creditors are involved, it is fraudulent as to them. In Miskey’s Appeal, 107 Pa. 612, a man of intemperate habits, by which he had become enfeebled in mind and body, made a conveyance of all his estate to his father in trust for his (the grantor’s) father, mother and sister. The deed contained no power of revocation, yet it was set aside by this court. We need not pursue this branch of the case further.

The court also charged the appellants with the sum of one hundred dollars upon the ground that it was a duplicate charge. The only evidence to support this surcharge was the testimony of che ward himself, who was permitted to testify against the objection of the appellants. The admission of the ward as a witness forms the subject of the second specification of error. The learned judge below held that he was a competent witness under the Act of June 11, 1891, P. L. 287, for the reason that the witness, W. W. Moore, who was present at the settlement between the guardian and his ward, had been called and testified on behalf of the estate. Just here the learned judge below fell into error. Moore had not been called as a witness when William H. Roth, the appellee, was placed upon the stand. His competency as a witness must be determined by the condition of things at the time he was called. The fact that Moore was subsequently called on behalf of the estate did not render Roth competent. Non constat that if Roth had not been permitted to testify, Moore would have been called. Aside from this, Roth was permitted to testify to many matters outside of Moore’s evidence. For instance, he testified that he had never received the sum of one hundred dollars, which Moore knew nothing about, and made no reference to it in bis evidence. We seldom have a more striking illustration of the danger of permitting a living witness to testify to what occurred between himself and a dead man, where the estate of the latter is a party in interest. Here we have a man who waits until about two years after his guardian’s death, and after he has made a settlement with him, to bring a proceeding against his estate, and is permitted to testify to and repudiate certain items in that settlement. The evidence shows that the settlement was made in the presence of a reputable justice of the peace, and there is nothing to show that any information was withheld from the ward. The books and papers of the guardian were before him, and it is inconceivable that so large an item as one hundred dollars, would have been overlooked by the ward in an estate of about four hundred and fifty dollars, and in an account, containing but few items. The presumption is very strong that the failure of the guardian to file an account was to save his ward the expense of it. He appears to have managed the estate with prudence and care and charged no commissions for his trouble. Under the circumstances, we find nothing sufficient to overturn the settlement between the guardian and his ward and it must be allowed to stand. All of the subsequent proceedings must be at the expense of the appellee.

The decree is reversed; the costs of this appeal, and all other costs below, including the costs of audit, to be paid by the appellee.