The guardian is held in this country to have only a naked authority, not coupled with an interest. (a) His possession of the property of his ward is not such as gives him a personal interest, being only for the purpose of agency. But for the benefit of his ward, he has a very general power over it. He manages and disposes of the personal property at his own discretion, (b) although, as we have already intimated, it is safer for him to obtain the authority of the court for any important measure; he may lease the real estate (the lease not to continue beyond the ward's majority), if appointed by will or by the court, but the guardian by nature cannot; (c)1 he cannot however sell it without leave of the proper court. Nor should he, in general, convert the personal estate into real, without such leave. (d) And
(z) Morris v. Morris, 2 McCarter, 239.
(a) Granby v. Amherst, 7 Mass. 1, 6.
(b) "I apprehend that no doubt can be entertained as to the competency of the guardian's power over the disposition of the personal estate, including the choses in action, as between him and the bond fide purchaser. The guardian in socage of the real estate may lease it in his own name, and dispose of it during the guardianship (and the chancery guardian has equal authority), though he cannot convey it absolutely without the special authority of this court, because the nature of the trust does not require it." Kent, C, Field v. Schieffelin, 7 Johns. Ch. 154. This case decides that the purchaser of the ward's personal estate is not responsible for the faithful application of the purchase-money by the guardian, unless he knew or had sufficient information at the time that the guardian contemplated a breach of trust, and intended to misapply the money; or was in fact by the very transaction applying it to his own private purpose. - The guardian of a non compos mentis can sell her personal estate at his discretion, and her real estate with license from the court.
" It is true the guardian ought not to sell the personal estate, unless the proceeds are wanted for the due execution of his trust, or unless he can by the sale produce some advantage to the estate, but having the power without obtaining any special license or authority, a title under him acquired bond fide by the purchaser will he good, for he cannot know whether the power has been executed with discretion or not." Parker, C. J., Ellis v. Essex Merrimac Bridge, 2 Pick. 243. - The Court of Chancery may authorize a sale of the ward's real estate. Dorsey v. Gilbert, 11 G. & J. 87. - Also, In re Salisbury, 3 Johns. Ch. 347; Hedges v. Riker, 5 id. 163. - "The court may change the estate of infants from real into personal, and from personal into real, whenever it deems such a proceeding most beneficial to the infant. The proper inquiry in such cases will be, whether a sale of the whole, or only of a part and what part of the premises will be most beneficial." Kent, C, Mills v. Dennis, 3 Johns. Ch. 367.
(c) May v. Calder, 2 Mass. 56. A lease of an infant's land by his father as natural guardian is void.
1 A guardian cannot lease his ward's oil or mineral lands for working and consequent impoverishment. Stoughton's Appeal, 88 Penn. St. 198.
where a court of * equity authorizes a conversion of real estate into personal, or vice versa, it will, if justice requires it, provide that the acquired property shall retain the character and legal incidents of the original fund. (e)
But where a fictitious character is thus impressed upon the property of a ward, it ceases, as a general rule, and the property resumes its true character, on the majority of the ward. (/)
As trustee, a guardian is held to a strictly honest discharge of his duty, and cannot act in relation to the subject of his trust for his own personal benefit, in any contract whatever. And if a benefit arises thereby, as in the settlement of a debt due from the ward, this benefit belongs wholly to the ward. (g) And it has been held that if a guardian makes use of his own money to erect buildings on the land of his ward, without having an order of the court therefor, he cannot charge the same in account with his ward, or recover the amount from the ward. (h) But we believe a rule so severe would not be applied unless for special reasons. He must not only neither make nor suffer any waste of the inheritance, but is held very strictly to a careful management of all personal property. (i) He is responsible * not only
(d) The cases cited (3 Johns. Ch. 348, 370, 5 id. 163) affirm the power of a court to order the minor's real estate to be converted into personal, or his personal into real, but do not expressly deny the guardian's authority to do the latter. See supra, note (b). Stanley's Appeal, 8 Barr, 431; Cooke's Appeal, 9 id. 508; Worrell's Appeal, 23 Pa. 44.
(e) Foster v. Hilliard, 1 Story, 88; Wheldale v. Partridge, 5 Ves. Jr. 396; Craig v. Leslie, 3 Wheat. 563, 577; Peter v. Beverly, 10 Pet. 532; Hawley v. James, 5 Paige, 318, 489; Kane v. Gott, 24 Wend. 660; Reading v. Blackwell, 1 Baldw. 166; Collins v. Champ, 15 B. Mon. 118; Slumway v. Cooper, 15 Barb. 556; Forman v. Marsh, 1 Kern. 544; Sweezy v. Thayer, 1 Duer, 286; March v. Berrier, 6 Ired. Eq. 524. The above cases illustrate the general principles of equitable conversion, although all of them are not applicable exclusively to conversions by a guardian with license from court.
(f) Forman v. Marsh, 1 Kern. 544.
(g) Green v. Winter, 1 Johns. Ch. 26; Church v. The Marine Insurance Co. 1 Mason, 345; Holdridge v. Gillespie, 2 Johns. Ch. 30; Davoue v. Fanning, 2 Johns. Ch. 252; White v. Parker, 8 Barb.
48; Ringgold v. Ringgold, 1 Har. & G. 11; Rogers v. Rogers, 1 Hopk. Ch. 515; Lovell v. Briggs, 2 N. H. 218; Sparhawk v. Allen, 1 Foster (N. H.), 9; Hoyt v. Sprague, 103 U. S. 613. - The guardian is not entitled to compensation for services rendered before his appointment. Clowes v. Van Antwerp, 4 Barb. 416.
(h) Hassard v. Rowe, 11 Barb 24. See also White v. Parker, 8 Barb. 48; Austin v. Lawar, 23 Miss. 189, and Brown v. Mullins, 24 Miss. 204.
(i) Dietterich v. Heft, 5 Barr, 87. If he lends money on the mere personal security of one whose circumstances are equivocal, he is responsible for the money lent. - Stem's App. 5 Whart. 472. " Whenever the guardian has the fund and disposes of it to another, he must do it with strict and proper caution, and is seldom safe unless he takes security." Sergeant, J., Konigmacher v. Kimmel, 1 Penn. 207; Pim v. Downing, 11 S. & R. 66; Smith v. Smith, 4 Johns. Ch. 281.- But he is bound in general only to the exercise of common prudence and skill. Johnson's Appeal, 12 S. & R. 317; Konigmacher v. Kimmel, 1 Penn. 207. He is liable for any negligence. Glover v. Glover, 1 McMul. Ch. 153.- Although for any misuse of the ward's money or stock, but for letting it lie idle; and if he does so without sufficient cause, he must allow the ward interest Or compound interest in his account;(j)1 and if he lends it without security, and without the approval of the court, he is liable for its loss. (jj) This subject is more fully presented in treating of the responsibility of Trustees. (/.•)
To secure the proper execution of his trust, he is not only liable to an action by the ward, after the guardianship terminates, (l) but during its pendency the ward may call him to account by his next friend, or by a guardian ad litem. And the courts have gone so far as to set aside transactions which took place soon after the ward came of age, and which were beneficial only to the former guardian, on the presumption that undue influence was used, and on the ground of public utility and policy. (m)
A guardian cannot, by his own contract, bind the person or estate of his ward; (n)2 but if he promise on a sufficient consideration to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. (o) And it is a sufficient consideration if such promise discharge the debt of the ward. And a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate, or if he be discharged from his guardianship, he may have an action against the ward for money paid for his use.(p) An action will expressly authorized to invest the ward's money in bank-stock, he is personally liable if he invests it in his own name. Stanley's App. 8 Penn. St. 431. - He was held liable for the ward's money invested in the stock of a navigation company, in good credit at the time, and paying large dividends for a long time afterwards. Worrell's App. 9 Penn. St. 508. See also Clark v. Garfield, 8 Allen, 427; Gilbert v. M'Eachen, 38 Miss. 469; Bond v. Lock-wood, 33 Ill. 212.
(j) In Pennsylvania it is held that there is a distinction as to funds in the hands of guardians as to making rests from the rule in case of other trustees who neglect to invest. Pennypacker's
Appeal, 41 Penn. St. 494. See Hughes' Appeal, 53 Penn. St. 500.
(jj) Gilbert v. Guptill, 34 Ill. 112.
(k) See ante, p. * 122, note (/').
(l) See Birch v. Funk, 2 Met. (Ky.) 544, as to the effect of lapse of time in barring a petition in equity by wards against their guardians.
(m) Archer v. Hudson, 7 Beav. 551; Gale v. Wells, 12 Barb. 84; Carter v. Tice, 120 Ill. 277; Powell v. Powell, 52 Mich. 432.
(n) Thacher v. Dinsmore, 5 Mass. 299; Jones v. Brewer, 1 Pick. 314.
(o) Forster v. Fuller, 6 Mass. 58.
(p) Thacher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 Mass. 58.
1 A guardian who refuses to disclose what use he has made of a large surplus of his ward's income, for which he charges himself with interest, is not entitled to his commissions. Blake v. Pegram, 109 Mass. 541. - K.
2 On contracts made by the guardian he is personally liable, although he contracts expressly as guardian. St. Joseph's Acad. v. Augustini, 55 Ala. 493; Kingsbury v. Powers, 131 Ill. 182; Rollins v. Marsh, 128 Mass. 116; Dalton v. Jones, 51 Miss. 585; Reading v. Wilson, 38 N.J. Eq. 446.
And although the estate of the ward is insufficient to reimburse the guardian, he must nevertheless satisfy the obligation unless by the contract his liability was to be limited to the assets of the ward in his hands. Sperry v. Fanning, 80 Ill 371.
not lie against a guardian on a contract made by the ward, but must be brought against the ward and may be defended by the guardian. (q) *The guardianship is a trust so strictly personal, or attached to the individual, that it cannot be transferred from him, either by his own assignment or devise, or by inheritance or succession.
A married woman cannot become a guardian without the consent of her husband; but with that she may. (r) It would seem, but not certainly, that a single woman who is a guardian loses her guardianship by marriage, but she may be reappointed. (s) In some States she loses it by statute; in others, not.
If there be two guardians, and one has possession of the ward, and the other takes the ward out of his possession against his will, it is said in England that the guardian losing the possession may have his action against the other. (t)
(q) Brown v. Chase, 4 Mass. 436; Thacher v. Dinsmore, 5 Mass. 299; Ex parte Leighton, 14 Mass. 207.
(r) Palmer v. Oakley, 1 Doug. (Mich.) 433.
(s) 2 Kent, Com. 225, n. (b).
(t) Gilbert v. Schevencle, 14 M. & W.