Smith v. Gummere. on the 2d of March, 1875, and stipulated for the delivery of the deed on the 1st of April then next, provided the guardian should be able to obtain authority from this court to make the conveyance. It appears, by a report of sale of the property to Lacy under proceedings in this court, made in April, 1877 (the order for sale was made in the same month), that the agreement was that Lacy was to pay $2,250 for the property, of which sum $850 were to be paid in cash, and for the remaining $1,400 he was to give a mortgage, the interest whereon, up to the time of giving the deed, he was to pay in lieu of rent, and the interest on the balance of the purchase-money was to be allowed him for the repairs necessary to make the premises tenantable. The report also states that Lacy had occupied the property under the agreement to the date of the report, April 26th, 1877, and had paid the interest on the mortgage in lieu of the rent from the 1st of April, 1875. The interest on $2,250 for those two years was $315 (the legal rate at that time was seven per cent. per annum), and for this the guardian is clearly chargeable. The report was never filed, but it is signed by him as guardian. It was offered in evidence, as appears by the record, but was objected to, and was not marked as an exhibit. It is competent evidence as an admission on the part of the guardian as to the sale and the terms of it, and that he had received the interest in lieu of rent. The repairs appear to have been made by Lacy. Mr. Hawk testifies that they cost Lacy $500 or $600. Without the evidence of the paper just alluded to, the guardian would, under the circumstances, be liable for the rent. No excuse is offered or appears, except from that instrument, for permitting Lacy to occupy the property for two years without paying rent. It appears that Lacy did not take the property. He rented it to another person, one De la Rionda, in June, 1877, who occupied it until October of that year. The guardian should be charged with $50 for the rent for that time also. It will have been seen that no charge is made for the year between April, 1874, and April, 1875. It is proved that the guardian lost some of the rent due from tenants, and losses to the amount of about $96 are sworn to by Mr. William L. Ashmore, but he cannot say that the money was not Smith v. Gummere. eventually collected by Mr. Kingman. Compensation for nonallowance in respect to such moneys is found in the fact that no charge is made for rents for 1874, and there is the further consideration on this head that there is no clear proof as to what rent the guardian received for much of the time, nor as to what rent, if any, he failed ultimately to collect. In the absence of any account on the part of the guardian, the presumptions are against him. But, further, the master has charged rent at the rate of only $100 a year from January 1st, 1865, to April 1st, 1874. Now, it is by no means clear that the guardian did not receive a much larger amount than that. In 1878 he rented the property to Hendrickson at $120 a year, and it seems very clear, from entries in one of his books, that he rented it for $150 a year in 1865. It is quite probable that, if the facts were known, a full compensation for all losses would be found in the difference between the rent actually received and the amount charged by the master, to say nothing of the fact before mentioned in this connection that no charge is made for 1874. The eleventh and last exception on the part of the complainant is, that the master allowed $150 for clothing for the ward, in 1880, although it appears that there is an unpaid bill of $43.18 for clothing of the ward for that year, which the present guardian is called upon to pay. The amount of that bill should be deducted from the $150, and the credit should be for $106.82, instead of that sum. To consider the exceptions on the part of the surviving administrator: The first and second, taken together, are that the master has erroneously charged the estate of the guardian with interest on annual balances, and that those balances are erroneously made up, and also that he has improperly included in the account of the general guardianship the interest on the proceeds of the sale of the Edgewater property. The guardian should be charged with interest on annual balances, but otherwise the objections are well taken. The guardian received, as general guardian, the following moneys of his ward during the first year: from the administrator of her father, $2,829.79; pension, $255, and rent Smith v. Gummere. of the before-mentioned property in Trenton, at least $100; altogether, $3,184.79. Under the circumstances, he is chargeable with interest on the money from the time it came to his hands, and the master has so charged him. The master has also charged him with five and a half months' interest on $7,003.97, the net proceeds of the sale of the Edgewater property, $7,000 of which, according to Mr. Kingman's report in his special guardianship, made, as before stated, July 29th, 1865, he had invested in government securities. But had that interest actually been in Mr. Kingman's hands at that time, as it well may have been, he could not lawfully have applied it to the purposes of his general guardianship. He was accountable to this court for that money, and had given security to it for the just and faithful performance of the trust reposed in him as special guardian in reference to that fund, and for his observance of such orders as the chancellor should, from time to time, make in the premises in relation to that trust. He could not have obtained authority to make such application of the interest to the purposes of the general guardianship, except by formal application to this court for the payment of the funds of the special guardianship to him as general guardian. The statute requires that, in granting such applications, the chancellor shall see to it that proper security is given before making the order. Rev. p. 483 § 10. And, if he be satisfied as to the security, still it is discretionary with him whether to make the order or not. In re Anderson, 2 C. E. Gr. 536. Mr. Kingman never obtained such an order. To have paid out the money for the purposes of the general guardianship, without authority, would have been a breach of his duty as special guardian, for which his sureties on the bond given to this court would have been liable to answer. To charge his account as general guardian now with the interest which he received, or should have received as special guardian, is to make his sureties on his bond as general guardian liable for money which he never received on that account, and for which he was bound to answer to this court, and for which his sureties on his bond as special guardian are liable. In fact, he may never have received the interest in question at all. If he sold the government bonds the Smith v. Gummere. next day after he made his report, and never re-invested the money, but used it for his own purposes, he had not the interest to apply to the purposes of the general guardianship. Under such circumstances, to charge his account as general guardian with the interest, is to charge his sureties in that matter with the damages for his breach of duty in the other trust, and to shift the burden of liability from the shoulders of the sureties on his bond as special guardian to those of the sureties on the other bond. As the account is now stated, the sureties on the bond given for the special guardianship are relieved of all responsibility for the interest on the fund and the liability transferred to the sureties on the other bond. The accounts must be restated. The restatement will render necessary a new calculation of the interest on the annual balances. The third exception is, that the master has made an insufficient allowance for the board of the ward in each year. He has allowed from 1865, when she was about two years old, to 1870, when she was about seven, $5 a week; from 1870 to 1879– that is, from about the age of seven to sixteen-$6 a week; and after 1879, $7.50 a week. He has also allowed $260 for the board and wages of a nurse for her for the first year. At the end of that year the ward was about two and a half years old. The allowance seems to me to be sufficient under the circumstances. The ward, indeed, had at her grandfather's house advantages which she could not have had anywhere else. She had kind attentions on the part of her relatives, and had the benefit and pleasure of a home with a family of refinement. Nevertheless, the allowance seems to be sufficient. It was her good fortune to find a home with her relatives, as it undoubtedly was their pleasure to extend to her, in her orphaned condition, that tender attention which affection gladly bestows, but which money cannot buy. The fourth exception is, that the master has made an insufficient allowance for the clothing of the ward. He has allowed nothing for 1865; $50 a year for 1866 and 1867; $75 a year for 1868 and 1869; $100 a year for the next four years; $125 a year for the next three years; and $150 a year for the rest of Smith v. Gummere. the time. The allowance, so far as made, seems to me to be reasonable, but there should be an allowance of $30 for clothing in 1865. The fifth exception is, to the non-allowance for the wages and board of a nurse for the ward after 1865. The proof is, that a nurse was kept for her, exclusively, during the first year (1865), and the master has allowed $247 for the board and wages of the nurse for that year. That allowance is proper, and is all that the evidence will warrant. The sixth exception objects to the non-allowance in the credits for board, care, maintenance, room-rent and guardianship of the ward for time during which she was absent from home. This matter was considered and disposed of under the complainant's seventh exception. The exception is overruled. The seventh exception, which is to the non-allowance of compensation for the use by the ward in her instructions in music in the guardian's house, of a piano belonging to him, cannot be sustained. The eighth exception is to the non-allowance of any sum for music, books and stationery in 1879. There should be an allowance of $15 on that account. There appears to be no reason for omitting the allowance for that year. The ninth exception is to the non-allowance for the years from 1871 to 1881 for pin-money furnished by the guardian to the ward. The proof is that he furnished such money to her. The objection should be sustained, and there should be an allowance of $12 a year from 1869, when she was six years old, to 1877, including the latter year, and $60 a year from 1878 to 1880, both inclusive, and, as before adjudged, $15 for 1881. The tenth exception alleges that the master has omitted to make due allowance for taxes paid by the guardian on the ward's property for 1877, 1878, 1879 and 1880. The objection is well founded. The guardian appears by the vouchers to have paid taxes on the Lamberton property for those years as follows: For 1877, $22.50; for 1878, $19.12; for 1879, $19.13, and for 1880 the same amount. He paid, also, in 1869, $28.13 for taxes on the same property, which are not credited but should be |