Kuhns's Appeal

Mr. Justice Trunkey delivered the opinion of the court The guardian’s account was confirmed at June Term 1871. The petition for review was presented on January 6th 1877. The alleged error is, that the accountant did not charge himself with $1090.46, the difference between the sum he had received, as her share of her father’s estate, and the sum shown in the account. On the 10th day of April 1871, the balance on the face of the account was paid to the petitioner, whereupon she gave a formal receipt in full satisfaction. Section 1 of the Act of October 13th 1840, Purd. Dig. 1109, gives a right to rehearing of so much of a guardian’s account as is specifically alleged to be error, within five years after the final decree of confirmation. It was not the intent of the proviso in that section, because of payment of the balance, to preclude re-examination when the accountant had failed to charge himself with money for which he was liable to account: Kinter’s Appeal, 12 P. F. Smith 318. The mere omission of the accountant to charge himself with money received by him, and for which he was liable, cannot be corrected on petition for review after the lapse of five years: Weiting v. Nissley, 6 Barr 141. It follows that unless the petitioner shows matter to take the case out of the limitation of the Act of 1840, she is without remedy. For this purpose she charges actual fraud by the accountant, and that she had no reason to suspect his falsehood and fraudulent concealment of facts until within two months before presenting her petition. The case now comes on petition and answer, and the sole question is, has the petitioner, if the fraud appear, a right to a rehearing ? The learned judge was of opinion that the Act of 1840 is conclusive against her. We cannot agree that it is the intendment of that statute to take from the Orphans’ Court, a court of equity, the power to relieve against fraud not discovered for five years from the decree. It had such power before the enactment. Though a remedial statute it is set up [104] here as a limitation. “ In equity the Statute of Limitations begins to run from the discovery of the fraud, and not before Ferris v. Henderson, 2 Jones 49. So at law fraud is an answer to a plea of the Statute of Limitations: Bricker v. Lightner, 4 Wright 199. The authorities are numerous to like purport. With stronger emphasis it should be ruled that when an executor, administrator or guardian has perpetrated a fraud in the settlement of his account, the limitation in the Act of 1840 begins to run from its discovei’y by the injured party. To grant a rehearing for “ such relief as justice and equity may require, by reference to auditors, or otherwise,” is not an adjudication that the guardian was guilty of the alleged fraud; but that the inculpatory evidence, and, if need be, the exculpatory, shall be heard and duly considered. No fact, affirmed by one party and denied by the other, will be presumed, at the rehearing, without satisfactory proof of its existence. The alleged error is specifically charged. Do the facts as set forth, taken as true, show fraud ? The petitioner avers that in 1868, when in her minority, she removed to Ohio, where she has since resided, and her guardian knew of her change of residence; that she was ignorant of the amount and value of her father’s estate and of the share coming to her; that she was assured by him that the sum with which he had charged himself was all he had received for her from said estate; and that relying on his integrity and on the truth of his said assurance, she accepted the same and took no steps to investigate the truth thereof. She had arrived at age six months before. The answer states material things to consider on the question of fraud, to wit, that the guardian made a full settlement with her on said April 10th 1871, in presence of the respectable counsel of her father’s estate, who prepared his account and her release; that she had every opportunity to examine his account, and raised no objection; and numerous letters to him, the last dated May 25th 1874, “ all showing the confidence in and entire satisfaction with what the said Stehman had done in her estate.” A guardian is bound to the utmost good faith in transactions with his ward. Settlements made soon after the ward comes of age are watched by the courts with strictest scrutiny; and, if it appear that the influence of the guardian continued at the time of settlement, unless he shows that it was fair, just and conscionable, It will be set aside for constructive fraud. The reason for this rule operates in a case like the present. What would be unworthy of serious attention between strangers, dealing with each other at arms length, would be conclusive of fraud against one seeking an unfair advantage from his undue influence arising in a confidential relation. Here a young woman made a final settlement with her guardian. She had full confidence in him, evidenced by her friendly visits and letters for years after. She had every opportunity to [105] examine his account prepared by the counsel for the administrators of her father’s estate, and she made no objection; nor does she now object to what is on its face, for it is fair to look upon. The surroundings were persuasive to her mind that all was right. She was ignorant of the value of her father’s estate, and was assured by the guardian that he had charged himself with all he had received from said estate. The counsel wrote the release and she signed it without suspicion. The foulness was not on paper, it was in the assurances and concealments of him who was bound to disclose everything to his ward which she ought to know. If it be true that he had received $1090.46 more than charged in the account, can it be pretended the alleged facts do not disclose a fraud ? It is mockery to say she could have ascertained the truth, for her confidence in her guardian long continued. There was not a circumstance to shake it, or move her to inquiry. Decree reversed, at costs of appellee, and the record ordered to be remitted to the Orphans’ Court for further proceedings.