Case of Bonsall's Appeal

The opinion of the court.was delivered by Huston, J. The facts in this case, and there was no dispute or contrariety of testimony, were as follows:—Thomas Hughes died, leaving nine children, six by .a former wife and three by a second wife: of the six, one died after the sale hereafter mentioned, aged eight or nine years. • — 273 — On a petition by the administrators, the Orphans’ Court of Berks county, granted an order to sell lands, to pay debts and maintain the children. A tract of seventy-three acres had been exposed’to sale, and ninety-nine dollars per acre bid for it by one JLllison. The administrators considering this price too low, bid higher, and returned it unsold. Two subsequent orders were obtained, and the land offered for sale. On the second of these in 1819, the eldest son, Edward B. Hughes and James Hutchinson, who was married to the eldest daughter, finding it likely to sell at what they supposed under its value, bid for it. The tract was crying at forty-eight dollars per acre; the administrators refused to strike it down at this price unless they would agree to let the other heirs or. some of them be interested in the purchase. This they agreed to, and it was struck down to them and a deed made to them; and they, in pursuance of an agreement to that effect, .the next day conveyed one half of it to John Bonsall, who was guardian of Hannah and two others of the children. Bonsall paid no money, but made three receipts, each for. one third of the purchase money of the tract, as so much received from the administrators on account of his three wards, and gave them to E. B. Hughes and J. Hutchinson, who handed them to the administrators in payment for the land. The deed to Bonsall did not state the trust for his wards, but the proof was full, that the agreement and understanding, at all times were, that the purchase was for their use, and the payment was as above stated. The place required a.house and other improvements: these, by agreement of Bonsall with A?. B. Hughes and Hutchinson, were made by E. B. Hughes, who moved on the land, and cost, as he stated, twelve hundred and ninety-three dollars; one half of which was divided by Bonsall among his three wards, and one third charged to each. The land was sold,, subject, it seems, to a dower, and it has produced nothing .more than this dower and the taxes since. Bonsall. offered to each of his wards a deed for one third when they came of age, and they refused to accept them. On Hannah’s coming of age, he offered to settle his accounts, and the Orphans’ Court charged him with the price of the land, and of course, with the improvements, holding that he must keep the land and pay for it, and account for the money and interest; As we had not the administration accounts, nor the state of the personal or real estate of the intestate before us, there is some difficulty in understanding how lands could be sold for debts, and the purchase money go, not to pay debts, but to children; and, if sold to support the children, it is not clear how it could be bought by the children and improved by them,[and never yield them any rent, and yet they be supported. It appears, however, from the guardian’s account, there was other estate; perhaps this land was but a small part of it. • We have not considered this case as clear oí difficulty. The doctrine that a trustee cannot go beyond the line of duty prescribed by — 274 — law, and make changes of trust property from money to lands, or lands to money, is well settled; and; generally, if the trustee invests money in lands,'.the cestuy que trust may, at his option, accept of the lands or refuse them, and demand his money. Harrison v. Harrison, 2 Atk. 120. And it is also true, that a trustee-will not be allowed for buildings and .improvements, even where they are substantial; he is generally allowed only for necessary repairs. 1 Johns. Cha. 27. But this is, as all other general rules must be, subject to exception, when circumstances require an exception, to prevent injustice. Guardians are also a kind of trustees, over whom eourts have held a very strict hand: perhaps this is right, and this court does' not feel disposed- to decide otherwise. ' But the duty and the power of a guardian are, in this country, peculiar in some respects. For, when a man owning lands, dies intestate, and an application is made to the Orphans’ Court for- partition or appraisement, a,nd the inquest return that the' lánds will not divide, and value the whole together or in parcels, a guardian may, if no child takes at the appraisement, either permit the lands to be sold, and take his ward’s share in money; or, he may take lands, at the appraisement, and bind his ward to' pay the share or shares of the other children: -This has always been done, is contemplated by our laws, and has .been sanctioned by this court. Gelbach’s Appeal, 8 Serg. & Rawle, 205. And, as to improvements, so much of the land in this state is totally unproductive, unless some means aré used to bring them into cultivation or render them habitable, that guardians have, at all times, let lands on improving leases; that is, given a certain number of years to a tenant, for erecting buildings, &c.; and, where -the minor has funds, have , made buildings such as were absolutely -necessary to render lands habitable and productive; and generally this has been allowed without objection. 'Our act of the 19th of April, 1794; about intestates, authorizes the Orphans’ Court to grant' orders to mortgage or sell part of the lands to pay debts and maintain and educate the children, and .improve the residue of the estate, (see sect. 19.) And in some parts of this state the latter clause is an important one. I do not, however, mean to say a guardian has an authority as to improvements ad libitum, or beyond what is clearly necessary. To apply these remarks to the present case. The guardian did not expend money collected by the administrators; and paid, to him, in purchasing lands; but, when a part Was selling, and a portion of the purchase, money wo.uld come to his wards; and when, in the opinion of those children who were of age, it was selling at a great undervalue; when the administrators, one of whom was brothe'r-in law of the intestate, was so fully convinced of. this, that he would not agree to make a sale unless the wards of Bonsall were let in to partake of the advantage to be derived from a purchase at that price; and, when from all the testimony, and- all the.argument, it is proved and admitted, that in making this purchase, or rather, in agreeing to — 275 — lake a share of the purchase, Bonsall acted, as he and as all their friepds believe, for the benefit of his wards, it would seem hard to throw any loss on him. An extraordinary combination of circumstances had raised the price of lands in this state, beyond that at which they would continue. They have since been depressed almost as much below what will settle down as their value. The impression as to the value of lands, was not partial; it pervaded all' ranks. A few cautious individuals who did not engage in buying, have Since assumed credit for much wisdom. No doubt every relation of Han- ■ nah Hughes thought this land was sacrificing at forty-eight dollars per acre. The act of the guardian was no more than saying, I will keep it for my wards at that price. If not then sold, and if appraised, he might have taken it at that price, and the law and the decisions of this court would have supported him. And the taking at an appraisement, and joining in a purchase of the lands in which the ward has a share, are so much alike, that we think the guardian, in this case, on the facts proved and not denied, was justifiable. The conduct of the administrators, their refusing to proceed with the sale, unless Hannah Hughes and the others were to partake in the advantages, is a strong circumstance; more so than the fact that the two who were of age wished to purchase on their own account; it shows that it was considered as giving .the land of their father to these three children by means of this order of court, instead of a proceeding to divide or appraise.' ' Much was said at the argument, about this piece of land being taken bjr-five or six children, instead of nine; and of the proportion which Bonsall ought to account for in money, if he must account' at all. We do not know what other estate there was, nor whether any of it was bought for the other three, nor why the administrators, who insisted on the children being interested in the purchase, agreed to let these five have this land; but, as we have determined that Bonsall is not bound to keep it, the Orphans’ Court were wrong in deciding that he must pay Hannah, (whose case alone is before us,) her share in money: we need not diácuss-this part* The Orphans’ Court were.right in that part of the case, which related to the proportion of Hannah. As to the rents since the sale, and the buildings, from the decision of the Orphans’ Court, it was immaterial for them to consider this part of the case.. If Bonsall must keep the lands, he must also be owner of the rents, and pay for improvements; but, from the decision of a majority of this court, these are now subjects of inquiry, and we have not- before us enough on which to decide We do not. know whether proper attention and care were exhibited; we do not, know whether- there was an old house or no house on this land; and we have only the testimony of Edward B. Hughes, who built the new one, as to its being proper for this land; or, as to the propriety of its cost: some more specific evidence on these points must be had. And, contrary to the usual course in such cases, we remand — 276 — this cause to the Orphans’ Court, to inquire-and decide as to the conduct of the guardian, since' the purchase, as to the rents and to the buildings. ' ■ • Tod, J. Assenting, as I. do, most entirely to the perfect good faith and honesty of the proceedings of this accountant, in. point of law, I am not able to concur in the. result which the court has come to. It strikes me, that the money of the infant has been laid out imprudently; but,, whether'imprudently or not, if illegally, the guardian must, I think, bear the loss himself. The authority relied on by the counsel of Mr. Bonsall, is the case of Gelbach’s Appeal, 8 Serg. S,\ Raiole, 205. To my apprehension, Gelbach’s case is very unlike the present. There the land had been publicly taken for the infant in the infant’s own name. In that case, the act of assembly-expressly authorized the guardian to bind his ward. According to the practice, from the first.settlement of the country, a whole farm was taken, for a son, at the appraisement of a jury; a son who was . himself to be a farmer, who probably had no means of living except upon a farm, and who had every reasonable prospect of finding the purchase a good one,. In the present case, Mr. Bonsall, the guardian, appears tohave.acted without any, the slightest pretence of authority of law; With the visionary hopes of a great bargain, be enters into a speculation, altogether in his own name, purchasing one undivided half of seventy-three acres in Berks county, which land had/been part of the estate of the'father of his wards,-but which had been already sold at public sale by the administrators; under an order of sale by the Orphans’ Court, for the payment of debts and the maintenance of the minor children of the intestate.. This purchase -of the half in Mr. Bonsall’s own name, was, as it now appears, in trust for the three children, his wards, and. he paid for it with their money, or what is-the same thing, he gave receipts -to the administrators as for so much cash, the purchase money of the half of the land being seventeen hundred and seventy-two dollars. Thus, in lieu of her money, Hannah Hughes, the appellee, is now presented with a title to one undivided sixth part of seventy-three acres in Berks county: a sort of property, which, in my opinion, no rule of law or equity will oblige her to take. The case, if it stopped here, would, I think, be conclusive in favour of the appellee. But, so far from stopping here, Mr. Bonsall went on to lay out almost the whole of the residue of the money of the three infants, in building a new house on the land, the children’s half of the cost of the house being six hundred and forty-six dollars and fifty cents, cash expended, not, as I understand it, by the guardian, but-at least forty miles from his residence; of course not under his view, nor under the-view of any body else, accountable as guardian, but by Edward B. .Hughes, one of the partners in the purchase, who occupied the house and the farm some four or five years, paying nothing except the taxes and the interest of the widow’s third. — 277 — According to his affidavit, the farm was not such as would yield any clear profit. And there is no doubt of the correctness of his statement, because the tenant who came after him, has, for years, held and still continues to hold the farm, new house, and all, merely-keeping it in repair, paying the taxes, and the interest of the widow’s share; so that the speculation appears to end in this: Hannah Hughes, instead of her money, whi.eh’, with interest, would amount to more than twelve hundred dollars, is offered a deed for one undivided sixth part of a house and farm, which, admitting whát I suppose .to be very doubtful, if not impossible, that the girl could attend to it herself, and be able to hold her own beset by so many partners, yet can produce during the widow’s life, no clear profit to the amount of a grain of corn; and, after the widow’s death, judging from all former rents, provided no accident happens, and provided no'repairs of - the .buildings are wanted, will yield to bliss Hughes something less than one per cent, on the money, which, without this purchase by her guardian, would’ be now fairly in her hands. I believe there is no possible case which can authorize the throwing of such a bargain upon an infant. As to the necessity imposed upon a guardian to interfere to prevent the .sacrifice of au estate, I would observe, this purchase by Mr. Bonsall, was a month or so after the public sale by the administrators. At any rate, from the proofs in the cause, there is not the least ground to suppose that money was wanted. Actually, the sale appears'to have been upon credit. Bui, suppose it to'have been compulsory, I would still insist that a guardian cannot be permitted to expose the whole patrimony of one child to the risk of destruction, to prevent imaginary loss to an estate in which that child has but a ninth share. : There are some matters which, perhaps, the affidavits do not sufficiently explain: for instance, it might seem that Messrs. Hughes and Hutchinson, the original purchasers, had not the same faith in the profits of the bargain, which Mr. Bonsall appears to have-had. After getting a complete title, in the very next month, they gave up one full half of their purchase to Bonsall, without asking any premiums. I was at first concluding that this might have been done, because, they had promised the administrators to let .the rest of the children into a share of the profits. , But that ean.not' be. There-was no promise that any children should have -more than their equal share, and the three, wards of Mr. Bonsall have been loaded with one half of the whole bargain, when,' if the promise was the motive, three ninths of the speculation was all that could have been allotted to them. The policy of the law, and a due regard to the protection of infants, seem to require that good intentions shall not excuse a guardian who takes in hand to risk his ward’s money without authority. But, granting such excuse may be received in some cases, the peculiar circumstances of this case are such, though they leave not — 278 — the least stain upon' the moral conduct of Mr. Bonsall, yet that we cannot, by any means, in my opinion, permit him to throwthis heavy loss from himself by setting up a parol trust against the infants, contrary to his own recorded deed. If we can, then it seems to me' that other men, totally different from Mr. Bonsall, that any guardian, trustee, or executor, having in his hands the money of infants, may, in tim.es of speculation, be permitted to lay out that money in this- m.ode of preparation for either event, and be doubly armed with proof; first' with a deed recorded, showing the title in .himself, and thus exposed to the temptation, and holding the power'of claiming the profits for his own use, if any profits there are, having at the same time, in- reserve for the event of a loss, parol declarations of trust to be proved, by men whom the executor or guardian well knows, but whom the infants may never beablé to find out.- Even in the present case, where there is not the least ground of suspicion, of intended unfairness, suppose the land which had been conveyed to Mr. Bonsall at the price of seventeen hundred and seventy-two dollars, had been sold the next year for three thousand dollars, and Bonsall had died and the witnesses had died or removed from the country, or had forgotten the words spoken, or were unknown to the infants; what possible chance would they "have had against the record and against the statute of frauds? The recorded deed states, the purchase money to have been paid by Mr. Bonsall; it conveys the land to .him and his heirs, “ to the only proper use and behoof of-him, the said John Bonsall, his heirs and assigns'for ever.” Nothing was recorded, nor even written, showing the least trace of property in the infants; and not until six years afterwards,.when the whole bargain had gone to perdition, does Mr. Bonsall make a deed throwing the legal title off of himself, upon his three wards. This is a delay, a negligence, which, if there..was nothing else in the case,-ought, in my opinion, to subject him to the whole loss. . It is said by the appellant’s counsel, that the Orphans’ Court have, upon their own principles, erred in charging him with one third of one half of the purchase money of the seventy-three acres: Whereas, at most, it could be but one third of one third, that being Hannah’s share in her father’s estate. ■ Evidently there is no such mistake. Hannah had other property in the hands of her guardian, and with it he purchased for her, not.one ninth part, but one sixth part, of the seventy-three acres. If the purchase is left upon his own hands; a? the Orphans’ Court decided that it ought to be, he then holds one sixth part of the land intended for Hannah, and is liable to her for one sixth part of the purchase money. In one word, whatever money of her’s he has received, or ought to have received, he is accountable for, and must restore in money, and not in real estate.' Therefore, in my opinion, the decree of the Orphans’ Court should be affirmed. . - "