Estates of Spath

Opinion, Me. Justice Geeen : First assignment of error: The auditor distinctly allowed the item of $276.82, not as commissions or compensation for the care of the money of the wards, but for the personal services of the guardian in caring for the wards during the whole period of the trust. As this extended from May, 1867, to 1884 [390] as to one of the wards, and to 1887 for the other, and there were two wards instead of one, the amount allowed would represent an annual sum of about fifteen dollars for the two, or seven dollars and a half for each. The auditor especially-found that the mother of the wards was subject to frequent attacks of mental derangement, which required more than ordinary care and attention from the guardian. We regard the amount allowed as exceedingly moderate, and affirm the auditor’s allowance without hesitation. The guardian was deprived of all compensation for the care of the money of the wards, and hence authorities on that subject are not pertinent. The guardian used the money of the wards in his own business, but the auditor finds that this was not until after his efforts to loan it out were unavailing. He charged himself with full interest on the money, and, as there is neither allegation nor proof of any profits made, we think that is the full measure of his liability. There is no proof in the case of malfeasance, supine negligence, or gross delinquency, and there is no reason for imposing harsh penalties upon the guardian. The first assignment of error is not sustained. Second assignment: The auditor found that the bulk of the money was received on March 11, 1868; that the guardian endeavored to invest it during the first year without success, and did not commence using it in his business until March, 1869; and therefore, did not charge him with interest during that year. This is in accordance with the well-established law, and we see no reason to interfere with the action of the auditor in this respect. This assignment is not sustained. Third and fourth assignments: Both the auditor and the court below found that the bonds given by A. N. Brice were not given until after the insolvency of the guardian and his original surety had occurred, and when a proceeding for an attachment against the guardian was pending, for not paying over the money in his hands; that Brice agreed to become surety for the payment of the amount ascertained to be in the hands of the guardian at that time, March 16, 1878, according to the accounts then filed, and thereupon, the whole matter having been agreed upon, in the presence of the court, by the mother and counsel for the wards and by Brice, and having the sanction of the court, a decree was made dismissing the [391] proceeding upon Brice filing a bond for eight hundred dollars to each ward; that Brice entered into the bonds in question upon the faith of this agreement and decree, and that the total amount for which he became responsible was $1,151.83, as ascertained by the settlement and adjustment of the guardian’s accounts then filed. The court below further finds, and upon sufficient testimony, as we think, that Brice became surety for the specific sum of $1,151.83 to be paid to the appellants, “with the distinct understanding that no more than this should be covered by the bonds; ” and “ that all this was done in open court, with the consent and under the advice of the court, and was a family settlement consented to by all interested and representing the minors.” Objection is made by the appellants that this agreement and settlement is not binding on them, because they were then minors. But that contention overlooks the question whether, if it is not binding on the wards and is now repudiated by them, it is binding on the surety. They had no claim upon Brice, at the time he consented to become surety upon the special terms stated. They must, therefore, claim against him, if at all, only upon the contract as he made it. That is the only contract by which he consented to be bound, and therefore it is the only contract which can be enforced against him. Nothing can be clearer than that one who claims the benefit of a particular contract must take it as it is or not at all. He cannot take its benefits and repudiate its conditions. This rule is especially applicable in the case of sureties. In Keough v. Leslie, 92 Pa. 424, we said : “ A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he exceeded his authority: Caley v. Railroad Co., 30 P. F. Smith 363. If he would have the benefit of the bargain, he must adopt it as his agent made it.” There is no question here as to altering the terms of a written contract by parol, but of showing the conditions upon which the party was induced to execute it. Nor do we see any sufficient reason for refusing to entertain the question of Brice’s liability in the present proceeding. His bond was given in the same proceeding of which this is a part. It was given in the same court, and upon the faith of an agreement made in that court, and a decree following that agree [392] ment. The surety of a trustee has a right to intervene for his own protection in such a case, especially where it is his own personal obligation that is in question. He came into the Orphans’ Court, and submitted to its jurisdiction and is bound by its decree, and we know of no reason why the appellants should not be equally bound. Both parties have been fully heard upon their respective contentions, and the Orphans’ Court, having jurisdiction, can administer every right that could be assured in a common-law action on the bond with much delay and expense to. the parties. The third and fourth assignments are not sustained. Fifth assignment: There is so much confusion in the figures which ought to enter into the final adjustment, so far as it affects Mr. Brice, that we cannot make the proper computations here, but will indicate what seems to us to be the correct method of calculation: The balance of §1,151.83, which must be assumed as the basis of Brice’s liability, included credits of §87.50 paid for support of wards from June 17, 1876, to March 16, 1878, and interest on the same, §3.80. It also included three items, §5, §7.50, and §70.82, which are again credited by the court below in their final adjustment. The whole amount of payments from June 17, 1870, to June 15, 1884, for the support of the wards, is found by the auditor to be §715, and this is allowed by the court. Plainly, this amount should have been less by §87.50 and §3.80, already credited in ascertaining the balance of §1,151.83. The other three items above referred to amount to §83.32, and this sum, also, should be stricken out of the credits of §151.32, allowed by the court. • The court charged the accountant interest on the whole §1,151.83 from March 16, 1875, to November 16, 1890, allowing no deductions on the principal for payments made from time to time. If the interest accruing exceeded the payments, this would have been right; but a correct computation shows that the interest from March 16,1878, to June 15, 1884, on §1,151.83, amounts to only §415.51, and therefore was considerably less than the disbursements during the same period. The correct method of stating the account, therefore, during that period, would be to give credit for interest on each payment down to June 15,1884, when the payments ceased. The dates of these payments are not before us, and therefore we cannot [393] make the computation. On the balance thus ascertained, on June 15, 1884, interest should be charged to the time of the final decree, and then credit should be given for the items of $10, $8, and $50,—$68, allowed by the court below; and for the aggregate sum thus resulting, if not in excess of $1,151.83, a decree should be entered against Brice. If th§ costs are paid by Brice, $146.50, he should have credit on the amount to be paid to the wards to that extent. With these corrections, the decree of the court below is affirmed. The decree of the Orphans’ Court is affirmed, subject to corrections as indicated in the foregoing opinion; and the record is remitted, with instructions to enter the final decree in accordance therewith, the costs of this appeal to be paid by the appellants.