Duffie ex rel. Williams v. Williams

CoNNOR, J., after stating the ease: No question affecting the bona fides of defendant’s conduct in regard to the Brad532 ham loan, or his action in regard to it, is made. It is found that in his action regarding the property he acted under advice of counsel. The difficulty which defendant encounters in his application to have the amounts, claimed by him allowed as credits grows out of the finding of fact, which is supported by his own evidence, that on 10 January, 1889, he had no funds, in the sense of notes, bonds or money, on hand belonging to his wards. lie owed them, on a balance struck, $589.19. He loaned Bradham $700 of his own money and in perfect good faith, intending thereby to secure to his wards the amount due'them, taking a note and mortgage to himself as guardian. He could not loan his wards’ funds, because he had none. He was simply their debtor to the amount of $589.19. He could not pay this debt by investing his money in a note and ’mortgage for $700, payable to himself as guardian. If the investment resulted in a loss of the money, it was his misfortune and not theirs. If he had, upon stating his account, paid to himself in money the balance due, by depositing in bank or setting apart the specific amount separate from his own money, the money with which alone he could pay the debt would have become the property of his wards. If he had, as was his duty, loaned oiit this .amount, using that degree of prudence in regard to security imposed upon him, he would in the event of loss have been absolved from liability. Thelearned counsel for defendant are entirely correct in their contention that only good faith and due diligence are required of a guardian in dealing with his ward’s money. The. authority cited by them, and many others, sustains this position. Covington v. Leak, 67 N. C., 365; Luton v. Wilcox, 83 N. C., 26. The difficulty is that he was not dealing with his wards’ estate, but Avith his own money. If upon coming of age the wards had, as they were entitled to do, ratified the transaction and accepted the property, there would have been no further liability on the guardian, but they were not compelled to do so. They rejected it and demanded the [533] money due them. Tbis they were entitled to do.' The only safe rule to be observed in dealing with trust funds is that prescribed by the law, to keep them separated from the personal funds of the trustee. We find no reason for disturbing the judgment. It must be Affirmed.