Estate of Small

Pee Cueiam: The appellant was not satisfied with the account filed by his guardian, although the latter accounted to him for every dollar of his estate, with at least six per cent interest. His principal grievance was that the latter loaned a portion of the trust funds to a firm of which he, the guardian, was a member, and for this reason claimed to hold him to a share of the profits of the firm instead of interest. The court below sustained this contention, and an account was taken which is not satisfactory to the appellant. While the technical rule of law invoked is undoubtedly with the latter, it is at least doubtful whether this is a case in which it ought to have been applied. . The Orphans’ Court will punish a guardian for a breach of trust involving the loss of his ward’s money, but is slow to do so for a successful and profitable management of the estate. The circumstances of this case were altogether peculiar, and the learned judge below expressly finds : “ The money of John H. Small’s wards, so used by the firm, excluded so much of his own capital from this profitable investment. He only loaned it to the firm for the benefit and advantage of his wards, and not for his own benefit and advantage. His conduct and management of this trust fund are entirely consistent with fair dealing, and show careful and prudent management under most competent counsel. He did not employ the wards’ money in his own firm and corporation, for the purpose of speculation and personal profit and advantage ; because the evidence conclusively shows that this investment of the money of the wards was entirely in their interest. The purpose and intent to obtain a selfish advantage to the guardian were entirely absent from his mind.” This finding was fully warranted by the evidence. Jacob Small, the father of the appellant, was at the time of his death a member of the firm of H. Small’s Sons & Co., of which firm the guardian was also a member. Among the assets of Jacob Small’s estate was a note of said firm, for money loaned by him, for $16,434.87. The firm was admittedly solvent and prosperous, and the guardian continued this loan, made by the decedent himself, and subsequently made some additional loans, for the sole purpose, as the court has found and the evidence shows, of getting a good rate of interest for his wards’ money. [304] While not a legal investment, it was a reasonably prudent one, and proved successful. The appellant might well have hesitated, under the circumstances, before entering upon the tedious and expensive process of charging his guardian with a share of the profits of the firm. The result of this investigation, as before observed, is not satisfactory to the appellant. He is willing to take a share of the profits, but not to share the losses of the firm, and the necessary charges and expenses incident to the conduct of the business. Numerous assignments of error have been filed to the findings of the auditor and the court below. They are in the main to the theory upon which the account is stated, and are without merit. To discuss them in detail would consume much time, and serve no good purpose. We think the principles adopted by the auditor are substantially correct, and if there are any errors in the details they have not been made to appear. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.