
    McMENAMIN’S APPEAL.
    Where guardians are honest,and have been surcharged with losses occasioned toy their negligence, they should not toe further, punished with a loss of their commissions, which as a rule is only a punishment for dishonest conduct.
    Appeal from the Orphans’ Court of Philadelphia County, No. 23 July Term, 1883.
    The following is the adjudication upon the account of John McMenamin and Patrick McHugh, guardians of Ellen Quinn, a minor.
    The objections to the account will now be considered.
    First. As to the charge made against the minor for her board and washing. Under the evidence, this claim cannot, be allowed, as it was clearly shown to be an after-thought of the accountant who made the charge. He admitted he never intended to make any charge against his ward at the time — ■ she being a relative, and always making her home with him-during vacation from school. And, further, if he had not been cited to file an account, he would not have claimed this allowance.
    Second. As to the expenses of the sales, or attempted sales-of the minor’s real estate, the facts all show that in these matters the accountants were in no default. The minor had but an undivided interest in the real estate, and the title to the property was for several years unsettled, and much litigation thereby caused. Upon their application, a sale of the property was stayed, upon the payment of costs, the proposed sale, in their opinion, being prejudicial to the minor. Accountants then endeavored to sell the property at public sale. It was sold, but afterwards, on application of the purchaser, the sale was set aside, by reason of a defect of title.
    It would seem unfair to charge the accountants personally with the expenses of these sales, and credit therefore is allowed to the accountants; they should not be charged to the minor.
    Their ward was well cared for, but at an expenditure of the entire income, and a large portion of the princ.pal of the estate. Notwithstanding their care in this respect, the accountants acted entirely without proper discretion. They made no application to the Court for an allowance. Never filed any inventory as requested by — kept no books of account, their expenditures being evidenced by loose receipts, and entries upon slips of paper; they liad no evidence of their expenditures for the clothing, &c., supplied the minor. They kept no account of their receipts of rents, and one of the accountants, who had charge of the minor’s real estate for five years or more, could not tell what amount of rent he had collected, nor what amount he had been unable to collect. From all the evidence, while accountants no doubt believed they were acting properly, and as guardians and trustees should, and while they displayed a kindly feeling for their ward, who is .now a well-informed and excellent young woman, yet they were ignorant of the duties which the law imposed upon them, and strongly neglectful in caring for and husbanding the estate of their ward. No dishonest nor fraudulent conduct is imputed to them, but inattention to and neglect of those matters which a prudent and intelligent trustee would have promptly and carefully attended to, and saved both himself and his ward from expense and loss. This is shown by neglect to pay taxes, water rent, &c., when monies were on hand, until penalties accrued which must now be borne by the accountants personally.
    It follows that they cannot be considered as having faithfully and meritoriously performed their duty, and as compensation is allowed for the performance, not neglect, of duty, it cannot be awarded to the accountants.
    As to allowing accountants only the annual income of the minor’s estate for her education and support, it may be said, that the Court may confirm what they would have allowed, if proper application had been made.
    The guardians expended not only the entire income, but a large portion of the principal, in providing an education for their ward, and furnishing her clothing, medical attendance, spending-money and other incidentals.
    
      That these were proper, and all received by the minor, is not denied, but admitted by her. She has certainly been benej fited by the expenditure and should now be enabled to occupy a respectable station in life and earn her own livelihood. The expenditures, while perhaps immoderate, were not wasteful. The ward, an orphan, had no home, and it was judicious i¡o place her in a convent school, rather than board in the city, subject to so many temptations. The guardians were not bound to take her int) their own families as a permanent resident. And, while they might have obtained a cheaper boarding school, yet they acted according to what they deemed best for their ward, and placed her where she received not only the mental advantages she needed for education, but proper religious training in the faith to which she and her kindred belonged.
    She was well clothed and provided for as the guardians provided for their own children, and in regard to which she makes no complaint.
    In view of these circumstances, it would be severe now to disallow expenditures clearly for the benefit of the ward, and which would have been approved by the Court.
    The accountants, however, upon the sale of the real estate of the minor, paid the sum of fifty dollars to their surety upon the bond they were required to enter; but this cannot be allowed as a proper charge against the minor.
    It is no part of the expenses of the settlement of the estate, and is not recognized as such either by statute or precedent. If a trustee is obliged to purchase security, he must pay for it out of his own compensation.
    It is therefore ordered and decreed that the accountants are indebted to the minor’s estate in the sum of $634.30, which they are directed to pay to her guardian, William J. Power.
    The Orphans’ Court confirmed the adjudication on March 17th, 1883, in the following opinion, per
    Ashman, J.
    The relationship between the guardian and -ward, which was so remote that the accountant was unable to define it, certainly did not raise the presumption that the services for which compensation is asked were voluntary. The presumption has never been carried beyond the case of an uncle and nephew: Neal vs. Neal, 59 Pa.; 347. Here, however, the ward, withHhe approval of one of her guardians, if not at his invitation, had passed several of her vacations at his house, and had been encouraged to regard that place as her home. The isolated charge for board during her sickness, therefore, was in contrast with the previous intercourse between the parties and frankly conceded by the accountant to have been determined on only when process had issued to compel an account. We think, that, under the circumstances, the demand was properly refused.
    The disallowance of commissions was based upon the neglect of the accountants, resulting in some loss to the estate, to-file an inventory or to keep any accurate account of the rents of the estate, or of their expenditures, and must be sustained upon the principle that commissions are only intended as a recompense for faithful and meritorious service, Stehman’s Appeal, 5 Pa., 413.
    The auditing judge properly held that the sum of $50, paid by the accountants to the surety upon, their bond in connection with the sale of real estate, was payable out of their commissions. The entering of security was an incident of their office, and was a burden for which their commissions were in part intended as compensation. While, however, the forfeiture of commissions did not necessarily cany with it the loss-of money which had been honestly expended for the benefit-of the estate, there was enough in the evidence to show that, if the resources of the minor had been prudently husbanded the sale of her real estate would not have been required. It was, therefore, proper that this item should he stricken from the credits.
    McMenamin and McHugh then appealed to the Supreme-Court, complaining of the disallowance of their commissions.
    
      E. K. Nichols, Esq., for appellants,
    argued that no such misconduct was shown as would justfy the forfeiture of commissions; Berryhill’s Appeal, 35 Pa., 245; McCahan’s Appeal, 7 Pa., 56.
    
      A. A. Hirst, Esq., contra.
    
   The Supreme Court reversed the decree of the Orphans* Court, on February 18th, 1884, in thefollowing opinion, per

Gordon, J.

By the second section of the Act of the 16th of June, 1836, P-Laws, 683, this Court is directed, “in all cases of appeals now made, or that may hereafter be taken, from the decrees of the several Orphans’ Conrts, to hear, try and determine the merits, of such cases, and to decree according to the justice and equity thereof.” Our equitable powers are thus made co-extensive with the case that may be brought before us by the process of appeal, and it is our duty to do justice to the parties unembarrassed by technical rules. Adapting, as we are bound to do, the principle thus stated, and we cannot but think that Court dealt a little too strictly with the appellants. That they discharged their duties with all faithfulness and kindness to their ward is conceded in the adjudication of the Court. The child committed to their charge in 1871 is now “a well informed and excellent woman.” In the handling of their ward’s estate they were honest, and, as the learned judge before says, no fraudulent conduct was imputed to them. But they were ignorant and negligent; kept no regular account of either receipts or expenditures; neglected to pay taxes and water rents until penalties had accrued, and they omitted to file an inventory of the property intrusted to their care. These, to be sure, would be very serious charges against trustees who either knowingly or wilfully thus neglected the duties which they had assumed. But these men seem to have but scant knowledge of the business imposed upon them, and the court below charges them with nothing that may not have resulted from their ignorance alone. “No dishonest or fraudulent conduct is imputed to them.” Their ward was well and kindly treated. Moreover, their charges for boarding have been disallowed, and they have been surcharged with the losses which resulted to the estate through their ignorance or mistake. Under these circumstances we think it very hard to ' reat these appellants as rogues and deprive them of all commissions. As a rule, only faithless trustees are thus treated, but where they ■are honest and their default is the result of ignorance or mistake alone, they are not so punished ; Brennan’s Estate, 65 Pa., 16. We certainly think that, in this case, every legal and equitable requirement was met and satisfied by charging the appellants with the results of their blunders and neglect, and that whilst their services were not as valuable as would have been those of more intelligent and careful guardians, nevertheless, for those services, such as they were, they ought to have bee n allowed something.

The decree of the Court below is now so altered and modified as to allow the appellant, by the way of commissions, the -sum of two hundred dollars. With this exception the said •decree is confirmed. It is further ordered that the costs of this appeal be paid, one-half by the appellants and the other half by the appellee.  