
    Orlando H. Brown vs. Jarvis N. Dunham, Administrator.
    A guardian, by investing his ward’s money in negotiable promissory notes payable to himself individually, does not convert the money to his own use, but the ward is entitled to recover the full value of the notes from his estate, after his death, although his estate is insolvent.
    Action of tort for the conversion of three promissory notes, brought by a minor through his guardian. The parties waived trial by jury, under the St. of 1857, c. 267, and the case was tried by Metcalf, J., who found for the plaintiff, subject to the opinion of the whole court upon the following case:
    The defendant is administrator of the estate (which is insolvent) of Noah Y. Bushnell, deceased, who was guardian of the plaintiff for several years, and as such sold property belonging to the plaintiff, and took therefor certain promissory notes payable to himself or bearer, upon some of which payments have been made. The plaintiff by his present guardian has demanded those notes of the defendant. There is no other evidence of conversion of the money on the part of Bushnell. The plaintiff brings this action to recover the full value of the notes.
    
      3. L. Dawes, for the plaintiff.
    
      J. N. Dunham, pro se.
    
   Thomas, J.

The notes, the amount of which the plaintiff seeks to recover from the administrator of his guardian, it is agreed as matter of fact, were given for the money of the ward. They were made payable to the defendant’s intestate in his own name. They were retained by the guardian, not negotiated nor pledged, nor in any way used for his own business. They are clearly identified and traced. The fact that they were made payable to the guardian in his own name and negotiable, without any evidence of appropriation, or of any attempt to appropriate them to his own use, is not sufficient evidence of his conversion of the money and mingling it with his own. Such breach of duty is not to be presumed, and the mere form of the notes fails to establish it. Judgment for the plaintiff.  