
    Buttermore’s Appeal. [Baer’s Estate.]
    Where a petition for review of a guardian’s account has been filed, some two years after the confirmation of the account, and the answer denies the power of the court to grant the prayer of the petition, because no error of law or fact was alleged, the court should, under a proper practice, first pass upon the sufficiency of the petition, before proceeding further with the case. But an agreement of counsel to the appointment of an auditor “ to pass upon the exceptions filed to the account of the guardian, and to restate said account, if necessary ” will operate as a tvaiver of objection to the irregularity.
    In such case, an agreement, between the guardian and ward, to set up the ward in the drug business, with the ward’s money, and a subsequent agreement, made two days after the ward came of age, transferring the business to the ward, and with a release of all claims against the guardian, were set aside, the guardian’s account restated and the guardian charged with the full amount of the ward’s estate, with interest thereon, less the proper disbursements and the amount received by the ward on selling the store some four months after he had received it; and the costs of the proceedings upon the review were placed upon the accountant.
    May 10, 1888.
    Appeal, No. 299, Jan. T. 1888, from O. C. Fayette Co., to review a decree dismissing exceptions to an auditor’s report on the account of Smith Buttermore, guardian of S. "W". Baer, a minor, at March T. 1884, No. 44. Gordon, O. J., and Trunkby, J., absent.
    On Feb. 16, 1887, A. "W. Baer filed the following petition:
    “ The petition of A. W. Baer respectfully represents : That your petitioner is a child and heir of Amanda Baer, late of Oonnellsville, deceased; and that he became twenty-one years of age on or about July 3, 1883. That on July 30, 1878, Dr. Smith Buttermore was appointed guardian by this court of your petitioner; that of the property of and belonging to your petitioner arising from the estate of Amanda Baer aforesaid, deceased, said Dr. Buttermore received from your petitioner’s former guardian, Bichard Boyd, the sum of $1,135.50 on or before March 20,1879. Tour petitioner further represents: That the said Dr. Smith Buttermore filed an account of his guardianship, which was confirmed nisi March 5, 1884, and absolutely on March 15, 1884, said account showing a balance, when footed up, in favor of said Smith Buttermore and against your petitioner, of $180.84. Tour petitioner further represents that, since the filing of said account, he has discovered what he believes to be material errors and omissions, both on the face of the account and anterior to the filing thereof, whereby your petitioner has been defrauded out of a large amount of money by his guardian, the said Smith Buttermore: 1. Said guardian has not charged himself with interest on the amount received by him from the former guardian or on any part of it. 2. He has not stated nor footed up is account as filed. 3. He has not itemized his expenditures, giving day and date and articles for which outlays were made. 4. He has filed no voucher for an item in said account entitled ‘Amt. paid to sundry persons as per memoranda ’ and amounting to $122.08, which, to the best of your petitioner’s knowledge and belief, is incorrect and false. 5. The said guardian takes credit for $56.77 commission, which under the circumstances he is not entitled to have. 6. The said guardian has filed a paper numbered in the account voucher 10 and headed c Bills paid Sept. 1882,’ taking credit therein for $1,004.64, the items in said bill being lumped, the articles not specified, nor in many cases the parties to whom said moneys were paid, and further the dates are not specified, nor is an item therein, to wit: ‘ Gash $100,’ correct, to the best of your petitioner’s knowledge and belief; and another item, to wit: ‘Amt. due after deducting in’st $74.61,’ which is also incorrect and inexpli-cable. 7. The said guardian in the said mentioned bill charges your petitioner with $1,004.64, almost all of which money, if expended at all, was expended for said guardian’s benefit and for stock for a store belonging to said guardian and not to your petitioner. 8. Tour petitioner being dependent upon the said Smith Buttermore as his guardian and having no experience in business and being influenced by said guardian, was induced and compelled by him to sign an article of agreement, being then under age, of which the following is a copy:
    
      “ ‘Article of agreement, made this 14th day of August, 1882, between Dr. Smith Buttermore, of Connellsville, county of Fayette and state of Pennsylvania of the one part and A. Webster Baer, of the aforesaid Connellsville, county ana state aforesaid, of the other part, witnesseth : That the said A. Webster Baer, being under age, and Dr. Smith Buttermore being his, A. Webster Baer’s, guardian, it is agreed that in consideration of A. W. Baer being desirous to engage in the drug business in the room lately built by said Dr. Smith Buttermore on Main street; that the said Dr. Smith Butter-more is to use the said A. W. Baer’s money to fit up and stock said room with drugs with money belonging to the said A. W. Baer, and to reserve the right, title and control of the same until the said A. W. Baer becomes of age, on the 3d day of February, 1883. The shelving and drawers to be put up at A. W. Baer’s expense, the balance of the necessary fitting up of the room to be done by Dr. S. Buttermore. It is further agreed that the above stock of drugs, with the fixtures, with profits or losses, are to revert to said A. W. Baer on the 3d day of February, 1883. Said A. W. Baer further agrees to pay a monthly rent of ten dollars per month for said storeroom, and that on and from the date of the signing of this agreement, and that interest is to cease on all money held or controlled by said Dr. Smith Buttermore from the date of this agreement, held for said A. W. Baer.’
    “ 9. Your petitioner further showeth: That for the profits under the above article said guardian never accounted, nor did he account for articles taken from said store for himself and family, nor for medicines by him- taken.
    “ 10. The said guardian, at this time and before the signing of the above article, refused to allow your petitioner to take a situation with the Pa. B. B. Co., of which he was desirous, and in which matter enforced said petitioner to act to said guardian’s liking, also having before refused to allow said ward to enter a drug store as clerk, at a time when he desired so to do and there was a vacancy for him.
    “ 11. Your petitioner further represents that on Sunday, February 4, 1883, the next day after your petitioner became of age, the said guardian wanted to transfer to your petitioner notes of Thos. Buttermore, in cancellation of what was coming to your petitioner from him as guardian, which your petitioner refused, and demanded the money due him without reference to the drug store, which said Suardian declared he would not pay. On the following morning, 'eb. 5th, 1883, petitioner again conferred with said guardian, as said guardian was about departing for Harrisburg, and again demanded some money of the amount due him as aforesaid, which was refused, whereupon, taking advantage of your petitioner’s necessity and having at that time in preparation the following article of agreement, he introduced the subject of transferring to your petitioner the remains of said drug store, to which your petitioner objected, but standing greatly in need of money on account of previous sickness and not being able at that time to work or labor, and knowing no other way of obtaining money, said guardian intending to be long absent, and being influenced and compelled by the said guardian, your petitioner, under the direction of said guardian, signed the following article and not recalling the provisions of the first article, which as a minor he had been induced and compelled to sign, and not knowing the value of said store nor the amount due him by said guardian.
    “ 12. The Article: ‘Articles of agreement made this 5th day of February, 1883, by and between Dr. Smith Buttermore and A. ~W. Baer, both of the borough of Connellsville, in the county of Fayette and state of Pennsylvania, witnesseth, that, in consideration of the further completion and carrying .out of an article of agreement made by the aforesaid parties dated Aug. 14, 1882, which is hereto attached, it is hereby further agreed by the said A. "W. Baer that, the aforesaid contract shall be and is hereby ratified and confirmed, except so far as relates to counter, shelving and drawers and such other fixtures as were put into said store room by J. R. Balsley and cost about eighty-eight dollars (which is not noticed at all in the guardian’s account), which the said Dr. Smith Buttermore agrees to take off the said A. W. Baer’s hands. The said A. "W. Baer, having now obtained his majority and being of full age, does hereby accept and receive of the aforesaid Dr. S. Buttermore the aforesaid stock of said drug store in full for all moneys, interest and property whatsoever or in any way pertaining to the money or effects received by said Dr. S. Buttermore in trust as guardian of the said A. ‘W. Baer, being the same inherited by the said A."W. Baer, from the estate of his mother, Amanda Baer, together with money and clothing previously furnished to the said A. W. Baer by the said Dr. S. Buttermore, in full of all accounts and demands whatsoever to this date. In witness whereof we have hereunto set our hands and seals the day and the year first above mentioned.’
    “13. Tour petitioner further saith that after coming into possession of the store as above statéd, he desired his guardian to take it again, which he refused, but appropriated to himself medicines and articles for which he never paid or accounted, and in about four or five months after taking, said store was sold at private sale, the highest price obtainable therefore being $500, and that being about $100 more, as subsequently ascertained, than said store was worth on the 5th of February, 1883, on account of additions to stock.
    “14. Tour petitioner, thus showing that he was utterly dependent on and entirely under the influence of his guardian, and that the account was filed long after all these proceedings were had and your petitioner had no opportunity to understand or assert his rights, and showing that there is from $100 to $900 yet coming to him from his guardian as he verily believes, and not accounted for, and showing that he has not, and protests against paying the balance of $180.84 against him as being incorrect, and showing that under the state of facts within set forth, as appearing from the face of the record, the decree of confirmation was wrong and that facts have since been ascertained which were then unknown to the court and the petitioner, and showing that he is willing to do equity for all actually received from said guardian, prays your Honor to regard this petition in the nature of a bill of review, and that said account be opened and the -confirmation taken off to the end that your petitioner may file exceptions to the said account, as within set forth, and that the same may be passed upon by an auditor, and he will ever pray, etc.”
    The petitioner also filed exceptions to the account, being identical with the first nine averments of error in the petition, as above, except the eighth, which averred that the two agreements were a fraud upon the ward, the latter agreement being ineffective and an improper voucher and obtained by fraud.
    The respondent filed an answer, averring as follows: “The court has no power to grant the prayer of the said petition, because there is no such error of fact or of law therein alleged as would authorize the court to grant the same, your respondent further showing to your Honor that there is no merit whatever in the application; that he has paid to the said A. Webster Baer, and on. this account, more than all moneys, interest or property of any kind which ever came into or was under the respondent’s hands, possession or control, belonging to the said petitioner, prays to be dismissed hence with his reasonable costs, and he will ever pray, etc.”
    The court made the following order: “And now, March 16, 1881, by agreement of counsel, the court appoints F. M. Fuller, auditor, to pass upon the exceptions filed to the account of Hr. Smith Buttermore as guardian of A. W. Baer, and to restate said account, if necessary, as it should have been stated by said accountant.”
    The auditor, after reviewing the pleadings, reported:
    “ On the hearing, the respondent set up that this is not a proper case for bill of review, and that the auditor is to report whether a bill of review should be granted or not. On this point, the auditor finds from the evidence, the facts adduced and the law as applicable thereto, that this is a proper ease for bill of review and that he is not required first so to report to the court, but can act at once on the exceptions, re-stating the account, if necessary. An auditor may, in a proceeding for review, find the facts, state an account and return the evidence, and thus settle the matter in one proceeding, instead of opening the account first and then proceeding to state a corrected one. See Yoder’s Appeal, 45 Pa. 394, Act of October 13, 1840, and the decisions under the same.”
    The auditor then proceeded to dispose of the exceptions. The 1st exception was sustained on the authority of Norris’s Appeal, II Pa. 125, and cases there cited. The 2d, 6th and Ith exceptions were sustained, without comment. The 3d exception was dismissed, the auditor finding that it was substantially covered by other exceptions which were sustained, and that part of the account was itemized, with day and date and articles for which the amounts were expended. The 4th, 5th and 9th exceptions were overruled. Upon the 8th exception, the auditor reported as follows:
    “ The auditor is of the opinion, and so finds, that neither of the above mentioned agreements is valid or binding on the ward, and that the claim in the guardian’s account for a credit of $1,004.64 on the agreement of Feb. 5, 1883, should not be allowed, and thus far the exception is sustained. As to the first article of agreement made without order or authority of the orphans’ court, see Miller’s Est., 1 Pa. 327. True, the orphans’ court will ratify a good and safe investment made by the guardian without a prior order, but this investment does not appear, under the evidence, to have been either a good or safe one. See 8th Luz. L. Reg. 269. It is the business of a guardian to manage, in person, the estate of his ward for the ward’s benefit. He cannot set up his ward in business, but at his own risk. See Eichelberger’s Appeal, 4 Watts, 84. As to the second article of agreement and release, a release given by a ward, ignorantly, just after coming of age, when not yet emancipated from the habits of confidence and control, will not be regarded by the court as binding in the settlement of the guardian’s account. See Lukens’s Appeal, 7 W. & S. 48 ; Stanley’s Ap., 8 Pa. 433. A written release to the guardian, executed with all due solemnity by the ward, soon after he comes of age and without a perfect knowledge of his affairs, will not stand in any court of equity unless it can be shown or proved that the consideration he received was a fully equivalent for the right he gave up. See Wills’s Ap., 22 Pa. 332 ; Hawkins’s Ap., 32 Pa. 265; Kinter’s Ap., 62 Pa. 322.”
    The auditor restated the account, charging the accountant with the amount received from the former guardian, with interest on the same ; and crediting him with the amount expended in the ward’s behalf, the amount received by the ward from the sale of the store, and commissions. The costs of the audit were placed upon the accountant.
    . On Sept. 17, 1887, a rule was granted on A. W. Baer to show cause why the minutes and docket in the matter of the appointment of the auditor should not be corrected and the matter referred back to the auditor under a proper certificate. On Dec. 3, 1887, the court discharged the rule.
    Exceptions were filed by the accountant to the auditor’s report, alleging that the auditor erred, inter alia, 1, in stating an account; 2, in finding that the court ordered that the said account be opened and the confirmation taken off in order to enable the petitioner to file exceptions to the same; 3, in finding that this is a proper case for a bill of review, and that he, the auditor, is not obliged first to report on that question; 7, in sustaining any part of A. W. Baer’s 8th exception, and in finding the agreements of Aug. 14th, 1882, and Feb. 5th, 1883, invalid; and, 8, in not finding A. W. Baer has neither set forth in his petition nor shown in evidence any facts whatever authorizing a bill of review, and in not finding that the account of Dr. Buttermore as confirmed by tbe court must stand, and in not placing the costs of this audit upon A. W. Baer.
    The court made the following order:
    “ December 27, 1887, this matter was heard on exceptions filed to the report of the auditor, and was argued by counsel. And now, to wit, January 16th, 1888, after examination and consideration thereof, the finding of the auditor, that this is a proper case for a bill of review, is approved, and the confirmation of the account of Smith Buttermore, guardian of A. W. Baer, a minor, filed January 25, 1884, at No. 44, March Court, 1884, is stricken off, and the report of the auditor on the exceptions filed by said Baer to said account, and the account of said guardian as now stated by said auditor, are confirmed, and the exceptions filed to said report by said guardian and by said Baer are overruled and dismissed.”
    
      The assignments of error specified the action of the court, 1-3, and 8,9, in not sustaining appellant’s exceptions, quoting them; 4-7, in not dismissing appellee’s 1st', 2d, 6th and 7th exceptions, quoting them; and 10, the final order of the court, quoting it.
    
      Edward Campbell, for appellant.
    The appellee was guilty of laches and is not entitled to a bill of review. Wiser v. Blachly, 2 Johns. Ch. 488; Young v. Keighly, 16 Ves. 348; Story’s Eq., §§ 414, 421.
    A ward after settling with his guardian in full, receiving the entire estate belonging to him, and selling it for half price, cannot, three years afterward, through the instrumentality of an auditor and a court, compel his guardian to make up his loss. Wetherill’s Est., 8 W. N. O. 238.
    Suppose the appellant, in August, 1882, instead of putting his ward’s $1,000 in the drug store, had kept it on interest; by Eeb. 3, 1883, when the ward came of age, it would have produced $30, not much more than it did produce for the ward himself every month; and yet the appellant is now required to pay the half of it over again to his ward. If the drug store had been an unfortunate or unprofitable business, or one not adapted to give the ward the very best business opening possible, the guardian might be chargeable with negligence and liable to a surcharge; but, to surcharge him in this case, is simply to impose upon him a pretended loss which arose, if at all, fi’om the ward’s own negligence and misconduct after his guardian had done more to advance his interests than the law requires.
    To grant a bill of review in this case, is utterly without precedent. No error of law appears upon the face of the record, no discovery of new matter is alleged, and all the errors specified are errors of fact. Green’s Ap., 59 Pa. 235; Cramp’s Ap., 81 Pa. 90; Yeager’s Ap., 34 Pa. 173; Russell’s Ap., 34 Pa. 258.
    
      A. H. Wycoff, with him E. H. Reppert, for appellee.
    A drug store is a poor security to a ward whose money is invested in it. Miller’s Est., 1 Pa. 327. A guardian cannot make such an investment but at his own risk. Eichelberger’s Ap., 4 Watts, 84.
    
      The agreements themselves show fraud and they are on the face of the record. Lukens’s Ap., 7 W. & S. 48; Stanley’s Ap., 8 Pa. 433.
    A bill of review may be granted because of irregularities and defects appearing of record, and also because of extraneous facts, unknown at the time of filing the account, both of which appear in this case.
    A release executed by a ward to his guardian soon after reaching majority is regarded with suspicion. Wills’s Ap., 22 Pa. 332; Hawkins’s Ap., 32 Pa. 265; Kinter’s Ap., 62 Pa. 322.
    Th§ auditor could restate the account without reporting on the sufficiency of the petition for review. Yoder’s Ap., 45 Pa. 394; Act of October 13, 1840.
    Oct. 1, 1888.
   Sterrett, J.,

If it were not for the agreement of counsel, March 16, 188Y, we would be constrained to reverse the decree and remit the record with instructions to proceed de novo in a more orderly and regularly way; but, instead of first passing upon the sufficiency of the petition for review, etc., it appears that the court, in pursuance of that agreement, a copy of which appears in appellee’s paper book, appointed the auditor “ to pass upon the exceptions filed to the account of Dr. Smith Buttermore as guardian of A. W. Baer, and to restate said account, if necessary, as it should have been stated by said accountant. It is claimed by appellant that no such agreement as that was ever made by him or on his behalf, but in that he is not sustained by the record. Moreover, the correctness of the record, as to the agreement of counsel, was virtually affirmed by the refusal of the court to amend the same as requested by appellant’s counsel after the auditor’s report was filed. It must therefore be accepted as a conclusively established fact that reference to the auditor, for the purposes stated, was made by consent of counsel.

The only remaining subject of inquiry is whether the auditor erred in disposing of the exceptions to appellant’s account, or in restating the same. An examination of the report, in connection with the evidence, fails to disclose any error in respect of either.

Appellant’s management of his ward’s estate, and business transactions with his ward before and immediately after the latter attained his majority, were clearly irregular and improper; and, if he had been held to a more rigid rule of accountability, he would have had no just reason to complain. It is conceded that in March, 18Y9, he received $1135.50 from the former guardian of his ward. With that sum and interest he was clearly chargeable. On the other side of his account, the learned auditor appears to have given him credit for all such payments, expenditures, etc., as were shown to have been made by him to or on behalf of his ward, including his commissions, etc. It does not appear that a single credit, warranted by the evidence, was refused.

Decree affirmed and appeal dismissed at the costs of appellant.  