
    Common Pleas Court of Montgomery County.
    Charles W. Repine v. Union Trust Co., et al.
    Decided September 26, 1933.
    
      John W. Bricker, att’y.. gen’l., and Estabrook, Finn & McKee, for Union Trust Co. et al., defendants.
    
      Boesch & Boesch, for plaintiff.
   Snediker, J.

This action is brought for the purpose of opening up and reviewing the settlement of The Union Trust Company as guardian of the estate of Charles W. Repine, this plaintiff, and Frank E. Repine, Grace E. Repine, and Wilbur K. Repine, of which an entry was made in the Probate Court of this county on March 24, 1932, and the plaintiff prays that The Union Trust Company be ordered to pay him the sum of $664.29 with interest from June 17, 1927.

The facts produced in evidence appear to be: That the ’ plaintiff was one of four minor children whose father was killed in a railroad accident in the state of Pennsylvania. The mother came to this city, bringing with her her four children. Before they left Pennsylvania there had been a fund of about $2600.00 in the hands of the Pennsylvania Trust Company, of which the four children were beneficiaries. This fund was paid over to the Potter Title & Trust Company, of Pittsburgh, as guardian for the minors. When they came to Dayton and established their residence here it was regarded as more convenient to have this estate fund transferred to a guardian in this city. The mother went to the Dayton Savings & Trust Company and that company was made guardian of the estates of the plaintiff and of Frank E., Grace E., and Wilbur K. Repine. The amount that came into the hands of the Dayton Savings & Trust Company as such guardian was $2664.67, in which all the minors had an equal interest.

On November 14, 1927 an application was made to the Probate Court by the Dayton Savings & Trust Company for authority to pay to Mildred Repine, the mother of its wards, the sum of $252.00 for maintenance, board, and clothing, for all except the plaintiff, and for authority to pay the sum of twelve dollars a week thereafter for the support of the others than the plaintiff. In other words, the plaintiff, who, as we understand was employed and self-supporting at the time, was not included in the application nor in the approval of the application which was thereafter made by the Probate Court. The Dayton Savings & Trust Company merged with the City National Bank & Trust Company, forming the Union Trust Company, and the latter was appointed as successor guardian of the balance of the fund then remaining in the hands of the Dayton Savings & Trust Company, which was $1,010.00, which the Union Trust Company from the time of its appointment held as guardian of all four of the wards and continued to pay out of the fund, as directed by the Probate Court, the sum of twelve dollars a week, until eventually the entire corpus of the estate was exhausted.

The Union Trust Company did not retain in its possession as guardian of the plaintiff his portion of the fund, or $664.-29.

The guardianship was joint and not several. The fund was treated as one fund and was so handled by the Union Trust Company. When the plaintiff became of age he made demand for his portion of the fund, which the Union Trust Company refused to pay him on the ground that there was nothing more in the fund and that there was no money due him.

In an answer filed by the superintendent of banks, he for himself as such superintendent and on behalf of the Union Trust Company, admits all the claims of the plaintiff which we have recited as appearing in the evidence and which are set forth in plaintiff’s petition except that the defendant denies, as averred by the plaintiff, that the acts and things of which he complains constituted a fraud, and avers that everything done in connection with the administration of the guardianship by the Union Trust Company was in good faith and that its predecessor fiduciary acted in good faith. Nothing is said in this answer denying the charge made by the plaintiff in his petition that there was a manifest mistake in administering the guardianship fund.

The evidence which was taken, however, conclusively shows that there was such a mistake and that money which should have been segregated as the plaintiff’s part of the fund was used for the benefit of the other wards. The legal title to the plaintiff’s porton of the fund in the hands of 'the • Union Trust Company was not in the Union Trust Company but was in the ward, and any manifest mistake which deprived the plaintiff of his portion of the fund ought not to prevent his recovery thereof from his guardian. It was to afford relief in such cases that former Section 10954, General Code, was enacted, which read:

“The settlement in the Probate Court of the accounts of a guardian is final between him and his ward unless an appeal be taken therefrom to the Common Pleas Court in the manner provided by law; but a subsequent guardian, during the minority of his ward, or a ward within two years after he arrives at full age, may open and review such settlement for fraud or manifest mistake by civil action in the Common Pleas Court of the county in which it was made or the county where the former guardian resides when the petition is filed, as the plaintiff elects.”

The petition in the instant case was filed on March 27, 1933 and the plaintiff arrived at full age on the second day of February, 1933. So that this petition was filed within time.

The wording of Section 10507-27, General Code, which was a part of an act to govern the practice and procedure of Probate Courts in Ohio, passed on April 10, 1931 and approved on May 1, 1931 by the governor is, in part, as follows:

“A successor guardian, during the minority or disability of his ward, or a ward within two years after he arrives at full age or after his disability is removed, may open and review the settlement of a guardian for fraud or manifest mistake by civil action in the Common Pleas Court of the county in which it was made or the county where the former guardian resides when the petition is filed, as the plaintiff elects.”

Up to this point the force and effect of Section 10507-27, General Code, is, we may say, the same as old Section 10954, General Code; but the following is added as part of Section 10507-27, General Code:

“Such opening and review shall not 'be effective against a bona fide purchaser for value, a fiduciary who has acted in good faith, or any person delivering or transferring property under authority of a will to a duly appointed fiduciary or to any other person.”

Now it is the contention of the defendant that since the Union Trust Company and its predecessor fiduciary acted in good faith, although what they did may have been a manifest mistake, it ought not be compelled at this time to pay to the plaintiff his portion of the fund because of this saving clause which provides that the opening up of an account and its review shall not be effective against “a fiduciary who acted in good faith.”

We do not regard this as the proper interpretation of the saving clause in Section 10507-27, General Code., Those who are included in and protected by the saving clause are third persons, other than the guardian, who have become complicated in some manner in the administration of the ward’s estate. If a guardian has been guilty of fraud or manifest mistake and a loss is suffered by the ward by reason thereof we cannot conceive that the same legislature which afforded him this remedy of an opening and review of his settlement intended that the guardian should be relieved of responsibility on any theory that he acted in good faith. For example, good faith and fraud cannot exist as to the same act. The protection of the saving clause was intended to be extended to those who had been guilty of neither, leaving the guardian himself to answer for the loss accruing to his ward by fraud or manifest mistake alike.

We are of the opinion that the prayer of the plaintiff’s petition should be allowed.  