
    S. Armstrong and others v. S. R. Miller and others.
    Land inherited by an infant from his father, sold by guardian and converted into money under an order of court; the infant dies in his minority; his half-brothers and sisters, children of his mother by a second marriage, are his heirs.
    In such case chancery has jurisdiction.
    ■Guardian bound to employ money of an infant in his hands so as to make interest if practicable, and is chargeable with interest if he fail to do so.
    This cause was adjourned fpr decision from Hamilton county. It was a bill in' chancery, for an account. The complainants claimed, as heirs at law of Francis Innis, deceased, certain moneys received by the respondent, as guardian of F. Innis, upon a sale of lands made by order of court, in the lifetime of Innis, who died ,a minor. The ease was this: F. Innis inherited lands from his father. The defendant was appointed his guardian, and applied and obtained an order of court to sell a portion of these lands for 119] the support and education of his ward. *The moneys in his hands arose from this sale. F. Innis died a minor, in the year 1818, in Indiana. The complainants, children of F. Innis’ mother, by a second husband, claim as brothers and sisters •of the half blood. Brothers and sisters of the father of F. Innis, and t’neir descendants, who are made defendants, had also set up a claim, in consequence of which, the respondent declined making -payment to either, without suit or indemnity.
    V. Worthington and Gazlay, for complainants:
    By the act regulating the course of descents and distribution of personal estate, in force at the death of Francis Innis (14 Ohio Stat. 36), an estate acquired by descent fell upon the blood of the ancestor from whom the estate came. Secs. 1, 12, of that act. But an estate acquired by purchase descended to the children, etc., ■of the intestate; and for want of children, etc., to the brothers and sisters of the whole blood, and for the want of such brothers and sisters, then to the brothers and sisters of the half blood. Secs. 2-4, 12. Then, if the estate held by Francis Innis, at his death in 1818, was acquired by purchase, ho having no children, •or brothers and sisters of the whole blood, it devolves or falls upon his brothers and sisters of the half blood. But if the estate came by descent, then it follows the blood of the ancestor from whom it came. The question, then, is as to the particular estate held by Innis at his death; whether it be by descent or by purchase. It seems to us there can not be much doubt or debate upon this proposition.
    Innis held lands by descent. They were sold. That which is obtained for the lands is a new acquisition, not by descent, but by purchase. The lands came by descent, but the money, on their ■sale, by purchase.
    Suppose we reverse the proposition. Say he had acquired money by descent, and with it he acquired lands. Are the lands thus acquired an acquisition by descent or purchase? The estate he has in the lands came by an act in pais, and not by operation of law. It represents, or is the interest he has in; the thing obtained, not by force of law upon a given state of facts, but by contract.
    If lands obtained by money descended, be an acquisition by purchase and not by descent, why is not money acquired by the sale of lands descended also an acquisition by purchase? In both cases the legal conclusion must be the same. The ^present [120 seems to us to be purely a question of identity. Is the money in Miller’s hands, and of which his ward was the owner at his death, the very estate cast upon him by operation of law at the death of his father, or is it an estate proceeding from a conversion of that which descended? Hid this money come by descent or purchase-to Innis? If it be that which descended, its identity is established,, and it goes to the one set of claimants; but if it be not the identical thing that was held by descent, but something else that has been substituted, then it is not by descent, but by purchase, and goes to the other set of claimants. If one change of the subject-matter be not sufficient to make the new object acquired for the-old a purchase, and the estate therein an interest acquired by purchase, pray how many are ?
    The old rule is that property can be acquired in two ways — by operation of law and by purchase, or by descent and by purchase. Of course, that which the one concludes, the other excludes, and vice versa. If the conversion of the estate, held by descent in this case, into cash be not a purchase, how many changes will have to-take place before the last acquisition shall be considered as a purchase?
    Suppose, with the cash acquired in this case, a lot of flour had been purchased, and the flour exchanged at New Orleans for coffee, and the coffee at Cincinnati for pork, and the pork at Boston for thrice the original acquisition in cash — how are we to consider these various transfers and the estate acquired thereby in each article?
    The common sense of the case would be that they were acquisitions by purchase, and that a purchase is as complete by the one single transfer as a dozen or a hundred ; and if one hundred turns of the fund will constitute a purchase, one will. We therefore consider the money in Miller’s hands, as the guardian of Francis Innis, as an acquisition by purchase, and not by descent, devise, or gift, and, of course, there being neither children, nor brothers and sisters of the whole blood, it belongs to the complainants, who-are half-bloods. The statute operates upon the particular estate or thing as it finds it. If the thing of which the intestate dies-possessed was by purchase, then it goes one way; if by descent, devise, or deed of gift, then it goes another way.
    If, in this, we are correct, we are entitled to the proceeds of the sale, or the money he returned as having in his hands, with LSI] ^interest from June 1, 1817. That a guardian is compelled to pay interest is fully sustained by Chancellor Kent, in 1 Johns.. •Ch. 508, 527, 620; 6 Johns. 452; and even compound interest, -where he has used the money in trade. 4 Johns. Ch. 305.
    Storer and Fox, for defendants:
    We contend that the comp'ainants are not the heirs at law of Francis Innis, jr., deceased, and therefore not entitled to the fund in dispute.
    The fund in the hands of the defendant is the proceeds of a sale of real estate, made by him as guardian of Francis Innis, deceased, under an order of court in 1815. After a portion of the proceeds of sale had been expended in the education and support of F. Innis, he died in 1818.
    The land sold came to Francis Innis, jr., by descent, on the death of his father in 1800. At the time of the death of Innis the elder, he left a brother and sister living, who, or their heirs, are still living. The complainants are half-blood brothers and sisters of Francis Innis, jr., by the mother’s side, but are not of the blood •of the ancestor from whom the estate came (F. Innis, the elder). They have no blood of the elder Innis running in their veins.
    If, therefore, the real estate had never been sold by Miller, but had remained undisposed of, it would never have vested in the complainants, because they could not connect themselves by blood with the elder Innis, and because the statute gave the estate to the brothers and sisters of “ the ancestor from whom the estate •came.” 14 Ohio L. 36.
    What effect, then, had the sale of the estate, and turning of it into money, upon the rights of the complainants and the brother and sister of the elder Innis, deceased?
    This question depends upon the character in which the younger Innis held the proceeds of sale. If he held the proceeds of sale as ■a purchaser, the statute appropriates the funds to the brothers and sisters of the half blood. If he merely held the proceeds of sale in the place of the estate by descent, then the complainants have no right to the fund. This is the only construction that can be put upon our statute, and it is the same as that of most other states. As to the proceeds of sale being a, purchase, we can not consider it in that light. The statute has endeavored to preserve all the estate of the infant until he arrives at a disposing age, and it expressly provides, “ that no sale *of real estate shall be [122 made, under the provisions of this act, 14 Ohio L. 159, unless the court shall be satisfied that such sale is necessary for the support- and education of such ward or wards, nor shall any sale in such-case extend further than may be required for the purpose aforesaid.”
    The permission' given to the court to order the lands of an infant to be sold, is only for the particular purposes mentioned; the character of the property can not be changed; the estate can not be-diverted out of the infant only for the purpose of supporting him. But it frequently happens that it is impossible to dispose of a part of a tract of land without injury to the balance of the tract.. Hence, as in this case, more land, in value, than is sufficient for the purposes of support and education, is sold. This circumstance-ought not to induce the court to consider the ward to be a -purchaser of the fund, which is substituted for the land, because this-would be contrary to the spirit and intention of the statute referred to. The statute prevents the transaction being considered in the-light of a purchase, because to turn it into a purchase is enabling guardians to do that indirectly which they could not do directly,, viz: to change the succession or course of descents.
    Again, can an individual be considered as a purchaser, in a legal point of view, of that over which he has no power of saying whether he will have the property, said to be purchased, or not?
    
      We can not imagine a case in which an individual can be a purchaser without having the right to refuse the purchase. He who takes a devise, a deed, or parol agreement, is said to take by purchase, but in all these cases the devisee, grantee, etc., may refuse to accept the benefit intended. He who claims by purchase claims-by “ his deed or agreement.” 2 Coke Lit., Thos. ed. 184, and note-to 187. To constitute a title by purchase, “ the act or agreement-of the party is necessary.” We know of no case in which a man can claim as a purchaser where he could not have refused the purchase. The deed must be accepted; the agreement must be satisfactory to both parties. A man can not be compelled to foregothe pleasure of being hanged; he must accept the pardon. 7 Pet. 161.
    Directly the reverse is the situation of him who claims title by descent. He claims because he can not help it; the law has cast 123] the estate upon him. He has no will of his own whether *he will have it or not. It falls upon him, and there it remains until he, by his own effort, casts the title from him.
    
      Keeping this distinction in view, we think we can not err in coming to a conclusion. The minor could not change his title in the present case. The law took his land from him; the law, without his will or assent, forced the substitute upon him. He remained as passive in this transmutation as he was at the death of his father, when the law placed his father’s title upon him. The law never compels a man to be a purchaser; so far from it, that it always, where the devisor in a will gives the same estate which without the devise, would have been cast upon the devisee, as heir by the general law, declares the devisee to be in by descent, and not by purchase. 2 Coke Lit., Thos. ed., note to 185; 5 Ohio, 464,
    It does appear clear, therefore, that these complainants can not claim this fund upon the grounds above stated.
    Should the court be of a different opinion on this question, we present another. Has the court of chancery any jurisdiction of this suit? As we view the case, it is a suit in chancery to recover a simple money demand. "Why come into a court of chancery? If the complainants had commenced their action at law, what would have prevented a recovery ? If they had been without evidence, a bill of discovery might have been filed to have obtained the necessary evidence to support the action. Unless the court lay it down as a general proposition that in all cases, and under all circumstances, the court of chancery has jurisdiction to settle testamentary and guardian matters, we see no foundation to this bill.
    Should the court sustain the bill, we ask the cause to be referred to a master to take an account.
   Judge Lane

delivered the opinion of the court:

The statute that regulates the distribution of this estate is found in 16 Ohio L. 36. It provides that if the title to an estate shall have come to the intestate by descent, devise, or deed of gift from an ancestor it shall descend:

1. To his children.

2. To the brothers and sisters of the intestate who may be of the blood of the ancestor from whom the estate came.

3. To the ancestor, if living.

4. To the brothers and sisters of that ancestor.

*But if the estate came not by descent, devise, or deed of [124; gift from an ancestor, but was acquired by purchase by the intestate, it shall descend:

1. To the children.

2. To the brothers and sisters of the whole blood;

3. To the brothers and sisters of the half blood.

If the estate or money in controversy came by descent from the father of James to him, the complainants are not entitled to it. The decision of this question settles the main point in the ease.

Had the property remained in the shape of land,- as it was transmitted to the intestate from his father, it would plainly have passed, upon the intestate’s death, to his uncles and aunts, or their descendants, on the part of the father, and not to his half-brothers and sisters, on the part of the mother, by a subsequent marriage. It is claimed against the complainants that the same inheritable quality attaches to the proceeds of the sale, in the hands of the guardian of the intestate, that would operate upon it if it remained land, either because it was produced by the sale of the land or was not, in fact, the acquisition of the intestate by any effort of his own.

We can not accede to the correctness of these positions. The land became transmuted to money, to personal property, by an act of law. As such, it remained in the hands of the guardian. He was debtor for the proceeds of sale, as for so much money received by him for the intestate. What the intestate inherited had been passed away, and what it produced assumed a new character. In this new character the law must regard it as an acquisition of the intestate. Consequently, it comes under the latter provision of the statute of descents, and passes to the complainants.

It is objected that chancery can not entertain jurisdiction, since the demand is merely one for money, which may be enforced at law. We consider it fully within the cases in which chancery takes jurisdiction over persons receiving funds in fiduciary relations, from whom an account may be demanded, and often is necessary. The management of this property was indisputably a trust.

The defendant, Miller, insists that, under the circumstances, he is not chargeable with interest on the money in his hands. The object for which a guardian is appointed is to keep his ward’s 125] funds safely, and to render them productive. If he *fail to invest them productively, when he could do so, he is chargeable with, interest. Interest is, therefore, to be charged against him from the time he received them, unless it can be shown he could not safely invest them productively by law. The cause is remanded that an account may be taken.  