
    In Bank.
    Dec. Term, 1846.
    Samuel H. Davies and others vs. Fielding Lowrey and others.
    If a guardian convert land scrip, receivable at the land office in the purchase of public lands, into money, by investing it in land for himself and others, and accounting with his wards for the scrip, with interest from the time of its investment, he cannot, if he acted in good faith in the transaction, be charged as a trustee of the land purchased, or compelled to account for the profits growing out of the investment.
    This is a Bill in Chancery, reserved in the County of Montgomery.
    The bill is filed for the purpose of charging the defendants ■as trustees of certain lands, and compelling them to account for the profits growing out of an investment in lands, under the following circumstances:
    Mary B., wife of Samuel H. Davies, Harriet S., wife of Lewis Henman, and Anne, wife of John Howard, were, in 1831, minors, and Fielding Lowrey, their father, was appointed their guardian. In 1832, land scrip, under the act of Congress of May 23, 1828, was issued from the land office at Cincinnati for the use of said wards, as heirs of John Smith, deceased, to the amount of $4,058. The expenses for procuring the scrip was $189, which, deducted from the scrip, left $3,869.
    Thomas and Carey, two of the defendants, applied to Stoddard, another defendant, to borrow money to buy land on the' Wapaukonnetta reserve, but not having the money to loan, and being informed that Lowrey held the land scrip, application was made to him for it. It was, thereupon, agreed, that this scrip should be employed by the defendants to purchase land, they becoming responsible to account for the amount thereof, in money, with, interest, to the heirs, and to sell and dispose of, and hold the land bought in certain proportions fixéd among themselves. The scrip was issued to Anne, Harriet and Mary, “ as minors, for themselves and interest for. the other heirs of John Smith, deceased,” which, upon the face of the scrip, was made assignable, “ the indorsement to be executed or concurred in by Fielding. Lowrey, guardian pf. said minors. The scrip was assigned to Stoddard, in pursuance of the understanding of the parties, in this form:
    “ Transferred to Henry Stoddard, of Montgomery county, ‘ December 25th, 1832, for value received.
    (Signed,) “ Mary 33. Lowrey, .
    “ Harriet S. Lowrey,
    “ Anne E. Lowrey, ■
    “ Hairs of John Smith, dec’d.
    
    
      ■“ Fielding Lowrey,
    “ Guardian for said Minors.”
    
    With part of this scrip land was purchased at the Piqua land office, of the Wapaukonnetta reserve, amounting to 2,350™ acres, for $3,275.32. Final receipts were taken in the name of Stoddard, and patents subsequently issued to him for the land.
    On the 25th of December, 1832, Lowrey entered 'into a written agreement with Stoddard, Thomas and Carey respecting these lands, stipulating that when Stoddard should receive a patent therefor, he should hold a part for himself, and the respective parts assigned to each of the other contracting parties in trust for them, to wit: one-seventh part to Stoddard, two-sevenths to Lowréy, two-sevenths to Thomas, and two-sevenths to Carey. Stoddard agreed to pay to Lowrey $467.90, being the one-seventh part of the whole amount, the one-half in one year and the other half in two years, with interest, to be paid annually; each of the others agreed to pay $935.80, on the same terms. It was also agreed, that the parties should give each his personal attention to the lands and make sales; Stoddard to execute deeds, and the proceeds to be applied to the discharge of the amount due for the scrip to the heirs, and, after this was done, the balance to be divided among themselves in proportion to the interest of each.' Under this arrangement the lands have been held ever since the purchase. Sales have been made prior to the filing of the bill to more than one-half, and the proceeds of all the sales paid over for the benefit of the complainants, and only a small balance remaining due on the scrip. About nine hundred acres of the land remain unsold. Stoddard has paid the taxes regularly. The sum paid over to Lowrey, for the benefit of respondents, has been $3,-275.32, with the accruing interest.
    The master reports as due to the heirs, on the 1st of June, 1845, $451.53.
    The lands have risen in value two or three dollars per acre, since the purchase.
    It is claimed that these bonds, under the circumstances, are held in trust for complainants, and are to be accounted for as trust property.
    
      Crane Davies, for Complainants.
    
      Henry Stoddart, for Defendants.
    No arguments came to the possession of the Reporter.
   Read, J.

It is an admitted principle, that a trustee shall not speculate in trust funds for his own benefit. It is his duty to manage the trust property with all reasonable diligence, caution and cafe, that it may be rendered most productive, without being exposed to loss. We intend in no sense to impair the obligation of these principles.

In the case under consideration, the guardian, Lowrey, having control over the land scrip in question, it was his duty to make it most productive for his wards. The scrip itself could not be esteemed equal to money. It was only equivalent to money in the single instance of a purchase of public land, being made so by the act authorizing its issue. It could not be put out at interest, or be in any way made to yield an income. To convert this scrip, then, into money, and secure to the wards its annual interest, was beneficial to them. This was done. Had there been nothing more than a conversion of the scrip into money, all would admit that the guardian had acted for the best of the wards, because money would answer the same purpose as scrip in the purchase of land, and could be made to yield an annual interest if not otherwise employed.

But it is contended in this case, that as the scrip was employed in the purchase of land, and as that purchase would be beneficial to the wards, they have the right to its benefit. The guardian and the other respondents agree to use this scrip to purchase land, by which means it was to be converted into money for the wards, with annual interest. It is said this scrip should have been employed to purchase lands for the wards. It would nót, as a general thing, be deemed so prudent a man-, agement of the money of wards to vest it in the purchase of wild lands as to put it out at interest. Indeed, such a disposition of a ward’s money would not be tolerated. Wild lands are unproductive, taxes are to be paid, and they can only be made available by improvement or sale. They would furnish no income for the support and education of the wards. If, then, a guardian would not be permitted to vest the money of his ward in wild lands, how can it be contended that he should vest the-scrip in land, when he has an opportunity of converting it into money ? It appears to be supposed that the scrip should have been employed in the purchase of land because it was made receivable as money in scrip purchase. That is not at all to be regarded as indicating to the guardian the use he should make of the scrip, but simply pointing out wherein it would be regarded as valuable. The scrip cannot be treated as land. It was not so intended. Its transferable quality shows that it was, designed to be made most beneficial to the recipient, by enabling him to dispose of it.

Now, suppose the guardian had taken the scrip' of his wards and put in its place, for their use, money at interest, would any one suppose he had done an act injurious to his wards? This, in substance, was all that was done in this case. The fund was converted into money and put at interest, and the income thus raised expended in the education of the daughters and wards of the guardian. The wards have had the full benefit of the fund, managed in the most prudent manner, and to them most beneficial. What would the ultimate rise in value of wild lands be, in comparison with the expenditure of money in the education of these wards ? It is said the lands bought have refunded the purchase money and left a balance in the hands of the defendants. This depended upon the exertions and care of the defendants, and the risk of the whole speculation devolved upon them.

We can see nothing in this transaction which should charge the respondents as to the remaining land as trustees.

The master has reported a balance of some §400 as due the complainants. ■ A decree for that sum may go against the respondents, and if it be desired, may be charged over upon the land.

Decree accordingly.  