
    Say’s executors against Barnes.
    
      Saturday, April 4.
    Award,soon in bad health and anxious to remove to a milder ciisetüement3 with his guardian received the balance in gavehim^receiptinfuii ;^ theguardian liver up^the6" papers belonging to the estate*. Held, that the receipt in full ■was not conclusive, and did not stand sTnew settle^ mentunder ofthe o°-lty phan’s Court, though there was no fraud °V,m,mve“-
    Where a fhemoney of* his ward ornegleets to invest it at proper chargeabie* with interest; and a reasonable rule is to knee6of the money m his hands at the end of every six months, and charge him ■with simple interest on it, allowing a reasonable sum to remain in his hands to meet contingent expenses.
    A guardian is not entitled to commissions on the sums charged against him for interest, beyond what was charged in the settlement made with the ward. ^ Commissions are not to be deducted at the foot of the account, but from time to time as the services for which they are chargeable, are rendered.
    THIS case came before the Court on an appeal from the decision of the Orphans’ Court of the county of Philadelphia. x
    
    .. Benjamin Say, deceased, whose executors were the appellants> and the Rev. Dr. Rogers, were guardians of Barnaby Barnes, the appellee, and of his sister Anna Maria. Dr. ' * * 7 . Rogers attended to the education of the orphans, but the management of their estate, which was very considerable, Was confided to Mr. Say solely. The guardianship commenced in the year 1795. In August, 1811, Barnaby was of a£e’ anc^t0°k uPon himself the guardianship of his sis ter. He was at that time in very delicate health, and was advised by his physician, that it was necessary to try the effect of a milder climate. He had received a tolerable education, and after having left school was placed in the counting house of Messrs. Warders, merchants of this city. His ^ health prevented him from acquiring the usual knowledge of merchants’ accounts, but he understood common arithmet*c an(l could calculate interest. On arriving at age he was anxious to come to a settlement with his guardian, in order , , to procure money to bear his expenses abroad. Ihe guardian appeared equally anxious for the settlement, as he was at that time labouring under a consumption of which he died in about twenty months after that period. There was no difference as tQ the sums received and paid by Mr. Say. The . r j j account which he exhibited was admitted to be fair and honest 5 but the interest account, during this long minority, was the subject on which a difference of opinion arose. Not long . , 1 alter the ward came of age, Dr. Rogers, at his request, went wbh him to meet Mr. Say, at the house of Peter Thomson, an intelligent scrivener and accountant, who acted on Mr. Say1 s behalf. Mr. Say objected to giving up the bonds, mortgages, and other papers belonging to the estate, until his account was settled, and a receipt in full obtained from his ward. No settlement took place at that meeting, nor was a receipt given, but on the 23d November, 1811, the account was settled, the papers delivered to Mr. Barnes, and a balance in cash paid to him, on which he gave his guardian a receipt in full. With respect to his sister, who was still, a minor, he did not make a final settlement, but left her account to be adjusted when she should arrive at age. Dr. Rogers, who was examined on the part of the appellee, declared, that he was entirely ignorant of the business, and knew nothing of the circumstances or amount of the estate, which was far greater than he had supposed, so that he could render his ward no assistance in the settlement of the account. It appeared, however, that the account exhibited by Mr. Say had been examined and objected to by Mr. Barnes, who obtained some alterations in his favour both with regard to interest and the charge of commissions. The account being settled and the cash balance paid, Mr. Barnes went to Europe, and returned in rather less than a year in better health. In the mean time, his sister’s account had been settled with her former guardian, Mr. Say, under the direction of auditors, who allowed her more interest than had been allowed to the appellee. He, therefore, on the 20th October, 1812, wrote a letter to Mr. Say, in which he complained, that the settlement between them had been made with reluctance on his part, and at a time when he was ignorant of his rights, and at the same time informed him, that he was willing to abide by the principles on which his sister’s account had been settled, and that unless this were acceded to he should have recourse to law. A meeting was the consequence of this communication, at which the parties came to no agreement. The health of Mr. Say continued to decline, and he died in April, 1813, after which Mr. Barnes cited his executors to settle his guardianship account in the Orphans’ Court.
    The auditors to whom the account was submitted, settled it every six months, and charged the guardian with interest on the balance then due to the time of the audit, and credited him on the same principle, when any balance appeared to be due to him, allowing one thousand dollars for contingent expenses, and deducting his commissions on the aggregate amount at the end of the account.
    This settlement having been confirmed by the' Orphans’ Court, an appeal was entered, and the following exceptions to the settlement taken.
    First, That the Orphans’ Court ought not to have opened, the account settled between the parties after-the ward came of age.
    Second., That the account confirmed by the Orphans’ Court was not adjusted upon proper principles.
    After argument by Binney and Chauncey, for the appellants, and J. R. Ingersoll and Ingersoll, for the appellee, the opinion of the Court was delivered by
   Tilghman C. J.

This is an appeal from the Orphans’ Court on the settlement of the account of Benjamin Say, deceased, who was the guardian of Barnaby Barnes. The appellants make two objections to the settlement; 1. That the Orphan’s Court ought not to have interfered with the account settled between the parties after the minor was of full age. . 2. That the account adopted by the Orphans’ Court, is not stated upon just principles.

1. Whether the account settled between the parties, was obligatory, will depend on the circumstances. [Here the Chief Justice stated the case.]

It is now contended, on behalf of his executors, that the receipt of B. Barnes is a bar to his claim, and that it would be unjust, to open the account, after the death of the guardian. I understand Dr. Say to have been a man of good character; neither does the case require, or my inclination lead me to any observations injurious to his memory. I am very sensible of the delicacy of the subject, and of the injustice of throwing hasty censure, on one who can no longer speak for himself. But certain principles have been established for the protection of infants, founded on great wisdom, and which must not be departed from. It is in vain to argue, that when a ward comes to full age, and makes a settlement with his guardian, attended with no circumstance of fraud, or circumvention, it is to be considered as a settlement between two persons who had never stood in the situation of guardian and ward. I see, and I feel the difference. There is no need of authority on so plain a subject. But the books are full of authority. Settlements made soon after coming to ageP and especially before the ward is in possession of ■Ms estate, are always viewed by the Courts, with'a watchful, and even a jealous eye. Not that there is any thing wrong in making a settlement. It is what both parties should wish. But when the ward apprehends, on further reflection, that he has acted under a mistake, or ignorance of fact or law, there should be no hesitation on the part of the guardian, in submitting to a re-examination of the account. What objection can there be to it, unless papers have been lost ? It should always be remembered that when a young man comes to age, he must necessarily be ignorant of his affairs, and the information which he receives must come principally from his guardian. In point of information, the parties are not on a footing. In the present instance, the settlement of an account of IS or 16 years standing, during which period, very large sums had been received, was not an easy matter. The establishment of a rule, by which the guardian should be charged with interest, on-monies either used by him on his own account, or neglected to be put out for the benefit of his ward, was a point on which there might well be a difference of opinion. It seems there was a difference: and if the ward, anxious to obtain possession of his property, and impatient to seek a better climate for the benefit of his health, consented to a principle of adjustment, which he afterwards disapproved of, I think he ought not to be held to it. Why should he? If he received less than his right, his guardian paid him no consideration for the loss. Neither is it alleged that papers were destroyed in consequence of the settlement which might expose the estate of the guardian to injury. As I understand the case, an interest account is raised on the basis furnished by Dr. Say, on the receipts and payments as they stand exhibited in his own account. Under these circumstances, I am of opinion, that the receipt signed by Barnaby Barnes, ought not to stand in the way of the new settlement under the authority of the Orphans’ Court.

2. That, being the case, it is necessary to examine the account on which the appeal is founded. The governing principle of the auditors, was, to strike a balance of the money in the hands of the guardian, at the end of every six months, and to charge him with simple interest upon that; making an allowance, however, of a thousand dollars for contingent expenses. It does not seem to me, that this rule works either unjustly or severely, whether the case really was, that the money was used by the .guardian, or negligently retained by him. How the fact was, we are ignorant. But it must not be forgot that no one but he who had the money, can shew what became of it. It is objected that this rule is unjust, because it might often happen, that good investments could not be obtained in the course of six months. . The answer is fair. Shew'us that the money was really lying dead, and we give up the interest. This the counsel for the appellee declared in Court. And as most people keep their money in bank, there can be little difficulty in shewing what sums remained unemployed, and for what length of time. In the case of Fox v. Wilcocks, 1 Binn. 194, this Court established a principle which can never be shaken, “ where a guardian, or executor, has been “guilty of neglect, in not putting money out, or-where he “ has made use of it himself, he shall be charged with inte- “ rest.” The only question is then, has he been charged for too long a time. Considering the state of business in this city, during the period when these monies were received, and in the absence of all testimony, which might inform us of the exact truth; considering too, that the books of the guardian are’ the ■ proper sources of such testimony, I am of opinion, that the rule adopted by the auditors, was, neither severe, nor unreasonable. One or two minor objections have been made to the account. It is said, that Benjamin. Say,Aught to be allowed a commission on the aggregate of the several sums charged against him for interest, beyond what had been charged in the settlement made with his ward ; because the estate has been thereby increased. True, the estate has been increased, but it does not follow, that a commission should be allowed on the increase. A commission is a compensation for services rendered; but whether the money was kept unproductive through negligence, or used by the guardian for his own profit, there was neither trouble, nor service, for which the estate should be charged. Another objection is, that those commissions concerning which there is no dispute, are deducted at the foot of the account; whereas, they should have been deducted from time-to time as they were earned ; and this will make some difference in the interest account.

I believe the rule in this Court has been, to allow the commissions at the time the services were rendered; and when the guardian is charged with interest, this circumstance should be attended to. So far as that goes, the account should be rectified. In all other respects, I am of opinion, that it should stand confirmed.

Proceedings confirmed.  