
    Matter of the Accounting of George G. Decker, as Guardian of Arthur W. Clark.
    
      (Surrogate’s Court, Delaware County,
    
    
      March, 1902.)
    Guardian and Waed — Prohibited Investments — Commissions—Legal. Expenses — Costs Against Guardian.
    A general guardian cannot invest his ward’s personalty in realty without first obtaining authority to do so from the Supreme Court nor can he invest in bank stock or in a bond of a foreign corporation.
    Annual rests cannot be taken in his account for the purpose of allowing him commissions at full rates upon the balance then found, nor can he have commissions on the principal of reinvestments.
    He cannot charge the fund with legal expenses incurred in his attempt to get himself discharged as guardian before his ward had' reached majority.
    He may employ an attorney to prepare his final account.
    He will be charged with costs personally where his account embodied improper items and the ward was obliged to file objections to it in order to protect his rights.
    Proceedings upon the accounting of a guardian.
    3". K. P. Jackson, for guardian.
    A. P. Carpenter (F. M. Andrus, of counsel), for petitioner.
   GbaNT, S.

— On the 1st day of September, 1891, George G. Decker of Margaretville, N. Y.-, was duly appointed guardian of the person and estate of Arthur W. Clark, an infant, then of the age of twelve years, and continued as such guardian until the present time.

On the 24th day of March, 1900, the said Arthur W. Clark arrived at the age of twenty-one years, and on the 19th day of April, 1900, filed a petition to compel the said G. G. Decker to account as such guardian. On the 1st of June, 1900, the said guardian filed his account and on the same day the petitioner appeared and filed objections to several items in said account. The principal items objected to were:

First. The item of $1,000 alleged to have been invested by the guardian on the 24th day of December, 1897, in the Crosby house and lot, so-called, in said village of Margaretville.

Second. Two items of $250 each, alleged to have been invested by said guardian in stock of the People’s National Bank of Margaretville on the 24th day of December, 1897, and the 27th day of October, 1898, respectively.

Third. The sum of $200, alleged to have been paid E. Hunt for a McKinley Mortgage and Debenture Bond on the 20th day of November, 1891.

Fourth. The petitioner also objected to the items charged in the account for commissions by the said guardian, claiming that the charges for commissions were in excess of those allowed by law.

Fifth. Objection is also made to the item of eighty-one dollars paid J. K. P. Jackson, attorney, on the 10th day of May, 1899; and the petitioner also further asks that the costs and expenses of this accounting be charged against the guardian.

TJpon the question as to the item of $1,000, invested in the Crosby house and lot, it is contended by the petitioner that the guardian had no authority in law or otherwise to make such investment without an order of the Supreme Court. The guardian, on the other hand, contends that as such investment is one which might have been authorized by the Supreme Court, and having been made by him in good faith, should be allowed to him upon the accounting.

In Matter of Bolton, 20 Misc. Rep. 532, Surrogate Com-stock, in writing tbe opinion, beld tbat tbe Court of Chancery originally possessed the sole power to authorize a change of the personal property of an infant into real property, and that in the exercise of its equity powers the Court of Chancery could and often did direct such uses of the infant’s funds or sanction it after it was done, provided the infant had not attained to his majority, that this power was transferred to the Supreme Court and is now held by it even over guardians appointed by the Surrogate’s Court.

After a careful examination of the cases cited I am of the opinion that the rule laid down by Surrogate Comstock is the settled rule upon the question of authority of a guardian to invest the personal property of his ward in real estate, and am therefore of the opinion that the item of $1,000, alleged to have been invested in the Crosby house and lot so-called, was made without authority of law and must be charged against the guardian, with interest from the time of such investment.

Second. As to the items aggregating $500, invested in the People’s Bank stock of Margaretville, not being a security which the guardian was authorized to invest, such investment was made at hU risk.

“ A guardian who invests in personal security assumes the risk of loss thereby and he must bear the expenses of litigation, in efforts to collect funds so invested.” Torry v. Frazer, 2 Redf. 486.

“ A guardian has no authority to invest upon, personal security, upon bond, promissory note, or other personal security, and if he does he shall be personally answerable if the security prove defective.” Dayton on Sur. Pr. (3d Ed.) 521; Bogart v. Van Velsor, 4 Edw. Ch. 718, 722; Ackerman v. Emott, 4 Barb. 626.

“ A guardian should not loan the money of his ward upon personal security.” Matter of Bushnell, 17 N. Y. St. Rep. 813; S. C., 4 N. Y. Supp. 472.

“ The guardian has no right to invest the property of the infant in bank stock.” Ackerman v. Emott, 4 Barb. 626.

In view of the foregoing authorities-, I am of the opinion that the guardian had no legal right or authority to invest the funds of the infant in the People’s Bank stock, and therefore those items should be charged against the guardian with interest from the time such investments were made.

Third. It is claimed by the petitioner that the investment of $200 in the McKinley Mortgage & Debenture Bond being a non-resident corporation was unauthorized by law. It is conceded by the attorney for the guardian in his brief that this investment being an investment in a foreign corporation was unlawful and that the g-uardian must retain the same and account to the ward therefor. The guardian’s account should therefore be charged with the sum of $200 so invested, together with interest on the same from the time the same was invested.

Fourth. Upon the question of commissions claimed by the guardian the rule seems to have been settled by the Court of Appeals- in the case of Morgan v. Hannas, reported in 13 Abb. (N. S.) 361. Judge Eolger, in writing the opinion, states the rule as follows: “ That annual rests in the accounts of an executor or other trustee, cannot be taken for the purpose of allowing him commissions at full rates upon the balance then found. But where annual rests are required by the special direction of a court, for the sake of charging the trustee with interest, or by a rule of court, or by the provisions of statute; then full commissions may be computed upon the amounts, excluding reinvestments of principal.”

“ Where a guardian invests or reinvests funds he is not entitled to commissions upon such reinvestments, but only upon the interest or income arising from the same.” Matter of Kellogg, 7 Paige, 265.

The guardian, therefore, is entitled to receive five per cent, for receiving and paying out $1,000 of the principal sum; two and one-balf per cent, for receiving and paying out tbe remaining $4,000 of principal; and five per cent, for receiving and paying out tbe interest or income received by bim after tbe filing of bis annual report eacb year, provided tbe same did not exceed in any one year tbe sum of $1,000. In case tbe amount received in any one year after filing tbe annual report exceeded tbe sum of $1,000 then upon tbe excess tbe guardian would be entitled to tbe sum of two and one-balf per cent.

Tbe commissions of tbe guardian may, therefore, be computed according to tbe foregoing rule, and tbe guardian allowed commissions upon that basis.

Fifth. As to tbe item of eigbty-one dollars paid J. K. P. Jackson, bis attorney, for services in tbe proceeding in wbicb tbe guardian sought to be relieved from bis trust before tbe ward arrived at tbe age of twenty-one years, not being for tbe benefit of tbe ward should not be allowed tbe guardian upon this accounting. These services were rendered in a proceeding-in wbicb the guardian sought to be relieved from tbe trust and were not instituted or conducted in tbe interest of tbe ward, but for tbe -sole benefit of tbe guardian, and whatever compensation is paid tbe attorney for tbe .said guardian for such services should be paid by tbe guardian, and not out of tbe funds of tbe ward, as tbe ward was not in any manner responsible for such proceeding or benefited by it. A general guardian under ordinary circumstances would be justified in employing an attorney at a reasonable compensation to prepare bis final account, and under tbe circumstances of this case, taking into account tbe amount of time employed in tbe preparation of tbe account, I should consider tbe sum of twenty-five dollars a reasonable allowance for tbe time necessarily expended in preparing tbe account, and that sum is hereby allowed.

As tbe contest wbicb arose upon tbe objections filed to tbe account was caused solely by tbe improper items embodied in tbe account by tbe guardian, which rendered tbe.contest necessary to enable tbe ward to recover bis rights, the costs of the contest, in my judgment, should be paid by the guardian.

A general guardian will be compelled to pay the costs of a contested accounting where the evidence shows maladministration by him of his ward’s estate.” Matter of Kopp, 15 Civ. Pro. 282.

In the case at bar it was necessary for the ward to file objections to the account in order to protect his- rights. In each instance the items objected to were unlawfully sought to be charged against the ward and through no fault of the ward, and it would be a great hardship to the ward to be compelled to pay the expense of a contest which he was compelled to institute in order to preserve his rights.

“ A guardian acting within the -scope of his powers, like an executor or administrator is bound only to fidelity and ordinary diligence and prudence in the execution of his trust. And his acts, in the absence of fraud, will be liberally construed.” White v. Parker, 8 Barb. 48.

But a guardian is presumed to know the law. Ignorance of the law is no excuse for a failure to perform his duties according to law. Matter of Kopp, supra.

The petitioner is hereby allowed the sum of seventy dollars, ■costs of the contest, to be charged against and paid by the guardian. The guardian, being -charged with the amount invested in the Crosby house and lot with interest from the time of its purchase, should be credited with the amount of rent received and taxes and insurance paid from the time of such purchase.

Decreed accordingly.  