
    In Re Guardianship of Benjamin Blakeney, Catherine Blakeney and Schuyler Blakeney, Appellees, v. D. M. Wyland, Guardian, Appellant.
    1 2 Statute of Limitations: fraud of guardian as interruption. A guardian testified that on the sale of the wards’ realty, notice was served on them, and that later, on termination of the guardianship, he made diligent search in order to pay over the sum in his hands. The guardian knew the residence of his wards when he became guardian, and one of them lived at the same place during the guardianship. The wards testified that neither knew of the guardianship or the existence of the property, and, on receiving the information thereof from another than the guardian, that they took prompt action to recover the same. The guardian did not notify the court when his wards became of age,, kept the funds in the bank to his credit, and made no report whatever to the court for 12 years. Held, sufficient to discredit the statements of the guardian that he had made diligent search in an effort to pay the fund to his wards, and to show fraud, preventing the running of limitations.
    3 Admission of debt by guardian’s report. Under Code, section 3456, providing that causes of action founded on contract are revived by an admission in writing signed by the party to De charged, an account íiléd in court by a guardian admitting tbe receipt of money belonging to his wards, and giving reasons why such money was not paid to the wards upon their majority, was sufficient to interrupt the running of the statute.
    
      3 2fot affected by subsequent plea of statute. A subsequent plea of the statute cannot relate back, and destroy tlie character of such, statement as an admission of indebtedness.
    4 Mingling of Ward’s Funds: interest. "Where a guardian was guilty of breach of trust with respect to the guardianship funds, and wrongfully mingled them with his own, a decree charging him with interest upon the fund while in his hands at 6 per cent., with annual rests, was not excessive.
    
      Appeal from Shelby District Court. — IIon. W. B. Green, J udge.
    
    Friday, February 7, 1902.
    The history of this case is as follow5*: On the fifth of February, 1884, in Shelby county, Iowa, D. M. Wyland was appointed guardian of Benjamin, Catherine, and Schuyler Blakeney, minor heirs of Susan Blakeney, deceased. 1 The minors were residents of Barry county, Mich., and the guardianship- proceedings appear* to have been instituted for the purpose of conveying their fractional interest in a tract of land in Shelby county. The first report of the guardian which appears of record bears date September 22, 1887, and acknowledges a balance in his hands, after paying all expenses and claims up to- that date, of $434.45. No further report was made until November 20, 1899, when, in response to a citation from the court, said guardian presented an accounting in writing, signed by him, in which, after acknowledging the balance of $434.45 in his hands on September 22, 1887, he adds, “which sum I deposited in the Harlan Bank, of Harlan, Io-wa, to- draw interest at six per cent. (6 per cent.) per annum; and it remained there continuously until the bank ceased to do business, in January, 1896, when it was transferred to- my personal account with the Harlan State Bank, which went into the hands of a receiver December 10, 1896. The reason I did not pay over this money is that, after diligent inquiry, I could not learn the whereabouts of my
    
      wards, or either of them. I have no money now with which to pay, and submit this as my final report, with the request that the court make such order as may seem just and proper.” To this report Benjamin and Catherine Blakeney (Schuyler Blakeney having died) filed exceptions November 24, 1899, denying that the trust funds had ever been .deposited as such in the bank, but that the guardian had mingled them with his own funds and converted them to-his private use, and asking that he be charged interest at 6-per cent., with annual rests. December 9, 1899, the guardian filed an amended report, claiming the benefit of the statute of limitations, to- which claim the wards responded, alleging that they never had any knowledge that Wyland was acting as their guardian or that he had any moneys belonging to them, and that he fraudulently concealed and1, kept from them the knowledge of their rights in the premises until they discovered the same, about the time of the citation above referred to. They also plead the report filed by him November 20, 1899, as a written acknowledgment of the debt sufficient to take the case out of the statute of limitations. It should here be said that said wards arrived at their majority as follows: Catherine, Bebruary 14, 1886; Benjamin, June 24, 1881; and Schuyler, the-day of -, 1891. Schuyler died April 12, 1891. After hearing the evidence offered by the wards, — the guardian producing none, except the records in the guardianship proceedings,. and his own testimony when called as a witness by the other party, — the court found that said guardian was justly accountable for the sum of $434.45, with interest thereon at 6 per cent., with annual rests, amounting in all to $900. This sum, less unpaid probate fees, if any, the court ordered the guardian to pay over within 10 days,- — one-third to- Benjamin Blakeney, one-third to Catherine Blakeney (now Berris), and one-third to the administrator of Schuyler Blakeney, or, in event that there be no such administrator to the clerk, for the benefit of said Schuyler’s estate. From this order the guardian appeals.
    
    'Affirmed.
    
      Gullison & Robinson for appellant.
    
      Thos. H. Smith for appellees.
   Weaver, I.

As will be seen from the foregoing statement, the only resistance which the guardian makes to the demand for an accounting is based on the statute of limitations. Under the circumstances disclosed by the record, this plea will not avail. For this conclusion there are two very satisfactory reasons:

I. His wards resided in a distant state, but his statement that he made diligent search for them in order to pay over tire funds, and failed to ascertain their residence, cannot be credited. He knew where they resided when he secured appointment as their guardian. He claims to have served notice upon them at their home, in Michigan, in the proceedings to sell their land. The father of the wards lived at the same place until his death, in 1896. The oldest ward has also lived there during the entire period from the inception of the guardianship to the present time. The slightest effort upon the part of the guardian would have put him in communication with these young people. They unite in testifying that they never knew .of the appointment of the guardian, or that they had inherited any interest in land in Shelby county, until in 1896 one O. P. Wyland wrote a letter seeking a conveyance from them, to cure some defect in the record title. How they could have been ignorant of these facts, if notice of the sale proceedings was in fact served upon them, is not made clear; but the very fact that they did nothing to protect their rights until the letter was received, and that upon receiving such information they acted promptly, is evidence of ihe good faith of their statements.' At any rate, there is nothing to show that prior to 1896 any information was> over conveyed to them that there was money in Wyland7s; hands for their use or benefit. It was his plain duty, as soon as his wards reached their majority, to apprise the court of that fact, and to' notify and settle with those to whom the money belonged. This he did not do. He left his wards in ignorance of their rights, made no report to the court for a period of 12 years, kept the money in the bank, and passed it to the credit of his private account, — an account which closed with a balance of over $5,000 on the' wrong side. The relationship of guardian and ward is one of peculiar trust and confidence, and the guardian will bo held to the strictest good faith in dealing with the ward of with his funds. The suppression or withholding from his wards of the fact of the existence of the moneys in his hands for their benefit must be treated as a fraud upon them, and prevents the running of the statute in his favor. Hoyle v. Jones, 35 Ga. 40 (89 Am. Dec. 273). This is true irrespective of the statutory provisions as to fraud and mistake. District Tp. of Boomer v. French, 40 Iowa, 601; Wilder v. Secor, 72 Iowa, 161.

II. The statute .of limitations provides as follows (Code, section 3456) : “Causes of action founded on contract are revived by an admission in writing signed by thé party to be charged, that the debt is unpaid.” Aplying this rule to the facts of the case at bar, we hold that the written statement or account signed by Wyland, and filed in the district court November 20, 1899, is an admission that the debt is unpaid, and revives the- right of action, even if otherwise held to- be barred. He there states, in express terms, that he received the money, that he placed it to his own account in the bank, and that the bank has failed, and gives the alleged reasons why the money has not been paid over. This paper was signed and presented by him as an accounting, and it was not until after the Blakeneys appeared to that report, and sought to have- him charged with interest, that by an amendment he raises the question of the statute of limitations. It would be inequitable and unjust to permit this plea to relate back to the original admission and rob it of its legitimate effect, thereby permitting the guardian to escape the payment of a just debt, which he does not pretend to have discharged. It is suggested that the claim of the wards is not founded on contract, within the meaning of the statute above quoted, but we do not regard the objection as well taken. The guardian’s principal undertaking is to safely care for the trust funds coming into his hands, and to account therefor to the ward, or to the court for the ward’s benefit, and an action or proceeding to enforce that duty is founded on a contract of the most solemn nature.

III. Objection is also made that the amount found by the district court to be due from the appellant is excessive. The amount so assessed was found by taking the sum which appellant’s report showed was on hand September 22, 1881, and adding interest thereto at 6 per cent., with annual rests. In view of the fact that appellant did not do his full duty in notifying his wards of their right to the moneys in his hands, and that he wrongfully mingled the trust funds with his own, we think the rale applied by the court below is right, and the judgment is aeeirmed.  