the infant's benefit. He is liable to an action of account at common law by the infant, after he comes of age; and the infant, while under age, may, by his next friend, call the guardian to account by a bill in chancery.(a)1 Every guardian in socage, and every general guardian, whether testamentary or appointed, is bound to keep safely the real and personal estate of his ward, and to account for the personal estate, and the issues and profits of the real estate; and if he makes or suffers any waste, sale, or destruction of the inheritance, he is lia- *230 ble to be removed, and to answer in treble damages. (b)

If the guardian has been guilty of negligence in the keeping or disposition of the infant's money, whereby the estate has in

(a) By the practice in chancery, an infant is allowed one year after he arrives of age to investigate the guardian's accounts, and to surcharge and falsify if they be found wrong, and the guardian is not entitled to an absolute discharge until the expiration of that time. In the matter of Van Horne, 7 Paige, 46. The courts of equity throw a vigilant and jealous care over the dealings of guardians with infants on their coming of age. If there be a pecuniary transaction between guardian and child just after the latter becomes of age, and without any benefit moving to the child, as in the case of gifts, the presumption is, that undue influence has been employed, and that presumption must be rebutted by adequate proof. Archer v. Hudson, 7 Beavan, 551. The courts set aside such transactions on the ground of public utility and policy, though there be no actual unfairness in the case. Hylton v. Hylton, 2 Vesey, 547. See Gale v. Wells, 12 Barb. R. 84. A settlement out of court, between a guardian and his former ward, is a release to the guardian, has been held not to be a compliance with the guardian's bond to render an account when required by the court. Kittredge v. Betton, 14 N. Hamp. R. 401. Gregg v. Gregg, 15 N. Hamp. R. 190.

(b) N. Y. Revised Statutes, vol. ii. p. 153, sec. 20, 21. The statute law of Tennessee is very strict and monitory respecting the fidelity of executors, administrators, and guardians. The act of 1837, ch. 125, requires them to settle their accounts with the clerk of the county court once a year,2 and if they neglect to do so for thirty days after being called upon by the clerk, they are liable to indictment, and the attor ney general is bound ex officio to prefer the indictment. The supreme court thinks the laws to be admirably adapted to preserve the property of cestui que trusts, and the fidelity of these trustees. State v. Parrish, Nashville, Dec. 1843, Humph. 285. Guardians are allowed for their reasonable expenses, and the same rates of compensation (N. Y. Revised Statutes, vol. ii. p. 153, sec. 22. Mass. Revised Statutes, part 2, tit. 7, ch. 79) for their services, as provided by law for executors; and for that, see infra, p. 420.

1 So if the guardian be removed during the infant's minority. Richards v. Swan, 7 Gill, 366. Swan v. Dent, 2 Maryl. Ch. 111.

2 So Laws of Connecticut, 1853, c. 62.

curred loss, the guardian will be obliged to sustain that loss. (a)1 The guardian must not convert the personal estate of the infant into real, or buy land with the infant's money, without the direction of the court of chancery. The power resides in that court to change the property of infants from real into personal, and from personal into real, whenever it appears to be manifestly for the infant's benefit. (b)2 It is said that the latter

(a) Guardians and trustees of the moneyed concerns of others are answerable for any misapplication or unauthorized dealings with the trust moneys or stock. The rule on this subject is very strict. All persons acting in a fiduciary character are bound to use the same care and management that a prudent man would exercise over his own affairs. What is the requisite diligence, will depend on the attendant circumstances. Glover v. Glover, 1 McMullan's S. C. Rep. 153. A receiver in chan

cery is answerable for the loss of moneys by the failure of a banker with whom they were deposited for security, if the receiver parts with the absolute control over the fund, and lets a stranger in to control his absolute discretion in the case. Salway v. Salway, 2 Russell & Mylne, 215. So, Lord Eldon, in Ware v. Polhill, 11 Vesey, 278, and in Phillips, ex parte, 19 Vesey, 122, was very guarded in laying down the power of the court in changing infant's property so as not to affect the infant's power over it when he comes of age, or to change its descendible character. But as a general rule, in respect to stocks held in trust, such trustees are not to look beyond the legal title, or to take notice aliunde of trusts chargeable upon the stock. Hartga v. Bank of England, 3 Vesey, 55. Bank v. Parson, 5 ibid. 665. Franklin v. The Bank of England, 1 Russell, 575.

(b) Earl of Winchelsea v. Norcliffe, 1 Vern. Rep. 434. Inwood v. Twyne, Amb. Rep. 417. 2 Eden's Rep. 148, 153, S. C. Ashburton v. Ashburton, 6 Vesey, 6. Huger v. Huger, 3 Desau. S. C. Eq. Rep. 18. Dorsey v. Gilbert, 11 Gill & Johnson, 87. 3 Johns. Ch. Rep. 348, 370. Hedges v. Riker, 5 id. 163. By the English statute of 8 & 9 Vict. ch. 97, trustees of stock belonging to an infant or lunatic may give power to receive dividends. Equity will not interfere in adversum to change real into personal estate by a sale, without requiring it to retain throughout the character of the original fund. Foster v. Hilliard, 1 Story's Rep. 77.5 And it is a well-settled rule in chancery, that when land is directed to be sold and turned into money, or

1 Wills's Appeal, 22 Penn. 325. McLean v. Hosea, 14 Ala. 194.

2 Stanley's Appeal, 8 Barr's R. 431. Worrell's Appeal, 9 id. 508. S. C. 23 Penn. 44. 8 The receiver of an insolvent corporation cannot impeach or disaffirm the lawful acts of the company. Hyde v. Lynde, 4 Comst. R. 387.

4 Collins v. Champ, 15 B. Mon. 118. When an infant's lands are sold by order of the court, the proceeds are, with respect to descents, impressed with the character of realty during the infant's minority, Shumway v. Cooper, 16 Barb. 556; Forman v. Marsh, 1 Kern. 544; Sweezy v. Thayer, 1 Duer, 286; March v. Berrier, 6 Ired. Eq. 524. This fictitious character ceases when the party attains his majority and receives possession of the property. Forman v. Marsh, ubi supra.

5 Ex parte Jewett, 16 Ala. 409. Troy v. Troy, 1 Busbee, Eq. 85. This power is not inherent in the original jurisdiction of chancery, but is wholly derived from statutes. Baker v. Lorillard, 4 Comst. 257; Forman v. Marsh, 1 Kern. 544.

power may be exercised by a guardian or trustee, in a clear and strong case, without the previous order of a court of equity;

money is directed to be employed in the purchase of lands, courts of equity, in dealing with the subject, will consider it that species of property into which it is directed to be converted. What is legally agreed to be done, is considered as done. Wheldale v. Partridge, 5 Vesey, 396. Craig v. Leslie, 3 Wheaton, 563, 577-588. Peter v. Beverley, 10 Peters's U. S. Rep. 533. Hawley v. James, 5 Paige's R. 320. Walworth, Chancellor, in Gott v. Cook, 7 Paige's Rep. 534. Cowen, J., in Kane v. Gott, 24 Wendell, 660. Rutherford v. Green, 2 Iredell's N. C. Eq. Rep. 122. Reading v. Blackwell, Baldwin's C. C. U. S. Rep. 166. Rhinehart & Harrison, ibid. 177. See, also, infra, p. 476, n. The English authorities on this subject are collected in Fonblanque's Eq. vol. i. b. 1, ch. 6. sec. 9, notes s. t. Newland on Contracts, ch. 3, pp. 48-64. 2 Story on Equity, 99, 585-587. Burge's Com. on Colonial and Foreign Laws, vol. ii. 53-57. 2 Jarman's Powell on Devises, ch. 4, p. 60. Leigh & Dalzell on Eq. Conversion, 48, &c.1 The constitution of New Jersey, in 1844, art. 4, sec. 7, prohibits the passing of any private or special law for the sale of lands belonging to any minor, or other persons under no legal disability to act for themselves. Before this constitutional provision, the legislature had the authority in its discretion, and the court of chancery had that authority in the case of infants and lunatics, and I presume it has it still. Snowhill v. Snowhill, 2 Green, N. J. Ch. R. 20. If, under a power to sell real estate for certain purposes, a sale be made, and if there be a surplus undisposed of, it goes to the heir at law as real estate. Leigh & Dalz. on Conversion, 92. Estate of Tilghman, 5 Wharton, 44. Snowhill v. Ex'r of S., 1 Green's N. J. Ch. Rep. 30. The doctrine of equitable conversion, as applied to the change of real into personal estate, seems to rest upon the question whether the testator meant to give to the produce of real estate, the quality of personality to all intents, or only so far as respected the particular purposes of the will. Unless the first purpose be clearly declared, then so much of the real estate, or the produce thereof, as is not effectually disposed of by the will, or wanted for the purpose of it, results to the heir at law.2 Cruse v. Barley, 3 P. Wms. 20, Mr. Cox's note thereto. Digby v. Legard, cited in the note of Mr. Cox. Ackroyd v. Smithson, 1 Bro. C. Rep. 503, and Lord Eldon's argument in that case. Amphlett v. Parke, 2 Russell & Mylne, 221. Wright v. Trustees of Meth. Ep. Church, 1 Hoffman's Ch. Rep. 218-222. In this last case the authorities are all collected and examined with ability and learning. So, on the other hand, in Cogan v. Stevens, decided by Sir Christopher Pepys, the master of the rolls, in November, 1835, and reported in Appendix No. 7 to Lewin on Trusts. It seems to be equally settled by the powerful decision in that case, that where the testator directs money to be invested in land for certain purposes, some of which are lawful and take effect, and others fail and become void, the property so given, after satisfying the lawful purposes, belongs to the next of kin and not to the heir. This whole doctrine of constructive conversion is fully discussed, and the cases well examined and digested in Jarman on Wills, vol. i. ch. 19, Boston edit. 1845, edited by J. C. Perkins, Esq.

1 Meakings v. Cromwell, 1 Selden R. 136.

2 Lands devised to executors, to be sold at their discretion as to time, are not converted until sold, Christler v. Meddis, 6 B. Mon. R. 35. Haggard v. Rout's heirs, ibid. 247.

but the infant, when he arrives at full age, will be entitled, at his election, to take the land or the money, with interest; and if he elects the latter, chancery will take care that justice be done, by considering the ward as trustee for the guardian of the lands standing in his name, and will direct the ward to convey. (a) And if the guardian puts the ward's money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal with compound interest, to meet those profits when the guardian will not disclose them. (b) So,

*

if he neglects to put the ward's money at interest, but * 231 negligently, and for an unreasonable time, suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross delinquency,

(a) Caplinger v. Stokes, Meig's Tenn. Rep. 175. Eckford v. De Kay, 8 Paige's Rep. 89. That such a power might be exercised without a previous authority was intimated in 2 Eden's Rep. 152, 143, and Amb. Rep. 419; and it was allowed and sustained afterwards by the Supreme Court of Pennsylvania, in 1 Rawle's Rep. 266. But it is an extremely perilous act in a trustee, and cannot be recommended. The court of chancery itself has no inherent original jurisdiction to direct the sale of the real estate of an infant. The power is derived entirely from statute. Taylor v. Philips, 2 Vesey, 23. Russell v. Russell, 1 Molloy, 525. Rogers v. Dill, 6 Hill, N. Y. R. 415. In Virginia, the guardian cannot apply any part of the principal of the infant's estate to his education or support, without the previous consent of the court appointing him. Myers v. Wade, 6 Randolph's Rep. 444.2 A court of chancery may, in its discretion, appropriate the capital of the ward, and apply it for maintenance; but the guardian does it without such order at his peril. Long v. Norcom, 2 Iredell's N. C. Eq. Rep. 354. In re Lane, 17 E. L. & Eq. 162. Vide supra, p. 193, n. c. If a mother has maintained her infant child without the order of the court, she will be entitled only to a liberal indemnity for what she has expended, without reference to the amount of his fortune, though if the court be applied to for a prospective allowance, regard may be had to his fortune. Bruin v. Knott, in Ch. by Lord Lyndhurst, 1845. It is the general statute law throughout the United States that the lands of infants may be sold, when their interest or that of others requires it, in the opinion of the courts having jurisdiction of the subject. The guardian is the proper person to apply for the authority, and to exercise it. Statute Law of Kentucky of 1813. R. L. of N. Y. vol. ii. 194. Prince's Dig. of Laws of Georgia, 1837, pp. 243, 248, 250. Massachusetts Revised Statutes of 1836, part 2, tit. 5, ch. 71, 72. Ibid. ch. 79.

(b) Docker v. Somes, 2 Mylne & Keen, 665, and notes d and e below.

1 If a guardian advances his own money to erect buildings on his ward's land, without the order of a court, he cannot recover the amount from his ward. Hassard v. Rowe, 11 Barb. R. 24. See White v. Parker, 8 Barb. R. 48.

2 Austin v. Lamar, 23 Miss. 189; Brown v. Mullins, 24 Miss. 204.

with compound interest. These principles are understood to be well established in the English equity system, and they apply to trustees of every kind; (a) and the principal authorities upon which they rest, were collected and reviewed in the chancery decisions in New York, to which it will be sufficient to refer, as they have recognized the same doctrine. (b) Those doctrines, with some exceptions, pervade the jurisprudence of the United States. (c)'

(a) They have been applied to a sheriff who kept money in the hands of his banker for years, without color of right. The King v. Villers, 11 Price's Rep. 575. (b) Green v. Winter, 1 Johns. Ch. Rep. 26. Dunscomb v. Dunscomb, ibid. 508. Schieffelin v. Stewart, ibid. 620. Holridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252. Smith v. Smith, 4 Johns. Ch. Rep. 281. Evertson v. Tappen, 5 Johns. Ch. Rep. 497. Clarkson v. De Peyster, Hopkins's Rep. 424. Rogers v. Rogers, ibid. 515. The principle on which interest is charged, as against trustees who neglect to invest trust moneys, or unduly misapply them, and the authorities, both in England and in the Roman jurisprudence, in which the justice and policy of the rule are explained and enforced, are referred to and discussed by the district judge of the U. S. in Maine, in the matter of Thorp, N. Y. Legal Observer for October, 1846, (vol. 4, p. 377.)

(c) Reeve's Domestic Relations, 325, 326. 2 N. H. Rep. 218. 1 Mason's Rep. 345. 5 Conn. Rep. 475. Fox v. Wilcocks, 1 Binney's Rep. 194. 3 Desaus. Rep. 241. 4 Desaus. Rep. 702-705. Ringgold v. Ringgold, 1 Harris & Gill, Rep. 11. Edmonds v. Crenshaw, State Eq. Rep. S. C. 224. Turney r. Williams, 7 Yerger, 172. Karr v. Karr, 6 Dana's Kentucky Rep. 3. In this last case, compound interest, by means of periodical rests biennially, was allowed, as the guardian had suffered interest to lie idle. A guardian settled his account with an infant within a month after he came of age, and when the latter had no friend or adviser on his part. Account ordered to be opened, notwithstanding the vouchers had been delivered up. Revett v. Harvey, 1 Simons & Stuart, 502. The practice, as to allowing interest, and in strong cases compound interest against trustees, is fully discussed in Wright v. Wright, 2 M'Cord's S. C. Ch. Rep. 185. In New Jersey, guardians who omit to put the ward's money at interest, by reason of fault or negligence, are chargeable with ten per cent. interest. Revised Laws, 779, sec. 11.

The doctrine laid down in the text, that in cases of gross delinquency as to trust moneys, an executor or other trustee will be charged with compound interest, though just and reasonable in the cases in which it has been applied, has in some instances been rather unsparingly condemned." Let us for a moment examine its foundations.

1 Kyle v. Barnett, 17 Ala. 306; Kerr v. Laird, 27 Miss. 544; Light's Appeal, 24 Penn. 180; Biles's Appeal, id. 335; Lane's Appeal, id. 487. Six months is held a reasonable time in Worrell's Appeal, 23 Penn. 44.

2 Ker's Adm. v. Snead, (Circuit C. of Virginia,) Law Reporter, Sept. 1848, vol. 11, p. 217. In the learned opinion of Mr. Justice Scarburgh in this case, the authorities are very fully examined, and he concludes that a trustee cannot be charged compound interest, merely because he has mingled the trust funds with and used them as his own.