The guardian's trust is one of obligation and duty, and not one of speculation and profit. He cannot reap any benefit from the use of the ward's money. He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to 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. 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 destruc

a

tion of the inheritance, he *is liable to be removed, *230 and to answer in treble damages.b If the guardian

Carth. 255. Whoever enters upon the estate of an infant, is considered in equity as entering in the character of guardian, and after the infant comes age, he may, by bill in chancery, recover the mesne profits. Morgan v. Morgan, 1 Atk. 489. Drury v. Conner, 1 Harris & Gill, 220.

of

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, Jun. 547.

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, and if they neglect to do so for thirty days after being called upon

has been guilty of negligence in the keeping or disposition of the infant's money, whereby the estate has incurred loss, the guardian will be obliged to sustain that loss.a 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 ben

It is said that the latter power may be exercised

by the clerk, they are liable to indictment, and the attorney general is bound ex officio to prefer the indictment. The supreme court thinks the law to be admirably adapted to preserve the property of cestui que trusts, and the fidelity of these trustees. State v. Parrish, Nashville, Dec. 1843. 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 is provided by law for executors, and for that, see infra, p. 420.

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 M'Mullan's S. C. Rep. 153. A receiver in chancery is answerable for the loss of monies 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 Philips ex parte, 19 Vesey, 122, was very guarded in laying down the power of the court in changing infants' property, so as not to affect the infant's power over it when he comes of age, or to change its descendible character. If the holder of a check upon a banker, increases the amount of it in such a manner that no one in the ordinary course of business could detect the alteration, and it be presented and paid, the bank must answer for the sum fraudulently drawn. Hall v. Fuller, 5. Barnw. & Cress. 750. 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. 654. Franklin v. The Bank of England, 1 Russell, 575.

b Earl of Winchelsea v. Norcliffe, 1 Vern. Rep. 434. Inwood v. Tyne,

by a guardian or trustee, in a clear and strong case without the previous order of a court of equity; but the in

Amb. Rep. 417. 2 Eden's Rep. 148. 153. S. C. Ashburton v. Ashburton, 6 Vesey, 6. Huger v. Huger, 3 Dess. S. C. Eq. Rep. 18. Dorsey v. Gilbert, 11 Gill & Johnson, 87. 3 Johns. Ch. Rep. 348. 370. Hedges v. Ricker, 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 dividend. 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. And it is a well settled rule in chancery, that when land is directed to be sold and turned into money, or 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. Beverly, 10 Peter's U. S. Rep. 533. Hawley v. James, 5 Paige's, 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. Rep. 122. Reading v. Blackwell, 1 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. sect. 9. notes s. t. Newland on Contracts, ch. 3. p. 48-64. 2 Story on Equity, 99. 585-587. Burge's Comm. 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. The constitution of New Jersey in 1844, art. 4. sect. 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. Under a power to sell real estate for certain purposes, and a sale be made, 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 ¡t, results to the heir at law. Cruse v. Bailey, 3 P. Wms. 20. Mr. Cox's note thereto. Digby v. Legard, cited in the note of Mr. Cox. Ackroyd

fant, 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. And if the guardian puts

v. Smithson, 1 Bro. C. C. 502, 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. Stephens, decided by Sir Christopher Pepys, the master of the rolls, in November, 1836, and reported in Appendix, No. 2, 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. 1. ch. 19, Boston edit. 1845, edited by J. C. Perkins, Esq.

■ Caplinger v. Stokes, Meigs' 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, 153, 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. Phillips, 2 Vesey, 23. Russell v. Russell, 1 Molly, 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. 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, 3 Iredell's N. C. Rep. 354. Vide If a mother has maintained her infant child without

Supra, p. 193. n. c. 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 for a prospective allowance, regard may be had to his fortune. Bruin v. Knott, in Ch. by Lord Lyndhurst, 1845. I s the general statute law throughout the United States that the lands of nfants 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 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. So, if he neglects to put the ward's money at interest, but negligently, and for an unreasonable *time, suffers it to lie *231 idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross delinquency, with compound interest. These principles are understood to be well established in the English equity system, and they apply to trustees of every kind;b and the principal authorities upon which they rest were collected and reviewed in the chancery decisions in NewYork, to which it will be sufficient to refer, as they have recognized the same doctrine. Those doctrines, with some exceptions, pervade the jurisprudence of the United States.d

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, p. 243. 248. 250. Massachusetts Revised Statutes, of 1835, part 2. tit. 5. ch. 71, 72. Ibid. tit. 7. ch. 79.

■ Docker v. Somes, 2 Mylne & Keene, 665, and notes d and e below.

They have been applied to a sheriff who kept money in the hands of his banker for years, without colour of right. The King v. Viilers, 11 Price's Rep. 575.

• Green v. Winter, 1 Johns. Ch. Rep. 26. Dunscomb v. Dunscomb, ibid. 508. Schieffelin v. Stewart, ibid. 620. Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252. Smith v. Smith, 4 Johns. Ch. Rep. 281. Evertson v. Tappan, 5 Johns. Ch. Rep. 497. Clarkson v. De Peyster, 1 Hopkins' Rep. 424. Rogers v. Rogers, ibid. 515. The principle on which interest is charged as against trustees who neglect to invest trust monies, 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, time 1846. N. Y. Legal Observer, for October, 1846.

• Reeve's Domestic Relations, 325, 326. 2 N. H. Rep. 218. 1 Mason's Rep. 345. 5 Conn. Rep. 475. 1 Peters' Rep. 364. Fox v. Wilcocks, 1 Binney's Rep. 194. 3 S. C. Eq. Rep. 241. 4 S. C. Eq. Rep. 702-705. Ringgold v. Ringgold, 1 Harris & Gill. M. Rep. 11. Edmonds v. Crenshaw State Eq. Rep. S. C.224. Turney v. Williams, 7 Yerger, 172. Karr v. Karr, 6 Dana's