Adams v. Westbrook

delivered the opinion of the court.

These two cases, involving the same questions, are submitted to us together by consent of counsel.

Without attempting to review the whole record and testimony in these cases, it will be sufficient to say that they come within the decision of this court at the present term, in the case of McFarland v. Randle. Without imputing any corrupt or unlawful or wrongful act to the guardian, he may nevertheless be properly held as answerable to the defendant in error as hidebtor, under the facts appearing in this record. An administrator, executor, or guardian may undoubtedly avoid any personal responsibility in the conduct of the business of the estate committed to his care by faithfully and accurately reporting to the Probate Court all his actings and doings in relation thereto, and obtaining the sanction of the court. It is the duty of these officers to make proper exhibits and reports of the condition of the estates in their hands from time to time, so as to advise the court and all parties interested therein, of the income and the changes in the property and assets in their hands, and so as always to enable the court and the parties to identify and distinguish it as far as practicable. When this is done, the property and assets so reported and identified as the property of the estate they represent, will always be so held and treated, and the representative of such estate only held to the exercise of proper diligence in its management and preservation. But when, by the failure of the guardian, etc., to make such reports as will enable the court and all the parties in interest to ascertain or identify what debts or claims belong to the estate, or where the repre*404sentative chooses to charge himself individually with money and choses in action belonging to the estate he represents, or to mingle the same with his individual money or claims, or so to manage it as to render it impossible for the court or other parties to distinguish the estate in his hands from his own — in either case the representative becomes personally responsible, and cannot he permitted himself, at his election, to compel his ward, or the heirs of the estate he represents, to receive claims or assets never reported to the court as such, and never known to any one as such save himself. The impolicy of such a course of administration, and the temptation to defraud estates by such a course, is too obvious to need further remark.

In the case before us, we think it obvious that the guardian intended to charge himself personally with the amount due his ward. His conduct seems to have been fair and just. He fully charges himself with all that the ward was entitled to, with interest thereon from year to year. While, therefore, we think there was no error in the court below, in charging the estate of the guardian with the amount appearing to he due as ascertained by the court, we think the court erred in not allowing liberal commissions.

For this error let the judgment be reversed and cause remanded for a final decree in the court below, upon the basis of the former decree, except as to the allowance of commissions.