Appeal of Albert

Opinion,

The learned auditor in this case found as a fact that the appellant, as guardian of his ward, did pay out the sum of $500, being $100 per annum for five years from 1861 to 1865, both inclusive, for the necessary support and maintenance of his ward during that time. It must be borne in mind that during this period the ward was living with his mother; that he was *619a mere child from seven, years of age at the beginning to eleven at the end; that the money was actually paid out by the guardian in part to the mother and in part for other necessary expenses ; and that the guardian did not place himself in loco parentis with the ward. The auditor has further found that the guardian received no money of the ward during this time, except in 1863, a sum of $246.61, with the whole of which he has charged the guardian, together with interest on it from the day of its receipt. These circumstances cause the case, so far as this one branch of it is concerned, to differ materially from the ordinary cases in which the guardian is held to a strict rule of accountability for not keeping accounts, for not obtaining an order of court for an allowance, and for not keeping vouchers. For this guardian’s derelictions in these respects he is duly punished by being denied all compensation for his services, and any recompense whatever for the board and maintenance of his ward after the latter came to live with him, and' he had thereby placed himself in the relation of parent to child with the ward. We are satisfied with the findings and rulings of the auditor and court below on this latter branch of the case, and will not interfere with them.

Had the guardian exercised due care for his own interests in these respects, and proceeded under the advice of counsel, doubtless very different results to him would have been obtained ; but he was highly derelict in regard to these matters, and he must suffer the consequences indicated by the frequent decisions of this court. He is deprived of all commissions; he is charged with every dollar of money received, together with interest from the time of its receipt; and he is refused all compensation for the support of the ward from the eleventh year of his age to the time of his majority. During a part of that time the services of the ward to the guardian were no doubt a sufficient compensation for his maintenance, but it would be a severe and unreasonable finding to hold that such was the case during’ the earlier portion of that period. Nevertheless, we hold that the guardian was at fault during the whole of that period, and he must abide by the consequences imposed upon him in the court below.

■ As to the $500 actually paid out, however, to the mother and others, for the ward’s necessary maintenance and expenses from 1861 to 1865, the case is on a different footing. The *620guardian could not apply to tbe Orphans’ Court to fix an annual allowance, as there was no estate or money in hand out of which such an allowance could be made. There were no accounts to keep of moneys received, because none were received except the one item in 1868. It is true, the guardian should have taken receipts for his payments, but his omission to do so is not a fatal and absolute bar to any allowance for moneys actually paid out. The proof of the payments in this case was certainly not of the best, but it satisfied the auditor, and we think, in view of the moderate amount allowed, the auditor was correct in his finding. The auditor further finds that the appellant did his entire duty, with strictest uprightness, honesty, and kindness, at all times, in the care, education, and maintenance of his ward, and that his omissions in not observing strict legal rules in the matter of his accounts and vouchers were the result of carelessness only. We think, in view of all the circumstances, the appellant is entitled to credit for his disbursements of $100 per annum during the five years from 1861 to 1865, both inclusive, with interest as claimed in the account, and to that extent the decree of the court below is reversed.

Our treatment of this case is in entire consistence with the views expressed in Simon’s App., 19 W. N. 94, and Brown’s App., 112 Pa. 18. We do not think it was proper to impose the costs of the audit upon the appellant, as he was not exclusively in fault, but direct, as did the auditor, that they be paid out of the fund.

The decree of the court below is reversed, at the cost of the appellee, and the record is remitted, with instructions to restate the account of the appellant as guardian in accordance with this opinion.

On October 15, 1889, the following decree was filed:

Now, to wit, October 15,1889, the decree heretofore made on the 7th October, 1889, is amended so as to read as follows, viz.:

The decree of the court below is modified so as to stand as a decree against the accountant for $2,086.43, and, as so amended, the decree is affirmed, the costs of this appeal to be paid by the appellee.