The opinion of the court was delivered by
Van Syckel, J.
By an order o-f the court of chancery, made in 1867, Hannah Ann Wardell, as guardian of her infant son, William H. Birkholm, was ordered to sell certain lands of said infant. The sale was made in pursuance of said order. The said guardian filed no account of the proceeds of said sale until 1884. By her account then filed she charged herself with the whole amount of the proceeds of said sale, without claiming allowance for her disbursements. Suit was thereupon instituted in the supreme court against herself and her sureties on the bond given by her on her application to sell the said infant’s lands.
A petition was then filed on behalf of the said sureties praying ■ that the account of said guardian might be opened and restated.
The case is here on appeal from the decree of the court of chancery, on exceptions to the Master’s report.
In the first place, the guardian must be charged with the proceeds of the sale of said lands. In respect to the amount fo-r which the land was sold, there is a dispute. In the deed made by the guardian, the consideration named is $2,380. The purchaser cannot state accurately what the purchase-price was, but thinks it was over $2,300.
The report of sale made by the guardian under oath, immediately after the sale, shows that the lands were sold for the sum of $2,295. The sale was duly confirmed. That report, I think, should be regarded as the more reliable evidence, and the accountant will be charged with the sum of $2,295, instead of $2,380..
[561]*561The disbursements to be credited will be as follows:
The mortgages on said premises amounting, without interest, to $1,000, and the interest thereon, which were paid out of the proceeds of sale.
In the court below, interest was allowed at six per cent. The evidence shows that seven per cent, was paid. By an act approved March 28th, 1862 (P. L. of 1862 p. Slf), seven per cent, was the lawful rate of interest in Middlesex county. The interest must be calculated at six per cent, prior to March 28th, 1862, and at seven per cent, thereafter.
There must be an allowance also for the following items: Taxed costs of proceedings to sell lands, $75.17; expenses of surveying, $4; advertising, $2.25; taxes for the year 1866, $35.66 ; taxes for the year 1867, $58. These taxes were a lien on the lands, and were paid out of the purchase-money.
Hannah Ann Ward ell, the guardian, was entitled to dower in said lands. By the order of sale it was directed that, if she would join in the sale and release her dower right, she should be entitled to such reasonable sum out of the,proceeds of sale as the Chancellor should direct.
In her report of the sale, the guardian says:
“That the purchaser had agreed to pay $2,295 for the interest of the said infant in said premises, and that the said consideration, when received by her, will not be chargeable with the value of her right of dower, she having agreed, by writing delivered by her prior to the sale, to join in the same and to release her right of dower, and that said lands were sold free from her right of dower, she releasing all claims and right whatever to and in said lands.”
The case is left in some obscurity by the time that has elapsed ■ since the sale, and by the neglect of the guardian for so long a period to render any account.
It seems quite clear, however, that the sum reported by the guardian was the amount for which the property was sold, including her right of dower. The Master to whom it was referred before the order for sale was granted, reported that the value of the property was $1,500. It is not probable that it would have produced $2,295, subject' to the widow’s dower. [562]*562The report of sale by the guardian expressly states that she had released her right of dower, and that the premises were sold free from her dower. The sum of $2,295 must, therefore, have represented the entire value of the property. She would not have been permitted to make a private bargain with the purchaser as to the sum she should be paid for her dower, nor to settle for herself what portion of the proceeds of the sale she should take in lieu of her dower. There is no evidence to show that she did or attempted to do that.
Her release of her dower appears to have been voluntary and without consideration. The effect of her release of dower was to enlarge the liability of the sureties without their consent. They engaged, when they signed the bond, to be sureties for the due care by her of the proceeds of sale of the estate of the infant in the lands. They assumed no obligation with respect to the estate of the widow in the premises, and she could not, by her release, impose that enlarged liability upon them.
The sureties have a right to deduct from the proceeds of sale the value of her right of dower, to be calculated according to the rule which at the time of the sale prevailed in the court of chancery.
There were'two mortgages upon the premises, each for $500. The first was executed by Frederick Hennel, before the premises were conveyed to Hans C. Birkholm. The other was executed by Hans C. Birkholm and Hannah A., the accountant.
In estimating the value of her dower, these mortgages must be taken into account.
After these credits are allowed, the balance remaining will be small. In view of the consideration that it is impracticable to keep such small sums of money constantly at interest, the account in this case should not be charged with compound interest.
The appellant should have his costs in this court and in the court below out of the fund.
The decree below should be reversed and the record remitted, that an account may be taken as herein directed.
[563]*563Paterson, J.
I think the judgment below should be reversed, not only in the particulars indicated in the opinion just read, but also throughout. There can be no doubt but what the taxes from 1857 to 1865, inclusive, were paid out of the proceeds of the sale made by the special guardian, and being imposed on the whole farm, and not on that sold'-only, clearly were for the benefit of the infant. Part of the property was sold to save the rest, and that wTas the object of the application. Unless I am mistaken, that was done; and, in my opinion, equity, and especially what is developed in the circumstances of this case, does not require that the appellee, as a minor, having been benefited by the discharge of the encumbrances at the time of sale, should be allowed, at this time, to receive a second advantage, by holding these sureties responsible for moneys expended and applied in the manner shown here. Ho dower had been assigned, and she was not liable, under the decision of this court, to keep down taxes or make repairs. Besides, if she was required to do these, it is evident sthe could charge for the care and maintenance of the infant, and there is nothing in the evidence to show that he could have been kept out of the net profits and income of the farm, but rather the contrary.
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The opinion of the court was delivered by
Van Syckel, J.
By an order o-f the court of chancery, made in 1867, Hannah Ann Wardell, as guardian of her infant son, William H. Birkholm, was ordered to sell certain lands of said infant. The sale was made in pursuance of said order. The said guardian filed no account of the proceeds of said sale until 1884. By her account then filed she charged herself with the whole amount of the proceeds of said sale, without claiming allowance for her disbursements. Suit was thereupon instituted in the supreme court against herself and her sureties on the bond given by her on her application to sell the said infant’s lands.
A petition was then filed on behalf of the said sureties praying ■ that the account of said guardian might be opened and restated.
The case is here on appeal from the decree of the court of chancery, on exceptions to the Master’s report.
In the first place, the guardian must be charged with the proceeds of the sale of said lands. In respect to the amount fo-r which the land was sold, there is a dispute. In the deed made by the guardian, the consideration named is $2,380. The purchaser cannot state accurately what the purchase-price was, but thinks it was over $2,300.
The report of sale made by the guardian under oath, immediately after the sale, shows that the lands were sold for the sum of $2,295. The sale was duly confirmed. That report, I think, should be regarded as the more reliable evidence, and the accountant will be charged with the sum of $2,295, instead of $2,380..
[561]*561The disbursements to be credited will be as follows:
The mortgages on said premises amounting, without interest, to $1,000, and the interest thereon, which were paid out of the proceeds of sale.
In the court below, interest was allowed at six per cent. The evidence shows that seven per cent, was paid. By an act approved March 28th, 1862 (P. L. of 1862 p. Slf), seven per cent, was the lawful rate of interest in Middlesex county. The interest must be calculated at six per cent, prior to March 28th, 1862, and at seven per cent, thereafter.
There must be an allowance also for the following items: Taxed costs of proceedings to sell lands, $75.17; expenses of surveying, $4; advertising, $2.25; taxes for the year 1866, $35.66 ; taxes for the year 1867, $58. These taxes were a lien on the lands, and were paid out of the purchase-money.
Hannah Ann Ward ell, the guardian, was entitled to dower in said lands. By the order of sale it was directed that, if she would join in the sale and release her dower right, she should be entitled to such reasonable sum out of the,proceeds of sale as the Chancellor should direct.
In her report of the sale, the guardian says:
“That the purchaser had agreed to pay $2,295 for the interest of the said infant in said premises, and that the said consideration, when received by her, will not be chargeable with the value of her right of dower, she having agreed, by writing delivered by her prior to the sale, to join in the same and to release her right of dower, and that said lands were sold free from her right of dower, she releasing all claims and right whatever to and in said lands.”
The case is left in some obscurity by the time that has elapsed ■ since the sale, and by the neglect of the guardian for so long a period to render any account.
It seems quite clear, however, that the sum reported by the guardian was the amount for which the property was sold, including her right of dower. The Master to whom it was referred before the order for sale was granted, reported that the value of the property was $1,500. It is not probable that it would have produced $2,295, subject' to the widow’s dower. [562]*562The report of sale by the guardian expressly states that she had released her right of dower, and that the premises were sold free from her dower. The sum of $2,295 must, therefore, have represented the entire value of the property. She would not have been permitted to make a private bargain with the purchaser as to the sum she should be paid for her dower, nor to settle for herself what portion of the proceeds of the sale she should take in lieu of her dower. There is no evidence to show that she did or attempted to do that.
Her release of her dower appears to have been voluntary and without consideration. The effect of her release of dower was to enlarge the liability of the sureties without their consent. They engaged, when they signed the bond, to be sureties for the due care by her of the proceeds of sale of the estate of the infant in the lands. They assumed no obligation with respect to the estate of the widow in the premises, and she could not, by her release, impose that enlarged liability upon them.
The sureties have a right to deduct from the proceeds of sale the value of her right of dower, to be calculated according to the rule which at the time of the sale prevailed in the court of chancery.
There were'two mortgages upon the premises, each for $500. The first was executed by Frederick Hennel, before the premises were conveyed to Hans C. Birkholm. The other was executed by Hans C. Birkholm and Hannah A., the accountant.
In estimating the value of her dower, these mortgages must be taken into account.
After these credits are allowed, the balance remaining will be small. In view of the consideration that it is impracticable to keep such small sums of money constantly at interest, the account in this case should not be charged with compound interest.
The appellant should have his costs in this court and in the court below out of the fund.
The decree below should be reversed and the record remitted, that an account may be taken as herein directed.
[563]*563Paterson, J.
I think the judgment below should be reversed, not only in the particulars indicated in the opinion just read, but also throughout. There can be no doubt but what the taxes from 1857 to 1865, inclusive, were paid out of the proceeds of the sale made by the special guardian, and being imposed on the whole farm, and not on that sold'-only, clearly were for the benefit of the infant. Part of the property was sold to save the rest, and that wTas the object of the application. Unless I am mistaken, that was done; and, in my opinion, equity, and especially what is developed in the circumstances of this case, does not require that the appellee, as a minor, having been benefited by the discharge of the encumbrances at the time of sale, should be allowed, at this time, to receive a second advantage, by holding these sureties responsible for moneys expended and applied in the manner shown here. Ho dower had been assigned, and she was not liable, under the decision of this court, to keep down taxes or make repairs. Besides, if she was required to do these, it is evident sthe could charge for the care and maintenance of the infant, and there is nothing in the evidence to show that he could have been kept out of the net profits and income of the farm, but rather the contrary. Suppose the plantation had been rented for $200 a year, which is as much as any of the -witnesses say was the rental value, could the infant have been maintained out of that, and repairs made and taxes paid ? And if not, and the sale of part of his inheritance paid off the debts, prevented the whole from being sacrificed at a forced sale, and gave him a home during his minority, it is plain that his interest was benefited, and these taxes are a just allowance. It seems to me that, in the absence, or even the appearance, of malfeasance on the part of the special guardian, the touchstone to this matter is in the fact that the moneys were expended in such a way and for such purposes as have resulted clearly to the advantage of the minor.
So, too, with regard to the Posten note. That was an obligation given by the father of the respondent, upon which money was raised to repair the Birkholm house. The personal property had been exhausted, and the lien on the real, under the situation, [564]*564could be construed very fairly to remain as against the heir,, until a sale had been made on account of him while a minor, or by himself after attaining majority. But, in any aspect, I fail to comprehend the equity, or justice, or law, that would compel the sureties of his mother to respond at this late date for money borrowed and expended by the father in preserving the homestead.
When these allowances are made, an apparent balance against the accountant will remain of about $115; no more than sufficient for commissions, charges and expenses of settlement. There’ is nothing to warrant a non-allowance of the former. Her conduct merits commendation rather than censure. The money obtained from the sale was applied to the discharge of claims and encumbrances against the estate of which the respondent was sole heir. This was the intention, and Mr. Morgan says the balance was so small that he would ask no fee. That fact is significant. Besides, the value of the right of dower of Mrs. Birkholm, even on the supposition of her having signed the mortgage, would be ample to extinguish this balance, for a court could not hold sureties liable under any circumstances for that. These proceedings would seem to be taken for some purpose other than accounting and settlement. I am very clear in the opinion that the bondsmen should not be charged for any of the moneys for which their principal is sought to be held liable.
Decree 'imanimously reversed..