Prarson, C. J.
The result of the actings and doings of the defendants in regard to the estate, is very unfortunate for the plaintiff. Instead of receving an equal share with her two sisters of their brother’s bounty, she has'received only his watch and a few other articles, whereas the husband of one of her sisters, in right of his wife, has secured to himself real estate of much value, and the husband of her other sister, in right of his wife, has realized a targe sum out of the ante-war notes due to the testator. The quuestion is, have the plaintiffs a legal or equitable right to complain ot this result, and to demand that an equal division be now made? Or was this inequality of division caused in a manner and under circumstances which puts it out of the power of the Court to grant relief under any known and recoguized principle of law or equity?
The draftsman of the complaint seems not to have fixed in his mind any specific head of equity, on which to rest his case, and was content to state the facts, and demand an account and settlement of the estate upon general principles of equity and fairness,
The first exception to the report is made specific, and puts the right of the plaintiff on two grounds.
1st. The executor was directed by the will to sell at public sale on a credit of at least twelve months, talcing bond and security, with interest from date; and although it suited the convenience of the executor, and of the defendant McMurray, that McMurray’s receipt for his wife’s share of the estate should be taken in place of a note at twelve months credit, in discharge of his bid on the land, and of the defendant Barrett, that he should take the ante-war notes, and give his receipt for the face of the notes in part of his wife’s share.
On the supposition,
(which may have been innocently entertained) that it could make no difference, whether McMurray gave, a receipt or a note with security at twelve months, and that it could make no difference, that Barrett took all of the ante-war noteg and left a corresponding amount of Confederate. treasury notes, to pass to the lot of his wife’s sister, the feme plaintiff; yet, as by reason of subsequent events, it appears that, “ this supposition ” was not true, and that, in point of fact, it did make a very great difference, to the injury of one of the objects of the testator’s bounty. The defendants cannot, with a good con science, avail themselves of a
mistake,
as to the fact that, giving a receipt would have the same effect as giving a note, at twelve months, and of a. mistake as to the fact, that a Confederate note was as good as an ante-war note; and that the plaintiffs are entitled to be put in the same condition as if the defendants had not acted under this mistake; that is to say, charge the plaintiffs with the Confederate treasury notes according to the scale, and with the value of the watch and other articles as if she had given a note at twelve months; charge McMuiray with the value of the land and other property, as if he had given a note at twelve months, and charge Barrett as if “ the ante-war notes ” had been divided into
three equal parts.
His Honor rejected this view of the case, on the ground “ that the rule,” that is, (as we understand him) the direction
to sell at twelve months credit,
“
was departed from with the full concurrence of all the parties concerned, &c.”
The fact is found, that the feme plaintiff was at the time of thesé transactions under the age of 21 years, and that defendant McMurray was her guardian, so, as an inference of law, his Honor ruled, that a guardian who is a party interested in the fund can bind the ward, by his concurrence in a departure from the directions of the will, to sell at twelve months credit; and on a sale made for the purpose of partition, may in behalf of the infant, give a concurrence to an arrangement by which lie, one of the parties to the partition, may give a receipt, instead of a note, at twelve months, for his bids. We do not concur with his Honor in this ruling. A guardian may, in behalf of his ward, give his concurrence to a partition, and it will bind the ward, provided the partition be equal, for the co-tenants may compel partition. Bacon’s. Abridge. Title Guardian and Ward, Head 5.
A guardian may assign dower and it will bind the ward, provided it be equal, otherwise not, for the widow may compel an assignment. Fitzherbert’s Nat. Brev., Writ of Admeasurement of Dower. In our ease there was no necessity for making a sale for the purpose of partition at the tune it was attempted. In
November
1864, no prudent man would have converted real estate into Confederate treasury notes; nor would he, without some special occasion, have converted stock, farming utensils, grain, &c., into Confederate treasury notes; as to slaves, it could not make much difference whether they were converted or not, for the probability, amounting almost to certainty, was that in a few months neither slaves or Confederate treasury notes would be of any value. We are led to the conclusion that the executor would not have'made the sale, except for the understanding between him and the defendants, McMurray and Barrett, that they were to buy the property, and that he would take their receipts, instead of notes at twelve months, and so effect a partition. In making this arrangement
the interest oi the infant, tenant in common, was overlooked. She did not have a fair chance, and could not bid except by sufferance and a promise to ratify when she arrived at age; so-there was no necessity for this proceeding, and the partition effected by it was unfair and unequal, and the concurrence of the guardian did not bind the ward ; indeed, as the guardian was personally interested in the matter, he cannot insist upon holding the ward bound by this partition, ior, by doing so he abandons the ground that he was acting innocently, under a mistake as to fact, that it made no difference whether he gave a receipt or a note at twelve months, and subjects himself to an imputation of fraud and unfair dealing towards his ward. Where the supposition that a departure from the directions of the will could make no difference turned out to be a mistake, and it was found that it did in fact make a great difference, to the injury of the infant co-tenants, an attempt to retain the advantage of the mistake, and a refusal to redress the wrong, was almost as bad as if the act had been done by design in the first instance.
2. This brings us to the second ground on which the exception is put. Ilis Honor finds, that there is no allegation or proof of fraud and combination injurious to the plaintiff.. There are two kinds of fraud. There is no proof or allegation of actual fraud. This is fixed by the finding of his Honor ; but constructive fraud is an inference of law from the relation of the parties ; as, if a guardian so manages as to acquire the property of his ward during his minority, or soon after he arrives at full age, the law' will presume fraud, and the guardian can only hold the propertej' as security for his advancements; this presumption is made on the ground of public policy, and the transfer is treated as a mere security, and may be avoided, unless the guardian proves that no advantage was taken of the influence acquired by the relation.
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Prarson, C. J.
The result of the actings and doings of the defendants in regard to the estate, is very unfortunate for the plaintiff. Instead of receving an equal share with her two sisters of their brother’s bounty, she has'received only his watch and a few other articles, whereas the husband of one of her sisters, in right of his wife, has secured to himself real estate of much value, and the husband of her other sister, in right of his wife, has realized a targe sum out of the ante-war notes due to the testator. The quuestion is, have the plaintiffs a legal or equitable right to complain ot this result, and to demand that an equal division be now made? Or was this inequality of division caused in a manner and under circumstances which puts it out of the power of the Court to grant relief under any known and recoguized principle of law or equity?
The draftsman of the complaint seems not to have fixed in his mind any specific head of equity, on which to rest his case, and was content to state the facts, and demand an account and settlement of the estate upon general principles of equity and fairness,
The first exception to the report is made specific, and puts the right of the plaintiff on two grounds.
1st. The executor was directed by the will to sell at public sale on a credit of at least twelve months, talcing bond and security, with interest from date; and although it suited the convenience of the executor, and of the defendant McMurray, that McMurray’s receipt for his wife’s share of the estate should be taken in place of a note at twelve months credit, in discharge of his bid on the land, and of the defendant Barrett, that he should take the ante-war notes, and give his receipt for the face of the notes in part of his wife’s share.
On the supposition,
(which may have been innocently entertained) that it could make no difference, whether McMurray gave, a receipt or a note with security at twelve months, and that it could make no difference, that Barrett took all of the ante-war noteg and left a corresponding amount of Confederate. treasury notes, to pass to the lot of his wife’s sister, the feme plaintiff; yet, as by reason of subsequent events, it appears that, “ this supposition ” was not true, and that, in point of fact, it did make a very great difference, to the injury of one of the objects of the testator’s bounty. The defendants cannot, with a good con science, avail themselves of a
mistake,
as to the fact that, giving a receipt would have the same effect as giving a note, at twelve months, and of a. mistake as to the fact, that a Confederate note was as good as an ante-war note; and that the plaintiffs are entitled to be put in the same condition as if the defendants had not acted under this mistake; that is to say, charge the plaintiffs with the Confederate treasury notes according to the scale, and with the value of the watch and other articles as if she had given a note at twelve months; charge McMuiray with the value of the land and other property, as if he had given a note at twelve months, and charge Barrett as if “ the ante-war notes ” had been divided into
three equal parts.
His Honor rejected this view of the case, on the ground “ that the rule,” that is, (as we understand him) the direction
to sell at twelve months credit,
“
was departed from with the full concurrence of all the parties concerned, &c.”
The fact is found, that the feme plaintiff was at the time of thesé transactions under the age of 21 years, and that defendant McMurray was her guardian, so, as an inference of law, his Honor ruled, that a guardian who is a party interested in the fund can bind the ward, by his concurrence in a departure from the directions of the will, to sell at twelve months credit; and on a sale made for the purpose of partition, may in behalf of the infant, give a concurrence to an arrangement by which lie, one of the parties to the partition, may give a receipt, instead of a note, at twelve months, for his bids. We do not concur with his Honor in this ruling. A guardian may, in behalf of his ward, give his concurrence to a partition, and it will bind the ward, provided the partition be equal, for the co-tenants may compel partition. Bacon’s. Abridge. Title Guardian and Ward, Head 5.
A guardian may assign dower and it will bind the ward, provided it be equal, otherwise not, for the widow may compel an assignment. Fitzherbert’s Nat. Brev., Writ of Admeasurement of Dower. In our ease there was no necessity for making a sale for the purpose of partition at the tune it was attempted. In
November
1864, no prudent man would have converted real estate into Confederate treasury notes; nor would he, without some special occasion, have converted stock, farming utensils, grain, &c., into Confederate treasury notes; as to slaves, it could not make much difference whether they were converted or not, for the probability, amounting almost to certainty, was that in a few months neither slaves or Confederate treasury notes would be of any value. We are led to the conclusion that the executor would not have'made the sale, except for the understanding between him and the defendants, McMurray and Barrett, that they were to buy the property, and that he would take their receipts, instead of notes at twelve months, and so effect a partition. In making this arrangement
the interest oi the infant, tenant in common, was overlooked. She did not have a fair chance, and could not bid except by sufferance and a promise to ratify when she arrived at age; so-there was no necessity for this proceeding, and the partition effected by it was unfair and unequal, and the concurrence of the guardian did not bind the ward ; indeed, as the guardian was personally interested in the matter, he cannot insist upon holding the ward bound by this partition, ior, by doing so he abandons the ground that he was acting innocently, under a mistake as to fact, that it made no difference whether he gave a receipt or a note at twelve months, and subjects himself to an imputation of fraud and unfair dealing towards his ward. Where the supposition that a departure from the directions of the will could make no difference turned out to be a mistake, and it was found that it did in fact make a great difference, to the injury of the infant co-tenants, an attempt to retain the advantage of the mistake, and a refusal to redress the wrong, was almost as bad as if the act had been done by design in the first instance.
2. This brings us to the second ground on which the exception is put. Ilis Honor finds, that there is no allegation or proof of fraud and combination injurious to the plaintiff.. There are two kinds of fraud. There is no proof or allegation of actual fraud. This is fixed by the finding of his Honor ; but constructive fraud is an inference of law from the relation of the parties ; as, if a guardian so manages as to acquire the property of his ward during his minority, or soon after he arrives at full age, the law' will presume fraud, and the guardian can only hold the propertej' as security for his advancements; this presumption is made on the ground of public policy, and the transfer is treated as a mere security, and may be avoided, unless the guardian proves that no advantage was taken of the influence acquired by the relation.
We have the fact found by his Honor, that McMurray was the guardian .of the
feme
plaintiff; that there was an under
standing that McMurray’s receipt would be taken in place of a note at twelve months, and that the result was, that the interest ot the ward was, very much to her inj ury,
converted
from a third part of valuable real and a third part of ante-war debts, into Confederate treasury notes! So, in this instance, the accuracy of the presumption of law, in regard to transactions between persons occupying certain relations, is fully verified.
The defendants, Broom and Barrett, take the ground that the plaintiffs should look to McMurray, who was the guardian of
the feme
plaintiff; but that does not serve their turn ; for the transaction in selling the land, when there was no necessity for it, and in handing over to Barrett the ante-war notes, and the arrangement by which their receipts instead of their notes at 12 months was to be taken cannot. All of the defendants together, and the plaintiffs, have a right to insist, not on a settlement with her guardian alone, but on a settlement with the executor of her brother and with her two sisters and their husbands, in order that the direction of the testator, that there should be an
u
equal division between his three sisters, share and share alike,” may be carried into effect.
The counsel of the defendant, on the argument here, took the position that
the feme
plaintiff had confirmed and ratified the partition and the action of the defendants, in respect to the estate, by giving two receipts, after she was of full age. The point seemed not to have been made in the Court below, but it is insisted that it is presented by the facts found by his Honor in respect to other exceptions, to wit: The sale was made November, 1864,
feme
plaintiff came of age 25th December, 1864, married September 1866, gave a receipt to the executor for the price of a negro woman, gold watch and other articles, $1,675.63, dated 4th January, 1865, and gave a receipt to her guardian for her share of the money received for two mules impressed and of the corn sold for cash in Confederate treasury notes, $2,075.50, dated 29th February, 1865. These receipts are evidence of the facts recited, but no further effect can be
allowed to them. Such was the opinion of his Honor, and we concur with him.
We must assume that the young lady was a member of the family of her guardian, who was her brother-in-law, during her minority and for some time after she arrived at age. It is familiar learning, — a settlement or dealing of a guardian with a ward, soon after the ward arrives at age, will be set aside, unless the guardian proves that the settlement or dealing was fair, that the ward had full knowledge on the subject, intended to confirm what had been done, had the benefit of the advice of friends, and that no advantage was taken of the influence which it is presumed the relation gives to a guardian.
In our case, the receipts were signed within less than two months after arrival of age; there was no intention to confirm
all
that had been done. The recitals in the receipts are confined to the specific facts, which excludes any covert design to extend to a confirmation. The young lady had no knowledge in regard to her rights, and signed the receipts as a matter of course, because told to do so, and because she believed that what had been done by the executor and her two brothers-in-law was all right:.
So far from having the aid of friends, she acted by the direction and advice of relatives whose interests were adverse to hers, and who were laboring under the mistaken impression that a departure from the directions of the will could make no difference. So the idea of a confirmation by which her rights are excluded is out of the question.
It is not necessary to notice the other exceptions.
There is error. Judgment reversed. This will be certified to the end that another reference may be ordered.
Per Curiam. Judgment reversed.