Opinion by
Mr. Justice Dean,
Rudolph Mulholland, the father of this ward, the appellant, died August 27, 1883. He left to survive him a widow and five minor children. At his death he was the owner of a considerable estate both in improved and timber lands. On the 27th of August, 1884, John Gr. Uzzle was appointed guardian of Martha A., this appellant; she was then about sixteen years of age; her estate consisted of some money and the undivided fifth interest in the land of her father, subject, under the intestate laws, to the interest of her mother. The timber land consisted of two tracts, warranted in names of Paul Cox and Ann Stewart, of which the intestate was the sole owner; he was also the owner of an undivided one half interest in another tract known as the Holt and Mulholland tract; on this last tract, Holt, the cotenant of Mulholland, commenced to cut and market the timber soon after the death of Mulholland, and continued operations until the timber was all taken off. During this time, the timber on the Cox and Stewart tracts had been considerably damaged by storm and fire, and it obviously was- for the best interests of the estate that it should also be immediately marketed, otherwise the inevitable result to all interested would be loss. So this timber was cut and sold. It is not disputed the guardian received the full value of his ward’s share of this timber ; he paid over to her mother one third of this share, $67 9.72, assuming that it belonged to the mother as personalty of her [498]*498deceased husband. This was a mistake. Admit the necessity for cutting the timber, which we do not doubt, still it was clearly real estate, and as such descended to the children under the intestate laws. It needs no citation of authority to sustain the auditor’s conclusion that it was realty, not personalty. The owner, Rudolph Mulholland, might by a contract in his lifetime have converted it into personalty; or by a will he might have directed its conversion; or the law might have done so for payment of his debts; but here, the moment after his death it descended to his children as real estate. Neither the elements, the courts, nor the act of man, could remove from it the impress given it by the settled law of this commonwealth; it might be turned into money, but for purposes of descent and distribution it remained real estate. The learned judge of the orphans’ court asks:
“When the storm and fire had swept this timber, would not the court upon proper petition by the guardians have authorized them to convert it into money for the benefit of the entire estate ? ”
We answer certainly such action would have been authorized by the law, and would under the evidence here have been entirely proper. But this would have in no way affected the ward’s right to the money; her estate in the land, to the extent of the value of the timber, being turned into money, would have continued hers just as before, except in one particular, it would have become productive, and her mother would have been entitled to one third the annual income or the interest of the money. But the guardian paid over to the mother, without securitjr, one third of his ward’s share of the money absolutely. At the time it was received and thus paid over, there was not the semblance of authority in the law for such action; the orphan’s ’ court could not legally have authorized it. What it could not precedently authorize, it cannot subsequently ratify. It can and has ratified the act of the guardian in selling the timber, under the circumstances. The ward, during minority, was incapable of assenting to the payment to the mother. The settlement with the guardian after she came of age is without significance. To sustain such a settlement with a guardian immediately after coming of age, there must be convincing proof that the ward understood not alone what had been done [499]*499with her money, or to whom it had been paid, but what was her right. It should have been explained to her that the guardian had paid illegally to her mother $679.72 of her money; then she could ratify or insist on payment. There is no evidence that at the time of the settlement she comprehended the extent of her rights. She testifies that at the settlement no explanation was made to her; that Robert J. Haynes kept Mr. Uzzle’s accounts for him, and made the calculations. Mr. Haynes testifies that he told her the amount of money her mother received, and then says: “ I never explained to her that the returns from timber sold was real estate, and that Mrs. Mulholland was not entitled to an absolute one third, because I did not think that was the way. I do not think any of us knew any better.”
Apparently, all of them were ignorant of her estate in the purchase money of this timber, and no orphans’ court, in the proper determination of the rights of wards in the settlement of their estates, can adopt such a transaction as binding on the ward. To do so would violate every rule of policy which has been laid down for the settlement of accounts between guardians and wards, would be full of peril to the helpless and inexperienced.
We hold, therefore, that the guardian paid this $679.72 to the widow without authority, and that the alleged settlement made by the ward with her guardian after coming of age does not debar her from demanding from him payment of this sum. Under the circumstances, what is the appropriate remedy? This guardian, under a mistaken notion of the widow’s right, paid the money over to her. As between him and his ward equity demands he should pay it to her; as between him and the widow, to whom it was paid, and who cannot in good conscience retain it, equity demands that she should pay it back to the guardian for investment under the order of the orphans’ court. If in the administration of this minor’s estate this guardian had conducted the business legally, what would have been the course of procedure ? When the storm and fire placed the timber of his ward in peril, he would have presented his petition to the orphans’ court, setting out the facts, suggesting the advisability of selling, and praying for an order to sell; the court would have made such order and further would have directed [500]*500him to retain in his hands two thirds of the purchase money, and invest the other third securely, so that the widow should receive the annual interest during her life, and at her death the principal should be paid to his ward. What ought to have been done must be done now, as nearly as it can be. It is admitted that the widow is solvent and possessed of ample estate; by mistake she has in her possession of her husband’s estate money which she ought to pay back or secure to be paid back at her death. The money, then, is payable to her daughter, this appellant. Why should not the orphans’ court in the proper administration of justice adjudicate in this proceeding the rights of the parties? This court has ample jurisdiction; the money in dispute is a fund realized from a sale of a part of the real estate of R. Mulholland, deceased; his widow and daughter both have an interest in it. In Brooke’s Appeal, 102 Pa. 150, we decided that the orphans’ court could award a citation upon the surety of a guardian who had the property of minor children in his possession, and compel him to surrender it or its proceeds. In Odd Fellows’ Savings Bank’s Appeal, 123 Pa. 356, it was held that the orphans’ court could compel a bank to make restitution of certain stocks which it had obtained illegally from an estate.
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Opinion by
Mr. Justice Dean,
Rudolph Mulholland, the father of this ward, the appellant, died August 27, 1883. He left to survive him a widow and five minor children. At his death he was the owner of a considerable estate both in improved and timber lands. On the 27th of August, 1884, John Gr. Uzzle was appointed guardian of Martha A., this appellant; she was then about sixteen years of age; her estate consisted of some money and the undivided fifth interest in the land of her father, subject, under the intestate laws, to the interest of her mother. The timber land consisted of two tracts, warranted in names of Paul Cox and Ann Stewart, of which the intestate was the sole owner; he was also the owner of an undivided one half interest in another tract known as the Holt and Mulholland tract; on this last tract, Holt, the cotenant of Mulholland, commenced to cut and market the timber soon after the death of Mulholland, and continued operations until the timber was all taken off. During this time, the timber on the Cox and Stewart tracts had been considerably damaged by storm and fire, and it obviously was- for the best interests of the estate that it should also be immediately marketed, otherwise the inevitable result to all interested would be loss. So this timber was cut and sold. It is not disputed the guardian received the full value of his ward’s share of this timber ; he paid over to her mother one third of this share, $67 9.72, assuming that it belonged to the mother as personalty of her [498]*498deceased husband. This was a mistake. Admit the necessity for cutting the timber, which we do not doubt, still it was clearly real estate, and as such descended to the children under the intestate laws. It needs no citation of authority to sustain the auditor’s conclusion that it was realty, not personalty. The owner, Rudolph Mulholland, might by a contract in his lifetime have converted it into personalty; or by a will he might have directed its conversion; or the law might have done so for payment of his debts; but here, the moment after his death it descended to his children as real estate. Neither the elements, the courts, nor the act of man, could remove from it the impress given it by the settled law of this commonwealth; it might be turned into money, but for purposes of descent and distribution it remained real estate. The learned judge of the orphans’ court asks:
“When the storm and fire had swept this timber, would not the court upon proper petition by the guardians have authorized them to convert it into money for the benefit of the entire estate ? ”
We answer certainly such action would have been authorized by the law, and would under the evidence here have been entirely proper. But this would have in no way affected the ward’s right to the money; her estate in the land, to the extent of the value of the timber, being turned into money, would have continued hers just as before, except in one particular, it would have become productive, and her mother would have been entitled to one third the annual income or the interest of the money. But the guardian paid over to the mother, without securitjr, one third of his ward’s share of the money absolutely. At the time it was received and thus paid over, there was not the semblance of authority in the law for such action; the orphan’s ’ court could not legally have authorized it. What it could not precedently authorize, it cannot subsequently ratify. It can and has ratified the act of the guardian in selling the timber, under the circumstances. The ward, during minority, was incapable of assenting to the payment to the mother. The settlement with the guardian after she came of age is without significance. To sustain such a settlement with a guardian immediately after coming of age, there must be convincing proof that the ward understood not alone what had been done [499]*499with her money, or to whom it had been paid, but what was her right. It should have been explained to her that the guardian had paid illegally to her mother $679.72 of her money; then she could ratify or insist on payment. There is no evidence that at the time of the settlement she comprehended the extent of her rights. She testifies that at the settlement no explanation was made to her; that Robert J. Haynes kept Mr. Uzzle’s accounts for him, and made the calculations. Mr. Haynes testifies that he told her the amount of money her mother received, and then says: “ I never explained to her that the returns from timber sold was real estate, and that Mrs. Mulholland was not entitled to an absolute one third, because I did not think that was the way. I do not think any of us knew any better.”
Apparently, all of them were ignorant of her estate in the purchase money of this timber, and no orphans’ court, in the proper determination of the rights of wards in the settlement of their estates, can adopt such a transaction as binding on the ward. To do so would violate every rule of policy which has been laid down for the settlement of accounts between guardians and wards, would be full of peril to the helpless and inexperienced.
We hold, therefore, that the guardian paid this $679.72 to the widow without authority, and that the alleged settlement made by the ward with her guardian after coming of age does not debar her from demanding from him payment of this sum. Under the circumstances, what is the appropriate remedy? This guardian, under a mistaken notion of the widow’s right, paid the money over to her. As between him and his ward equity demands he should pay it to her; as between him and the widow, to whom it was paid, and who cannot in good conscience retain it, equity demands that she should pay it back to the guardian for investment under the order of the orphans’ court. If in the administration of this minor’s estate this guardian had conducted the business legally, what would have been the course of procedure ? When the storm and fire placed the timber of his ward in peril, he would have presented his petition to the orphans’ court, setting out the facts, suggesting the advisability of selling, and praying for an order to sell; the court would have made such order and further would have directed [500]*500him to retain in his hands two thirds of the purchase money, and invest the other third securely, so that the widow should receive the annual interest during her life, and at her death the principal should be paid to his ward. What ought to have been done must be done now, as nearly as it can be. It is admitted that the widow is solvent and possessed of ample estate; by mistake she has in her possession of her husband’s estate money which she ought to pay back or secure to be paid back at her death. The money, then, is payable to her daughter, this appellant. Why should not the orphans’ court in the proper administration of justice adjudicate in this proceeding the rights of the parties? This court has ample jurisdiction; the money in dispute is a fund realized from a sale of a part of the real estate of R. Mulholland, deceased; his widow and daughter both have an interest in it. In Brooke’s Appeal, 102 Pa. 150, we decided that the orphans’ court could award a citation upon the surety of a guardian who had the property of minor children in his possession, and compel him to surrender it or its proceeds. In Odd Fellows’ Savings Bank’s Appeal, 123 Pa. 356, it was held that the orphans’ court could compel a bank to make restitution of certain stocks which it had obtained illegally from an estate.
That court having jurisdiction over the estates of decedents, it follows the funds of the estate because of its large equity powers; it need not call in the aid of a court of law.
It is but scant justice to this ward to intimate to her, when she has clearly established her claim to this $679.72, that she shall go into a court of law and sue her own mother to get it. Her legal demand for the “ fish ” cannot be thus satisfied with a “ stone,” in a court established for the protection of those who during infancy are unable to protect themselves.
We therefore are of the opinion the orphans’ court should issue a citation to Mrs. Caroline Mulholland, widow of Rudolph Mulholland, deceased, to appear on a day certain, and show cause why an order should not be made upon her to pay over to John G. Uzzle, guardian, the sum of $679.72, money which as he alleges he paid to her out of the proceeds of her husband’s land by mistake. If on appearance and hearing, the court should find the fact to be as averred by the guardian, then the court should order the investment of the money on good secu[501]*501rity, the interest to be paid annually to the widow during her life, and at her death the principal to be paid to Martha A. Meeker, this appellant. Or the widow could be permitted to retain the money on giving proper security for the payment of the principal sum to her daughter at her death. But the decree of the orphans’ court, striking from the auditor’s statement' of the account the item of surcharge, $679.72, is reversed, and the auditor’s report is confirmed, with this modification, that on the said Caroline Mulholland repaying said sum or giving proper security therefor, then the guardian shall be credited with a like amount on the credit side of his account.
Appellant’s thirteenth assignment of error is also sustained. This litigation is due solely to the guardian’s negligent and irregular, though not dishonest, management of his Avard’s estate ; there is no reason why she should bear any portion of the costs ;■ that part of the decree Avhich imposes upon her one half the costs is also reversed, and the suggestion of the audit- or that all the costs be paid by the guardian is approved and adopted.
The assignments of error, in so far as they affect the decree of the court beloAv as to this one item of $679.72, and the costs of audit, are sustained, and the decree reversed at the costs of the appellee. It is further ordered that the record be remitted to the orphans’ court, that the case may be proceeded with in accordance with this opinion.