The opinion of the Court was delivered by
Moses, C. J.
We concur with the Chancellor in so much of his decree as disaffirms the release of February the 6 th, 1866, and subjects the settlement, which it was intended to conclude, to examination and inquiry.
To avoid a discharge, executed by a ward to his guardian, shortly after he has reached his majority, it is not necessary that there should be proof of actual fraud. Even if full opportunity is afforded to examine the accounts, yet, without willful intent to mislead, there may be such a want of communication, both in regard to them and the securities transferred, as would preclude the Court from giving it effect as an estoppel.
There does not seem to have been any disclosure to the ward of the value of either the bank stock or the personal bonds, although, at the date of the proposed release, the plaintiff was well aware that the Confederate bonds were without any. He was not made acquainted with the fact that the bank stock carried with it such a possible liability, on the part of the holder, as might make it, if even then of any worth, the source of future loss. In Walker vs. Lymonds, 3 Swanst., 62, Lord Eldon said: “ Concealment is of different natures: [436]*436an intentional concealment, and an actual concealment where there may be an obligation not to conceal, even if disclosure is not required.” The very fact that the account of the receipts and expenditures exhibited a balance due the guardian, which he renounced, might have acted as an incentive to the release. The effect of a gift to the ward, under such circumstances, would be watched with jealousy by the Court. It is impossible to tell how it may have operated on the mind of a young man just of age, engaged in an adjustment of his affairs with one who had been selected by his father as a proper person to be entrusted with his education and moral training — one in whose family he had resided, and on whom he would naturally look with respect and regard. The very relation was likely to .establish influences well calculated almost to enslave a youthful mind. The plaintiff, in his testimony, avers “that his affection for Austin had returned, and his confidence was restored, at the time of the settlement.”
In Wederburn vs. Wederburn, 2 Keen., 722, 15 E. C. R., 722, the absence of such full information as guardians are bound to give was held sufficient to open a partial, but definite, settlement, after the lapse of many years, sufficient information not having been obtained till a short period before the bill was filed.
Did the plaintiff understand, or was he informed that, whatever part Mr. Buist took in the transactions, it was not in his official capacity as Ordinary ? He drew up the instrument, but does not remember that he read it to the plaintiff. Without any wrong intention by Mr. Buist or the defendant, Austin, the plaintiff may well have been mistaken as to the character in which he intervened in the matter, and concluded that, as the conference was in his office, and in his presence, and some of the papers read over or compared by him, he was officially supervising the settlement. The circumstances attending the transaction might well contribute to a conclusion, on the part of the plaintiff, that he was forfeiting no right by the execution of the instrument so prepared.
In Revett vs. Harvey, 1 Sim. & Stuart, 502, a release, executed by one who stood in the relation of ward, within a month after he came of age, and without the intervention of a friend or adviser on his part, for such reason was set aside.
In the case before us, although the instrument was not, in fact, executed until the second day, the defendant, Austin, never suggested to the plaintiff, to whom he was to submit his account, the propriety of having a friend or adviser, nor did he seem [437]*437to suppose it due to his own character and position that, in a settlement with his Avard, so recently of age, he should be represented by some one of more experience ,than himself, who would not be affected by the influence of the same feeling which it was probable the plaintiff entertained towards him. It may be, that he felt so satisfied of his own purpose to do exact justice, that it did not occur to him that something in that regard was due to the plaintiff, whose judgment, by reason of his youth, must have been so immature that it stood in need of advice and aid in a matter, and on an occasion, of so much importance to him.
It may have been that the defendant had a high estimate of the ability of the plaintiff, and, therefore, did not regard such suggestion necessary; for he states, in his answer, that the “plaintiff is exceedingly sagacious and intelligent, having been educated' at the State Military Academy, and being, during the war, sufficiently self-reliant to elude the vigilance of the guard over the Confederate prisoners at Elmira, in the'State of New York, and .escape therefrom to the South without capture or detection.” The qualities required for an act of so much boldness and endurance may be of a very different kind from those necessary for the protection of one’s interest in a settlement with a shrewd and keen business man. Pooser, a witness introduced by the defendant, while he bore testimony to the intelligence of the plaintiff, and his ability, as a youth, to take care of himself, said that “Austin is a very shrewd business man, and an overmatch for plaintiff at twenty-one.”
Lord Hardvvieke, in Hylton vs. Hylton, 2 Ves., Jr., 549, says: “ Where a man acts as guardian, or trustee in nature of a guardian, the Court is extremely watchful to prevent that person’s taking any advantage immediately upon his ward or cestui que trust coming of age, and at the time of settling account or delivering up the trust, because an undue advantage may be taken. It would give an opportunity, either by flattery or force, by good usage unfairly meant, or by bad usage imposed, to take such advantage.” The question there was in reference to an annuity granted to the guardian soon after the ward arrived at age.
In the Administrators of Johnson vs. The Executors of Johnson, 2 Hill Ch., 286, the late Chief Justice O’Neall, in delivering the opinion of the Court, says: “A guardian dealing with a ward just after he has arrived at full age, and obtaining any beneficial contract from him, or a release of the ward's rights, must, in order to have it sustained, show its perfect-fairness.” In remarking on Hyl-[438]*438ton vs. Hylton, he observes: “That the same rule governs a release which is, in point of fact, a gift to the guardian of his arrears, and, unless the ward sees most clearly what he is about to do, it cannot be supported.”
The proposition of the counsel of the defendant, that a release or discharge, given by a ward recently of age, is not prima facie invalid, may be conceded. If, however, the attendant circumstances render it valueless for the purpose proposed and contemplated by the party in whose favor it was executed, then, so far as these appear, they are first to be passed upon as questions of fact.
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The opinion of the Court was delivered by
Moses, C. J.
We concur with the Chancellor in so much of his decree as disaffirms the release of February the 6 th, 1866, and subjects the settlement, which it was intended to conclude, to examination and inquiry.
To avoid a discharge, executed by a ward to his guardian, shortly after he has reached his majority, it is not necessary that there should be proof of actual fraud. Even if full opportunity is afforded to examine the accounts, yet, without willful intent to mislead, there may be such a want of communication, both in regard to them and the securities transferred, as would preclude the Court from giving it effect as an estoppel.
There does not seem to have been any disclosure to the ward of the value of either the bank stock or the personal bonds, although, at the date of the proposed release, the plaintiff was well aware that the Confederate bonds were without any. He was not made acquainted with the fact that the bank stock carried with it such a possible liability, on the part of the holder, as might make it, if even then of any worth, the source of future loss. In Walker vs. Lymonds, 3 Swanst., 62, Lord Eldon said: “ Concealment is of different natures: [436]*436an intentional concealment, and an actual concealment where there may be an obligation not to conceal, even if disclosure is not required.” The very fact that the account of the receipts and expenditures exhibited a balance due the guardian, which he renounced, might have acted as an incentive to the release. The effect of a gift to the ward, under such circumstances, would be watched with jealousy by the Court. It is impossible to tell how it may have operated on the mind of a young man just of age, engaged in an adjustment of his affairs with one who had been selected by his father as a proper person to be entrusted with his education and moral training — one in whose family he had resided, and on whom he would naturally look with respect and regard. The very relation was likely to .establish influences well calculated almost to enslave a youthful mind. The plaintiff, in his testimony, avers “that his affection for Austin had returned, and his confidence was restored, at the time of the settlement.”
In Wederburn vs. Wederburn, 2 Keen., 722, 15 E. C. R., 722, the absence of such full information as guardians are bound to give was held sufficient to open a partial, but definite, settlement, after the lapse of many years, sufficient information not having been obtained till a short period before the bill was filed.
Did the plaintiff understand, or was he informed that, whatever part Mr. Buist took in the transactions, it was not in his official capacity as Ordinary ? He drew up the instrument, but does not remember that he read it to the plaintiff. Without any wrong intention by Mr. Buist or the defendant, Austin, the plaintiff may well have been mistaken as to the character in which he intervened in the matter, and concluded that, as the conference was in his office, and in his presence, and some of the papers read over or compared by him, he was officially supervising the settlement. The circumstances attending the transaction might well contribute to a conclusion, on the part of the plaintiff, that he was forfeiting no right by the execution of the instrument so prepared.
In Revett vs. Harvey, 1 Sim. & Stuart, 502, a release, executed by one who stood in the relation of ward, within a month after he came of age, and without the intervention of a friend or adviser on his part, for such reason was set aside.
In the case before us, although the instrument was not, in fact, executed until the second day, the defendant, Austin, never suggested to the plaintiff, to whom he was to submit his account, the propriety of having a friend or adviser, nor did he seem [437]*437to suppose it due to his own character and position that, in a settlement with his Avard, so recently of age, he should be represented by some one of more experience ,than himself, who would not be affected by the influence of the same feeling which it was probable the plaintiff entertained towards him. It may be, that he felt so satisfied of his own purpose to do exact justice, that it did not occur to him that something in that regard was due to the plaintiff, whose judgment, by reason of his youth, must have been so immature that it stood in need of advice and aid in a matter, and on an occasion, of so much importance to him.
It may have been that the defendant had a high estimate of the ability of the plaintiff, and, therefore, did not regard such suggestion necessary; for he states, in his answer, that the “plaintiff is exceedingly sagacious and intelligent, having been educated' at the State Military Academy, and being, during the war, sufficiently self-reliant to elude the vigilance of the guard over the Confederate prisoners at Elmira, in the'State of New York, and .escape therefrom to the South without capture or detection.” The qualities required for an act of so much boldness and endurance may be of a very different kind from those necessary for the protection of one’s interest in a settlement with a shrewd and keen business man. Pooser, a witness introduced by the defendant, while he bore testimony to the intelligence of the plaintiff, and his ability, as a youth, to take care of himself, said that “Austin is a very shrewd business man, and an overmatch for plaintiff at twenty-one.”
Lord Hardvvieke, in Hylton vs. Hylton, 2 Ves., Jr., 549, says: “ Where a man acts as guardian, or trustee in nature of a guardian, the Court is extremely watchful to prevent that person’s taking any advantage immediately upon his ward or cestui que trust coming of age, and at the time of settling account or delivering up the trust, because an undue advantage may be taken. It would give an opportunity, either by flattery or force, by good usage unfairly meant, or by bad usage imposed, to take such advantage.” The question there was in reference to an annuity granted to the guardian soon after the ward arrived at age.
In the Administrators of Johnson vs. The Executors of Johnson, 2 Hill Ch., 286, the late Chief Justice O’Neall, in delivering the opinion of the Court, says: “A guardian dealing with a ward just after he has arrived at full age, and obtaining any beneficial contract from him, or a release of the ward's rights, must, in order to have it sustained, show its perfect-fairness.” In remarking on Hyl-[438]*438ton vs. Hylton, he observes: “That the same rule governs a release which is, in point of fact, a gift to the guardian of his arrears, and, unless the ward sees most clearly what he is about to do, it cannot be supported.”
The proposition of the counsel of the defendant, that a release or discharge, given by a ward recently of age, is not prima facie invalid, may be conceded. If, however, the attendant circumstances render it valueless for the purpose proposed and contemplated by the party in whose favor it was executed, then, so far as these appear, they are first to be passed upon as questions of fact. The judgment of the Court is to be taken as a conclusion on them; and, in this view, the defendant would gain nothing from a review of the testimony, if, as he contends, “that the decree in regard to the weight of the testimony has at least the force of a verdict.” If he can reverse the judgment of the Chancellor on the facts which induced him to disregard the release as binding, he must shew that the testimony, by an overbearing force, preponderated in his favor.
Concurring with the judgment of the Chancellor as to the release, we differ with him on his conclusions as to the bank stock and the Confederate States bonds.
However our cases may vary from the English authorities, as to the strictness by which a trustee is held to the line of his duty, and whatever favor may be extended to him, where loss ensues in spite of all “faithful endeavors” to prevent it, and however he may be held excused, by showing that he managed the fund “ with the care of a prudent man,” yet these interpositions in his behalf can only be claimed where the instrument under which he acts confers some discretionary power. Where it prescribes and directs certain investments, and it is in the competency of the trustee to make them, he is not at liberty, by substituting those of a different character, to create, in effect, a new deed, in the place of the one under which he accepted the trust. Chief Justice Dunkin, in Snelling vs. McCreary, 14 Rich. Eq., 300, says: “When left to his own judgment, the trustee must exercise his discretion in the manner in which a prudent man would in the management of his own affairs.”
Where, however, the course which he is to pursue is dictated and directed by the authority which originates the trust, he is provided with a chart, from which he is not allowed to depart, unless forced by a necessity which he cannot resist.
The Chancellor, in his decree, sustains the construction of the words of the will proposed by the plaintiff, “that the stocks desig[439]*439nated seem to be stocks issued by the city of Charleston, in its corporate capacity, and stocks created directly and immediately by the State, both falling within the description properly of public securities.”
Suppose, however, that there was a doubt whether such bank stocks may properly be included under the term of “stocks of the city of Charleston,” why did the defendant resolve that doubt against the expressed direction of the testator, who, in plain terms, referred to “safe public securities,” and invest in those of private corporations? That they were favorite modes of investment in the. city of Charleston might have protected him, if everything had been left to his discretion, but cannot avail to shield him from the responsibility he incurred when he transcended the duty so imperatively fixed by the will, with the opportunity before him of following its instructions.
■ The evidence shews that, in 1861, when he so invested, State or city stocks could have been bought at or below par.. With this knowledge, he preferred not to follow the instructions of the will, and he must abide by the consequences.
The investment in Confederate bonds could not have been made before the 2d March, 1863, for they bear date on that day. It is not necessary to inquire whether “the safe public securities” referred to by the will were to be understood as limited to “ the stocks of the city of Charleston or of the State of South Carolina.’'- The Chancellor, in his decree, holds that “while the investment in the bank stocks and Confederate securities are considered to be unauthorized by the will, yet the defendant is regarded as having acted in good faith, and in innocent mistake of his.authority in that regard.”
According to the view which we have taken of the course of the defendant in relation to the bank stocks, this concession of want of authority to invest in Confederate bonds puts him in the position of a guardian failing in what he is directed, by doing that for which he was, without authority.
Measured even by the rule under which the decree concludes he must be exonerated, he will fail to find relief. Is there evidence of “faithful endeavors” to fulfill his duties ? Would á prudent man, under the circumstances, have acted in the same manner ? After his investment in bank stocks, it was suggested to him by Mr. Buist “that it would be best to invest in State or city stocks, as the words of the will were ambiguous.” These stocks were at par, and the [440]*440conversion, even after that caution, could easily have been effected. Would a prudent man, in 1863, charged with an investment for another in “safe public securities,” have sought Confederate bonds, as constituting securities of that character ? They were the issues, not of a recognized Government, but of one endeavoring to assert and maintain its independence, by waging war against the United States, from which, by force of arms, it was attempting to maintain the withdrawal of the States which composed it. It was deficient in those elements of stability so essential and important to make its securities “safe,” much .less valuable.
It does not appear from what source the guardian received the Confederate money with which he says he purchased the Confederate and personal bonds, for the accounts have not been exhibited to us by either side, nor are they so referred to in the Circuit decree that we can ascertain it. Personal bonds, at best, are the securities the least preferred by Courts of Equity as investments. The authority to deal with them by this executor finds no warrant in the will which constituted him guardian, with instructions as to the conversion which he was to make of the money confided to him for his ward.
It is not proper that the question as to the effect of any expenditure by the guardian over the receipts for his ward should be now considered. If it arises on the account to be taken, it must first be passed upon by the Circuit Court.
It is ordered and adjudged, that so much of the decree of the Chancellor as sustains the investments in bank stocks and Confederate States bonds be reversed.
It is further ordered, that the case be remanded to the Circuit Court of Charleston County, with directions for an order by that Court that an account be taken of the estate of the said John B. Womack, deceased, and of the administration of the same by his executors, Robert Austin and W. W. Wilbur, during the lifetime of the said Wilbur, and, after his death, of its administration by the defendant, Austin, the surviving executor, and of all moneys justly due and owing to the plaintiff in this behalf by the defendants, or either of them, conformable to the^principles of this decree.
Willard, A. J., concurred.