I concur in the judgment, but I have reached the same conclusion for reasons somewhat different. They are the following: —
Upon this collateral attack all intendments are to be indulged in favor of jurisdiction and the validity of the court's order. That order authorizes the execution of a mortgage upon the real property of the minors, under an express finding that the allegations of the verified petition are true, and that it would be to the advantage of the estates of the minors, and each of them, to mortgage their property in the manner prescribed. Referring to the petition, then, to support this order, there will be found a great mass of recitals and averments touching the necessity and desirability of a mortgage, which are entirely without the purview of the statute. For example, it is shown that there stood a mortgage of four thousand five hundred dollars against the undivided one-half interest of the mother. By the new mortgage affecting the property of the minors, it is proposed to pay off this mortgage, or in other words, a lien is to be imposed upon the property of the minors to pay the debt of the mother. But, indulging all reasonable intendment in favor of the validity of the order, if there still remains in the petition sufficient averments to uphold the order actually made — in other words, if with these insufficient and illegal reasons for mortgaging the minors' property there should be shown other legal and sufficient reasons — it will be concluded that the order of the court directing the mortgage was to raise funds to be devoted to these legal purposes. In this regard the petition further shows two items — one of $5,000 for costs and expenses already incurred in caring for, maintaining, supporting and educating the minors; the other, an item of $4,570 for prospective charges of administration and for future cost of maintenance.
To the legality of these items many objections of weight and consequence are raised. As to the five-thousand-dollar item, it is said that it was for the moneys expended for the care and maintenance of the minors by their mother before she obtained letters of guardianship upon their estate. They were expenditures, then, made by their natural guardian, upon whom, in law, the duty of their support was cast, and therefore they form no proper charge against the estate of the minors. Passing this objection, it is next insisted — and this objection is certainly well taken — that it is the duty of the guardian to keep separate accounts *Page 267 of the disbursements made by her upon account of each of her wards, because the property of each ward is liable only for the amount of such expenses actually incurred in his behalf, and that it is not permissible, therefore, to charge the lump sum of five thousand dollars against wards A, B, C and D, when, of that sum, one hundred dollars only may be chargeable against ward A, two hundred dollars against ward B, three hundred dollars against ward C, and the remainder against ward D.
Against the second item of $4,570, for prospective charges of administration, it may be said, assuming the legality of each item composing the charge, that it stands in a somewhat different position from the item of $5,000, because it may be assumed that the charges of administration will be equally borne by each of the wards.
But if all these difficulties were removed, and if it could be said that the court was justified, under the petition and the showing made upon it, in authorizing a mortgage for nine thousand five hundred dollars, there still remains what is to my mind an insuperable objection to the particular mortgage here in question. It will not be doubted, as has been said in the opinion of the chief justice, that no court is authorized to impose a mortgage upon the property of a minor, or to expend the moneys of a minor, for any other purpose than to benefit the minor's property or to discharge the minor's obligation. The property of one minor may not be encumbered with a lien in aid of his fellow-ward, nor in aid of anybody else. At all times and under all circumstances that property is to be wisely economically administered for the benefit of the minor alone. The proceedings of a court and of a guardian with a ward's property are not, and can never be, adversary in their nature. There are well-defined constitutional limitations to the power of the court in dealing with the property of the ward. It may change its form by sale; it may impose a lien upon it, as by mortgage; it may authorize the expenditure of parts of it when necessary; but when it acts, it acts only for the benefit of the ward, and not for the benefit of any third person. In this case the mortgage authorized by the court was a blanket mortgage for the full amount of nine thousand five hundred dollars. In other words, there was, by the mortgage, a lien imposed upon the real property of each minor, for the full amount of nine thousand five hundred dollars, notwithstanding the fact that the amount chargeable *Page 268 against the property of minor A might have been one hundred dollars, against minor B, five hundred dollars, and so on. The legal consequences which follow such a mortgage are material. No minor could release or redeem his own property from the mortgage debt without paying the full amount of it. Each minor's property, therefore, is held, not alone for the undetermined amount of his own obligation, but for the aggregate amount of the obligations of all the others. Such a mortgage, I think, is void. The court, in authorizing a mortgage upon the property of a ward, can only authorize it and impose a lien upon the ward's property for the amount of money to be raised for the benefit of that ward; and if there be more than one ward, as here, owning undivided interests in a tract of land in common, either separate mortgages must be ordered, or the mortgage must specify the amount of the lien and charge against the interest of each minor and provide for the discharge of the lien as to each particular ward's property upon the payment of that amount.
Under the conviction that for the reasons above set forth the mortgage which the court directed to be made, and which in fact was made, is void, as not authorized by the statute, I hold the ruling of the court in refusing it admission in evidence was justified.