(dissenting.) It is a principle of general application that one having a trust to perform cannot bind the cestui que trust by a contract in his own behalf. The temptation which such an authority would hold out to the trustee to make a profit of the transaction, is a sufficient reason for adhering to the principle in all cases which come within its application. (See Van Epps v. Van Epps, 9 Paige, 241.) It is admitted that the guardian in this case had no right as guardian to perform the services and charge them to his ward. But I have failed to appreciate the distinction between his doing the services as guardian or as a mechanic. It is said that it is no part of the duty of the guafdian to *40drive nails and repair houses and fences. But I am inclined to think that it was the duty of the guardian either to do it himself or to procure somebody else to do it. He was under no obligation to spend his time in doing the labor himself, but had an undoubted right to procure some one else to do it, and charge the expense to his ward. If he did it himself, he cannot make a profit out of it, for it is contrary to the whole tenor of the decisions to allow the guardian to make a profit in his dealings with his ward. The profit belongs to his ward, and not to the guardian. It may be asked, what are the profits in this case. It is difficult to determine, and this very difficulty shows the importance of adhering to the rule, which as I understand it, refuses to allow any .thing to the guardian except his commissions for personal services. Plausible reasons are given for allowing the guardian, who is a doctor, to charge the ward for services which he has rendered to his ward as a physician; and also to allow the guardian a certain sum for board when it appears proper that the ward should board in the family of the guardian. It is easy to see that in exceptional cases, such allowances would at least be no more than would be paid for the same services to others; and the guardian might be willing in some cases to board the ward cheaper than he could procure it elsewhere. Of course the statute allowances would cover the actual expenses of medicine and board in the cases supposed, and all beyond that are profits. It would doubtless prove a difficult task to determine what was the actual expense of board, when the account came before the surrogate; but it is better that the guardian should be put to this difficulty, than to allow him to make a. profit out of it. I think the statute intended to make full provision for the personal services of the guardian, whether he is a physician or a mechanic, and that it is a dangerous departure from the rule applicable to guardians and wards to sanction the doctrine which is so ably defended by the appellant’s counsel in this case. The chancellor in one ease allowed an attorney, who was guardian, to charge his *41ward the taxable bill of costs when the interests of his ward had been in litigation. It may be said of that case, that the statute and not the guardian, fixed the amount of the compensation. Still the precedent is now urged to give color to charges in all cases where the guardian has performed services instead of procuring others to perform them. I think that case stands quite alone a§ an authority in this state, and if it establishes a new principle, should not be extended to other cases not coming within its application. It is an anomaly in legal language for a guardian to hire himself to do carpenter's work for his ward, and such a contract is clearly a violation of the principle which prohibits a trustee to act for himself while he has a duty to perform towards his ward, inconsistent with his own interest as an individual. It might not lead to abuse if the -guardian, as in this case, first obtained the consent of the surrogate to charge for such services, but it is for the legislature and not the courts to adopt 'such a rule, if it is found necessary and convenient. There is no reason to doubt the good faith of the former surrogate in his dealings with the guardian here; and it is not from any belief that injustice was done the infant by the former surrogate, that I feel constrained to sustain the decision of the present surrogate in disallowing the items of account which the former surrogate thought proper to sanction; but I am unwilling to impair a rule so necessary to the safety of infants, and adopt a new one, which will hold out a strong temptation to guardians to eat up the estate of infants by similar charges. The decision or opinion of the former surrogate in allowing for these services, while the ward was under age, was without authority. (Diaper v. Anderson, 37 Barb. 168.) I think the decree should be affirmed.
[Oneida General Term, January 6, 1863.Mullin, Morgan and Bacon, Justices.]
Decree reversed.