delivered the opinion of the court,
The only question in this case is, whether the appellant should be surcharged as guardian of Catharine E. Moore, with a particular sum of money, for which the auditor and the court below held him liable to account. The plain facts were that the ward, after she attained her majority, sold her interest in certain real estate of which she was a tenant in common with her sisters and brother, for $2000, and executed a deed therefor to the purchasers, who were her mother and brother. With this sale the guardian had nothing to do. The ward being examined, testified as follows:
“ My brother James brought the deed for me to sign about ten years ago. I was twenty-one years of age at that time. * * * Judge Leonard had never spoken to me about signing the deed. Leonard was not there at the time it was signed. It was signed at my home; no one present but my brother and myself. Judge Leonard never mentioned the deed to me since. He never talked to me about my interest in the estate. He never mentioned the deed to me before I signed it — at the time, or afterwards. I never took any advice from any one about signing the deed except my brother, James A. Moore. I simply want to say that I took advice from no person.” Judge Leonard testified : “ I was not present when the deed was made from Kate to her brother James, and knew nothing about it. She never consulted me about making such deed, nor any of the others. I never advised her to make such a deed.” The purchase-money was not paid in cash. One of the purchasers, the brothei’, drew up and signed a note for $2000, which he made payable “ to the order of James T. Leonard, for Kate Moore, for *201her interest, as per deed given for the real estate of her father.” The note was taken by Moore to Leonard, who testified: “ I did’nt know how they were settling. Kate’s note was brought to me afterwards, on the same day, by James A. Moore. No one else came to me in regard to that matter. Don’t know exactly what he said or what I said; but I told him I would not take the note, that it was not worth the paper it was written on. He said, £ then take it and keep it.’ I said I would do that awhile. He never came back for it, nor any one else. He never asked me to pay it, and I never agreed to pay it.”
James A. Moore testified when examined in chief, that Leonard promised to pay the purchase-money which the several notes represented, but on cross-examination said that Leonard left the impression on his mind that he would pay this note — ££ said he would hold it or take care of it: don’t mind the words.” The notes given to Kate’s sisters, were endorsed by Leonard, and delivered by Moore to them, and were subsequently paid by Leonard. The note for Kate’s share of the purchase-money Leonard refused to endorse. Whether in this state of facts Leonard became liable, in his individual capacity, to pay this note or the money it represented, either on the ground that in receiving and holding the note he was acting as his ward’s agent, and- was guilty of negligence in not collecting it, or on the ground of his alleged promise to pay it, is a question which is not before us, and which, therefore, it is not necessary to decide. But whether he is liable in his capacity as guardian, to be surcharged with this amount, is an entirely different question, and one which, in our opinion, is quite free of difficulty. It is, as it must be, asked, to charge him with the money, on the ground that he ought to have collected it and did nor, in other words, that he was guilty of negligence in not performing his official duty in respect to this fund. The position would be well taken if he had the legal right, or was subject to a legal duty, to collect the money in his official capacity. But it is too plain for argument that he never had such a right, and was never subject to such a duty. He did not sell the land as guardian or in any other capacity. The purchase-money was never due to him as guardian, and he could never have maintained any action or proceeding, at law or in equity, to collect the money in that capacity. Nor was he subject to any kind of duty as guardian to collect it. Now the very essence of the application to surcharge is official negligence. But there can be no such negligence where there is no official duty. How can a guardian be held liable for not doing that which he could not lawfully do at all ? He could never have brought an action on this note in his capacity as guardian. The transaction in which the note was given originated after the relation had ceased. Moreover, it was made with the ward herself after she had become sui juris. She was then chargeable with the duty of look*202ing after, and caring for, her own interests. It was her duty and right to receive the purchase-money, or an equivalent security, when she delivered the deed, and the omission to do so was her negligence and not the appellant’s. To visit the consequences of that negligence upon one who was subject to no duty and had no legal right in the premises, would be doing gross injustice to him, and we cannot sanction such a proceeding. The cases cited for the appellee have no application to the facts of this case. Of course if a guardian actually receives money of his ward after the majority of the latter, and in the assumed capacity of guardian and before accounting, he must account for it in his subsequent settlement. But that is not this case. Neither does the fact that he received and paid over money due on the note for $1000 taken from A. K. Wright after the relation ceased, at all affect the case. That note was given to the appellant as guardian during the pendency of the relation and for property of the ward sold by him under an order of court. He was liable for it, and whether he received the money during or'after the pendency of the relation was immaterial, as. he was bound to and did account for it. Neither does the guardian’s long delay in filing his account at all affect the present question. Such delay can not operate to subject him to charges to which he is neither legally nor equitably liable.
We are of opinion that the auditor and court below were in error in surcharging the appellant with the sum of $2000, the amount of the note of James A. Moore, dated June 1st 1869, and the interest thereon, and the decree of the court below, is therefore reversed.
Decree reversed, with direction to the Orphans’ Court to correct the report of the auditor by striking therefrom the charge of $2000 for the note of James A. Moore, and all interest allowed thereon, and also by striking out the item of $87.60 costs, charged to James P. Leonard. The costs of this appeal to be paid by the appellee.