delivered the opinion of the court, February 15th, 1886.
In the year 1869, J. William Lewis, one of the defendants, was appointed guardian of Emily L. Lownes, (now Emily L. Browning) by the Orphans’ Court of Delaware County. At this time, Lewis was a partner of one Martin E. Parker, the stepfather of Emily, in some mercantile business in Delaware County, doing business under the name of Lewis & Parker. The moneys which Lewis received in behalf of his ward, he invested with Lewis & Parker; the several sums received, and *502thus invested with the interest- thereon, 'having been, from time to time, entered to the credit of the guardian, in an account opened on the books of the firm, in the name of J. William Lewis, guardian, &c. The ward arrived at the age of twenty-one years on the 3d July, 1876, and on the 30th December, 1876, the whole investment, with the interest as it appeared upon the books, amounting to $5,982.07-', was, by the guardian, transferred to Martin E. Parker, who, as between himself and the guardian at least, assumed- the responsibility thereof.
The guardian did not file any account- in the Register’s office, as required by law; but on or about the 24th of January; 1877, prepared a statement of his receipts and disbursements, and submitted the same to his late ward for her approval. This statement exhibited a balance due the ward of $5,982.07', as-above stated. At the foot of the statement was written a release, in the following form, viz:
“Know all men by these presents, that I, Emily L. Lownes, the above mentioned minor, being now of full age, hereby certify that I have examined the above account of my guardian, J. Wm. Lewis, and am fully satisfied therewith; that I am cognizant of the receipts and expenditures, and that I have -received from the said-J. Wm. Lewis the full amount of the balances in said account named, to wit, the sum of five thous- and nine hundred and eighty-two dollars and seven cents, in consideration of which I hereby for myself, my heirs, my executors and administrators hereby release and discharge the said J. Wm. Lewis, his heirs, executors and administrators of, and from all and every claim, action and demand, or account for or on account of his said guardianship, or any matter or thing connected therewith. Witness,” &c.
This release, on the day of the date thereof, was signed by Emily L. Lownes, in the presence of witnesses, was by her duly acknowledged before a Notary Public, and Was delivered to Lewis, who afterwards caused it to be recorded. No money was paid to Emily L. Lownes at the time of the execution of this release; the interest subsequently accruing, up to the year 1882, was paid to her by Martin E. Parker, sometimes in the checks of the firm of Lewis & Parker, and sometimes^ otherwise; in all cases, however, after her arrival at age the interest was paid and the receipts were written to Martin E'. Parker, individually.
It also appears that the ward was entitled to an estate of .$4,226, a gift from her mother, made at or some time before her arrival at age ; this fund, however, it appears, was in the hands of Martin1 E. Parker,, and never reached the custody of Lewis, the guardian. On the 30th December, 1876, therefore, *503tbe entire estate-of Emily L. Lownes, consisting of the two funds mentioned, and amounting to 110,000 and upwards, was transferred to the custody and control of Martin E. Parker, her stepfather; the first fund, $5,982.07, by the act of her guardian, and, the second fund, $4,226, by the act of her mother, who gave it to her. The fund- of $5,982.07, however, remained invested with.Lewis & Parker, whilst the $4,226; it seems, constituted part- of Parker’s capital in the business.
Ón the December, 1877, the firm of Lewis & Parker was dissolved, Martin E. Parker retiring from the firm;, the interest of the retiring partner was. ascertained to be $41,000, which included the mpneys of Emily L. Lownes, and this sum was subsequently, and before the bringing of this.suit, fully paid by Lewis to Parker. In tbe year 1878, Emily L. Lowne§ became the wife, of W. Champion. Browning, apd Parker, entered into a co-partnership with Browning, which, proving, unfortunate, he some time afterwards became insolvent.
On the 21-st December, 1881, Emily L. Browning brought suit against Parker, in t.he- Court of Common. Pleas No. 1 of Philadelphia County, on a promissory note which she then held against him, dated 3d Januarj:, 1876, payable to her order six years after date, for ten thousand dollars, with interest at six per cent. There was some evidence tq.sh.ow that tbe nptq was given and should have been, dated 3d. January, 1877, and that it was written 1876, instead of 1877, by a blunder; how this is, we are n.ot called upon to decide.
Whether or not, this note was placed in her hajqds; by Parker, as, a security fo.r her estate transferred into his, custodjr and control, and. wap received or retained by her as such, after arriving at the age of majority, seems no.vy to be a m.atter of disputey but, it is conceded, that the sum expressed therein w.as the exact amount of that estate, and it is not pretended that it liad any other consideration, to suppprt it. Judgment was obtained against Parker fpr the full amount of the¡ note, with the unpaid interest, and the same still remains opea a'ndunsatisfied.
This suit was, subsequently brought by Emily L. Browning to recover from th.q firm qf Lewis, &j Parker the said su,m of $10,0,00; at the trial a, verdict was rendered against the de_r fendants for the wh.ole. amount of the plaintiffs’ claim; the court belo.w being of opinion, however,, that fhero was no evidence to justify the verdict as to th,e. $.4,226, the plaintiffs, pending a. motion for a new trial, filed a remittitur for that portion of the verdict.
The theory of the plaintiffs’ case is, that the guardianship having terminated, and, the. guardian having claimed all the credits he desired,, and placed her b,alan,ce at. the -service, of tbq *504firm of Lewis & Parker, it is her right to recover it in this form. It is objected in the first place, that the Court of Common Pleas had no jurisdiction of the cause; that the initial proceedings, for the recovery of the estate of the ward, should have been in the Orphans’ Court, which had exclusive jurisdiction of the subject matter of the suit..
The act of 29th March, 1832, in its 10th section, provides that a guardian, unless previously discharged or removed, shall, on the arrival of his ward at full age, settle in the Register’s office a full and complete account of 'his management of his minor’s property under his care; and that the decree of the Orphans’ Court, upon such final account, shall be conclusive upon all parties, unless reversed, &c. It has been repeatedly held that the jurisdiction of the Orphans’ Court over all matters of account, between guardian and ward, is exclusive. Denison v. Cornwell, 17 S. & R., 374 ; Comm’th v. Lockwood, 18 Pitts L. J., 10; Wills’ Appeal, 9 Pa. St., 103. Although a guardian may have made a private settlement with his ward, on his arriving at age, it is well settled, that he may still, in a proper ease, within a reasonable time, be required to file and settle his account in the Orphans’ Court. Lukens’ Appeal, 7 W. & S., 48; Stanley’s Appeal, 8 Barr, 433. But if such settlement shall have been in good faith, and on full deliberation, is full and fair, is accompanied by a release, executed under no mistake or misapprehension, and has been acquiesced in bv the parties, it may without doubt be treated as a waiver of the legal right to an account in the Orphans’ Court, and its terms may be enforced in the Common Pleas, as other contracts are there enforced. In Marr’s Appeal, 28 P. F. S., 66, it was held that after a ward had arrived at full age, he might waive his right to an account in the Orphans’ Court, and join his guardian in asking for his discharge; and that the decree for' his discharge could not be vacated, without proof of some specific act of fraud in obtaining it, or of some injury occasioned by it.
The Orphans’ Court, having exclusive jurisdiction in all matters of account between guardian and ward, except where its exercise is thus expressly waived, it seems quite .eiear that the trust estate must continue in the control of the guardian, subject only to the order and discretion of the Orphans’ Court, until he shall have accounted as the law requires; for the accounting may show large disbursements, or exhibit a balance in his favor. If the ward upon his arriving at age, may appropriate his estate wherever it may be found, in the hands of third persons, under investment of his guardian, the latter may be left without assets with which to account, or to cover what may be owing to him, or what he may have made himself liable for.
*505This action in the Common Pleas, therefore, if sustainable in its present form, in the nature of the case, can only be sustained upon the assumption of a previous settlement between the guardian and his ward, by the terms of which the'quantum of the trust fund has been definitely ascertained, its identity fixed, and the trust expressly or impliedly renounced. In such a case, although the investment may have been originally made in the name of the guardian, equity would, we think, compel the use of his name for the benefit of the ward in an action instituted for its recovery. In the case at bar, there was evidence of such a settlement, accompanied by a release to the guardian from all liability as such. As the ward was confessedly entitled to the balance exhibited by the account, and no relinquishment of it to Lewis was contemplated by way of gift or gratuity, and as no part of that admitted balance was by him then or afterwards paid, although payment was therein expressly acknowledged, the release would, in the first instance, be taken as executed upon the footing of an equitable assignment of the then actually existing investment. And if Mrs. Browning, at the time of the release, did not know that she. held the note of Parker for §10,000, or that Parker by a transfer from Lewis had become the custodian of the fund formerly in Lewis’s hands; if she executed the release upon, the faith of representations of Parker and also of Lewis that.they, and not Parker, were immediately responsible to her for the moneys in their hands, the defendants would, in view of Parker’s- intervening insolvency, be precluded from denying the representations so made, by means of which she was misled to her injury.
These were, without doubt, the substantial and material questions of fact involved in the case, and which should have been submitted to the jury. The learned Judge, however, appears to have taken a different view of the case. He seemed to have supposed, and so instructed the jury, that the effect of the release, if it was not vitiated by fraud, was to discharge Lewis, not only as guardian, but from all responsibility whatever for the money, and the question was submitted to the jury whether or not its execution had not been induced by fraud or unfairness. The learned Judge says: “If Mr. Lewis had imposed upon her, had got her to sign the release not knowing what she signed, had used fraud or deception it might not be good; or if there was any fraud practiced upon.her, but it is now for you to consider as to whether she deliberately signed that release. What was her understanding at the time ? I do not think that in her testimony she throws any light upon what her thought was as to what she was doing at the time she signed it. She said she signed the release. She said she *506was requested the day before by her mother, and I think she admits,that Mr. Lewis came there the night before to.get her to go , to Chester in the morning,, and to sign his release as guardian. I do not think she testified as to.any understanding of, hers at that time of what responsibility still remained upon her, uncle. It is, however, for you to, consider, whether, there are,any circumstances showing fraud, in the obtaining of that release.”
Now the, suit is not brought against Lewis, as guardian, nor otherwise in his individual capacity, but. against the firm, of, Lewis,&. Parker., If the release was induced by. artifice and. fraud*,the responsibility of the guardian,would remain, as ,if it had, never been executed, and the plaintiff’s, right of. action, would be against him in his official capacity. This suit, therefore., as we have said, is,necessarily founded upon an accept: anee of the settlement and the release of the guardian, which; together are in the nature of a renunciation of the trust, and opérate as. an assignment of the fund, to the cestui que trust. The jury found for the plaintiff,, and this, under the charge, was equivalent to a finding that the settlement and release were affected with fraud, and were, upon, that- ground, of no binding force-or effect whatever. If the release, in the absence of fraud, operated to discharge Lewis not only as guardian, but from all liability whatsoever, a. verdict for. the plaintiff as against Lewis' must necessarily have resulted from, a, conviction in the xninds of the jurors that the settlement, or, t.he release, or both, were upon the- ground of fraud wholly invalid. But in our view of the case- th.e plaintiff, to sustain her suit,.is bound to accept the guardian’s settlement, and to ratify the-release; her failure so to do is necessarily fatal to her recovery; if she repudiate the settlement she must, resort to-the Orphans’ Court, which alone has jurisdiction to determine the amount of her estate in. the hands.of the guardian;, whilst the, acceptance of the release i.s the-evidence of her- right, independently of her guardian, to recover it.
The cause was submitted to th,e jury upon, a question of fact, concerning which there was. not, and,, in’, tjre nature of the case,, could not have been any dispute; the plaintiff’s, case was wholly dependent upon the, validity qf t.he, settlement and of the release. •
The defendants freely admitted the validity of both, whilst the plaintiff cou.ld say nothing to. impe.ach either*. Although the plaintiff testified that she did not know the fuff purport of‘ the papers she signed: she, did sign them., and this proceeding is founded upon them..
We are of opinion, therefore, that th.e. charge of the learned court was misleading in its character; th.e attention. of the *507jury was diverted from the real question in tbe cause to the consideration of a question which was not involved in its determination.
The judgment is therefore reversed, and a venire facias de novo awarded.