delivered the opinion of the Court:
The appellant, on Ms assignment of error, makes these points: 1. That appellant was not liable to render an account in this matter, for the reason that more than five years had elapsed after his ward arrived at age, before the commencement of these proceedings. 2. If the statute was no bar to the proceedings, yet all the court could have done was to state an account, having no power to render a judgment or enforce the payment of the same. 3. That if this power existed, the appellant having loaned the money for the benefit of his ward, he cannot be charged with the loss of the money, he having exercised due care and diligence. 4. That appellant was not a competent witness in this proceeding. 5. If any liability was established against appellant, the court fixed too large a sum. 6. The County Court had no jurisdiction to compel, by citation, a report to be made by appellant, he being no longer an officer of that court.
Upon the first point, appellant cites several cases supposed to be decisive of this.
It is admitted, if the statute- of limitations would be a bar in a court of law, it would also be a bar under the same circumstances in a court of equity. The statute cannot be avoided by a change of forum. And it is also admitted, that where the jurisdiction is concurrent, the statute also applies to the court of equity.
These are general principles which no one will dispute. The case of Bertine v. Varian, 2 Edw. Ch. 343, is also referred to as a case in point. That case certainly decides that a guardian of an infant can interpose the statute of limitations to a bill filed against him, or his administrator, for an account. It decides that the remedy was complete at law when the wards arrived at full age, and no sufficient reason was shown why they did not resort to the remedy in apt time.
In that case, from the time one of the wards came of age to the death of one of the guardians, eleven years had elapsed, and in the case of the other complainant, about eight years, during all which time no steps were taken to call the guardian to an account; and after his death, about nine years more supposed to elapse before that suit was instituted against his representatives, and no reason given for the delay. That the presumption arises from this lapse of time, that the claim had been satisfied and the vouchers lost. The Vice-Chancellor, however, says, if the delay could have been satisfactorily accounted for by the production of sufficient facts, such facts would prevent the operation of the statute in the view of a court of equity.
The appellant’s counsel also refers to 37 Penn. 123, without complying with the rule of this court, by giving the names of the parties in the case. We have examine! that book at the page indicated, and find no case there bearing on this point, certainly none which appellant’s counsel have given in their brief as a quotation from it.
He also cites 14 N. H. 401, without giving the names of the parties. We find at that page the case of Kittredge, adm'r, v. Betton, ex’rx, but do not find the principle there asserted in the terms in which it appears in the appellant’s brief. That case merely decides that a settlement out of court between a guardian and his former ward, who has come of age, and a release to the guardian, is not a compliance with the condition of his bond, which requires the guardian to render an account, when required, in the Probate Court, and that the administrator of a ward, when in the Court of Probate, has the same privilege as the guardian, who, on being cited to the Probate Court, relies on such a settlement, he must bring-into court the settled account, that the ward may there surcharge and falsify it.
Hot withstanding the case of Kane v. Bloodgood, 7 Johns. Ch. 91, and the other cases cited, as based upon it, Hill, in his elaborate work on trustees, after an examination of all the cases decided in England, and which are cited and commented on in Kane v. Bloodgood, says: “ On the whole it must be admitted that the effect of the statute of limitations, as applied to the estates of trustees, is left in a very unsatisfactory state by the authorities, and it is extremely difficult to gather from them any very definite rules of general application on the point.” Hill Trust. 268.
The answer to the authorities and argument of appellant is this, that the citation to account before the Probate Court is not in the nature of the action of account at law or in equity, and which would be barred in five years. It is merely a mode provided to ascertain the sum for which a guardian is chargeable in the Probate Court, and is the proper mode in most cases, to lay a foundation for proceedings against the sureties in the guardian’s bond, and in which no judgment is rendered. This appears, from the case cited by appellant, from 14 N. H. 401. And what is the statute upon the subject 1 The sixth section provides that courts of probate shall have power, with or without previous complaint, by an order duly made and served, to oblige all guardians of minors, from time to time, to render their respective accounts upon oath, touching their guardianship, to said courts for adjustment, and shall have power to compel them to give supplemental security, &c., and to remove them.
What is the condition of the bond a guardian is required to give? It is that he will faithfully discharge the office and trust of guardian according to law; that he will render a fair and just account of his guardianship to the court appointing him, from time to time, as he shall be required by the court, and comply with all the orders of the court, lawfully made, relating to the goods, chattels and moneys of the minor, and render and pay to the minor all moneys, goods and chattels, title-papers and effects which may come to his hands as guardian. This bond is not to be void on the first recovery, but may be put in suit from time to time against one or all the obligors.
This bond is a continuing surety until the penalty is exhausted, and the settlement with the Court of Probate, by the guardian, made before or after the ward arrives at full age, fixes the amount of damages to be recovered under the bond. This bond, by section one of the limitation act of 1849 (Scates’ Comp. 752), remains in force for the term of sixteen years as such security, and can be sued on from time to time, within that period. Therefore, we say, as the accounting before the Probate Court, is not a suit within the meaning of the statute, but is a means of ascertaining a delinquency, so that suit may be brought for the amount of the delinquency, so adjudged by the Probate Court, against the obligors in the bond, the statute of limitations was' no bar to the proceedings before the Probate Court, and cannot be pleaded in bar so long as the bond has force and vitality. It will not be denied that the administrators of one who has been under guardianship, can bring all actions, resting in contract, which the ward himself might h'ave brought, provided such actions are brought within the time limited by law. This being so, it cannot be denied, such administrator has the right to the securities, given by the guardian for the protection of his ward; and having this right, it must follow that he has the right to use the means the law gives, to ascertain for what amount, on accounting before the Probate Court, the gtiardian and his sureties are responsible under the bond, and to this inquiry there is no limit but sixteen years.
The case cited from Edwards’ Chancery Reports is the only case we have been able to find where the point was directly determined that a guardian, or rather his personal representatives, could interpose the statute of limitations. And in that case it seems to be placed rather on the ground of staleness of demand from lapse .. of time.
The facts in this case are different greatly from the facts in that, and are peculiar. The ward’s unaccountable disappearance, about the very day he became of age, the delay necessarily occurring, so that the legal presumption of his death should obtain, by receiving no intelligence of him for seven years. As he was of age on the 2d of January, 1854, and the last information of his being in life was on the 30th of December preceding, it is not impossible that he died before he came of age. These facts will account for any delay that has occurred, if any delay can be charged in the case.
But there is something more in the case. If the statute of limitations was a good plea, did not the appellee show enough by the admissions of appellant in the several accounts he rendered to the court, especially the first one, to take the case out of the operation of the statute in a court of equity ? We think he did. At the first investigation of his accounts, he did not set up this defense, but submitted to an accounting, and probably never would have set up the statute, could he have received a credit for the judgment against Tefft and Clark. But be this as it may, his rendering an account shows that he still occupied the position of a trustee towards his beneficiary, and while that relation subsisted, the statute could not be interposed. Had he denied this relation, then it might be said his attitude was hostile and adverse to his cestui que trust. It is true, in his protest, he declared he had not been guardian for some years, which was not the fact, as his duties as guardian had not ceased until he had fully accounted and paid over the balance against him.
Upon the next point we have to remark, that it does not appear the court below entered up any judgment against the appellant, but found a certain sum due, and directed him to pay it over to the administrator. This finding fixes the amount of the recovery under the bond, it is res judicata, as to the amount.
The third point made by appellant has no evidence to rest upon. All the testimony shows a flagrant disregard of the interests of his ward in loaning this money. The eighth section of the statute respecting guardians and wards provides, that guardians shall put to interest the moneys of their wards upon mortgage security to be approved by the court, the letting to be for one year, and at the end of each year to add the interest to and make it a part of the principal. This he did not do, but suffered nearly all the money to remain from year to year in the hands of his brother-in-law, without any security and without the approval of the court, and on which the" interest was not compounded annually, nor any gains made thereon for his ward. This was a great dereliction of duty, and the loss of the money is clearly chargeable to his own negligence and disregard of the statute.
Upon the point that appellant should not have been compelled to testify, we answer, that he testified voluntarily. As the proceedings before the Probate Court are likened to proceedings in chancery (Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 id. 203), this may be likened to a bill for a discovery against the guardian, wherein it is necessary to sift his conscience, and to get at facts of which he alone could have any knowledge, as he had never reported any of his actings and doings, as guardian, to the court. But it is too late for him now "to make the objection. He testified voluntarily, and his evidence is recorded, and by that he must be judged. Though he was a party interested, that was waived by the appellee, when he consented that his evidence should be heard.
Upon the last point made by appellant, it is sufficient to say, if appellant was not an officer of the court, at the time he made his report, it can make no difference; he was before the court voluntarily, to render his account, on oath, of his guardianship, which he had covenanted to do by his bond. He rendered his account, and made oath that it was just and true, and the court had a right to interrogate him as to its correctness, and upon his guardianship generally. He voluntarily submitted to the jurisdiction, and it is now too late to raise any question about it.
Another point remains to be considered, and it is as to the amount of the recovery. It will be seen by the letter of the ward, of December 30, 1853, to appellant, written from Wheeling, he informed appellant he should return home in a few weeks, and desired appellant to have his money ready for him, as he would then be of age. This request, it was the duty of appellant to be ready to meet, as his ward would then have the right to demand his money. After that event, appellant would have had no right to loan the money, or use it in any manner, but be bound to have it on hand to pay over on demand; consequently, appellant should not be charged with interest after the day his ward arrived at full age, unless it can be shown he made profits out of the money. The appellant should be charged with the moneys he received belonging to his ward, and compound interest thereon, at six per cent, from the day he recived it, until his ward became of age, and interest on the amount, from the day of demand by the administrator of the ward, to the time of entering the final order. The recovery below exceeds the amount these data would establish.
The order of the court below is reversed, and the cause remanded to the Circuit Court, with directions to state an account as follows: Charge appellant with the moneys he received, and calculate interest on the amount, at six per cent, compounded annually, to the day the ward became of age, and credit him with the expenses paid by him, amounting to sixty-two //i dollars, and his commissions at six per cent, on the whole amount received, and then charge him with interest at six per cent, on the balance, to be calculated from the day (ninth of June, 1862,) appellee demanded an account, to the day of entering the final order. Ho account will be taken of the money collected by Daniel in Ohio, one-half of which, being two hundred dollars, he transmitted to appellant for his brother John, to whom it belonged, the other half Daniel retained, as it appears from all the circumstances, to his own use, which he had a right to do.
Judgment reversed.