Opinion
September Term, 1865
R.S. Gurnsey, for the appellants.
Beach Smith, for the respondent.
There is no charge of fraud or complicity between the guardian and the defendant in regard to the money collected upon the mortgage. It was originally the guardian's own debt, and he collected it from the defendant before it became due. This was rather an unusual circumstance; but there may have been reasons for it, of which the guardian alone was the judge. He possessed over the estate and property of his wards the same power as a testamentary guardian, which was, to take the custody and management of their personal estate and the profits of their real estate. This custody and management implies the power to collect and receive moneys due to the minors, whether secured by mortgage or otherwise, and to execute discharges and receipts therefor. There are a class of securities, the property of minors, over which the guardian has no such control; and these are, the proceeds of real estate, and moneys the proceeds of real converted into personal estate under the decree and order of the court. Such proceeds are still regarded and treated as real estate, and are not subject to the disposition of the general guardian without the special order of the court for that purpose. The counsel for the plaintiffs has not, I think, sufficiently attended to the distinction between these two classes of securities.
The guardian had a right to collect the money secured by the mortgage, and to cancel the same of record. The judgment should be affirmed.
All the judges concurred in affirming the judgment.