#### *Mary Sweet*vs. *Gospero Sweet.*

1. As a guardian is bound to account for the interest of his ward’s funds by the same rule as a borrower, with the advantage that interest is constantly accumulating without loss of time in reinvesting them when paid in by ■the borrower - and as the security which he gives as the condition of obtaining the guardianship, is given under the supervision of the court, and is always under its control, additional security being required where there is even a suspicion that that already given is insufficient, the fact that he has retained the funds in his own hands, and applied them to his own use, is not a cause for his removal.

2. Where it was alleged by the mother of the ward, that his guardian had failed to pay for his board and tuition, and the facts were that the guardian had the mother’s receipt in full for board, having given her his note for it, which she had transferred to a third person; and as to tuition, had offered to pay it, but the ward’s mother insisted on paying it herself as a gratuity to her son, and had not afterwards notified the guardian that she wished him to pay it; the Court refused to remove the guardian.

*Before*Johnson, Ch., *at*Marlboro1, *February*Term, 1843.

This was a petition for the removal of Gospero Sweet, as guardian of Asbury Sweet, on three grounds, to wit:

1. That the guardian had appropriated the funds of his ward to his own use.

2. That he had not paid the board of his ward.

3. That he had not paid for the tuition of his ward.

The guardian having been served with a rule to shew cause why he should not be removed on the grounds stated in the petition, made the following answer.

In answer to the facts stated in the petition and urged for the removal of Gospero Sweet, as guardian of Asbury D. Sweet, the said Gospero Sweet, being sworn, says, that he admits that he has appropriated the funds of his ward’s estate, being money in hand, in a great measure to his own use, considering that being bound for the lawful interest, and deeming the funds well secured, he bad as good a right to use the money as to let it out at interest to others, in which last case he could only have realized the interest, and have been responsible for the funds.

*310This deponent further answering says, that as to the charge of his not paying the ward’s board, he has the receipt of Mary Sweet, the mother of his ward, for the board of his said ward, in full to the 1st of January, 1843. And although he did give his note for the board, this deponent says, that the said Mary Sweet has transferred the said note to Samuel Gasque.

This deponent further answering says, that he was willing and did offer to pay for his ward’s tuition, but his mother insisted upon paying it herself as a guaranty to her son, and never has since told this deponent that she wished him to pay for the tuition.

This deponent further answering says, that he considers his pecuniary affairs in a solvent condition, and that he is ready and willing to give additional securities to his guardianship bond, if this honorable court deems it necessary.

Gospero Sweet.

Sworn to before me, this 21st Feb. 1843.

Thos. Evans, c. e. m. d.

On hearing the answer, the presiding Chancellor made the following order: “Ordered, that the appointment of Gospero Sweet, as guardian of Asbury Sweet, be rescinded, and his letters of guardianship be revoked.”

The guardian appealed, and moved this court to reverse the foregoing order of the Chancellor, on the ground, that the answer contains a sufficient shewing against the prayer of the petition ; that the guardian ought not to have been removed for simply using the money of his ward, as stated in his answer; and that the answer was satisfactory as to the other grounds stated in the petition for his removal.

*Dargan,*for the motion. *C. Evans 1*contra.

Curia, *per*Johnson, Ch.

Amongst the leading duties of a guardian to his ward, are those of providing for his maintenance and education, in a manner suited to his circumstances and rank in society, and to make his estate as productive as may be practicable. Has the respondent failed in *311the performance of these duties'? One of the charges against him is, that he retained the funds of his ward in his own hands, and applied them to his own use, but it does not follow that this was not the very best use of them. He is bound to account for the interest upon them (the funds, consisting, as I understand, entirely of money,) by precisely the same rule that a borrower would be, with the advantage that the interest would be constantly accumulating, whereas time would generally be lost in reinvesting funds that were paid in by the borrower. Nor does it follow that the fund would be less secure in his hands; on the contrary, the security which he gives as the condition of obtaining the guardianship, is given under the supervision of the court, and is always under its control, and additional security will be required, where there is even a suspicion that that already given is insufficient; and I cannot perceive how the security he might require on the-loan of money would make it more secure. I do not know, indeed, how the court can control a guardian in the use he makes of a money fund. It is not usual, particularly in the country, to require a guardian to invest funds of inconsiderable amount in government or. other public securities, nor is it always practicable to do it to advantage, and there is no alternative but to lend it on bond. In this form, it is alivays under the control of the guardian, and in the end, the whole responsibility devolves on him.

The other charges against the respondent are, that he neglected to pay for the board and tuition of his ward.

These charges are, I think, well answered by the'respondent. The obligation of the guardian is to his ward, and not to strangers; and if, as I infer from the charges, the respondent’s ward has been maintained and educated by him, I do not know that the ward is concerned as to the source from whence the means were derived. I am not, however, to be understood as laying down the rule that the neglect of the guardian to pay for the maintenance and education of his ward, would, under all the circumstances, be excusable. The want of punctuality might render him a less acceptable boarder or scholar, and subject him to mortification. It might also have the effect of encreasing the expense, as men notoriously punctual, deal on better terms than those who are not.

*312A creditor might, perhaps, justly complain of the want of punctuality; but from the facts stated in the answer, which are not controverted, the petitioner has now no interest in the matter, and for any thing we know, the actual creditor is perfectly satisfied.

It is ordered and decreed, that the decree of the Circuit Court be reversed.

Hraper and Dunkin, Chancellors, concurred, Johnston, Chancellor, absent from indisposition.