that came into his hands, it could have been adjudicated by the Orphans' Court of Lancaster County, and the money in his hands as administrator awarded to him as guardian of John T. Hill. The situation in which the accountant finds himself is of his own making, and the auditor can find no way by which the credit of $781.24 can be sustained. The accountant is therefore surcharged with this amount.

The item of credit "Accountant's Commissions, $316.39," is also covered by the Fifth Exception. Where one acts. in a double capacity in relation to the same property, he can receive commissions only in one capacity. Thus where a man acts both as executor and trustee of the same funds, he is entitled to commissions on the corpus of the estate but once. The accountant was appointed guardian of John T. Hill on January 20, 1902, and letters of administration on the estates of Mary C. and Winfield S. Hill, dec'd, were granted to him by the Register of Wills of Lancaster County, on March 8, 1902. John T. Hill was the sole heir of Mary C. Hill and Winfield S. Hill, dec'd, and the money that came into the hands of W. C. Whiteside, their administrator, was the same money that was afterward awarded to W. C. Whiteside, guardian of John T. Hill. W. C. Whiteside filed his final account as administrator d. b. n. of the estates of Mary C. and Winfield S. Hill, dec'd, October 28, 1911, No. 72, February Term, 1902. In this account he took credit for five per cent commissions on $3.857.43, making $192.87. The auditor will deduct from $3.857.43 the total credits claimed in the account, $1,358.57, leaving a balance of $2,498.86, which is included in the sum of $4,036.22 charged by the accountant in the debit side of his account as guardian of John T. Hill. It will thus be seen that the accountant received commissions as administrator d. b. n. of Mary C. Hill and Winfield S. Hill, dec'd, on the sum of $2,498.86, and that he also takes credit for commissions on the same money as guardian. He is entitled to receive commissions on this amount only in one capacity, and as he has already received it as administrator

These items of credit are the totals of

the entries on pages 1 to 10 inclusive, of the account book offered in evidence, marked "F. S. G., No. 36."

On page 1 of said book it appears that the accountant paid to John T. Hill, his ward, a total of $121 in cash, between April 16, 1902, and April 10, 1903, inclusive. This amount is included in the item of credit $146.68 above set forth.

On page 2 of said book, it appears that the accountant paid to his ward a total of $105 in cash between May 13, 1903, and April 7, 1904, inclusive, which is included in the item of credit $128.84 above set forth.

On page 3 of said book, it appears that the accountant paid to his ward a total of $122 in cash between May 4, 1904, and April 6, 1905, inclusive, which is included in the item of credit $146.92 above set forth.

On page 4 of said book it appears that the accountant paid to his ward a total of $89 in cash, between May 24, 1905, to April 4, 1906, inclusive, which is included. in the item of credit $110.69 above set forth.

On page 5 of said book it appears that the accountant paid to his ward a total of $87.50 in cash between April 3, 1906, and April ro, 1907, inclusive, which is included in the item of credit $101.07 above set forth.

On page 6 of said book it appears that

the accountant paid to his ward a total of $106 in cash from April 16, 1907, to April 11, 1908, inclusive, which is included in the item of credit $117.30 above set forth.

On page 7 of said book it appears that the accountant paid to his ward a total of $10 in cash, from May 13, 1908, to April 2, 1909, inclusive, which is included in the item of credit $123.02 above set forth.

On page 8 of said book it appears that the accountant paid to his ward a total of $83 in cash, from May 15, 1909, to April 14, 1910, inclusive, which is included in the item of credit $107.10

above set forth.

On page 9 of said book it appears that the accountant paid to his ward a total of $83.50 in cash, from May 9, 1910, to April 17, 1911, inclusive, which is included in the item of credit $101.95 above set forth.

On page 10 of said book it appears that the accountant paid to his ward a total of $45 in cash, from May 9, 1911, to January 31, 1912, inclusive, which is included in the item of credit $58.43 above set forth.

It thus appears, on page 1 to 10 inclusive, in said book, that the accountant paid to John T. Hill, his ward, in cash, a total of $943, from April 16, 1902, to January 31, 1912, inclusive.

The petition of Margaret C. Hill, filed December 14, 1901, in the Court of Common Pleas of Lancaster County, Trust Book 18, p. 322, set forth, among other things. that said John T. Hill has become so weak in mind that he is utterly unable to take care of his property, and is therefore liable to dissipate or lose the same and to become the victim of designing persons. Upon this petition, after proper notice and hearing, the said Court, on the 18th day of January, 1902, decreed that owing to weakness in mind of said John T. Hill, he was not able to take care of his own property, etc., and on January 20, 1902, W. C. Whiteside, the accountant, was duly appointed guardian of the said John T. Hill. The proceedings were in accordance with the Act of June 25, 1895, P. L., 300. Section 6 of this Act provides:

The guardian so appointed shall have precisely the same powers and be subject to the same duties as the guardian of the property of minors in the State of Pennsylvania, but the Court appointing such guardian shall have full power over the same in directing the allowance for the ward and in the care of the property of the ward, etc.

The guardian during the period mentioned, paid to his ward the sum of $943 without an allowance by the Court appointing him, and this in the face of the fact that he was expending not only the income of the estate but a portion of the principal in making such payments. Would the Court appointing him have made such an allowance to be paid to the ward? We do not hesitate to say that it would not, and if it would not have done so it certainly will not ratify any such payments by the guardian. To do so would frustrate the very purpose of the appointment under the Act of 1895, which is to prevent the ward from dissipating or losing his property and becoming the victim of designing persons. To the extent that this guardian turned over the property of the ward to him, he exposed him to the very dangers which the Act of Assembly was intended to guard against. No attempt is made in the evidence, to explain why such large sums of money were turned over to the ward, or to show for what purpose the ward used the same. The law will not tolerate such conduct on the part of the guardian of a weak-minded person. Exception No. 5, so far as it relates to these payments, is sustained, and the accountant is surcharged with the sum of $943.

The balance of the credits covered by Exception No. 5 seem to be for payment of debts of the ward existing at the time of the appointment of the guardian, and for his support and the care of his estate. The notes, checks and receipts offered in evidence, establish the fact that these payments were made. If, therefore, the guardian made these payments in good faith, and they were such payments as the Court appointing him would have directed him to pay, they can be ratified by the Court:

Albert's Appeal, 128 Pa., 613.
Haviland's Appeal, 8 Atlan., 858.
Pettit's Appeal, 30 Pa., 324.
Shollenberger's Appeal, 21 Pa., 337.
Smith's Appeal, 30 Pa., 397.

The auditor is of the opinion that if W. C. Whiteside, guardian of John T. Hill, had made application to the Court appointing him, for an allowance to make these payments, the Court would have directed him to do so. This being the case, the payments should be confirmed by the Court. Exception No. 5, in so far as it relates to payments other than those already passed upon in which the exception was sustained, is dismissed.

The evidence shows that the services for which B. F. Davis, Esq., received the sum of $165, for which credit was taken in the account, and which is the subject of the Sixth Exception, were rendered to W. C. Whiteside as guardian, and not to him individually. The payment is a proper one, and the Sixth Exception is therefore dismissed.

The exceptions having thus been disposed of, the auditor finds the true balance in the hands of the accountant to be as follows:

I also agree with the auditor that the burden of proof was upon the accountant to show that Eber E. Hilton earned and was entitled to be paid out of the estate the $400.00 which the accountant at varous times gave to him. I can find, in the evidence, no proof of services rendered by Hilton, which, in my opinion, justified the payments of these amounts. Hilton proved no specific services, but said he worked on the case a year and attended court from time to time. So far as I can see, the things which Hilton did fell within the scope of Whiteside's duty as guardian. The auditor was right in not permitting the trust fund to be depleted by Hilton under the guise of a contract. To protect Hill against his improvident acts was the very purpose contemplated by the law in the appointment of a guardian for his estate, and that object would certainly not be secured if a loose and uncertain contract of this character was sustained by the Court.

It is not open to dispute that, where one occupies a double representative capacity, commissions can only once be claimed on funds coming into the hands of the trustee.

To cite authorities to prove so plain a proposition is unnecessary. sary. The auditor has found that the accountant received in the Orphans' Court commissions as administrator on

I have carefully examined the auditor's report and the exceptions filed thereto, and I have also considered such parts of the testimony taken before the auditor as I deem important to a proper understanding of the matters in dispute. I think the conclusions arrived at, so far as the first seven exceptions are concerned, fairly vindicate themselves.

That the costs on appeals taken for the personal benefit of the exceptant should, in the losing game, be paid by him, and not by his ward, ought to admit of no doubt. Then, too, that a surcharge in the Orphans' Court cannot be credited against the ward when he files his acount in the Common Pleas can surely not be open to serious argument.

credit for commissions on the same funds when charged against himself as guardian. This he cannot be permitted to do. Nor can he be allowed for services which are covered by commissions. In this case, he looked after the real estate of his ward. He charged against himself the income received from this real estate, and he claimed credit for commissions on the amounts which came into his hands from this source. If extra services were performed, he could, perhaps, have been allowed a larger commission, upon his satisfying the auditor and the Court that the ordinary commissions were inadequate for the services performed. His testimony is, that he looked after the farm and went there a half dozen times a year. There is no testimony of extraordinary services

which would warrant the allowance of an additional sum of $100.00. The auditor was, therefore, right in striking out that credit.

The last items which we are asked to consider are covered by the eighth and ninth exceptions. On this head, the account contains a credit as follows: "Accountant claims credit for the following, as per his book account, for moneys, necessaries, taxes, merchandise, etc., paid or furnished to John T. Hill." Then come certain lump charges, from April 16, 1902, to July 11, 1912, amounting to $1,142.00. What these amounts were paid out for, and to whom, the account itself does not disclose. That this is a proper way to state items of credit in an account can hardly be contended; at least, in my experience, I have never seen an account stated in any such way. It gives no information to those interested, and refers to a book account, which necessarily is solely in the possession of the guardian. The accountant was, at the time covered by these credits, keeping a store in Little Britain Township. Certain goods, as embraced therein, were, he says, furnished out of his store to his ward. The balance of the amount, which the auditor finds to be $943.00, was for cash, which the guardian says he from time to time furnished to Hill. He admits that he took no receipts from Hill for any of this cash. The charges of merchandise were allowed by the auditor, but those for cash paid out were surcharged against the accountant. What Hill did with the money, Whiteside says he does not know; that "Hill came to him and represented that he needed clothing and such things," and he gave him the money. Opposite three items in the book account, covering in the aggregate $22.00, are the letters J. T. H." Whether or not they were placed in the book by John T. Hill was not shown before the auditor. The book was offered as an exhibit in evidence, but certainly a cash item forms no legitimate charge in a book account so as to prove itself. In McArdle's Estate, 13 Dist. Rep., 150, Penrose, J., said: "The books of a claimant, if the entries are made in due time and in the regular course of business, are competent proof

of the sale of goods or of work and labor done, but not of the loan of money or its payment to use of the party sought to be charged." It will be remembered that John T. Hill had been declared a weakminded person by this Court, and that Whiteside was appointed guardian for the purpose of protecting his estate and to save Hill from becoming the victim of designing persons. The Act of June 25, 1895, P. L., 300, section 6, provides that "the guardian so appointed shall have precisely the same powers and be subject to the same duties as the guardian of the property of minors in the State of Pennsylvania; but the Court appointing such guardian shall have full power over the same in directing the allowance for the ward and in the care of the property of the ward, and the guardian shall give such bond and file such accounts and at such periods as the Court shall determine." "Of course, the guardian, on the final settlement of his account, was not confined in his credits solely to such as had been allowed by the Court on his application during the pendency of the trust. If he thought it right to make expenditure without a previous order, he could do so, and take the chance of their being ultimately approved. If it had been made clear to the Court that this guardian, in good faith, had made certain legitimate expenditures for the welfare and comfort of his ward, it ought even now to approve them and hold the guardian harmless on that account. The trouble here, however, is, that the guardian has not sustained his credit by proper proofs and has not convinced the Court that he is entitled to these allowances. Of what use is a guardian of the estate of a weak-minded person, if the property belonging to such person can be thus administered? It seems to me that the manner in which this trust has been conducted is far from commendable. Under the circumstances, I think the auditor was right in making this surcharge. An accountant, when he thus administers his trust, has only himself to blame, if he suffers loss.

The exceptions filed are now overruled, and the auditor's report is absolutely confirmed.

Auditor's report confirmed.

LANCASTER LAW REVIEW.

VOL. XXXI.] FRIDAY, OCT. 9, 1914. [No. 49

Common Pleas--Law.

Wesley, Guardian of Hill v. Whiteside,

later Guardian of Hill.

Weak-minded persons-Auditors report surcharging guardian of — Confirmation of Entry of as judgment-Appeal from Supersedeas-Practice.

Where a guardian of a weak-minded person is discharged and a new guardian appointed, and by auditors report is surcharged and a balance ascertained, and awarded to his successor and the court dismisses exceptions and confirms the report, the prothonotary can not

enter judgment for the amount of such balance on the written order of the attorney for the suceeding guardian.

Judgment can be entered only by authority of an Act of Assembly or Rule of Court, or by power of attorney or by express direction

minded person, and subsequently, on

March 12, 1912, he was, for sufficient

reasons, discharged from the trust. On March 29, 1913, he was ordered to file an account of his trust, and he accordingly filed an account, to which exceptions were filed by Wakeman Wesley, who as guardan succeeded him in the trust. These exceptions were referred to an auditor, who duly presented his report, and the same was confirmed nisi on March 21, 1914. By it, Whiteside was surcharged, and a balance due by him to the trust estate was ascertained. He, therefore, filed exceptions to the auditor's report, and these having been duly heard by this Court, were, on July II, 1914, by an opinion filed, overruled, and the auditor's report was absolutely confirmed. [See preceding case.]

of the Court.

C. P. of Lancaster Co. Judgment to August Term, 1914, No. 163. Fi. fa. to November Term, 1914, No. 12, Ex. Doc. Attachment ad. lev. deb. to September Term, 1914, No. 48. Rule to set aside fi. fa., execution and entry of judgment.

B. F. Davis, for rule.
WV. U. Hensel, contra.

The finding of fact of the auditor. approved by the court has the weight of a verdict and the same force and effect as a judgment at Common Law. The judgment as entered is not a new judgment but is merely indexing by a number and term the judgment involved in the auditor's report. This is proper practice.

September 26, 1914. Opinion by LANDIS, P. J.

On January 20, 1902, William C. Whiteside was appointed by this Court as guardian of John T. Hill, a weak

balance which in the auditor's report was found to be due to the trust estate. If, then, there existed power to proceed upon the decree thus entered to collect the amount of the surcharge by issuing execution upon the decree, his failure to give bond did not, I think, interfere with such action and prevent proceedings thereon.

But no such action was taken. On August 31, 1914, counsel for Wakeman Wesley filed in the Prothonotary's office a paper in which he directed the Prothonotary to enter judgment against Whiteside for $2.385.43 "to a proper number and term.' This having been done, he issued on said judgment a fi. fa. and attachment execution to collect the amount thereof. I know of no authority for entering a judgment in this manner, and it is certain that no such decision

has, upon the argument, been called to our attention. The proceeding is truly novel in the extreme. I do not see how a judgment can be entered against any one at the instance of an attorney, and