Burtis v. Brush

Headnote

A guardian foreclosed a mortgage, which he held in trust for his wards, in obedience to an order of the surrogate; which also directed that out of the proceeds of the gale or foreclosure, he should pay over the sum due to one of the wards, who had come of age. At the sale under the foreclosure, the guardian, to prevent a sacrifice of the property, bought it in as guardian.

Held, that he must account to such ward for the amount of his hid.

A citation was issued requiring Walter F. Brush, executor of Maria A. Brush, and guardian of Sylvanus A. Burtis and his two sisters, to render an account. Brush made a return,

showing his accounts, and stating that he had commenced proceedings to foreclose a mortgage for part of funds belonging to the three minors, of each of whom he was the guardian, the funds having been invested by him as guardian of all the minors.

A decree was entered by Hr. Surrogate West, in December, 1861, determining the amount due to Sylvanus A. Burtis, who had become of age; and the guardian was directed to proceed with the collection of the mortgage which was then due, and out of the moneys arising therefrom to pay the amount ascertained to be due Sylvanus A. Burtis.

Subsequently, on the petition of Burtis, showing that the guardian had purchased the mortgaged premises at a sale under foreclosure, an order was made requiring the guardian to appear and show cause why he should not pay the amount due to the petitioner.

The guardian, by his return, alleged that he had, in order to save the mortgaged premises from being sacrificed, purchased the same in his own name, as guardian of the three minors, and that he then held them as such guardian.