hill's Appeal, supra, "that a loss which ac-
crues of a trust fund invested on personal
security, must be borne by the trustee. Is
the stock of a banking, manufacturing and
trading company better? Certainly not if it
be true (and who will deny it?) that men
associated together are subject to the same
accidents, and exposed to the same tempta-
tions that individuals are." Even a trustee
who has been given discretion to invest out-
side the statutory limit must show that he
acted with intelligence and judgment; Hart's
Estate, supra.
But no case has been found

ance in him has this important advantage that it is under the vigilant eyes of both creditor and legatee who may stay or speed his action as circumstances may seem to require; while its transfer to the guardian may result in serious loss because those directly interested being minors are incapable of calling attention to any breach of trust, and collaterals are usually too absorbed in their own affairs to take effective interest in the guardian's management. It seems to be thought that a guardian will have the advantage in being able to hold longer where

in which a trustee without such discretion | there is a prospect of appreciation; but his has been relieved from liability from loss.

power prima facie is no greater in this respect than that of an executor. It was said in Reed's Estate, supra, that when he takes upon himself in relief of the executor the responsibility of collecting and converting personal securities he is bound to do so "in the most prompt and available manner to the best interests of his ward;" and this is precisely what the executor is bound to do; Stewart's Appeal, 110 Pa. 410. In either event conversion must be made as the interest of the estate demands; and that would be a bad policy indeed which would encourage the assumption by either of them of unnecessary risks and at the same time sub

It has been suggested that there is a difference in liability between the acceptance of investments made by the decedent and those made by the guardian himself. But why should the ward be compelled to lose in one case and not in the other? The need of protection is the same in either case. The Supreme Court said in Hemphill's Appeal, supra, that it did "not regard the fact of Mr. Girard's investing a part of his own estate in this stock as any evidence in favor of the trustee. That he did so in 1831, or before that time, furnished no reason for supposing that he would not have sold out if he had lived until 1837." It is obviously imma-ject the trust estate to the hazard of litigaterial how such securities may have been acquired; the real question is how soon they may be sold and the proceeds put in legal investment.

These cases show then that guardians or other trustees must bear any loss which results from their investment of trust funds in personal securities made on their own authority. Reed's Estate, 82 Pa. 428, however went a step further in holding that a guardian might be authorized by court to accept such securities at his own risk; but it must be assumed that the court did not intend to imply that the guardian had an absolute discretion in the matter, for this would be a practical delegation of its jurisdiction over the administration of the estate. The court must obviously be satisfied in the first instance of the wisdom of the proposed transfer. The function of conversion belongs to the executor in the ordinary course of administration and ought not be taken away without special cause shown. Its continu

tion on settlement of account. It is the plain duty of the court as well as its officer "to minimize risks;" Hart's Estate, supra, There is nothing in this view which is inconsistent with Reed's Estate, supra. The court seems to have been satisfied in the first instance of the wisdom of the proposed transfer and provided for "prompt" conversion and investment as provided by law under the control of the Orphans' Court. The mere fact of transfer was not investment but simply process of conversion. Presumptively, then, the function of conversion belongs to the executor or administrator. If upon application for transfer to the guardian it be made to appear affirmatively that immediate conversion, or further holding, by the executor rather than by the guardian would be to the manifest advantage of the estate, as that there was no prospect of appreciation, or that the executor had larger experience and better opportunities of handling the securities, the reason for reten

tion would be all the stronger. If, however, the conditions be reversed, there ought to be no hesitation about ordinary transfer. There may be cases in which it is advisable to settle administration without waiting for conversion of such securities. A guardian

Court of Common Pleas,

WASHINGTON COUNTY.

HUNTER v. THE COUNTY OF
WASHINGTON.

mated cost.

may from necessisty be compelled to accept Roads-Act June 26, 1895—Bids exceeded estistocks which are the only source of payment, as from an irresponsible predecessor. In the determination of these or other questions which may arise the paramount consideration must always be the best interests of the estate.

The commissioners of Washington county, Pa., under Act June 26, 1895, entered into a written contract to improve certain public roads in Washington county, contract price for constructing the roads exceeded the estimated cost, as made by the county engineer.

Held, that the contract having been let to the lowest bidder after the grand jury had approved the commissioners' application, said contract was binding on the county of Washington even though the price for constructing said roads exceeded estimated costs as shown to the grand jury, there having been no exceptions filed in the Court of Quarter Sessions to the finding of the grand jury.

No. 61 Aug. T., 1904. Case stated in the nature of a special verdict.

Opinion by MCILVAINE, P. J.

(TAYLOR,

This guardian expresses its willingness to accept the stocks credited in the account subject to the risk of future loss, and with this in view asks this court to fix the present value as a basis; but the offer amounts to an evasion of the question of liability for past depreciation. When, on attaining majority, its ward asks why these stocks were not promptly sold as in due course of administration, the record as it now stands will furnish no answer. There appears to have been ample time within which to have sold them before depreciation began, and no explanation was given, nor question asked why this was not done. Nor is there any-J., concurring). Filed June 22, 1904. thing in the record to justify a departure from the ordinary course of administration. The administrator is not asking to be relieved, and there is no suggestion of disability on his part; and there is no evidence whatever to show that the guardian could make disposition of the stock to any better advantage. In order to an intelligent exercise of its jurisdiction it is plain that the court should have been put in possession of the facts, and this has not been done. If, however, the parties wish to offer evidence touching the matter an opportunity will be given within ten days from the filing of this opinion.

PER CURIAM.

For accountant, Charles Schlegel.
For guardian, Patterson, Sterrett & Acheson.

Fixing the rates to be charged by an interstate carrier for carriage, within the state, of a shipment which is delivered to the carrier at a point another state, is held, in Southern Express Co. v. Goldberg (Va.) 62 L. R. A. 669, to be beyond the power of a

state.

On April 16, 1904, the plaintiff, N. C. Hunter, entered into a written contract with the defendant, "The County of Washington," to permanently improve a certain public road, about two miles in length, (being part of the public road which leads from Beallsville borough, in said county, toward the borough of Ellsworth in said county) in accordance with certain plans and specifications that were made part of the written contract. After he had done some work under his contract he presented to the county commissioners the engineers' estimate of the amount of work he had done and demanded of the county pay for ninety per cent thereof, as provided in his contract. The county commissioners admit the execution of the written contract, that the work included in the engineers' estimate has been done, and that under the terms of the contract there is due and owing the plaintiff the full amount of his demand, but they refuse to draw a warrant on the county treasurer therefor, alleging that the county did not have the power and authority to enter into

the written contract under which the work ance with the plans and surveys accompanywas done.

The contract on the part of "The County of Washington" was executed by S. F. Scott, J. F. McClay and J. B. Gibson, county commissioners of said county, and on its face sets out that "they have been duly authorized thereto by an Act of Assembly providing for the permanent improvement of certain public roads, approved the 26th day of June, 1895."

The present claim of the commissioners that the county was without power and authority to make the contract is therefore wholly inconsistent with the representations made by them to the plaintiff in the contract they executed with him. This change of mind on the part of the commissioners, as we understand it, is accounted for on the principle expressed in old latin maxim, ex majori cautela. Certain tax payers, whose identity has not been revealed, it is said, have raised the question that the contract executed by the county with the plaintiff is "not legal, valid and binding," because the cost of improving the road covered by the contract will be more than $6,826.80-the amount which it was estimated it would cost when the surveys and plans were laid before the Court of Quarter Sessions and grand jury of this county for their approval, and therefore the commissioners, "out of the greater caution," have refused the first payment in order that a judicial determination of this question may be had before any more work is done.

ing said application." No appeal was taken from this decree by the exceptant taxpayers, nor did any other taxpayers ask to intervene that they might take an appeal. Bids were taken after due advertisement and the contract let to the lowest bidder, the plaintiff, who is under bond to finish the work according to the plans and specifications that were before the grand jury and the Court of Quarter Sessions.

This brings us to the single question of law that is raised in this case. Because it has now become apparent that the cost of constructing this piece of road at the prices the county is to pay the plaintiff under his contract for excavating earth per cubic yard, for excavating rock per cubic yard, for foundation stone per cubic yard, for broken stone per cubic yard, etc., etc., will be more than $6,826.80, is the contract under which he is doing the work invalid and not enforceable against the county.

The Act of 1895 provides first, that the several counties of the commonwealth shall have power and authority to permanently improve the public roads and to levy a tax of two mills each year to raise a fund to pay the expenses of such improvement. The power and authority being given then the act points out the manner of exercising the power. It requires the commissioners to prepare "surveys and plans of said highway and the proposed improvement thereof showing any re-location, straightening, widening, extension or alteration thereof, together with Under the facts stated in the nature of a an estimate of the cost and expense of the special verdict, the proceedings required by same." The commissioners' application to the Act of June 26, 1895, P. L. 336, before permanently improve the road, with the a contract can be legally executed by the survey and plans and estimate of the cost county commissioners, were had and are and expenses, are presented to the Court of regular, and the "adjudication of approval Quarter Sessions and by it referred to the by the Court of Quarter Sessions and grand grand jury, in the language of the second jury' cannot be impeached in this court. section of the act, is to "certify their apThe Court of Quarter Sessions, which was proval to the court, if a majority of said the proper and only tribunal to do so, upon grand jury after a full investigation of the exceptions filed by certain taxpayers, passed matter shall approve the same." The court upon the regularity of the "approval by the then is to allow exceptions to be filed if any grand jury," and on July 17, 1903, filed a one interested desire to do so, and after final decree approving the application of the hearing, if it overruled the exceptions and commissioners to permanently improve this approves of the commissioners' applications, piece of road and ordered that said improve- is to make a final decree "ordering that said ment "be made and constructed in accord-improvement shall be made and constructed