ESTATE OF EDWARD WILLIAMS. 29

solved. It is said, that though the credit did not expire until
1842, and the payment of the money due by the purchasers
could not of course have been compelled earlier, yet still the
rights of the parties might have been settled sooner, and the
amount due the wards ascertained. But suppose this had been
done, would the uncollected money due from the purchasers
have been considered in the hands of Selby as guardian, until
an order of court has passed authorizing him to receive it in
that character ? The Chancellor does not think so.

If, indeed, Selby had received this money, either after or be-
fore it was payable and had charged himself with it as guar-
dian, it may be that upon the principle, that the court will sanc-
tion when done, that which upon application would have been
ordered to be done, he would be regarded as holding il in that
character. But he did not so charge himself, and if we are to
credit his deposition taken on the part of Watkins, he did not
intend so to charge himself except upon terms which have never
been complied with. It seems to the Chancellor, that if the
transmutation insisted upon by the counsel for the sureties in
the trustee's bond, has been effected by operation of law, then
it follows, that not only is the sum of $2011 in the hands of
Selby as guardian, but the residue of the purchase money must
be in his hand in the same character.

There is, however, another view of the case in which I am of
opinion, the sureties in the bond given by Selby as trustee,
must be held responsible, at least to the extent of a fair rateable
proportion of the property mortgaged to them as an indemnity.
Indisputably at the date of that mortgage—the 1st of October,
1843—which was after the receipt of the money by Selby, he
and the mortgagees considered him as occupying the position of
trustee with reference to this property, and liable for it as such.
No such idea as a legal transfer from trustee to guardian was
. entertained then, but both mortgagor and mortgagees thought
that the risk continued; and for that risk the indemnity was
provided. The object of the deed, as the court thinks, was not
merely to indemnify the sureties in the bond of the trustee, but
to secure the payment of the money which he had received in
3*