¶1dissenting. — I dissent and would order an account to be filed.
¶2Respondent received the fund of $2,439.18 on April 29, 1929. On May 2,1929, it invested $2,300 in three omnibus mortgages, and ón June 17, 1929, it invested $100 in another. Petitioner became of age on February 22, 1930, less than 10 months later. The petition avers that these assets could have been converted into cash on or prior to that date. The answer, whose averments are to be taken as true, denies they could have been converted “without loss prior to February 22, 1921.” Despite the double typographical error, I assume the date refers to the date in the corresponding paragraph of the petition, 1930.
¶3*621There is no averment of when these mortgages fell due, but they were foreclosed on August 20,1932, October 20, 1932, and December 30, 1935, the largest participation being in the mortgage last mentioned. One participation, for $100, was sold without principal loss on August 23, 1932. On March 25, 1935, respondent sold for $341.94 petitioner’s interest of $636.44 in the mortgage which had been foreclosed on August 20, 1932. In addition to this loss of $294.50, the fund was charged with foreclosure expenses totaling $214.84, a final loss of $509.34.
¶4As the mortgage which carried the fund’s $1,600 participation was not foreclosed until 1935,1 take it, in the absence of any averment in the answer, that the maturity of the mortgages and the maturity of petitioner had little to do with each other, and that a short-term investment was made in a comparatively long-term security.
¶5When petitioner signed the release in 1936, he received $65.97 in cash and participations, still unliquidated, in two of the original mortgages, their book value being stated as $1,878.40.
¶6This release was prepared by respondent. Twice in it there is a statement that the account is not to be filed in this court. The answer admits that petitioner received only $358.82 in income throughout the period of the trust. It admits respondent was in frequent communication with petitioner’s attorney and prepared accounts, only one of which it avers he signed.
¶7I do not face this case as I would a request to surcharge. Were I the auditing judge, I might find that respondent has done the best it could and should not be blamed for the collective judgment of the pre-depression world which hindsight now shows to have been ill-advised. Nor do I quarrel with the law of the majority opinion: a release is a release, unless there is fraud, accident or mistake, especially when signed by a person 27 years old.
¶8I am unwilling, however, to dismiss on petition and answer the case of a ward in chancery. This court exists *622to look after his interests, and our conscience should automatically incline towards giving him a day in court, not towards denying it to him preliminarily for reasons which concern the merits more than his right to be heard. I want to hear him and his facts, and thereafter speak to the merits and apply the law, which now appears to be against him. As a court of equity, our ears should be long and patient. He has said that the account is “improper and incorrect”, and that is enough to suspend my judgment until I have listened to him.
¶9Furthermore, I am surprised that respondent’s conscience did not automatically incline towards a free and voluntary disclosure. The fact that it had trouble with its cestui que trust should be enough to make it want to have all the facts aired, and I cannot regard with sympathy any fiduciary who, with the history of this account behind it, relies upon the technical safety of a release which it prepared, containing express provision that the account should not come under our scrutiny.
¶10I do not imply that an account should be filed in the case of every minor who reaches maturity: it would entail needless and heavy expense for many. Where, however, there is dissatisfaction on the part of the beneficiary, or where there is doubt arising out of the character of the investments or the management of the trust; fiduciaries should voluntarily seek the open air. Respondent has consistently followed the opposite course in this case, and I want to hear not only the side of a ward of this court who says he has been dealt with at arm’s length, but the tardy explanation of a trustee whom we appointed to protect his interests.
¶11It must be remembered that under section 59 (j) 8 of the Fiduciaries Act of June 7,1917, P. L. 447, it is mandatory on a statutory guardian to file an account without demand when his ward matures, unless there is an agreement between them: Giese’s Estate, 119 Pa. Superior Ct. 232, 236; Phillips’ Estate, 119 Pa. Superior Ct. 241.
¶12*623In Giese’s Estate, supra, the court said:
¶13“It has frequently been held that, where a ward makes a settlement with his guardian, after becoming of age, he cannot later compel the guardian to account in the absence of a showing of mistake or fraud in the settlement.”
¶14This petitioner has alleged that the account was “incorrect and improper”, and I am not disposed to dismiss him peremptorily because he has not filed a replication to an answer which simply denies his allegation and pleads the release. If this procedure is indicative of a practice among fiduciaries, I think it is high time to treat such agreements strictly, with a presumption in the ward’s favor, and to incline toward the mandatory requirement of the act.