¶1 (On rehearing). Upon a rehearing of this matter we are agreed that the determination heretofore made on the appeal should stand, except as to interest. The defendant’s liability is predicated upon the fact that he did not procure a written order from the court before depositing the funds in the bank. The deposit was made in such manner that it drew interest, which, in legal effect, made the transaction an investment of the funds.
¶2 The estate profited by the transaction until the bank closed. Defendant’s liability is technical, as indicated in the original opinion in this case, and had he procured a written order from the court instead of an oral one, he would not be required to respond in damages.
¶3 The liability of defendant is founded upon the fact that he made the investment of the funds of the estate, and without authority; and the *177 conclusion, therefore, is that he should not have made the investment. In determining the extent of the damages sustained by the estate, it is necessary to ascertain what would have been the status of the estate if he had not made the investment. If the investment had not been made, the funds would not have earned any interest, in which circumstance the defendant would not be required to account for an item of that character. It logically follows, therefore, that defendant cannot be liable for interest unless founded upon some other basis or reason, and we do not find any other basis or reason in the record.
¶4 This is not a case where the guardian has negligently failed to invest the funds of the estate when he should have done so, but his liability is based upon his failure to account for funds received. His liability for interest, however, would exist after demand was made upon him for a return of the funds, and the first indication in the record of such fact is when the county court made its order and judgment requiring him to pay over the funds.
¶5 This case is remanded to the trial court with instructions to modify the judgment in accordance with this opinion, and, when so modified, the judgment is affirmed.