
    *Beverleys v. Miller.
    Decided Feb. 4, 1818.
    a. Infants — Suits against — Defense by General Guardian — Effect. If a suit against an infant in the Superior Court of Chancery, be fully defended by bis guardian appointed by the county court, whose answer is received on his behalf, under the sanction and authority of the Superior Court; he must be equally bound by such defence, as if snch guardian had been, in form, appointed guardian ad litem: but if the suit abate as to such guardian, by his death, before the decree; a guardian ad litem ought to be appointed, notwithstanding all the testimony and accounts were taken before his death,
    a. Trustees— Accounts — interest—Money in Hand - Interest on. — 'Under the particular circumstances of this case, no interest was permitted to be charged against a trustee on the monies from time to time in his hands, and no commissions were allowed him for his troubles; but on closing-his accounts, interest was allowed on a balance in his favour.
    3. Same-Same — Charges-Commissions.—A charge by a trustee, for articles sold, and cash lent, before (he creation of the trust, ought not to lie allowed, without proof thereof by disinterest testimony.
    4, Same DisbMrsements — Evidence of. — Jt appears, from the decree in this case, that the point decided by Chancellor Taylor, concerning the evidence requisite to prove disbursements by a trustee, in execution of the trust, and as to disbursements made without the consent of co-trustees, were affirmed by the Court of Appeals.
    See 4 H. and M. 415, 423.
    Robert G. Beverley, having- greatly wasted his estate, in the year 1788 conveyed the remains of it, (which were still valuable,) to his father in law William Buckner, and his near relations William Miller and Robert B. Chew, in trust; — 1st, to apply the profits, or principal if necessary, towards the suitable, decent and proper support of himself, his wife and children, &c. ; 2dly. To apply the profits, or principal if necessary, to the payment of all his just and legal debts; and 3dly. the surplus to the use of such persons as he should bequeath or devise it to, or to his representatives in case of intestacy. — The trustees accepted the trust, and in a short time disposed of the whole estate, except a small tract of poor land, which rented for $50, and a lot in the town of Port Roj'al. Mrs. Beverley not having relinquished her dower in a valuable estate called Hazle-wood, and an estate sold by her husband; and the trustees being, (as was alledged,) unable to make a bemeficial sale of the said estate, without the relinquishment of her dower interest, entered into a contract with her, and certain trustees on her behalf, by which they agreed, in consideration of her releasing her said dower, to retain the sum of 13331. 6s. 8d. out of the tmrehase money of said estate called Hazlewood, invest it in property, and convey the proceeds to her trustees, for the support and maintenance of herself and husband, and their children, and the education of the children, and at the death of herself and husband to divide it among their children.
    '"All the trustees for a time acted ; but Miller and Chew, principally, until the death of Chew, which happened in 1791; and thenceforward Miller had almost the whole management.
    In the year 1797, Beverley died, having made a Will by which he devised the remains of the trust estate to be sold, and the money divided among his children, and desired that the accounts with his trustees should be speedily settled; and what was due from them, he bequeathed to his children. This will was admitted to probate; but no executor qualified, nor did any person take administration of his estate.
    The accounts of the trustees remaining unsettled, the widow Elizabeth E. Beverley, in Jan. 1803, on behalf of herself, and as guardian, mother and next friend of the said children, exhibited her bill, before the County Court of Caroline, against Miller, for a settlement of his account as surviving and principally acting trustee; stating the creation of the trust; alledging that the defendant had received large sums of money on that account; and that he, being a merchant, had mingled the same with the funds belonging to the mercantile companies of which he was a partner, and used them indiscriminately. Miller’s answer to this Bill, averred his readiness at all times to- settle his accounts, and admitted that probably, the money belonging to the trust might have been so mingled and used; but, if it was, it was without prejudice to the trust estate.
    In the same month and year, he exhibited a bill before the Superior Court of Chancery for the Richmond District, against Elizabeth E. Beverley, as widow, and executrix in her own wrong, and the children of the said Robert G. Beverley, (who were infants,) stating, in substance the foregoing facts respecting the creation of the trust, together with many details of the manner in which it had been executed; claiming a large balance to be due him, independent of an allowance for his trouble; stating the death of Robert G. Beverley; that no person had administered; but that his widow had taken possession of his whole real and personal estate; and praying that his account *as trustee might be settled; that the tract and lot of land, remaining of the trust subject, might be sold to pay such balance as might be found due him; and for general relief.
    No guardian ad litem was appointed for the infant defendants; hut, in December 1803, an answer was filed by Elizabeth E. Beverley, purporting to be, for herself, and as guardian of her infant children. This Answer stated, that the deed ot trust was executed by her husband in consequence of the importunity of his relations, and, among them, of the trustees, who professed to undertake the trust from motives of friendship only; that, if commissions had been hinted at, her husband would not have created the trust; that the remnant of the subject was of small value, much less than the claim of the plaintiff; that, if the said claim prevailed, the trust, instead of saving any thing .for the cestuy que trust and his family, would bereave them of the whole of his property, and only operate for the benefit of the trustees; that the trust had been greatly mismanaged; that the remaining land had been rented by the plaintiff, for ten years, to Thomas Miller his brother, for the small sum of $50 per annum; that the plaintiff had derived great advantages from the trust, having absorbed the money he received from it by debts which he paid off in goods from his store, and in goods at high prices sold to the cestuy que trust. She insisted that he ought not to be allowed commissions; especially on the 33331. 6s. 8d., the money that came to her, and was invested by her trustees. She denied that she had any assets of her husband’s estate; stating that he left but a few moveables, which were taken, after his death, by executions issued in his life time; that she never received any profits of the e,state of her. deceased husband, except the sum of £21. 4s. 6d., for rent, from Thomas Miller; that she never possessed the tract of land that remained unsold; &c. To this answer, there was a general replication.
    The suit instituted by Elizabeth E. Beverley, as aforesaid, in the County Court of Caroline, was, on Miller’s application, removed by certiorari to the Superior Court *of Chancery; after which, the accounts, between the parties in both suits, were referred to a Commissioner, who reported a balance, in favour of the trustees, of 461. 16s. HMd. ; having rejected claims on his part, to the amount of 1991. 3s. 2%d., as not sufficiently supported by evidence; excluded from the account a charge of commissions; and refused to credit the trust estate for interest on the sums that, from time to time, had been in his hands.
    Upon exceptions taken to this report, Chancellor Taylor pronounced the opinion and decree, in 4 B. & M. 415-423; whereupon, the Commissioner reported another Account, in which he incorporated the charge of commissions and the credit for interest, and allowed to the trustee credits, for sundry items, being a part of the sum of 1991. 3s. 2j^d. before rejected.
    The suits, having abated by the death of William Miller, were revived in the name of Thomas Miller his executor.
    The Chancellor, (being of opinion that the Commissioner had not correctly understood his directions respecting the manner and nature of the proof to support the claims for certain disbursements alledged by the trustee,) recommitted the report, to be reformed according to those principles.. Another Report was then made, by which all but one of the said disbursements (originally rejected,) were allowed, and, to each item, the proof in support of it was annexed, together with the principle on which it was admitted. To this Report, exceptions were filed; alledging that many items (particularly scheduled,) had been admitted, though not embraced by the principles laid down for his guidance by the decree, and unsupported by any satisfactory proof. These exceptions were disallowed by the Chancellor; the report was confirmed, and an order made, directing a Commissioner to state and report an account of the trust estate undisposed of, and in whose possession it was; and whether Robert G. Beverley left any other estate, and in whose possession it was. In execution of this order, the Commissioner reported, that the remaining trust subject was the lot and *land aforesaid; that it was in the possession of Elizabeth E. Beverley; that the land had been occupied fifteen years by Thomas Miller (the present plaintiff,) under a lease from Robert G. Beverley in his life time, at the rent of $50 per annum; that Mrs. Beverley had received, for rents of the land since the termination of Miller’s lease, $226 66; that it did not appear that Thomas Miller had paid the rents due on his lease; that the lot had been rented out by Mrs. Beverley, and the rents amounted to about $540, part of which she had received. To this Report the Beverleys excepted; because the rents due on Thomas Miller’s lease were not credited against the balance claimed, under former Reports, to be due to him as executor of William Miller; they insisting, that this credit should be allowed, unless it were shewn that the rents had been paid by him; so that the devisees of Beverley might have a credit for them, against the trustee, if paid to him, ov a claim against the widow, if paid to her.
    Mrs. Beverley having died, the suit abated as to her. The causes, being transferred to the Superior Court of Chancery for the Fredericksburg District, were again heard; and Chancellor Nelson, overruling the exceptions to the last report, decreed that, unless the devisees of Robert G. Beverley, or one of them, should, within a given time, pay to Miller’s executor the sum of 5491. with interest on 3391. 12s. 3*fefd., part thereof, from the 1st of January 1810, ’till payment, and the costs of the first suit, certain Commissioners should sell, on a credit of six months, the lot and tract of land aforesaid, or so much thereof as might be necessary to pay the said sum, interest, and costs, &c.
    From this decree, William, Henry and Maria Beverleys, the surviving defendants. apxiealed.
    
      
       Infants — Suits against — Appointment of Guardian Ad Litem. — it is right and proper that guardian ad litem should be appointed for infant defendants in ejectment at the proper time; and the plaintiff in such action should see that such guardian ad litem is appointed at the proper time, and the infant should appear and defend by guardian ad litem Campbell v. Hughes, 12 W. Va. 206, citing principal case as authority. See further, monographic note on “Infants” appended to Capertonv. Gregory, 11 Gratt. 505.
    
    
      
       Trustees. — See monographic note on “Trusts and Sureties” appended to Lee v. Randolph, 2 Hen. & Munf. 12.
    
    
      
       Same — When Liable for Interest on Money in Hand.— On the question as to when officers of the Court are liable for interest on money in their hands, see cases collected in foot-note to Hunter v. Spotswood, 1 Wash. 145.
    
   February 4th, 1818,

JUDGE} ROANE

pronounced this Courts’ Opinion.

The Court is of opinion, that, as Elizabeth E. Beverley, who defended this suit for her infant children, had been appointed their guardian by the County Court; and as her answer was received for them, arid full defense made, under the sanction and authority of the Chancery Court, "“"although she was not expressly appointed Guardian to defend that suit; they must be equally botina by that defence as if she had been in form appointed by the Court guardian ad litem. But, as the suit had abated as to her, by her death, before the Decree, and allbo’ all the testimony and accounts were taken before her death, yet a guardian ad litem ought to have been appointed before the decree was pronounced.

The Court is also of opinion, that the decree inn this case is further erroneous, in this; that, under it’s partícula" circumstances, no interest ought to be allowed on the one hand, or commissions on the other, except interest on the balance found due to the trustee; and that the charge of 181. 12s. 8d. for sundry articles sold and cash lent, from 1784 to 1787, with interest thereon, being before the creation of the trust, ought not to have been allowed by the Commissioner without proof thereof by disinterested testimony. The Court is also of opinion, that the rents of the real estate belonging to the trust fund, unless the same were paid to Robert G. Beverley in his life time, or his widow after his death, for their maintenance and the education of the children, ought either to have been collected by the trustee William Miller, and credit therefor given; or that fund, if not heretofore paid, by the Tenant or Tenants as aforesaid, either to the cestuy que trusts, or Trustee, ought now to be resorted to and applied, in the first place, to discharge the balance due the Trustee; in exoneration of the Band.

The Decree therefore, so far as it conflicts with this opinion, is reversed, with costs, and the residue jhereof affirmed; and the cause is remanded to the Chancery-Court to be finally proceeded in according to the principles above declared. 
      
       Note. This fact appeared, by an Exhibit in the record. — Note in Original Edition.
     