
    Amelia M. Whitney and Penelope A. Whitney, Minors, by their next friend, Robert Stewart, junior, vs. Minor M. Whitney.
    W. filed her petition in the probate court, charging that her guardian, who was also her father, was habitually addicted to intemperance; habitually used profane and obscene language in the presence of his family, and permitted others to do the same; that he was fickle and petulant, at times harsh to his children, and always cruel to his slaves ; was wholly destitute of business habits, wild, visionary, and reckless, in all his pecuniary schemes and transactions; was hopelessly insolvent, and wholly disqualified for the office of guardian; that he also suffered a member of his family to treat W. in a severe, harsh, and cruel manner; and the petitioner prayed that the letters of guardianship be revoked. The answer expressly denied the charges seriatim. Numerous witnesses were examined; some testified that W. was permitted to go thinly and uncomfortably clad, and had been seen with marks on her person, which were said to have been inflicted by her stepmother, the wife of her guardian; and that her guardian was not a fit or capable person to discharge the duties of his office; but most of the witnesses testified that the guardian was competent to perform the duties of his office, and was kind and affectionate to W. and dressed and educated her as well as his circumstances would justify: Held, that the petition should be dismissed.
    The chancery rule, that an account will not be decreed, except upon an apparent indebtedness, does not apply to cases of guardians, when called upon to render an account in the probate court; it is the duty of a guardian, under the statute, to render an account annually; and a general statement, that the proceeds of the property in his hands was about equal to the expenses incurred in its management, is not such a report-or account as is required by the statute.
    Error, from the probate court of Amite county.
    Amelia Maria Whitney and Penelope Angelina Whitney, minors, under the age of twenty-one years, by their next friend, Robert Stewart, junior, filed their petition in the probate court of Amite county, stating that their maternal grandfather, William Lowry, by his last will bequeathed to their mother daring her life, three slaves, named Chancy, John, and Zelia, to be equally divided at her death between the heirs of her body ; that their mother, Penelope Whitney, died about the 15th day of August, 1834, leaving petitioners the only lawful heirs of her body; that on the 27th day of February, 1838, letters of guardianship were granted by the probate court of Amite county to their father, Minor M. Whitney, of their person and estate; and on the same day he returned to the probate court an inventory of their estate, consisting of five slaves, to wit: Chancy, and her children, John, Dorcas, Malsa, and Ann, valued at two thousand nine hundred dollars ; that their father wholly failed to state any annual accounts as guardian, as required by law, or to make any report as to the management of the trust reposed in him, until the 28th day of June, 1842, and then he merely stated in substance that the use of the negroes was about equal to the support and maintenance of the lesser negroes and his wards; that their guardian had used and enjoyed the hire and services of the slaves, from the 15th day of August, 1834, down to the time of filing their petition, and the yearly hire of the slaves was worth at least three hundred dollars during all that time, amounting to the aggregate sum of two thousand four hundred dollars, exclusive of interest, all of which was in the hands of their guardian, wholly unaccounted for. Petitioners denied that their guardian, being their father, was authorized either in law or equity, to make any charge for their support and maintenance, without an express decree of the court to that effect, founded upon a just and true representation of his inability to maintain his children out of his individual property; that by the neglect and mismanagement of their guardian, four children, being the whole of the natural increase of their slaves, had died; and that they entertained a well-founded fear that ere they arrived at the years of maturity, their whole estate would be lost to them, if permitted to remain in the possession and under the control of their guardian. Petitioners charged that from a combination of causes their father was wholly disqualified for the office of guardian, either of their persons or property; that he was habitually addicted to intemperance; habitually used profane and obscene language in the presence and hearing of his family, and suffered others to do the same; his temper was fickle and petulant; at times he was harsh to his children, and always cruel to his slaves; was wholly destitute of business habits, wild, visionary and reckless in all his pecuniary schemes and transactions, and was notoriously and hopelessly insolvent. Petitioners stated that Amelia M. Whitney was in the fifteenth year of her age, and Penelope A. Whitney in her tenth year; that they did not charge that the ill-treatment of their father consisted in the commission of acts of cruelty, but rather in the omission of all the important duties of a father; they admitted, with filial pleasure, that their father generally manifested kind feeling, and something of a ■parental solicitude for their welfare, when uninfluenced by •others; that about four years before that time he placed Amelia •at a respectable female school in the town of Woodville, where her education and comfort were attended to for nearly two .years; but since that time her education and comfort had been wholly neglected, and she had been subjected to cruelty and ill-usage by their stepmother, the present wife of their father; that she was thrown into a' circle of society ill-suited to form her character in a proper mould, and at times she was so scantily furnished with clothing and other necessaries suitable to her age as to render, her situation humiliating in the extreme ; that Penelope was taken by her maternal aunt, Miss Martha Lowry, immediately after the death of their mother, and has resided with her ever since, her aunt defraying, out of her own means, almost the entire expenses of Penelope; that her father had .not paid for the education, maintenance and support of Penelope an average of ten dollars per annum. Petitioners further charged that their stepmother entertained towards Amelia the most embittered feelings; imposed on her the greatest hardships; had publicly slandered her character, heaped upon her the most opprobrious epithets, and used the most unfeminine means to injure her reputation and good name in society; and had threatened her publicly with still greater cruelties;'she had even threatened to have petitioners removed beyond the limits of the state, and the reach and protection of friends; and that means should be taken to strip petitioners of their property and place it beyond the hope of recovery. They further charged that so great was the influence of his wife and her family over their father, that he either secretly approved their conduct towards petitioners, or feared to oppose her will, and shrank from the performance of his plainest duties to petitioners. They prayed that Minor M. Whitney be made defendant, and compelled to account with them for their slaves and the hire thereof, with interest; that his letters of guardianship be revoked, and that some other more suitable person be appointed guardian of their persons and estate, and for general relief.
    Minor M. Whitney answered the petition, and admitted all the charges about his appointment as guardian, and the character and value of the estate of petitioners, but denied that the hire of the negroes was worth more than the taxes, physician’s bills, and other necessary expenses incurred in the support and maintenance of the negro children and petitioners; and he denied seriatim any charge of cruelty, ill-usage, neglect, unkindness, incompetency, insolvency, or threatened cruelty, made in the petition, either against himself or his wife.
    Numerous depositions were taken on both sides. Those taken on the part of the petitioners touching their treatment by the defendant and his wife, and the fitness and competency of the defendant to perform the duties of guardian of the persons and estate of the petitioners, proved in substance, that the, petitioners were sometimes very thinly and plainly, though always decently clad, that they were sometimes treated harshly by the wife of defendant; but that defendant never seemed to approve, and sometimes complained of such treatment; and that on one occasion, marks were seen on the person of Amelia, which were said to have been inflicted by the wife of defendant. One or two of the witnesses considered the defendant an unsuitable and incompetent person to perform the duties of guardian of the persons and estate of the petitioners; but several other witnesses considered him perfectly competent to do so ; that petitioners were not kept so constantly at school as some of the witnesses thought they ought to have been ; and once when Penelope was sick, defendant only visited her once or twice. In relation to the slaves, Joshua Ballard testified that he hired Chancy and Dorcas for the year 1842, and he considered them worth that year about one hundred and forty dollars, and John was worth seventy-five dollars; he also said he considered the defendant competent to manage his property advantageously. On cross-examination, he said, from his knowledge of Chancy and her children, having a child as Chancy did almost every year, he did not believe they would have hired during the years 1888, 1839,1840 and 1841, for more than their taxes, clothing, medical bills and support. William Jones proved that in 1842, John was worth eighty dollars, and that he considered the defendant a bad manager of property. William H. Spillman said that from 1835 to 1842, inclusive, Chancy was worth one hundred dollars per year; that in 1837, John was worth about forty-eight dollars, and from 1838 to 1841 inclusive, John was worth an average of sixty dollars a year; that from 1838 to 1842 inclusive, Dorcas was worth more than her support, but he could not say how much more she was worth ; he thought the defendant capable of managing property to an advantage. On being cross-examined, he said that Chancy, in 1834, would have hired for one hundred dollars, the hirer paying for the clothing, medical bills, taxes, and feeding of herself and her four children, all under seven years of age. Samuel B. Moore testified that in 1834, Chancy with her four children under seven years of age, would have hired for forty or fifty dollars; that from 1835 to 1842 inclusive, he believed Chancy, with her children, was worth forty or fifty dollars per year, the hirer feeding and clothing her and her children, and paying their taxes and doctor’s bills; that in 1835, John was worth about twelve dollars above ordinary expenses; in 1836, he was worth about twenty dollars; in 1837, thirty dollars; in 1838, forty dollars; in 1839, he hired for twelve dollars per month ; in 1840, he was worth fifty dollars ; in 1841, sixty dollars ; and in 1842, he hired for eighty dollars; deponent considered the defendant capable of managing his own business. On being cross-examined, he sai-d Chancy and all her children would have hired for forty or fifty dollars a year, since 1834, the hirer paying all their expenses, including taxes and physician’s bills. O. W. Caulfield said he considered Chaney a valuable woman ; but, in consequence of her having children so frequently, she was not as serviceable as she would otherwise have been. Being cross-examined, he said he was the family physician of the defendant, and he knew there had been a good deal of sickness in the family; that Mr. Whitney paid him for medical services, in 1835, sixty dollars; in 1836, thirty dollars; in 1837, thirty dollars; in 1838, eighty-four dollars; in 1839, thirty dollars; and in 1841, fifty dollars; that a considerable portion of his services were bestowed upon Chancy and her children, but he did not think one half of his services were bestowed on them. The defendant also read numerous depositions. George W. Lowry testified that the defendant had always, so far as he knew, exhibited the most parental and affectionate treatment towards the petitioners,. Amelia and Penelope, since the death of their mother; that he-always manifested every solicitude for their interest and welfare; that when sick, Dr. Caulfield or Dr. Cadwander was always employed to attend them; deponent knew Chancy and her children, and he supposed the expense of maintaining and-supporting the smaller negroes about equal to the hire of the larger ones. On cross-examination, he said he knew the defendant had paid Dr. Cadwander for medical attention to Amelia and Penelope, twenty-five or thirty dollars, and he had also paid bills to Dr. Caulfield, but deponent did not know how much. Ezekiel Boatner testified that in 1836, he resided in the-family of defendant, and knew the slave Chancy, and frequently saw her children, and he did not believe they were then worth more than their support; he considered the expense of feeding and clothing and raising a negro child, from its birth till it arrives at ten years of age, about twenty-five dollars a year; that a negro woman with a suckling child, during the years 1835, 1836, and 183?, would hire for forty or fifty dollars a year less than a woman without one; that the defendant as far as he knew, always treated his slaves kindly and well, On cross-examination, he said he considered the slaves always suitably clothed by the defendant; that he did not think Chancy worth more annually than the support of her children; and he believed the defendant capable of managing and taking care of his property. John C. Anderson testified that he was frequently at defendant’s house in 1835, 1836 and 1837, and was his partner in 1838, and he never knew Amelia to be mistreated; she was always dressed as well, and he sometimes thought better than the circumstances of defendant would justify; that he always thought the defendant treated his slaves as well as they deserved to be treated ; they had plenty to eat and wear; from 1835 to 1842, he considered John worth an average of fifty dollars per year; that during the same years he did not believe the hire of Chancy and John would more than pay the expense of feeding, clothing, and raising Chancy’s children ; he considered all the children except John a dead expense; the expense of clothing, feeding and raising a child under seven years of age, he thought was about thirty-five dollars a year. On cross-examination, he stated that he considered the defendant capable of managing his property to an advantage, though he did not do so; he thought defendant would do justice to his own children, and administer their property honestly, though deponent would not have chosen the defendant as a guardian for his children. Jane Williamson testified that from 1835 to 1842, she had been very intimate in Mr. Whitney’s family, sometimes residing in the family as long as eighteen months without leaving, and she never saw Amelia ill-treated, or heard that she was, and if she had been, deponent believes she would have heard of it; Amelia went to school the greater portion of the time, and was always very comfortably and well clothed. Eliza Cox proved substantially the same as Jane Williamson. T. G. Cowdin testified that he was a prac-tising physician, and in 1841, visited and prescribed for Chancy and four of her children, at the request of the defendant, and was paid twenty-four dollars for his services by the defendant. On cross-examination, he said that he did not think he was the only physician who practised in the family of defendant, in 1841, though when defendant would leave home, he always requested deponent to attend his family, should any of them be taken sick; that he considered Chancy a very valuable aud serviceable woman, and she was not often sick; he did not know whether defendant was a suitable person to act as guardian of minors, or not; but deponent would not select him as guardion.for his children. Thomas W. Pound and George W. Rudd, each proved that Amelia had, at different periods, been a pupil in their respective schools, and she always appeared to be as well dressed as the other girls in the school.
    Upon the foregoing pleadings and evidence, the cause was submitted to the court, and at the May term, 1843, a decree was rendered, dismissing the petition. To reverse that, this writ of error is now prosecuted.
    
      Smiley and Lowry, for plaintiffs in error.
    It is contended that the court of probate erred,
    1st. In not compelling defendant to state an account as required by the 128th and 133d sections of the orphan’s court law. (Revised Code, p. 66 and 68.)
    2. The probate court should have removed defendant as guardian of complainants, and appointed a new guardian. (Revised Code, sect. 129, p. 67.)
    The probate court law requires guardians to state detailed accounts annually. In this instance the law has not been complied with, and it was the duty of the probate court to compel the statement of an account and remove the guardian.
    The father is bound to support his children, and cannot use their separate properly for that purpose except by special order of the court. 2 Kent, 190.
    The guardianship of children may be taken from the father when he neglects or ill-treats them.
    
      McKnight, for the defendant in error.
    There are two errors assigned by complainants why the decree of the probate court should be reversed.
    
      1. As to the first assignment of errors; the bill of the complainants seeks to compel defendants to account for the hire of complainant’s slaves from the death of their mother in. 1834, previous to defendants becoming their guardian by appointment of the probate court, as well as for their hire since. From the bill, answer, and deposition, it appears that at the time of the death of Mrs. Whitney, the slaves descending to complainants were Chancy and her four children. It also appears that since then Chancy has had several other children. The testimony, when examined and collated, conclusively shows that the yearly expenses of maintaining these children of Chancy has been equal to her yearly hire, ever since the death of Mrs. Whitney, up to the time of the filing of complainant’s bill. This is positively averred in the answer of the defendant. The guardian account of defendant, rendered in June, 1842, states this fact, and should be considered in reference thereto. Why then should the probate court have compelled the defendant to account? No indebtedness appeared to exist against defendant for the hire of the slaves of complainants. A decree to account should not be made unless an indebtedness appears. 1 Howard, 312.
    2. As to the second assignment of errors: it does not appear either by the bill or in the depositions that the defendant had been summoned by the probate court to state a guardian account, which he refused to do. The 129th section of the orphan’s court law referred to, requires the court to issue a summons to any guardian who neglects to state an annual guardian account, and if after being summoned, “ he remain in default, his bond shall be put in suit and a new guardian appointed.” It is not pretended that Whitney had been summoned by the court to state an account and “ he remained in default;” The bare fact of a guardian not stating an account annually, it is presumed is not of itself a sufficient cause to authorize 'the probate court to revoke his letters.
    The guardian in this case has not pretended to use the separate property of his children, in their maintenance. His guardian account, stated in June, 1842, when considered in connection with the testimony, cannot be tortured into a charge against complainants of that nature.
    The guardianship of children will not be taken from the father, unless he be guilty of gross immorality and ill-treatment. 2 Story’s Eq. 574.
    The court will not deprive a father of the custody of his child for immorality on the part of the father, unless misconduct on his part is shown with reference to the management and education of his child. 2 Eng. Cond. Ch. Rep. 299.
    The charge of immorality and ill-treament in the' bill, is denied in the answer, and completely negatived by the testimony. See the testimony of Anderson, Miss Wilson, Mrs. Cox and others.
   Mr. Justice Thaohee

delivered the opinion of the court.

This was a petition in the probate court of Amite county, filed by wards against their guardian to compel him to account, and for a revocation of his letters of guardianship. The petition sets forth that the grandfather of the wards had devised certain slaves to their mother and to her children after her death; that the complainants are the only surviving children of the mother, who died in 1S34; that the defendant, who is the father of the complainants, obtained letters of guardianship over the wards in February, 1838; that the slaves had been and remained in the hands of the defendant since the death of their mother,- and that the defendant, from his character, habits, and conduct, was unfit to be entrusted with their guardianship. The petition, besides a prayer for specific relief in the premises, contains a prayer for such relief as the nature of the case may require. The probate court, upon bill, answer and depositions, decreed the dismissal of the complainants’ bill, and hence the cause is here upon a writ of error.

Upon a close examination of the evidence disclosed in the record, this court can see nothing to warrant it in disturbing the decree below so far as the charge of the unfitness of the defendant to discharge the duties of a guardian are concerned. The serious charges of the complainants in their petition are explicitly denied in the defendant’s answer, and there is a failure in the attempt to support them by evidence.

But upon the subject of the prayer for an account, this court is inclined to a different conclusion from that arrived at by the probate court. It is the duty of the guardian once in every year at least, to exhibit to the probate court an account of the product of the estate of the ward. H. & H. 337, § 7. The petition in the present case operates to summon the guardian into court to render his account, and it is upon his answer to that petition that he seeks to be relieved from rendering an account. The ground upon which he depends from being compelled to account is that there is no indebtedness between him and his wards, and this it is that constitutes the real inquiry in the cause.

The record shows that upon the 28th day of May, 1838, the defendant delivered into the probate court his inventory of all the estate of complainants, consisting of the following slaves, to wit; Chancy, aged twenty-seven years, valued at $1200; John, eleven years, valued at $600; Dorcas, six years, valued at $450; Malsa, four years, valued at $400 ; and Ann, nine months, valued at $250. At the June term, 1842, the defendant made a report to the probate court, in which he states that since the May term, 1838,-the services of the slaves had been about equivalent to the expense of the support of the younger slaves, and of the maintenance of the wards. This is an admission of the defendant that for a period of a little more than four years, the product of the slaves of the complainants had been equal to the expense, of the maintenance of the complainants, as well as for the support of the younger children of the slave Chancy. The evidence contained in the depositions upon the subject of the yearly value of the family of slaves, although to some extent contradictory, shows sufficiently that their value was greater than the expense of their keeping. John Ballard, witness for complainants, testifies that Chancy and another slave not the property of complainants, were worth $140 per year in 1842, and John $75 per year, but he testifies that in the years 1838,1839,1840, and 1841, Chancy and her children could not have been hired for move than their support, clothing, medical bills and taxes. William Jones, another witness for complainants, testifies that the boy John was worth $80 per year in 1842. William H. Spillman, another witness for complainants, testifies that Chancy was worth $100 per year from the year 1834 to 1842, and that John was worth $48 per annum in 1837, and in the years 1838,1839,1840 and 1841, $60 per annum. Samuel B'. Moore, another witness for complainants, testifies that Chancy and her children, from 1834 to 1842, would net in value $30 or $40 per annum, and that the defendant acknowledged to him that in 1839 John was worth $12 per month. He testified also, that in 1838 John was worth $40, in 1840 $50, in 1841 $60, and 1842 $80. Elijah Baxter, a witness for the defendant, testifies that Chancy and children were not worth more than the cost of their support, &c. in 1836 and the two previous years. John C. Anderson, a witness for the defendant, testified that upon an average, John was worth $50 per annum from 1835 to 1842, and that during that time, the family of slaves, with the exception of Johp and Chancy was an expense rather than profit. Mrs. Eliza Cox, a witness of defendant testifies that Chancy was the principal cook in the hotel establishment of the defendant. Dr. T. G. Cowden, a witness of defendant, testifies that the defendant paid him $24 for medical attendance upon the slaves in 1841. He testifies that Chancy is a valuable servant. The testimony of Dr. O. W. Caulfield, a witness for the defendant, upon an analysis, shows that the defendant paid him from the year 1835 to 1841 for medical attendance upon the slaves an average of not quite $21 per annum. The foregoing extracts from the depositions of the witnesses contain the chief evidence respecting the annual value or product of the slaves, and upon a review of it, it is obvious that the position assumed by the defendant that no indebtedness in point of fact exists from him to his wards is not substantiated. It may be observed here, also, that the principle that holds in chancery that an account will not be decreed except upon an apparent indebtedness, does not apply in a case of this kind in the probate court. The statute makes it the duty of a guardian to render an annual account.

We are inclined therefore to hold, in this case, that under the prayer of the complainants for such further relief as the nature of the case may require, and upon the law and the evidence, the probate court should have decreed an account- against the defendant from the time of his grant of letters of guardianship. The statement filed by the defendant at the June term, 1842, of the probate court, can be received merely as a bare statement, and not such a report as is required by the statute.

The decree of the probate court is therefore reversed, and the cause remanded to that court with directions that the petition and cause be there re-instated,. and an account decreed as above.  