
    JENNIE W. HOLTZMAN, A MINOR, BY JOSEPH J. COOMBS, HER NEXT FRIEND, vs. STEPHEN D. CASTLEMAN, JAMES Z. CASTLEMAN, HENRY B. CASTLEMAN, AND ELLA CASTLEMAN.
    In Equity. —
    No. 3892.
    The law mates it the duty of a father to maintain his minor children: but when a minor has a separate estate, the father, as natural guardian, has a right to apply so much of the income therefrom as may be necessary to defray the expense of giving to his said minor child a good education; and a court of equity, in stating his account, will allow him a reasonable credit for such expenditure, and will further allow him a credit for whatever portion of such income he has beneficially ax>plied to the support of such child during the period of minority. Under the circumstances of this case interest is to bo computed only from the commencement of the suit.
    STATEMENT OE THE CASE.
    The complainant, Jennie W. Holtzman, is the daughter of the principal defendant, Stephen D. Castleman, and wife of William F. Holtzman. The other defendants are her brothers and sister, who are merely formal parties; for no relief is asked against them, and they expect no advantage from this action. The complainant and her brothers and sister are the only heirs at law of one Thomas Cookendorfer, their maternal graádfather, who died in 1861, leaving an estate consisting principally of real property. • The said grandchildren were at that time minors, under the care of their father, the said Stephen D. Castleman, who received letters of administration and took possession of all the property, which he continued to hold until May, 1871, during which time he received the rents and profits, but has never rendered any account in his capacity of adm inistrator. The complainant prays an account of the rents and profits, and for a decree for her share. The defendant Stephen D. Castleman claims to have expended all he collected as administrator in payment of debts, funeral expenses, and in the support of the widow of the deceased, and the heirs at law, his said children; and. further, he says that he accepted the care of the estate at the request of the widow, and because he thought it would be for the interest of his said children; and that after the debts were paid, there being no person interested in the estate except the widow and his children, he did not deem it necessary to render periodical accounts to the probate court, but used the entire proceeds, rents, and profits from the estate for the benefit of the widow and heirs.
    He denies that he has refused to account with complainant, or that she has frequently applied for it; says he has but one account-book, showing his receipts and expenditures, which he will produce. He further says that the intestate, with his family, three in number, came to live with him in 1845, and so continued until Oookendorfer’s death, in 1861; that, during that time, they paid him nothing for their maintenance; that, during the life-time of Cookendorfer, he knew nothing of his affairs; that, upon his death, he took charge of the real estate and continued to rent it to the best advantage, and collected the rents, except some unavoidably lost, until May 1, 1874; that the intestate’s widow continued to live with defendant until her death, August 30, 1866, during which time he supported her from the rents of the estate; that the whole amount received by him has been expended in the support of plaintiff and her brothers and sister; that plaintiff’s coheirs have not demanded an account, nor "did she until after her marriage, which was against his wish; that afterward she agreed to submit all differences to umpires or arbitrators, and that while preparing his accounts he was notified by plaintiff’s husband that one of the arbitrators refused to act; that he is ready, to account in the proper court to the best of his ability, but craves allowance for all necessary and proper costs and disbursements made about the said estate and for the intestate’s widow, and about the maintenance, education, and care of plaintiff.
    The ease was then referred to the auditor to settle the accounts between the parties, and November 29, 1875, he filed his report and the testimony of the witnesses. The auditor charged a balance in favor of the complainant of $14,750.27, as one-fourth part of an aggregate of $59,001.09. In his report he charged the defendant with each separate payment made to him by the tenants who occupied the premises belonging to the estate, and also with interest on each of said payments from the date he received the same to December, 1875. The total interest, calculated as above, amounted to $21,756.45. The report credits the defendant with all moneys paid by him, and with interest thereon up to. same date.
    The auditor disallowed the claim made by defendant for the living furnished his father-in-law, Thomas Oookendorfer, and his family, during the years they resided in defendant’s family, as well as the claim for the support of the widow after Oookendorfer’s death, and also the claim made for moneys voluntarily expended by defendant in the care, maintenance, support, and education of plaintiff during her minority.
    Upon exceptions being taken, the justice holding the special term decreed a correction of the report, and reduced the amount of complainant’s share to $8,239.63, and then allowed a credit to defendant for the support, maintenance, and education of complainant during the time she lived with her father, amounting to $3,500, leaving a balance due complainant of $4,739.63.
    The testimony showed that the property consisted of houses and lots, which were rented, and that the collection of rents was attended with considerable trouble and some litigation. That complainant had received the education of a lady, and had never been called upon to perform any service for her father. It also appeared that the defendant was possessed of considerable means, one witness testifying he estimated him to be worth $50,000. This opinion was not based on actual knowledge. The defendant was engaged in the business of burning lime, and all' he had acquired was made by his own industry and good business habits. The estate had been properly cared for, and was ready to be turned over as the court might direct. Every portion of it had been preserved for the heirs.
    The court disallowed the item of interest in the auditor’s report, and allowed to said defendant the sum of $3,500, for expenditures in the support and education of the complainant. These are the only portions of the decree necessary to state in order to understand the decision.
    February 17,1870, the plaintiff appealed from so much of the above decree as adjudges the defendant' Stephen D. Castleman not liable to the payment of interest on the moneys collected by him as guardian of the plaintiff, and strikes from the report of the auditor the several items of interest there charged against said defendant; and also from so much of the said decree as allows to the saidS. D. Castle, man the sum of $3,500 for expenditures in the support and education of the complainant from the death of Thomas Cookendorfer to the date of her marriage.
    March 6,1870, the defendant S. D. Castleman noted an appeal from so much of the decree as confirmed the auditor’s report in part.
    
      Birney & Birney for complainants:
    1st. The defendant is certainly to be charged with simple interest, and it is not certain that he is not liable to payment of compound interest.
    It is well settled that where an executor, guardian, or other trustee mingles the trust-fund with his own, or uses it in his private business, or neglects to invest where it is his duty to do so, or neglects to settle his account for a long period, or to distribute where necessary, he is liable to interest.
    Hovenden on Frauds, p. 431,434; Hill on Trustees, p. 374, and note; Diffenderfer vs. Winder, 3 G. & J., 341; Jacob vs. Emmet, 11 Paige, 142; Kellett vs. Rathbun, 4 id., 102; Spear vs. Tenkham, 2 Barb. Ch., 211; Miller vs. Beverly, 4 Henn. & M., 415; Lyles vs. Hatton, 6 G. & J., 122; Turney vs. Williams, 7 Yerg., 172; Griswold vs. Chandler, 5 N. H., 497; Jennings vs. Jennings, 22 Gratt., 313; Latimer vs. Hanson, 1 Bland, 51; Vanderheyden vs. Vanderheyden, 11 Paige, 520; Fridge vs. State, 3 Har. & Gill., 105.
    The whole testimony in this case shows conclusively that the guardian mingled the trust-fund with his own, used it in his private business, and neglected for fourteen years to give any account of his receipts and expenditures, doing so then only when compelled to do so by the court.
    
      
      2d. The court erred in allowing the defendant $3,500 for the support and education of the plaintiff.
    The defendant is the father of the plaintiff, and a man of wealth. As such he was, under the law, bound to maintain the plaintiff from his own estate. He could not divert any part of the plaintiff’s estate to her support and education, except upon order of the probate court, made upon proper cause shown. A parent will not be permitted to avoid the duty cast upon him by the law of supporting his own children, unless he shall first gain the consent of a competent court to the application of part of their own estate to their maintenance.
    Courts are jealous of the rights of infants. 2 Story’s Eq. Jur., sec. 1346; Griffith vs. Bird, 22 Gratt.,73; Harlan’s Accts., 5; Rawle, 323; Van Valkenburgh vs. Watson, 13 Johns., 480; Dupont vs. Johnson, 1 Bailey’s Ch., 274; Addison vs. Bowie, 2 Bland, 606; Reeves’s Dom. Relations, p. 324; 1 Blackst. Com., 449, note; Tyler on Infancy and Coverture, top page 289, et seq.; In re Kane, 2 Barb. Ch., 377.
    Until this suit was instituted, the guardian had no intention of charging the plaintiff for her support. This is well proven by the simple fact that he kept no account against her for materials from which to construct one.
    3. In view of the evidence, the claim made for compensation by the defendant is a monstrous one.
    The defendant collected nearly $50,000 during a period of nearly fourteen years, most of which he invested in a business which ultimately made him wealthy.
    He now lays claim, first, to all the profits of his collections— %. e., the interest; second, to all the principal, because he did what every good citizen is bound to do, and supported his children; and, third, to some further and indefinate sum for his services in collecting the money, which he afterward used as his own.
    Where a guardian or other trustee acts improperly in the execution of his trust, no compensation will be allowed him. Jennings vs. Jennings, 22 Gratt., 313; Hilton vs. Hilton, 2 Ves., 547; Hovenden on Frauds, p. 460; Test Law of Maryland, p. 103, note.
    The defendant was a wrong-doer from the first, and his acts •should be closely scrutinized.
    
      A guardian by nurture or by nature has no right to the possession of the real estate of his ward; his trust respects, only the person and education of the ward. Bingh. on Inf., 177; Jackson vs. Combs, 7 Cow., 36; 1 Blackst. Com., 452 ; Miles vs. Boyden, 3 Pick., 213; Hyde vs. Stone, 7 Wend., 354.
    James G. Payne, for defendant S. D. Castleman, cited:
    Hill on Trustees, 375, 524; Tyler on Inf. and Cov., 291 et seq.; 2 Story’s Eq. Jur., sec. 1345; 3 Lead. Cases in Eq., 265 to 278; 2 Barb. Ch., 377; 4 Sandf. Ch., 417.
   Mr. Justice Humphreys

delivered the opinion of the courts

We are not advised how the chancellor could have allowed a larger or greater sum. We think that he did equity in full to complainant as far as the record discloses. It was-his duty to find from the evidence facts satisfactory to the mind upon which to base a decree. The record discloses no» fact that is sufficient to'operate upon our minds as an inducement to interrupt the decree by way of charging the defendant with any greater burden than the justice has done. The father, the defendant, has preserved the corpus of the real estate, and there is no evidence that there was any personal property more than sufficient to defray the expenses of the intestate. There is no evidence from which it. would be equitable to draw - a conclusion that the father had not managed the small income for his children in the best mode that could have been done. He sent his daughter to school, giving her “ the best schooling in his reach.” Yet he preserved the body of her maternal patrimony. He says that he would not have been able to give her the advantages she received but by applying the proceeds of the rents of her grandmother’s patrimony. There is no evidence to contradict this statement of his. The child has received the benefits of the property, and still has the body of it left. A court of equity is often called upon by guardians for permission to sell and finally dispose of the corpus of a ward’s estate for its support and maintenance. Yet we have, in this case, the instance of a charge being loosely made, unsustained by proofs, that large incomes were derived front the property, when the child has received the benefits of association with intelligence and intellect, virtue and refinement, and elevating ideas, as far as the schools can confer these blessings, and after settling down in life, she has a house left into which she can invite her husband to make it his abiding place. A father is in duty bound to support and maintain his children. This is a duty relative to circumstances. He is also entitled to their services. He is only bound to keep them from want for the actual necessaries of life. Whatever may be the fortune of a father, no court could send its mandate into the home castle to regulate the expenditures of the family. Society regulates itself, however. The natural affection of parents will induce them to expend their incomes upon the parts of themselves. The father, in this ease, says that he did not have the means to give his children the advantages of expansion, and he was forced to use their own funds if they received these advantages. We have already intimated that a court of equity would have caused a guardian to part with the body of the separate estate, if necessary, to give to the ward the benefits of education, according to the circumstances of the application. It would have acted in loco parentis. But here the parent acted better than the court would have done. He has preserved the corpus of the estate of his children; and says that his intention has always been to hand over to his children their property at their majority, clear of cost to them, although the cost of their maintenance ■exceeded their income. This is the character of a guardian that a court of equity will always delight to intrust with a small estate. There is nothing in the testimony to cast a shadow of doubt over the entire correctness of this statement. The fact is that he is doing what he says has been his intention. The chancellor having found the fact that there is a balance due the complainant of 84,769.63, we see every reason not to increase the charge against defendant. Some members of the court think that no interest ought to be allowed on his balanceas found; while others are of opinion that it should be. We have come to the conclusion to affirm the decree with the modification of allowing interest on the ascertained balance from August 28, 1874, the time of exhibiting the bill of complaint.

Counsel will please draw a decree in accordance with this opinion.  