
    
      Williamson’s Ex’or v. Howard.
    May, 1843,
    Richmond.
    (Absent CAbeel, P., and Brooke, J.)
    Guardian and Ward-Accounting — Setting Up New Claim In Appellate Court.* — The administrator of an intestate is also guardian of one of the distribu-tees. Upon the termination of the guardianship, a bill is filed against the guardian and his sureties, to recover what is due upon the guardianship account. An amended bill is afterwards tiled against the administrator and his sureties, to recover what is due on the administration account. Reports are made of both accounts. But, for reasons appearing to the court, the guardianship account is recommitted ; and then, by consent of parties, the administration account is also-recommitted. A further report is made upon the guardianship account, and none upon the administration account. Whereupon the cause is heard as to the guardian and his sureties, upon the further report so made, and a decree is entered against them for the sum deemed by the court to be due upon the guardianship account. From this decree an appeal is taken by a party interested to get rid of or reduce the amount. In the appellate court it is urged by the appellee, that the balance stated as due on the guardian’s account should be augmented, by incorporating in it the appellee’s share of the balance due on the administration account. Heed, this claim cannot be sustained : 1st. because the case was heard and the decree rendered between the parties to, and on the claim made by, the original bill for the settlement of the guardianship account, as con-tradistinguished from the administration account, the settlement of which was sought by the amended bill: 2dly, because the case was not prepared for hearing as to the administration account; it standing, as to that account, on a consent order recommitting the same, and the record of course furnishing no account on which a definite charge or decree in respect to the administration account could he made: 3dly, because no claim tras made in the court below by the appellee, to bring into the guardianship account any charge against the guardian arising out of the administration account.
    Appellate Practice — Affirmance of Decree — Costs.— Slaves conveyed by deed of trust to secure what may be due from the grantor as guardian, are afterwards attached by a creditor of the grantor, and under the attachment are sold, subject to the prior lien of the deed of trust. In a suit by the ward, a decree is made for the sum due upon the guardianship account, and the decree directs the trustees to retain the slaves until the 40 amount *of the decree is satisfied, and then to surrender them to the purchaser at the sale under the attachment. On an appeal by the purchaser, the objection is taken that the decree ought to have provided for the sale of the slaves, so that out of the proceeds the amount of the decree might be paid, and the surplus paid to the appellant. I-Iedd; the appellant has no right to have the decree reversed for this cause, but the sam e should be affirmed, with the addition thereto of a decree for the sale of the slaves; and the appellant should be decreed to pay the costs.
    Same — Same—Excessive Charge for Board and Clothing. — Case in which it was considered in the appellate court, that a guardian, who had been culpably in default in failing to render any account of his receipts or disbursements, was allowed by the court below more for the board and'clothing of his ward, than he was entitled to; but as a particular sum payable by the ward had not been charged in the court below, it was deemed best to consider that as an equivalent for the excess of the charge for board and clothing, and (saving the parties the delay and expense of restating the guardian’s account) to terminate the case by affirming the decree'.
    Joseph Mosby died about the year 1808, leaving- a widow, Buoy Mosbyr, and three children, Robert W., Raney, and Judith. The widow and her son Robert administered on the estate.
    On the 18th of November 1812, Raney having in the mean time married Jesse Owen, and Judith being still an infant, a bill was exhibited to the county court of Powhatan by the widow for a division of the estate, and commissioners were thereupon appointed to allot to her a third part, and divide the other two thirds amongst the children. Such allotment and division were made soon afterwards. The report of the commissioners of the division of the slaves did not bear date until the 20th of May 1814, and their report of the division of the land did not bear date until the 16th of August 1815, and neither report was confirmed until the day last mentioned. But the slaves were in fact divided early in 1813, and Robert W. Mosby, who was guardian of his sister Judith, held or hired her share of the slaves during the years 1813, 1814 and 1815. The land was 41 *also divided in February 1813, and the guardian had, or ought to have had, possession of it during those years.
    In April 1815, Judith Mosby married John C. Howard; and in December of that year, a suit in chancery was commenced by them in the county court of Powhatan, against Robert W. Mosby as late guardian of said Judith, and Jesse Owen and Henry Anderson his sureties, to recover what was due upon the guardianship account.
    An amended bill was afterwards filed, asserting the rights of the complainant Judith as a distributee of the estate of her father. Buey Mosby having married Peter Besuer, Besuer and wife and Robert W. Mosby and the sureties in the administration bonds were made defendants, an account of the administration was asked, and a decree sought for what might appear to be due.
    Pending the suit, John C. Howard died, and the cause proceeded in the name of the female complainant. Robert W. Mosby and Buey Besuer also died, and the case was revived against their respective administrators. On the motion of Robert Anderson executor of Mary Williamson, he was also made a defendant. His interest will appear hereafter.
    Under an order made the 15th of March 1821, accounts were returned both of the administration and of the guardianship, to which exceptions were filed on both sides. For reasons appearing to the court, the guardianship account was, by an order entered the 21st of January 1829, recommitted with the exceptions thereto, to the commissioner who made it, for reexamination and correction. “And by consent of parties,” it was at the same time ordered that the report of Mosby’s accounts as administrator be recommitted to the said commissioner, for a further examination and settlement thereof.
    In December 1829, the commissioner made a report upon the guardianship account. He was not furnished with vouchers to enable him to make out a regular 42 ^account of disbursements by the guardian; and the charges against the guardian for the yearly value of his ward’s land and slaves were founded upon the depositions of witnesses. The report contained four alternative statements. To this report, exceptions were filed by Anderson as executor of Mary Williamson.
    The nature of the interest of Mary Williamson’s executor appeared in another suit, brought in December 1828 by Jesse Owen and Raney his wife, who (as has been stated) was also a daughter and dis-tributee of Joseph Mosby. The bill of Owen and wife, after mentioning that upon the death of Joseph Mosby certain slaves were allotted to his widow for life, set forth, that she had lately died, leaving the said slaves and their increase; that Robert W. Mosby conveyed his interest in the said slaves to trustees, for the purpose of indemnifying Henry Anderson and the complainant Jesse Owen, as the sureties in the bond given by said Robert as guardian of Judith Howard, which trust deed was duly recorded; that subsequently to said conveyance, the said Robert removed to the state of JSTorth Carolina, and Mary Williamson sued out an attachment in chancery against him, and so proceeded in said suit, as to have the undivided interest of sa'd Robert in the said slaves decreed to be sold for the payment of her debt, subject however to the prior lien created by the said trust deed; that a sale was made under the said decree, and the interest of said Robert purchased by the said Mary Williamson, of whom the said Robert Anderson is now executor. Judith Howard, Anderson as executor of Williamson, and the trustees in the said deed, were made defendants to this bill, and the prayer of it was that commissioners might be appointed to lay off and allot the said slaves among the parties entitled thereto.
    This suit of Owen and wife was heard by consent upon the bill and the answers thereto, and by like consent the court made a decree appointing commissioners 43 Kto divide the slaves into three equal parts, and to allot one part to the plaintiffs Owen and wife, one other part to the said Judith Howard, and the remaining third part to the trustees in the deed aforesaid, until the objects of the said trust deed were satisfied. The commissioners divided the slaves into three lots, numbered 1, 2, and 3, and assigned number 1 to the trustees, number 2 to Judith Howard, and number 3 to the plaintiffs Owen and wiffe; and they provided that, for equality of partition, the owner of lot number 2 should pay 13 dollars 33 cents to the owner of number 3, and 23 dollars 33 cents to the owner of number 1. By an order made in January 1829, the trustees were authorized to hire out the slaves allotted to them, either by the month or for a longer time not exceeding one 3rear, as he might think best. But afterwards by another order made the 21st of July 1830, on the motion of the defendant Anderson, the trustees were directed to deliver the said slaves to the said defendant, to be held by him subject to the deed of trust aforesaid, and were further directed to pay over to him the bonds taken by them for the hires of the said slaves, or the amount thereof, after deducting all expenses incurred in relation thereto.
    On the 22d of July 1830, the two causes came on together. The decree set forth that the first was heard only as to the administrator of Robert W. Mosby, and Jesse Owen and Henry Anderson the sureties in Mosby’s bond as guardian, and that it was heard upon the report of the commissioner “made under the order of the 21st of j January 1829, directing an account of the 1 said Robert W. Mosby’s guardianship of Judith Howard the plaintiff,” and upon the t exceptions filed by the defendant Anderson to that report. The court did not adopt ‘ altogether any one of the four statements of the guardianship account made by the commissioner, but caused the said account to be reformed, so as to charge 44 *the guardian with the rent of the land and the hire of the slaves of the plaintiff in the first suit, at the price'of 35 dollars for the land and 150 dollars for the slaves, for each of the years 1813, 1814 and 1815, making in the whole 555 dollars; and so as to credit the guardian with 70 dollars for the clothing of the plaintiff for 1813, 140 dollars for her board and clothing for 1814, and 75 dollars for her board and clothing for 3 months in 1815, in which year she was married, making together 285 dollars; thereby leaving 270 dollars as the sum due to the said Judith Howard from the said Robert W. Mosby as her guardian, on the 31st of December 1815. And thereupon the court decreed that the administrator of Mosby, out of the estate of his intestate in his hands, and the defendants. Jesse Owen and Henry Anderson, pay to the plaintiff in the first suit the said sum of 270 dollars with interest from the 31st of December 1815, and the costs by the said plaintiff and her deceased husband expended. And the order of the preceding day was so far amended, as to restrain the trustees in the deed of trust from delivering over to the defendant Anderson the slaves allotted to them, until the decree this day rendered in the first suit should be fully satisfied, and the lien created by the trust deed upon the said slaves thereby discharged; after which the said property, or any balance which might remain, was directed to be forthwith surrendered by the trustees aforesaid to the said Mary Williamson’s executor.
    On the petition of the defendant Anderson as executor aforesaid, the superior court of chancery for the Richmond district allowed an appeal from this decree.
    Under the act of April 16, 1831, the appeal was transferred to the circuit court of Henrico.
    In that court on the 29th of November 1831, by consent of the appellant and of the appellee Judith Howard, an order was made directing the surviving trustees 45 in *the deed of trust, or one of them, to sell the slaves allotted to the said trustees. Sale was made accordingly, and the net proceeds thereof were 1120 dollars 38 cents. Of this sum, 300 dollars was directed to be put out at interest, subject to the future order of the court; and the residue, being 820 dollars 38 cents, Anderson was allowed to receive, upon his giving security to repay the same within sixty days after an order requiring such repayment.
    After the act of 25th Eebruary 1837, (Sess. Acts of 1836-7, ch. 61, p. 38,) forming a separate circuit of the county of Henrico and city of Richmond, the causes came on to be heard the 25th of July 1837, before the court for this circuit. On consideration whereof, the court, being of opinion that the decree pronounced in the court below on the 22d of July 1830 was right so far as the same ascertained the amount due from Mosby as guardian of Judith Howard, and was only erroneous in not directing a sale of the slaves conveyed by the said Mosby to trustees to indemnify his sureties, for that error reversed the decree, and retaining the causes for further proceedings, declared that out of the proceeds of sale of the said slaves, the said Judith Howard , was entitled to receive the sum of 270 dollars with interest from the 31st of December 1815 until paid, and that the appellant Anderson, as executor of Mary Williamson, was entitled to receive the residue. A report was afterwards made by the acting trustee, of the state of the fund; and then a further decree was made the 30th of March 1838, in conformity with the principles above declared, whereby there was adjudged to the said Judith Howard not only the said 270 dollars with interest as aforesaid, but also her costs in the county court of Powhatan and in the appellate court.
    On the petition of Anderson as executor of Mary Williamson, an appeal was after-wards allowed to the court of appeals.
    *The cause was argued by Harrison for the appellant, and Patton for,the appellee.
    The points made in the argument are sufficiently indicated in the following opinion.
    
      
      See monographic note on “Guardian and Ward" appended to Barnum v. Frost. 17 Gratt. 398.
    
    
      
      Appellate Practice — Decreeing Costs of Appeal to Appellee. — See foot-note to Blessing v. Beatty, 1 Rob. 287, and monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720. The principal case is cited in Marks v. Hill, 15 Gratt. 422.
    
   STANARD, J.

The claim that was earnestly and ably urged on the part of the appellee, to have the balance of the guardian’s account augmented, by incorporating in it the appellee’s share of the balance of the administration account, consisting of the surplus profits of the real and personal estate of the father of the appellee while held by his administrators, cannot in this case be sustained in this court.

1st, Because this case was heard and the decree rendered between the parties to, and on the claim made by, the original bill for the settlement of the guardianship account, as contradistinguished from the administration account, the settlement of which was sought by the amended bill.

2dly, Because the case was neither heard nor prepared for hearing as to the administration account; the case, at the time of hearing, standing in that respect on a consent order recommitting the administration account, and the record of course furnishing no account on which a definite charge or decree against Robert Mosby in respect to the administration account could be made.

3dly, Because no claim was made in the court below by the appellee, to bring into the guardianship account, to her credit, any charge to her guardian arising out of the administration account.

The objection of the appellant, that the costs on his appeal from the county to the superior court of chancery were improperly decreed against him, rests on this, that the decree of the county court was reversed, and ought to have been reversed, by the superior court. The propriety of that reversal is vindicated on two grounds.

*First, That the decree did not provide for the sale of the slaves, so that the proceeds of the sale might be appropriated to the indemnity of the sureties of the guardian, and the surplus paid over to the appellant.

Though this -seems to have been the ground of the formal reversal of the decree of the county court, it was not an adequate cause of reversal; and if it were, that reversal is one not for the benefit of the appellant, but for the benefit of the sureties of the guardian. The decree of the county court had, in respect to the disposition of the slaves, done every thing that the appellant could desire. Under it the appellant would have got complete title to and possession of the slaves, on his paying the amount decreed to be paid by the sureties; and he could not justly complain that the possession of the slaves was withheld from him until the sureties were indemnified. The omission of the county court to decree the sale of the slaves to provide the indemnity, withheld from the sureties a part of their remedy, and could not be justly complained of by the appellant. The addition of that by the superior court to the decree of the county court was for the benefit of the sureties; and in that respect the action of the superior court was not a matter of relief to the appellant, but to the sureties. In strictness, so far as this matter was involved in the appeal, the proper decree of the superior court would have affirmed that of the county court, and have added thereto the further decree of sale.

The other objection to the decree of the county court, and also to that of the superior court, is, that the amount decreed to the appellee is too large.

That fact on which this objection in part rests-is not as has been supposed by the appellant. He has supposed that the division of the estate was not finally made until the year 1814 or 1815, and that the guardian did not hold the ward’s share of the land and negroes during the years 1813, 1814 and 1815, the years for which rents and hires are charged.

^Though the confirmation of the reports of the division of the slaves and land does not appear to have been made before the year 1815, I think it appears with sufficient certainty that the slaves were in fact divided early in the year 1813, and that the guardian held or hired his ward’s share during the years 1813, 1814 and 1815; and that the land was divided in February 1813, and the guardian had, or ought to have had, possession of it during those years.

As to the amount of hires and rents, my opinion is that the guardian has not been overcharged, especially as he has failed to render any account: and in respect to the credits to him for the board and clothing of the ward, I incline to the opinion that more has been allowed, than, ’under the circumstances of his culpable default, and failing- to render any account of any disbursement, he was entitled to. But as the sum of 23 dollars 33 cents, payable by the appellee to equalize the share of the appellant in the division of the dower slaves, has not been charged to the appellee, I deem it best to consider that as an equivalent for the excess of the charge to the ap-pellee for board and clothing, and (saving the parties the delay and expense of restating the guardian’s account) to terminate this case by affirming the decree.

The other judges concurring, the decree was accordingly affirmed.  