
    *Foreman v. Murray & ux. & al.
    March, 1836,
    Richmond.
    Guardian and Ward--Suit for Accounting — Commissioner’s Report — Failure to Except to in Lower Court —Effect.— Tn suit by ward against guardian for settlement of the guardianship accounts, the bill Insists that the guardian should be charged with interest which he has not actually received, and the guardian, hy his answer, contests the charge; hut he flies no exception to the account reported by the commissioner, which makes the charge of interest, and is the foundation of the decree against the guardian: Held, it is too late in the appellate court to object to the decree on this ground: dissentiente Brocken-BROTTGH. J„ and Tucker, P.
    Same — Allowance to Guardian in Settlement — Payment of Debts of Ward’s Father. — A guardian having received the ward’s personal estate from the administrator of his father, and paying a debt j ustly due from decedent’s estate, is entitled to credit with the ward for such payment.
    Same — Same—For Disbursements. — A guardian shall be allowed his disbursements on account of the ward, though they exceed the income of the estate in the guardian’s hands, if they do not exceed the income of the ward’s whole estate, in the hands of the guardian and of the administrator of the ward's father.
    Appeal from a decree of the superiour court of chancery of Williamsburg'.
    John Foreman died intestate in 1816, leaving a widow, Delilah, and two infant children, Adeline and John. Administration of his estate was granted to Isaiah Wallace; who also, for some time, received the profits of the real estate of his intestate. In July 1817, Delilah, the widow, married Willoughby Foreman, who was appointed guardian of his wife’s infant children of her first marriage; of John in March 1819, and of Adeline in February 1820. The account of Wallace’s administration was audited and settled before auditors appointed by the county court which granted the administration ; and the account so settled shewed a balance due to the estate of 3483 dollars; but in this account, no charge was made of interest on the annual balances in the administrator’s hands; and the moneys which he *had received on account of the rents of the real estate, were debited to him. The administrator, in 1821, after closing his administration, put the slaves of his intestate’s estate into the hands of Willoughby Foreman, the husband of the widow, and the guardian of the two infant distributees, and he thenceforth took the profits of the slaves as well as of the lands belonging to the estate. His ward Adeline lived with him, from the time of his marriage with her mother till her own marriage, except the years 1818 and 1819, when she was boarded out to go to school: John lived with him the whole time. Mrs. Foreman died in November 1821. In May 1823, Adeline married Richard Murray; John was still an infant about nine years old.
    In May 1824, Murray and wife, and the infant John Foreman by Murray his next friend, exhibited this bill against Wil-loughby Foreman, praying a settlement of his accounts of guardianship. The bill charged him with divers acts of mismanagement and injustice; and it charged in particular, that though the administrator, in the settlement of his accounts, had not been charged with interest on the annual balances in his hands, which made up the g-eneral balance of 3483 dollars, yet the administrator had in fact paid interest on the annual balances to the guardian, because he had paid him the general balance of 3483 dollars by transferring to him bonds taken by him in the course of his administration, which bonds bore interest from their date.
    Willoughby Foreman, in his answer, denied all the allegations of mismanagement and injustice; and he denied, that he had ever received from the administrator any thing more than the general balance of 3483 dollars, reported to be due from him to the intestate’s estate, and consequently, he insisted, that he ought not to be held accountable for interest with which the administrator had not been charged in the settlement of his accounts, and which he the guardian had never received.
    *The chancellor referred the guardian’s accounts to a commissioner, to be stated and settled. The commissioner made a report, upon which the controverted questions in the cause arose. Of these there were very many, but all of them were mere questions of fact but the following—
    1. The commissioner restated Wallace’s administration account, charging him with interest on the annual balances in his hands as they accrued, and thus argument-ing the general balance due on that account, from 3483 dollars, reported by the county court auditors, to 3744 dollars, one third of which he carried to the debit of the guardian, in his accounts with each of his. wards. This was done, without any proof that the guardian had received the interest from the administrator, in any way whatever. And though this was a point particularly litigated in the pleadings, yet no exception was taken by the defendant to the report for the charge of interest. The chancellor approved the report in this particular.
    2. There was a debt due from the intestate John Foreman’s estate to one Bassett Butts, which was paid by the guai'dian, in 1822, out of the estate of his wards in his hands, amounting to 589 dollars; and the commissioner, in stating the guardian’s accounts, allowed him a credit against his wards respectively for the proportions of this debt chargeable to each. There was no doubt that the debt was justly due from John Foreman’s estate to Butts, and that the debt was paid by the guardian. Yet the plaintiffs excepted to the credit allowed the guardian on account of this payment, because they said the payment by the guardian was gratuitous. And the chancellor sustained the exception.
    3. The disbursements of the guardian for his wards, respectively, exceeded, in some years, the profits of their lands and slaves in the guardian’s hands, and upon the whole account, exceeded somewhat the profits of that part of their estate; hut they did not exceed the aggregate *of those profits and the wards7 share of the interest oh the balance of 3483 dollars in the hands of Wallace the administrator. Under these circumstances, the commissioner credited the guardian for the whole of his disbursements for each ward. The plaintiffs excepted, because, they insisted, the guardian was not authorized to expend on his wards any more than the profits of their estate in his hands. And the chancellor (upon the authority, it seemed, of Myers y. Wade, 6 Rand. 444), sustained the exception.
    The accounts being referred again to the commissioner to be reformed according to the opinions of the court on the points excepted to, he reported two statements of the guardian’s accounts.
    In the first, he credited the guardian for only so much of his disbursements for his wards, as the yearly profits of their estate in his hands amounted to; and disallowed the credit he claimed on account of the debt due to Butts which he had paid. Upon the accounts so stated, there was a balance found due to Murray and wife, of 1818 dollars, with interest on 1284 dollars from the 1st July 1830; and to John Foreman, 2498 dollars, with interest on 1966 dollars from the same date.
    In the second, he credited the guardian with the full amount of his disbursements for his wards; and upon the account so stated, the balance found due to Murray and wife was 1151 dollars with interest on 776 dollars &c. and the balance due to John Foreman was 2181 dollars with interest on 1690 dollars &c.
    The chancellor, approving the first statement, decreed that the defendant should pay to the plaintiffs, respectively, the balances therein appearing due to them. And the defendant appealed from the decree.
    The case was argued here, by Robinson for the appellant and Johnson for the ap-pellees,
    upon the points above stated; and upon an objection taken by Robinson to the *final decree — that it was erroneous in decreeing the defendant to pay the balance due to the infant plaintiff, to him, though he was still an infant, and the defendant’s own ward. Johnson admitted that this was irregular; but he said, there was no need to correct it, since the ward was now certainly of full age.
    
      
       Commissioner’s Report — Exception to — Waiver.— Where a party fails to object to a commissioner’s report in the court below he waives the objection in the appellate court. For this proposition the principal case is cited and approved in Mosby v. Mosby, 9 Gratt. 608 (see note). See monographic note on “Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376.
    
    
      
      Guardian and Ward — Expenditures by Guardian— Allowance for. — In Bennett v. Claiborne. 23 Gratt. 374, it is said: “The court is also of opinion that as the expenditures for the ward by her guardian Bennett, and the executor "Wilson did not exceed the aggregate of her income from the whole of her estate, and were not greater than her station in life, and her estate justified, the said guardians, are entitled to be credited for said disbursements. Foreman v. Murray & Wife, 7 Leigh 412.” See mono-graphic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   CABELL, J.

I am of opinion, that it is too late for the appellant to object, that, in the settlement of his guardianship accounts, he has been charged with interest as having been received from Wallace the administrator of John Foreman, when in fact he did not receive it. The account of Wallace’s administration had been reformed by the commissioner bj' introducing rests into it, and charging the administrator with interest on the annual balances, according to the principles of the court, up to the time when the administrator settled with the guardian ; and the balance of principal and interest thus ascertained by this reformed statement, was made the basis of the settlement of the guardianship accounts ; one third of the balance of principal and interest being charged to the guardian, in the account with each of his wards. There may have been circumstances to justify this course; and as there was no objection made to it on the part of the guardian, we are bound, according to the uniform practice of this court, to presume that it was correct. Moreover, the report of tbs commissioner on the guardianship accounts, having been excepted to by the wards on other grounds, and some of these exceptions having been sustained by the chancellor, the report was recommitted, to be reformed accordingly. That report was made and returned, accompanied by alternative statements of the guardianship accounts. In these statements, the commissioner’s reformed report of the administration account, charging interest, was again made the basis of the settlement of the guardianship accounts; yet the guardian *again abstained from filing any exception to this course. It is surely too late to make one in this court.

The chancellor’s decree is in conformity to the first statement of the guardianship accounts. Now the only difference between that statement and the second statement, is, that in the first no expenditures of the guardian for his wards are allowed, beyond the incomes of their estates in his hands ; but in the second, the allowance of his expenditures is regulated by a regard, as well to the incomes of their estates in the hands of the administrator of their father, as to the incomes of their estates in the hands of the guardian. I am clearly of opinion, that the principle of the second statement was correct, and ought to have been adopted by the chancellor; and I would now reverse the decree, and enter one conformable to the second statement, were it not that the commissioner, in this statement also, acting on a previous direction of the chancellor, has excluded a credit to the guardian for the money which he paid on account of Butts’s debt. I think he ought to have been credited for it.

Therefore, I am of opinion that the decree should be reversed, and the cause remanded, with directions to enter up a decree according to the last statement of the commissioner, after having allowed the appellant credit with his wards, for their proportion of the money paid by him on account of the debt due to Butts.

CARR and BROOKE, J., concurred.

BROCKENBROUGH, J.,

dissented on the first point, — that relating to the charge of interest to the guardian, which he had not received from the administrator, — and concurred on the other points.

TUCKER, P.

I am of opinion that the decree is erroneous in the following particulars: 1. In charging the *defendant Foreman as guardian, upon the basis of his having received more than the sum of 3483 dollars from the administrator, when there is no proof of his having received more than that sum, or that he had ever received from the said administrator any further sum for or on account of interest. 2. In rejecting the payment to Butts, the evidence of which is decisive, and its propriety obvious, as there were abundant personal assets for the satisfaction of the debts. 3. In limiting the allowance for board and the annual expenses of the wards, to the annual income which came to the hands of the guardian himself, without adverting to the fact that the estate in the hands of the administrator afforded a revenue in addition to that received by the guardian, more than adequate to the expenses of the wards. Further, without undertaking to decide, upon the evidence, ■what allowance would be reasonable, I am of opinion that there was no obligation on Foreman to support his wards; that there is no adequate testimony of the waiver of compensation; that their services were not equivalent to their expenses, and that the guardian ought to be allowed a reasonable compensation for their board, and for all just and reasonable disbursements not exceeding the profits of the wards’ estate, taking into the estimate that portion of it which was at the time in the hands of the administrator.

Decree reversed, and cause remanded, with directions to enter a decree according to the last statement of the commissioner, after having allowed the appellant credit with his wards for their proportions of the money paid by him on account of the debt due to Butts.  