
    The Executors of Mary C. Dupont v. Isaac A. Johnson, Administrator, de bonis non, of John Dupont, and Others.
    A decree of the Court of Appeals, sending back a cause for specified purposes, concludes every thing settled by the decree appealed from, and not reserved by the appeal decree : and no matter so concluded, can be litigated in the further progress of the cause.
    A father will not be allowed maintenance for his children, out of their separate property, unless he is totally incapable of providing for them, or, from having a numerous family of children, borders upon necessity; and still less will an allowance be made, if he comes for arrears of past maintenance. Where no claim for maintenance has been made by the father, in his life time, it is doubtful whether it will ever be allowed to his legal representatives, after his death, even as a set off to an account for the profits of the property of his children received by him: at least it would not be allowed, unless in an extreme case ; as; where some of the children, or the wife, would be left destitute, while the others had ample fortunes.
    A party, intitledto recover the general costs of the suit, will, nevertheless, be ordered to pay such of the costs, as were incurred by his litigating groundless claims.
    In general, executors will not be ordered to pay costs, personally; but where they litigate their personal interests, they will be ordered to do so.
    At Charleston, January, 1830.
    Harper, Ch. The complainants are the executors, and residuary legatees, of Mrs. Mary Dupont, deceased, who was the widow, and administratrix, of John Dupont, deceased. After her death, the defendant, Isaac A. Johnson, administered, de bonis non, on the estate of John Dupont. The other defendants are the children of John Dupont, by a former marriage, and distributees of his estate. The bill was filed for an account of the rents and profits of a separate estate, which had been settled on Mrs. Mary Dupont, on her marriage with the said John Dupont, which rents and profits were charged to have been received by him; and also for an account of the said John Dupont’s estate, and for his widow’s distributive share. The claim for the rents and profits of Mrs. Dupont’s separate estate, was long since disposed of by a decree of the Circuit Court, made by Chancellor Gaii/lard, in 1820. By that decree, the bill was ordered to be dismissed with costs, on the ground, that the rents and profits of the separate estate, were applicable to the joint use and support of Mr. and Mrs. Dupont, and had been so applied by him. The Court of Appeals reversed that decree, so far as to order an inquiry, whether there were not a surplus of rents and profits, which had not been so applied ; and also to direct an account of the estate of John Dupont: and reserved the question of costs. No such surplus of rents and profits has ap. peared ; and a report of the commissioner, finding that there was no such surplus, was confirmed by Chancellor Thompson, without appeal.
    In accounting for the estate of John Dupont, a single litigated question has arisen. It is, whether the deceased John Dupont was intitled to, and his legal representatives can now be allowed, maintenance for the support of the defendants, his children, by a former marriage, out of their private property. The defendants were in-titled, by the gift of a relation, to fourteen slaves ; thirteen of which went into their father’s possession, and the other was sold by him, in 1806, for $350. • The commissioner reports the hire of these slaves, with interest on the annual amounts, to be about $10,007.50. This calculation is not excepted to; but the complainants contend, that an allowance, for the maintenance of the defendants, ought to be set off against this demand.
    1 consider this a perfectly clear case. The rule is, that a father, if he be of ability, must maintain his child. Unless totally incapable, or, by having a numerous family of children, he borders upon necessity, the duty of providing for them devolves on him : nor will the Court direct the interest of a contingent legacy to be applied for the child’s maintenance, unless from the poverty of his parent, he is in danger of perishing through want. Butler v. Butler, 3 Atk. 60, Jeffreys v. Jeffreys, 16. 123. The commissioner reports, that at the time the father took possession of the property, he owned a plantation worth $4,100, and seven slaves, besides stock, &c. ; ■that at the time of his death, the nett value of his estate, as it actually sold, was about $11,000, subject to this claim of his children; and that his income, for fifteen years of the intermediate time, including what was derived from his children’s slaves, was $3,000, per annum,, exclusive of the income of his second wife’s separate estate, which was adequate to their support. At the first period mentioned, his judgment debts amounted to something more than $4,000. His other debts at that time, if he owed any, are not known. Under these circumstances, if Mr. Dupont, himself, had applied for future maintenance, at any time during their minority, would the Court have allowed it ? He certainly appears, through the whole period, to have been of ability to maintain his children ; although, perhaps, for a part of the time, in a moderate way. It is argued, that from the circumstance of his fortune’s not having accumulated more, notwithstanding his considerable income, and his frugality in expenses, I ought to infer that his debts were greater than appears. I might as well infer, that notwithstanding his apparent frugality, there was some improvidence, and wastefulness, that does not appear. If the Court would not have allowed future maintenance to the father, on his application, still less will it allow past maintenance. The old rule was, as is observed by Lord Eldon, in Reeves v. Brymer, 6 Yes. 424, that if the father had by any means maintained his children, the Court would not reimburse him. I have met with no case, in which past maintenance has been allowed to the father’s representatives, after his death. I do not mean to express an opinion, whether an extreme case might not exist, in which such an allowance would be made ; as where some of the children, or a wife, would be left destitute, while the others had ample fortunes. Yet there would be difficulty in making out, that ■where the father had not thought proper to set up such a claim, but had left part of his family in poverty, they might set it up. Would it be allowed in favor of creditors ? It would open a wide field to set such a precedent. If it were a matter within the discretion of the Court, however, I should not incline to exercise it in favor of the second wife, who has a sufficient fortune of her own ; and still less in favor of her residuary legatees.
    I have some difficulty on the question, of costs; The complainants had a right to an aeeount of the estate of John Dupontand of that proceeding the costs ought to be paid out of the estate. I understand that the principal costs in the case, which are said to be . . . very large, have been incurred in litigating the claim to an account of the separate estate of Mrs. Dupont, and this particular claim of an allowance for maintenance. As to the costs of the first liliga- . ° tion, I consider that point settled by the former decrees. The question of costs was reserved by the Court of Appeals, to abide the event of an inquiry as to a surplus of the rents and profits of Mr. Dupont’s estate; and no surplus has appeared. The claim for maintenance, 1 think groundless, and that the defendants, who are creditors, ought not to be burthened with the costs of it. In general, executors will not be ordered to pay costs, personally; but these executors were litigating their personal interests.
    . It is ordered, and decreed, that the commissioner’s report be confirmed ; and that the defendants recover of the estate of the said John Dupont, the hire of their slaves which were in his possession, according to the commissioner’s report, with interest on the annual amounts of hire; together with the price of the slave sold in 1806, and interest thereon. If any surplus of the estate shall remain, after satisfying the defendants’ demand, partition to be made thereof, allotting one-third to the complainants, and dividing the residue among the defendants, according to their respective interests. The costs of the bill and answer, to be paid out of the estate; the residue of the costs, by the complainants.
    The complainants appealed from this decree, and also from the decrees of Gaiixard, and Thompson, Chancellors, on various grounds, including exceptions to both of the commissioner’s reports, referred to in the foregoing decree; but from the disposition made of the case, by the Court of Appeals, it is unnecessary to state the several grounds more particularly.
    Grimke, for Appellants.
    M’Crady, contra.
    
   Harper, J.,

delivered the opinion of the Court.

We are of opinion, that the decree of Chancellor Gairlard, and that of the Court of Appeals, settled every thing in relation to the claim for an account of the rents and profits of Mrs.- Dupont’s separate estate, except in the event of there being found a surplus of rents and profits, over and above the amount of family expenses; and that so much of the case is not properly before us. • The decree of Chancellor Thompson, on exceptions to the commissioner’s report on the subject of these rents and profits, was in the nature of a final decree, and was not appealed from; but if it were now properly before us on appeal, we do not perceive the. errors of the commissioner’s report, nor have we the means to correct them. • In the last decree of the Chancellor, which is the immediate subject of appeal, we concur. The ground in relation to interest on the annual hire of the slaves, was abandoned in the argument; and we see no reason to vary the direction in relation to costs. The appeal is therefore dismissed.

Johnson, J., and O’Neall, J., concurred.

Decree affirmed.  