
    Poullain et al. vs. Poullain, and vice versa.
    
    1. An auditor’s or master’s report is prima facie correct as to the facts which it finds; and although it may be excepted to, it stands until overcome by evidence satisfactory to the'jury, ánd the onus is upon the party excepting to show that it is erroneous; hut it is not necessary, in order to overcome the presumption in favor of the report, that the evidence produced by the party excepting should be “so clear, strong, unambiguous and unequivocal as to leave in the minds of the jury no reasonable or serious doubt that the auditor erred or that his report was erroneous and should be overruled and set aside.” The true rule as to the sufficiency of proof to overcome the finding of facts by an auditor or master is, that there should be a sufficient preponderance of evidence to satisfy the jury that there was error in the conclusion reached.
    2. Where a son or his heirs claim lands under a parol gift from his father, the existence of the parol gift should be proved by evidence, whether positive and direct or circumstantial and indirect, so clear, strong and unambiguous as to leave no reasonable doubt on the minds of the jury as to that fact.
    
      (a.) The examples given in the charge were not in strict accord with the evidence in the case, and may have tended to confuse and mislead the jury, and should have been omitted.
    (6.) The burden of showing improvements made on land .claimed under a parol- gift, and their character and value, by clear and satisfactory evidence, was on the complainants; bat it was not necessary that the evidence should have been so clear, strong and unambiguous as to leave no reasonable or serious doubt that the alleged donee made improvements on the place of the nature and character indicated.
    (c.) This court has adopted in this case (72 Qa., 412, 449) the rule deducible from the cases of 'Hughes et al. vs. Hughes et al., 72 Qa., 173, and Beall et al., ex’rs., vs'. Clark et.al., 72 Qa., 818.
    3. Whether the evidence, repelled by the court, to the effect that the defendant bought the land in Floyd county for his son (who was the father of complainants, and under whom they claim), and that was the way the son came into possession of it, was admissible, might depend in some measure upon the witness’s knowledge of other facts, and whether she obtained knowledge of lhe facts to which she proposed to testify from the defendant, or from conversations between him and others, at which she was present, or whether her statement was amere opinion on her part. In the absence of proof od. this subject, the facts cannot be assumed so as to hold that the court erred.
    4. Evidence of admissions by the defendant as to the gift of certain mill property, which, was involved in controversy, to his children and grand-children, was admissible. When taken in connection with other circumstances in proof, it tended to show that the gift was made, and was relevant, its force and effect being left to the jury in connection with the other testimony.
    5. The exception to the auditor’s report, attacking the final discharge of the defendant as guardian for one of the complainants, on the ground of fraud, and the evidence adduced thereunder on the trial, tended to surcharge the final account rendered by the guardian by alleging omissions therein, and to falsify it by denying the correctness of certain of the items therein contained. The law provides that “one palpably fraudulent item casts suspicion upon the entire account.”
    
      (a.) It is the imperative duty of an accounting party, such as an agent, trustee, receiver, executor or guardian, to keep his accounts in a regular manner, and to be always ready with them, and such an administrator or guardian should support his accounts by proper vouchers and present them annually for examination and approval by the proper authorities.
    
      (bo) Concealment per se amounts to actual fraud, where, from any reason, one party has a right to expect full communication of the facts from another.
    (c.) The omission of what is claimed to be much the larger part of the estate, and the incorrectness of other items, or the failure to furnish any vouchers whatever, would raise a presumption against the fairness of the transaction; and where fraud is charged, it is a question for the j ury, and they have a right, in determining whether it exists or not, to deduce it, on account of its subtle nature, from slight circumstances; and even the most solemn judgment obtained by resorting to such means is open to attack and liable to be an' nulled and set aside upon a bill filed for that purpose.
    6. Neither the 12th nor the 13th grounds of the motion for new trial point out any specific error in either of the charges therein complained of; and in the absence of the entire charge given upon the subject of allowing credits for the funds of wards invested in confederate securities, or as to the right of the guardian to encroach upon the corpus of the estate for the education and support of his ward, without a previous order of the ordinary, no error hurtful to the complainants is made to appear.
    
      (a) If a charge states broadly, but correctly, general principles controlling the subject under consideration, if more specific instructions applicable to the facts in evidence are desired, they should be asked.
    (6.) The circumstances which will protect a trustee, where he has encroached upon the corpus of the estate, and will allow him such expenditures without the authority of the ordinary previously obtained, are determined in Dowling vs, Feeley et al., 72 Qa., 558, 563,564.
    7. The jury should find a separate verdict as to exceptions of fact to an auditor’s report, seriatim; but whether this omission was so material as to have required a new trial in this case, in the absence of other errors, is not held; especially as no effort seems to have been made to have the verdict reformed before it was received and recorded.
    8. An infant may maintain a bill in equity, by next friend, against her guardian for a misappropriation of her funds.
    9. The amendment to the fourth exception to the auditor’s report did not make a new and distinct cause of action, but its purpose was to supply defects in the original exception and to' specify errors and omissions in the guardian’s accounts and returns which had been too generally alleged therein.
    (a.) If the original action was not barred by the statute of limitations, an amendment which introduced no new and distinct cause of action was not barred.
    (6.) Suggestions as to further proceedings in this case.
    June 1,1886.
    Auditors. Masters. Evidence. Reasonable Doubt. Charge of Court. Gifts. Admissions. Fraud. Guardian and Ward. Ordinary. Accounts; Practice in Supreme Court. Verdict. Infancy. Amendment. Pleadings. Statute of Limitations. Before Judge Lawson. Greene Superior Court. September Term, 1885.
    Anna M. Poullain and Hallie B. Poullain (the latter by next friend) filed' their bill for an account and settlement against Thomas N. Poullain.
    The case was referred to an auditor, who made a report, and bofh parties filed exceptions thereto, but defendant subsequently withdrew his exceptions, and the case was tried on those of the complainants. The bill, answer, and auditor’s report are set out substantially in the report,, when the case was formerly in the Supreme Court. (72 Oa , 412.)
    The exceptions to the auditor’s report, filed by complainants, were as follows:
    1st. It is reported in said report that the title to the house and lot in the city of Greensboro, Georgia, was in the defendant until March, 1879, and the defendant did not hold, said property in trust for complainants.—To which complainants except, and allege that only the naked title to the same was in the defendant from -•, 1863, he having held said house and lot from the time last men-, tioned in trust for the complainants.
    2nd. It is reported in said report that complainants had no title to the real estate in Floyd County, mentioned in the bill, and they cannot recover real estate or the proceeds of the sale of the same, for the reason that the statute of frauds prevents them from asserting title to the same, and the defendant is not estopped from pleading the said statute.—To which complainants except, and allege that they, as against the defendant, do have title to said real estate as set out in their bill, and they can recover either the value of said real estate, or the proceeds of the sale of the same, with interest on either said value, or said proceeds, and the statute of frauds does not protect the defendant from the recovery claimed by complainants.
    3rd. Because it is reported in said report that the investment made by the defendant, and mentioned in his return of May 24th, 1864, to the ordinary of.county first aforesaid, relieves the defendant of all liability to complainants for the money received by him, as their guardian from the administrator of their father’s estate.—To which complainants except and allege that said investment does not so relieve the defendant.
    4th. Because it is reported that the discharge of the defendant, as guardian of the complainant, Anna M., is a bar to any right of action which said Anna M. ever had against him as such guardian.,—To which complainants except, and allege that said discharge is not, under the law and the facts, a bar of said right of action.
    5th. Because it is reported that the complainant, Hallie B., cannot maintain her action against the defendant, she being a minor and he being her guardian.—To which complainant.s except, and allege that said Hallie B. can maintain her action aforesaid against the defendant.
    6th. Because it is reported the auditor found no evidence to establish the title of complainants to any of the Fontenoy mills property mentioned in the bill, or its dividends.—To which complainants except, and allege that the evidence amply establishes their title to said property and dividends, as claimed in the bill.
    • 7th. Because it is reported in said report that the evidence does not show the defendant ever gave or intended to give the said real estate in Floyd County to the father of complainants, and that they have no title to the same, nor have they acquired any title to the same by prescription.—■ To which complainants except, and allege that the evidence does show that the defendant gave and intended to give said real estate in Floyd County to their father, as set out in the bill, and complainants have title as against the defendant, both from his gift aforesaid and by prescription to the real estate last aforesaid, and the proceeds of its sale by the defendant, or its real value.
    8th. Because it is reported in said report that, in a certain event therein stated, the defendant, as guardian and trustee of the complainants, is chargeable with $7,000.07, said sum including, interest to September 15,1880.—To which complainants except, and allege that the defendant is due these complainants, after allowing him all proper credits, at least $10,500.00.
    9th. Because it is reported in said report that the defendant has expended $8,347.55 for the maintenance and education of complainants, which said expenditures are an equitable set-off against the sums chargeable against the defendant as guardian and trustee.—To which complainants except, and allege that the defendant can show no authority for his encroachment upon the corpus of their property claimed by him in the bill, and he is due them, in any event, the entire amount of said corpus.
    
    In said report the auditor allowed to said defendant in-West on the disbursements.—To which allowances these complainants except, and say that the evidence shows the annual interest was more than the annual disbursements, and therefore, under the law, said defendant is not entitled to charge interest on the disbursements.
    After the return of the case from the Supreme Court to the superior court, complainants amended the fourth exception by charging that the discharge of defendant as guardian of Anna M. Poullain was null and void, because the application was not published once a week for four weeks, and the requirements of the law were not complied with, and Anna M. never had any legal notice and was not cited, as requred by law, by the ordinary to appear at the time the dismission was granted. It was also null and void because it was procured by fraud on the part of the defendant, in that he fraudulently represented to the ordinary that, at the time the dismission was granted, he had fully discharged his duty as guardian of said Anna M., and thereby procured a discharge, when, in truth and fact, the defendant had not fully discharged his duties as guardian, and had only charged himself, as guardian, with a small sum received from the administrator of complainant’s father, which arose from the sale of the personal property of the estate, when he well knew that he was indebted to complainants upon each and every item set out in their bill, and it was his duty to have charged himself with these items, which omissions were fraudulent, and made with intention to defraud complainants of the amounts justly due them, and which he never accounted for.
    To this amendment defendant demurred on the following- grounds:
    (1.) Because it embodied a new and distinct cause of action.
    (2.) Because it was barred by the statute of limitations.
    (3.) Because the allegations of fraud were not sufficient ' to set aside the judgment granting a discharge.
    
      (4.) Because there was no averment in the amendment that the complainant, Anna M. Poullain, was ignorant of the fraud complained of at the time said discharge was granted.
    This demurrer was overruled.
    The court sustained the fifth exception to the auditor’s report, it being an exception of law.
    On the trial, the evidence for the complainants was, in brief, as follows: Defendant was appointed guardian for complainants on May 4, 1 863, and gave bond for $10,000. He made only three returns altogether as follows :
    On January 4,1864, he returned a single item: “To cash in Confederate treasury notes of William McCollough, administrator of Junius Poullain, $1,600.00.” (Recorded March 24,1861). On May 24, 1861, he made a return containing a single item, stating that he had invested $1,600 00 in Confederate four percent, bonds, and obtained a certificate of the agent of the Confederate States at Augusta, under the act of March 21,1864. (Recorded July 15,1864.) The third return was only as to Anna M. It was sworn to March 3, and recorded at the April term, 1879, of the ordinary’s court, and stated that she was entitled to a half interest in $1,600.00 in Confederate bonds, which was the only property he ever received as the property of his ward, and that he therewith returned to the court the bonds. On March 3, 1879, he applied for dis-mission as guardian of Anna M., alleging that he had fully discharged his duties, and at the April term of court he was dismissed, no objecting having been filed.
    The ordinary testified that, when defendant made his final return, he saw from it that he had charged himself with only $1,600.00, and defendant stated to him that there were $1,600.00 in Confederate bonds, and witness thought at the time that they were there, and did not discover, until after the dismission was granted, that there were only $1,300.00. There was no fraud or collusion between defendant and the administrator of W. S. Poullain in procuring the discharge, that the witness was aware of.
    It was admitted that certain eight per cent, bonds were filed with the ordinary when defendant made his application for discharge; that they were not the bonds in which defendant invested the funds of complainants, but that they had on them in defendant’s handwriting the endorsement: “ These bonds belong to the estate of Anna M. and Hallie B. Poullain.”
    Complainants introduced a letter from defendant to his wife, dated Rome, 29 November, 1856, in which defendant stated that “ I have this day purchased a tract for Junius, thirteen miles from Rome, and eleven miles from Calhoun, on state road.” He then proceeded to describe more in detail the improvements, and stated that the tract contained 865 acres, and that it was desirable and well worth $8,000,
    Mrs. Anna M. Poullain, the mother of complainants, testified, in brief, as follows: Her husband, Junius Poullain, was a son of the defendant. They moved from Greensboro, Georgia, to Floyd county, Georgia, in 1856. (Defendant bought the place for her husband, and that was the way he came into possession of the farm.) Junius Poullain worked the place and had full control of it, and received the income. His health was impaired. He died in May, 1863, leaving witness and the two complainants as his only heirs. After the death of her husband, the witness, at the instance of the defendant, moved to Greensboro, to the house furnished by him, and has been living there since. The defendant took possession of the plantation in Floyd County and told her that he would control the place for her and her children, and that it should be the same to them as if he had given it to them by deed; that he simply wanted to manage it for their benefit. In the spring of 1863, he told her that he had sold the place of her husband for $10,000 ; that she and her family had the right to the proceeds of the land; that he did not claim the money for himself, but would take charge of it for the benefit of her and her children. She at first thought of taking out letters of administration on her husband’s estate, but defendant approached her in regard to taking charge of the estate himself, and having confidence in his integrity, she consented, and did not apply for letters. Complainant, Anna M., was born November 4, 1856, and Hallie B., June 28, 1860. Before the death of Junius Poullain, he became dissatisfied with the Floyd County plantation, and defendant advised him to sell and move away. The defendant told the witness a number of times that he had given the Fontenoy property to all of his children, and that she and her children would share it equally with his children. In April, 1865, he told her that he had $40,000 in Confederate money for her and her children, which he would invest for them in Augusta, Ga. Defendant furnished complainants each annually about $20 in money until they. were twelve years old; also furnished them about $15 worth of meat, meal and flour, and the value of the wood furnished for both the complainants was about $15 annually. They all dispute the item in the answer of rent charged for the house in Greensboro, because they consider the house and lot theirs; also the item of $750 claimed by him.
    The complainants testified, in brief, as follows: The defendant told them a number of times that he realized from the sale of the property in Floyd. County, belonging to their father, the sum of $10,000. About a year before the testimony was taken, defendant told them that the reason why he had not made a deed to them to the house and lot in Greensboro was that he had lately lost property) and that they had to share his misfortunes with him ; that he regretted very much to see their house and lot sold to satisfy judgments against him.' He always led complainants to believe that they were living on the income from the estate of their father, never denying their interest in the proceeds of the sale of the Floyd County place Until ■the beginning of this suit. They have been in possessiqn of ■the house in Greensboro for seventeen'years; never heard .of-any claim for its rent until this suit was begun. They consider it theirs. Besides the property already mentioned, they have nothing more, except 'their interest in the Fontenoy mills property and in the estate of Wm. S. Poullain.
    John H. Lovejoy testified, in brief, as follows: In December, 1863, he purchased from defendant the plantation in Floyd County, Georgia, on which Junius Poullain .resided before and at the time of his death; paid the defendant $10,000 in Georgia Railroad bank bills. Defendant said that he paid $6,000 for the place in 1856, and that his son had made improvements, such as clearing, building houses, ditching, etc., so as to bring it up to $10,000. Defendant demanded Georgia Railroad bank bills, because, he said, he wanted it as an investment for his son’s wife and children, because he could purchase the Georgia Railroad stock with them better than he could with other money, and that he wanted the railroad stock as a permanent investment for his son’s wife and children. He said he was selling the property as his son’s, and he wanted to make a safe investment for his son’s wife and children.
    ■ Other witnesses-testified that -Junius Poullain cleared land, built fences, repaired the houses, covered some of them, put up gates, etc., on the land.
    J. M. Storey testified that he heard defendant say, sometime after 1868, that when he owned the Fontenoy mills property, he made money, but that his children were not making money out of it as he had done.
    W. M. Weaver testified that, sometime before the war, he heard the defendant say, in conversation with W. H. Morgan, that he had purchased a plantation in Floyd county for his son, Junius.
    C. 0. Norton testified that' defendant came to him and offered to pay him, as administrator of Felix Poullain (another son of defendant), the dividends of the Fontenoy mills property belonging to the estate of Felix, but that he refused to receive them, as he considered that they, belonged to the children of Felix. Antoiiie and Thomas Poullain. were in possession of the property, managing it for the children and grandchildren of the defendant, from' sometime during the war until its sale in 1875.
    Mrs. Henry Moore testified, in brief, as follows : The defendant is her father. She has frequently heard him speak of the place in Floyd County, on which Junius Poullain had lived, as the property of Junius Poullain. Heard him say that if Junius, Poullain did not like the Floyd County plantation, he could sell it and buy another. Witness had a child’s part in the dividends of the Fontenoy mills property—that is, .one-seventh. On one occasion, during the war, witness received $60,000, and on another $50,000. Since the war she received $3,000 in greenbacks through the defendant. She has heard it commented upon in the family as a singular fact, that the defendant gave places to his sons, Felix, Thomas, William and Junius, and yet did not make, titles to them.
    A letter from the defendant to the complainant, A. M. Poullain, was introduced, dated August 12, 1879, stating that she would find from the records that he only loaned the land and negroes to her father, and saying, “I gave William Smith $2,325 for,your house and home, which is more than the dividends from the factory.”
    Antoine Poullain testified, in brief, as follows : The use of the Fontenoy mills property belonged to the children and representatives of children of defendant; this commenced. about 18G2 or 1863. The factory was run by water-power, and the income belonged to the children and representatives of children. There were seven parties in interest, and complainants were entitled to a seventh interest, if they were all of the legal representatives of Junius Poullain. Witness entered the dividends, their amounts, and to whom paid, on his book, to which he refers. Defendant never made any title to his children to the mill or .other property, and it was the habit of witness to send the dividends to him for distribution. (The book was introduced, showing entries of payments to “ T. N. Poullain, Sr., for stockholders,” and to “Estate Junius Poullain, dividend.” In 1864 and 1865, there were two such items of $20,000 and $50,000; in 1867, $1,000 ; in 1868, $1,000.'
    The evidence on behalf of the defendant was, in brief, as follows:
    It was'S'admitted that A. M. Sloan deeded the Floyd County land in controversy to the defendant, November 26,1856, for $6,000, and that the defendant conveyed the land by deed to John H. Lovejoy, December 20,1862, the consideration being $10,000. It was also admitted that in the returns of McCullough, as administrator of Junius Poullain, the personal property was appraised at $2,667.06, and that it was sold for $3,263.72.
    A receipt from Junius Poullain to defendant was introduced, showing that the former received from the latter certain negroes as a loan. It was dated January 6, 1859.
    Several witnesses testified that they knew the land when Junius Poullain lived on it; that its condition when he went into possession and when he left was about the same, or that it had deteriorated; that it had not been enhanced in value by improvements placed there by him; and that he did not erect valuable and substantial improvements thereon.
    T. N. Poullain, the defendant, testified by interrogatories, in brief, as follows: He received $1,600 from McCullough, administrator of Junius Poullain, in Confederate money, and invested in 4 per cent. Confederate bonds; bought the Floyd County land from one Sloan at $6,000; never gave it to Junius, and never intended to do so, simply gave him the use of it; in the letter to his wife, meant that he had bought it for the use of Junius; generally designated it as Junius’s place, meaning the place where Junius lived; intended to give the same use of the land as of the negroes specified in the receipt in evidence; .'sold the land to Lovejoy for $10,000 in Confederate money; .denies the' statement testified to by Lovejoy about the Georgia' Railroad bills and the intended investment, or that he was selling the land as his son’s in order to make a permanent investment, or that Junius had made any improvements on the place. At the time he sold it, he considered it worth less than when he bought it. He turned over to Antoine and Thomas (his sons) the Eontenoy mills property for the use and benefit of all his children, subject to his control and liable to be terminated at any time. During the war, Antoine and Thomas, as his agents, managed this property. He had a right to control the dividends. Thinks he received about $4,000 in good money, most of which he gave to his children. Supposes he received in Confederate money over one hundred thous- and, perhaps one hundred and fifty thousand dollars, most of which he has on hand now; much has been lost or destroyed. Is certain that it is the same money and turns it over to one of the commissioners. Witness knows nothing of the books kept by Antoine; saw them for the first time during the pendency of the arbitration at the court-house several years ago. Don’t know whether the . entries on them are correct or not. The account attached to his answer is correct.
    It was admitted that certain Confederate money produced in court in a basket was that referred to by defendant in his testimony.
    The jury returned a verdict as follows:
    ' “ "We, the jury, find against the first exception of complainants.
    G. N. Boswell, Foreman.”
    And so likewise as to each exception to and including the seventh. Then followed the following finding:
    
      “ We, the jury, sustain the report of the auditor in full in favor of the defendant. G. N. Boswbll, Foreman.”
    Complainants moved for a new trial on the following
    
      • (1), (2), (3). Because the verdict was contrary to law and evidence, and was not supported by the evidence.
    (4.) Because the court erred in charging the jury as follows : “ The auditors report is an important element in this case. It is evidence before you, evidence of a high character, and is prima facie true and correct, and to overcome it the burden of proof is upon the complainants who exr cept to it, and they must produce evidence to you so strong, clear, unambiguous and unequivocal as to leave in your minds no reasonable or serious doubt that the auditor erred, and that his report is erroneous and should be overruled or set aside.”
    
      (5.) Because the court erred in charging as follows: “ It is claimed by complainants that the defendant, Dr. T. N. Poullain, gave the Floyd County place to their father, Junius Poullain. Upon this subject I charge you, there can be no quesion that the existence of the gift of this place by Dr. Poullain to his son, Junius, must not be left in doubt. The evidence on this point must be so strong, so clear, unambiguous and unequivocal as to leave upon your minds no doubt, no reasonable, serious or grave doubt that Dr. Poullain actually gave this place to his son. Hence the courts have always been averse to acting upon expressions picked out of casual conversations or-extracted from correspondence between the parties themselves, or of the vendor or grantor with others, especially where that correspondence is not forthcoming, or from act3 of the parties of an equivocal character, which may as well be ■ referred to something other than the alleged agreement or' gift, or from the inducements which an anxious parent. holds out to a wild and dissipated child to effect his re- ■ formation, and the like.”
    (6.) Because the court charged the jury as follows: “If' your minds are satisfied beyond a reasonable, serious or grave doubt that Dr. T. N. Poullain did actually give the Floyd County place to his son, Junius; if you are so satisfied from evidence of the character I have indicated— that, is, evidence clear, strong, unambiguous and unequivocal, then you should go further, for in. the absence of a deed or other written evidence of title from Dr. Poullain to his son, the mere gift and putting Junius in possession is not of itself sufficient to pass the title. Something more is required. Junius must have remained in possession under such gift for seven years, or he must have made improvements on said place, substantial and permanent in their nature, beneficial to the freehold, valuable in character and such as an owner would ordinarily make. It is admitted that Junius did not remain in possession seven years; but complainants allege that their father, Junius, while in possession, made such improvements as I have mentioned. On this point I charge you that the burden is on complainants to show you that Junius did make such improvements, and the evidence must be on this point of the same character which I have told you was necessary to establish the gift—that is, it must be so clear, strong, unambiguous and unequivocal as to leave upon your minds no reasonable, serious or grave doubt that Junius actually made improvements of the nature and character I have before mentioned upon the place.”
    (7.) Because the court charged as follows: “ If you believe from the evidence that the defendant was, in the court of ordinary, discharged from the guardianship of the complainant, Anna M. Poullain, and that such discharge was not procured by any fraud practiced by defendant on the ordinary, then you should find against the complainant, Anna M., in toto / for if you' find that there was no fraud so practiced, then she has no interest and no claim against the defendant whatever in this case, except for funds mentioned in his returns, even if he owed her or had funds belonging to her in his hands besides those returns at the time of his discharge. If she had notice of his application for discharge, and the law presumes she did in absence of proof to the contrary, then she has had her day in court, and cannot be heard now, it matters not whether defendant made a true and correct report or return to the ordinary. If he practiced no fraud—that is, acted in good faith, although he may have been mistaken, and actually had funds belonging to her which he did not return, still his discharge would be a bar to her.”
    (3.) Because the court refused to charge the jury, as requested in writing by complainant’s counsel, the following : “ That the discharge,of the ordinary can only be good for what it covers—that is, that it can be only set up here as a defence to the $1,600.00 Confederate money received by defendant from the administrator of plaintiff’s father, and cannot, in any event, be set up against claim of complainants for dividends from Fontenoy mills and interest in .the Floyd County place.”
    (9.) Because the court erred in not admitting in evidence, the. same having been offered by complainants’ counsel, the following evidence by Mrs. Anna M. Poullain, to-wit: “ The defendant bought the place, that is, the Mnd in Floyd County, for Junius Poullain, and that was the way he (Junius) came in possession of it.
    (10.) Because the court erred in not admitting the following evidence of the witness, J. M. Storey, to-wit: “ That he heard Dr. T. N. Poullain say, sometime after 1868, that he had given the Fontenoy factory to his children.”
    (11.) Because the court erred in not admitting the following evidence by the witness, CharlesC. Norton,to-wit: “ That he heard the defendant say that he had given the Fontenoy mills property to his children and grand-children.”
    (12.) Because the court charged as follows: “If you believe from the evidence that the defendant invested the $1,600.00 in Confederate money, which he received from the administrator of Junius Poullain, in four per cent, bonds of the Confederate States, as claimed by him in his special return to the ordinary of Greene County, made May 24th, 1864, then he is not liable to complainants for its value at the time he invested it.”
    
      (13.) Because the court charged as follows: “ Ordinarily a guardian cannot encroach upon the corpus of the estate of his wards without an order of court authorizing him to do so; but if you believe, from the evidence in this case? that the defendant purchased the house and lot in Greensboro with the funds of his wards and their mother, and they occupied said house and premises and got the benefit of the same, it matters not if he did encroach upon the corpus to this extent; he cannot be held liable for it, even if he had no order of court authorizing it.”
    [Addition to this ground by the court: “The court charged that the investment in the house and lot without an order would be allowed, in the event the complainants now hold the house and lot, and in the event all the income of complainants’ property was needed for their support and education, and was actually expended in their support and education.”]
    (14.) Because the verdict is contrary to the following charge of the court: “ If your minds are satisfied beyond a reasonable doubt, from evidence clear, strong, unambiguous and unequivocal, that defendant gave the Floyd County place to his son, Junius, then I charge you that slight improvements, and of small value, made by, or caused to be made by Junius, provided they are substantial and permanent in their nature, beneficial to the freehold, and such as none but an owner would ordinarily make upon the estate in like circumstances, may constitute such improvements contemplated by the statute, as would pass the title; but whether slight or extensive, they will not serve unless of real value, nor unless they are made by or for the donee pending his possession, and upon the faith of the parol gift sought to be set up and enforced by the bill.”
    (15.) Because the jury found contrary to the following charge of the court: “ If you believe that the defendant turned over the proceeds of Fontenoy mills to his children and representatives of children, and put said mills in the possession of Ms two sons, Antoine and Thomas, or Henry Moore, as the agents of his children, to operate for their benefit, and that dividends from this source, after it was so turned over, which belonged to complainants, went into defendant's hands, then he is liable for it, and you should find the amount for which he is so liable.”
    (16.) Because the verdict is contrary to the following charge of the court: “ If you believe from the evidence that the defendant gave the proceeds of Fontenoy mills to his children and representatives of children, and put his sons, Antoine and Thomas, in possession, to operate said mills for this purpose, but reserved the right to revoke this arrangement and take back the possession of said mills to himself at his pleasure, then I charge you that all the dividends or net earnings of s.iid mills be • longed to his said children and representatives of children, so long as he did not revoke said arrangement and take back the possession of said mills. And if, during the time it was being so operated for their benefit, any part of said dividends, to which complainants were entitled, went into defendant’s hands, as guardian or otherwise, he is liable for two-thirds of such amount that went into his hands on account of the interest of his son Junius’s family, and you should so find.”
    (17.) Because the verdict is contrary to the following charge of the court: “If the defendant turned over the Fontenoy mills to his children, that they might receive the dividends arising therefrom, and reserved the right in himself to take said mills back at will, then, so long as he did not take them. back, his children and representatives of children were the joint owners of said dividends. There being seven children, each was entitled to a share of one-seventh in said dividends, and these complainants would be entitled to two-thirds of one seventh of the same; and if one of these seven shares of dividends, which was for Junius Poullain or his wife and children, went into the hands of defendant, either as guardian for complainants or otherwise, and. has not been accounl ed for by him, you should find for the complainants two-thirds of the amount which so went into his hands ; and on this point you are authorized to find a verdict in favor of the preponderance of testimony. The rule as to the character of the evidence which I have charged you, on the point of the gift of the Floyd County place and improvements on same, does not apply on this point, and ail others, except the gift and improvements. On this question preponderance of evidence is sufficient upon which to find.”
    (18.) Because the jury failed to find any verdict on the 8th exception filed by complainants to the auditors report, and there is no verdict on said 8th exception, as required by law.
    (19.) Because the jury failed to find any verdict on the 9th exception filed to the auditor’s report by complainants, and there is no verdict covering said exception, as required by law.
    (20.) Because the verdict is contrary to the following charge of the court: “ You should find seriatim on each and all the exceptions, except the 5th, which has been disposed of by the court. Write out a separate and distinct finding on each of the exceptions to the auditor’s report, except the 5th.” The jury failed to find on the 8th and 9th exceptions by complainants to the. said auditor’s report.
    The motion was overruled, and complainants excepted. Defendant also filed a cross-bill of exceptions, assigning error in the sustaining of the 5th exception to the audit- or’s report, and in overruling the demurrer to the amendment.
    John C. Reed; J. B. Park; F. C. Foster; J. H. Lumpkin, for plaintiffs,
    cited as follows: Auditor’s report only prima
    
    
      facie evidence : Code, §§3097,4203; 71 Ga., 649. Reasonable doubts, error in charge as to: 73 Ga., 647; 56 Ga., 170. Parol gift, rule as to: 71 Ga., 818, 850, 854; 72 Id., 173 ; Ibid., 412. Admissions as to title admissible : Code, §3784; 73 Ga., 749. On investment by guardian : 68 Ga., 167. Use of corpus by guardian: Code, §§1824, 2334, 2540; 72 Ga., 558, 563-4. Verdict must be seriatim: 72 Ga., 412; 67 Id., 364; Code, §4203. Suit against guardian: 41 Ga., 596; Code, §4179. Amendment not barred: 67 Ga., 606. On dismission: Code, §§1849, 3178, 3135.
    D. B. Sanford ; J. A. Billups ; H. G. Lewis, for defendant,
    cited: On auditor’s report: Code, §§3097,3138. On charge of court: 71 Ga., 818; 72 Id., 173, 412. On suit against guardian: 45 Ga., 478; 72 Id., 412; Code, §1816. Amendment, adding new cause of action : Code, §3480 ; 59 Ga., 357; 67 Id., 88. Amendment barred: Code, §2914; Acts 1876, p. 100; 69 Ga., 47; 56 Id., 185, Amendment not sufficient: 18 Ga., 346; 15 Id., 103 ; 22 Id., 60; 32 Id., 362; 42 Id., 412; 53 Id., 620; 69 Id., 553.
    
      
      The statement in parentheses appears in the record as part of the testimony of Mrs. Poullain; but in the'motion for new trial it is stated to have been rejected, and this is assigned as error.—(Rep.)
    
   Hall, Justice.

The first error assigned which we shall notice is that specified in the fourth ground of the motion for a new trial.

That an auditor’s or master’s report is prima facie correct as to the facts which it finds, and although it may. be excepted to, stands until overcome by evidence satisfactory to the jury, and that the onus is upon the party excepting to show that it is erroneous, is too clear and well established to admit either of controversy or question; but w.e cannot go to the extent of holding, with our learned brother, that, in order- to overcome the presumption in favor of the report, the evidence produced by the party excepting must be “ so clear, strong, unambiguous and unequivocal as to leave in the minds of the jury no reasonable or serious doubt -that the auditor erred, or that his report was erroneous and should be overruled and set aside.” A master’s or auditor’s report, even when excepted to, as before stated, is prima facie the truth as to the facts involved, as declared' by our law, and the final decision of such facts shall be by a special jury. Code, §3097. Exceptions of fact shall be passed upon by the jury under the direction of the judge, as in other issues of fact, lb , §3097 (b). See also in connection, lb., §4203. The burthen imposed by the requirements of this charge as to the conclusive nature and character of the testimony essential to óvercome the auditor’s findings seems to us too onerous when contrasted with thése provisions of the Code and the decisions of this court upon this and similar questions. In Schnell et al. vs. Toomer et al., 56 Ga., 170, it was said :■ “ In regard to the evidence of adverse possession, etc , the court was requested to charge the jury, as laid down in 30 Ga., 619, that the plea of the statute must be- supported by proof so conclusive as to exclude reasonable doubt. The court declined so to charge, but seems to have given, what we think, in the true meaning of the cases on the subject, namely, that is only necessary for the proof to clearly satisfy the minds of the jury of the truth of the plea. In civil cases, as in 11 Ga. R., 160; 30 Id., 619, and 17 Id., 559, the exclusion of reasonable doubt means that and no more (Code, §3749); and as ‘ reasonable doubt ’ is a phrase more appropriate to criminal cases, its employment to instruct a jury in civil cases had best be avoided. There is certainly a difference in Ihe strength of conviction required by the' law in the two- classes of cases; and that being so, it is desirable not to confound in language what should be distinguished in thought.” We disapproved a like charge as that now under consideration in Crockett vs. Crockett, 73 Ga., 648, upon the reasoning and authority of this case, and that, too, in a proceeding to correct a mistake in a voluntary deed, where the law in terms requires that the evidence, to justify the correction, should be “clear, unequivocal and decisive as to the mistake itself.” The true rule as to the sufficiency of proof to overcome the finding of facts by an auditor or master is that there should be a sufficient preponderance of evidence to satisfy the jury that there was error in the conclusion reached. This, it seems to us, is fairly inferable from what was held in Keaton, ex'r, et al. vs. Mayo, 71 Ga., 649,that “where an auditor reports the evidence-before him and his conclusions thereon, such conclusions are prima facie correct-, but the presumption of their correctness may be rebutted, and this may be done by the evidence reported as well as by aliunde testimony; but if no facts, and only results, are reported, then evidence outside of the record is essential to sustain the exceptions or to overthrow the report.” As the complainants were un-. der a weightier burden throughout the trial than this rule imposes, the report of the auditor being adverse to them, we conclude that the error, here complained of was hurtful to them, and that, for this reason, if for no other, they are entitled to another trial, in which they will be subjected to no such disadvantageous exaction as that enforced against them.

The charge set out in the fifth ground of the motion for a new trial is substantially correct. That the existence of a parol gift of lands from a parent to a child should be proved by evidence, whether positive and direct or circumstantial and indirect, so clear, strong and unambiguous as to leave no reasonable doubt upon the minds of the jury as to that fact, seems to have been ruled in Beall et al. vs. Clark etal., 71 Ga., 818, 851. On this last page, however,' the final result of the authorities is stated, and the conclusion reached is that though “ it is not indispensable that the agreement should be established wholly by direct and positive evidence of its existence,” but “ may be inferred from acts and conduct clearly referable to it, yet such acts must be of an unambiguous and unequivocal character and must be established by testimony clear, definite and certain in its terms ; they must be such as necessarily result from the agreement, and as the party would not have performed, unless on account of that very agreement and with a direct view to its performance, and the agreement proved must correspond and conform in all essentiaL particulars to that alleged to be partly performed.” The examples given in the charge under review of testimony of a somewhat opposite character, of which fell short of the requirements'here laid down, may not, in all respects, have been strictly in accordance with the facts disclosed by this record. Especially was the reference to inducements held out to reform the habits of a wayward and dissipated child, inappropriate, inasmuch as this provision, if made at all, was made for the maintenance and support of an afflicted son and his family. This suggestion may have tended .tó confuse and mislead the jury, and should not have been admitted.

The charge complained of in the sixth ground of the motion, as to the amount of evidence and its conclusive nature necessary to show the improvements made and the value and character thereof by the alleged donee” of the Floyd County plantation', is somewhat too rigid in its requirements. That the burden was on the complainants to show these facts by clear and satisfactory evidence will not be questioned; but that .the evidence should have beed so clear, strong and unambiguous as to leave ho reasonable or serious doubt that the son made improvements on the place of the nature and character indicated, is putting the point somewhat too broadly and unguardedly. The rule' upon this subject was stated, as it seems to us, somewhat more accurately and precisely in the charge embodied in the fourteenth ground of the motion, that “ if the minds of the jury are satisfied, beyond a reasonable doubt, by clear, satisfactory and unequivocal evidence that á gift of the Floyd County place was made by the father to the son, that the son took possession of the property given and improved it as his own, then, although the improvements made or caused to be made by him were slight and of small value, provided they were substantial and permanent in their nature, beneficial to the freehold, and were such as none but an owner would, under like circumstances, make upon his own estate, they would be the improvements contemplated by the statute as sufficient to pass the title to the donee; but whether slight or extensive, they would not serve, unless of real value, nor unless they were made by or for the donee pending his possession and upon the faith of the parol gift sought to be set up and enforced by the bill.” Beall et al., ex’rs, vs. Clark et al., ut sup., especially pp. 854 and 855 of that case; Hughes et al. vs. Hughes et al., 72 Ga., 173 (8th head note), 178. This very case, whenformerly before this court (lb., 412, 5th head-note, 419), adopts the rule deducible from the foregoing cases. Now, as then, we express no opinion, as to which party is entitled to prevail, on the facts disclosed by the evidence. On these several issues there is a conflict in the testimony, and it is the province of the jury to settle these questions of fact, under proper instructions from the court, which, as it seems to us, have not been so explicitly and clearly given as they should have been; indeed, we are not satisfied that any other instructions upon the law should have been given, except such as related to the amount of testimony requisite to establish the particular facts they were called upon to find under the exceptions they were trying. With the effect these facts were to have on the decree to be entered on their finding they had no concern; it was the exclusive duty of the court to enter the decree upon the facts found. As the Code, §3097 (b), requires exceptions to a master’s or auditor’s report to be separately classified as exceptions of law and exceptions of fact, and as the former are for the exclusive consideration of the judge, and the latter are to be passed upon by the jury, under the direction of the judge, as in other issues of fact, the course above indicated would seem to follow from this enactment as that which is proper to be pursued.

Whether the evidence repelled by the court, to the effect that the defendant bought the land in Eloyd County'for his son (who is the father of the complainants and under whom they claim), and that was the way the son came in possession of it, was admissible, might depend in some measure upon the witness’s knowledge of other facts, or, it may be, she might have known this as a separate, independent fact from her connection with the transaction as the widow and a member of the family of the deceased son. In the last case, it is doubtful whether her connection with the transaction would, without more, render it competent, while in the former, although she had testified to facts that led inevitably to such a conclusion, it would not necessarily follow that she was not stating her own opinion or giving what she heard others say; but had she gotten the fact proposed to be testified to from the defendant, or from conversations between him and others, at which she was present, then there could be no question as to the admissibility of the evidence; but none of these things are made affirmatively to appear, and we cannot assume their existence for the purpose of presuming there was error, when none is specially pointed out. Big-ham vs. Coleman, 71 Ga., 185, 193. So there was no error in rejecting the evidence excepted to in the ninth ground of the motion.

We are, however, of opinion that the evidence set forth in the tenth and eleventh grounds of the motion was competent and should have been admitted. The admissions of the defendant as to the gift of the Fontenoy mills property to his children and grandchildren, when taken in connection with other circumstances in proof, did go to show that the gift was made, and to that point were certainly relevant. What was their force or effect in establishing that gift, under the explanations offered by the defendant, was for the consideration of the jury, and upon that point we express no opinion. Code, §3784. Knorr, adm’r, et al. vs. Raymond et al., 73 Ga., 749, is directly in point.

The complainant, Anna M. Poullain, excepted to the finding of the auditor sustaining the final discharge by the court of ordinary of the defendant as her guardian, among others, upon the ground that the discharge was procured by fraud practiced by the defendant both upon her and upon the ordinary; that the fraud consisted in the omission from his accounts of divers sums of money which came into his hands, or which should have come into his hands from the various sources mentioned in the bill, namely, from the Fontenoy mills property, from the Floyd County plantation, etc., and contained only an inconsiderable item of money arising from the sale of the personal property belonging to her father’s estate, amounting to about $1,600, and turned over to her guardian by her father’s administrator ; and even this item is seriously assailed by the evidence. This guardianship, as it appears, extended over a number of years, and during that long period, only three very informal and incomplete annual returns were made. These returns furnished no information of any disbursements made by her guardian on her account. When the final account was rendered by him and his discharge from the trust was obtained, she had but recently attained her majority and was, presumably at least, without such business capacity as would enable her to look into this matter with a view of protecting her interests; nor does it appear that she had the aid of counsel to guard her rights, or that these accounts were ever exhibited to her, or the matter explained by her guardian, or that she was present at the final accounting with the ordinary, or that she had other notice of it than that implied from the publication required by law; indeed, she sets up that she never saw the publication, and that she had no actual notice of the defendant’s application to be discharged from this trust. In his final settlement the defendant accounted for the $1,600 by alleging that it was invested, under the law, in four per cent. Confederate States bonds, which he professed accompanied the return. It appears upon examination, however, that no such bonds were filed with the return. Those actually filed were Confederate States securities amounting to only about $1,300 and bearing 8 per cent, interest. These facts, of themselves, might have been invoked as affording evidence to show that this ordinary was remiss in his duty to this ward in failing to examine the accounts and vouchers of this guardian in order to ascertain whether he had fully discharged the duties of his trust and to verify the truth of the guardian’s petition for his discharge which made that statement. This, as it seems to us, was incumbent upon him, whether objections to the guardian’s discharge were filed or not on behalf of the ward. Code, §1849, sub-secs. 1, 2, 3, 4. The exception to the auditor’s report under consideration and the evidence adduced on the trial tended both to surcharge and falsify this account; it was surcharged .by alleging omissions therein, and falsified by denying th'e correctness of certain of the items rendered. The law upon the subject and the effects flowing therefrom are thus tersely and plainly stated by our Code, §3135 : “ One palpably fraudulent item casts suspicion upon the entire account.”

In Dowling vs. Feeley et al., 72 Ga., 566, in dealing with questions which involved this, we say that it is “ made the duty of the administrator by law to keep these accounts, ■to support them by proper vouchers, and to present them annually for examination and approval by the proper authority,” and we add, quoting and adopting what is said in 2 Spence’s Eq. Jur., 921, “ It is an imperative duty of ■ an accounting party, whether an agent, a trustee, a receiver or an executor (for in this respect, as was remarked by the Lord Chancellor in Lord Hardwick vs. Vernon, they -all stand in the same situation) to keep his accounts in a regular manner, and to be always ready with his accounts; neglect of this duty is a ground for charging him with interest for balances in his hands and with cost. So a trustee and executor is bound to render every necessary information that is required of him, and he who, undertaking to give informa•tion, gives but half information, in the view of a court of chancery, conceals; if he has not all the information necessary, he is bound to seek first, and if practicable, to obtain it.” That concealmentse amounts to actual fraud when, from any reason, one party has a right to expect full communication of the facts from another, is a well-settled principle, recognized by both the civil and moral law. Code, §2635, sub-sec. 2.

We have just seen that it is the duty of the ordinary, in passing upon all these accounts, and especially upon the final account, with a view to granting the guardian a discharge, to ascertain, before doing so, that all the duties of the trust have been fully performed, and that this essential fact must be made to appear by a careful scrutiny and examination by him of the various items thereof and the vouchers sustaining them. It is scarcely necessary to observe that the omission of what is claimed to be much the larger part of the estate and the incorrectness of other items, or the failure to furnish any vouchers whatever, would raise a presumption against the fairness of the. transaction ; and that, where fraud is charged, this is a question for the jury, and that they have, a right, in determining whether it exists or not, to declare it, on account of its subtle nature, from slight circumstances ; or that even the most solemn judgment obtained by resorting to such means is open to attack and liable to be annulled and set aside upon a bill filed for the purpose. Gode, §3178. We are of opinion that this issue was not so fairly and fully submitted to.the jury in the charge given and that refused, as set forth in the 7th and 8th grounds of the motion, as it should have been, and that the instructions given upon the question confined the investigation of'the jury to limits too narrow, and withdrew from their consideration circumstances which might possibly have led to a different result.

It is true, however, as insisted by counsel for defendant, that the errors complained of in this long charge are not particularly specified, and that it is not erroneous in each and all its parts, and while we should not ordinarily have ■felt bound, without this specification, to pass upon it, yet we have considered it only because the case will, on account of other errors, have to be re-heard, and because, upon that hearing, let it result as it may, it is desirable to avoid error and to put an end to troublesome litigation, especially as it is between parties sustaining to each othér such near relationship as do these complainants to the defendant, who is their grandfather.

Neither the 12th nor 13th ground of the motion for a new trial points out any specific error in either of the charges therein complained of, and in the absence of the entire charge given upon the subject of allowing credit for funds of wards invested in Confederate securities, or as to the right of the guardian to encroach on the corpus of the estate for the education and support of his wards, without a previous order of the ordinary, we discover no error, at least none that was hurtful to the complainants. The charges state somewhat broadly, but, as we think, correctly, general principles controlling the subject, and if more specific instructions applicable to the facts in evidence had been desired, they should have been asked; indeed, from the character of the exceptions taken, we cannot assume that such specific instructions were not given* These remarks are applicable to the charge in relation to the house and lot in Greensboro purchased by the guardian for his wards and their mother. The statute points out the mode of making returns of the money invested in Confederate securities, and its terms and requirements seem to us so clear and explicit as to exclude any doubt or difficulty as to the guardian’s duty in the matter. The circumstances which will protect a trustee, where he has encroached upon the corpus of the estate and will allow him such expenditures where this has been done without the authority of the ordinary previously obtáined, were carefully considered by us in Dowling vs. Feeley et al., 72 Ga., 558, 563, 564, and we re-affirm the rule laid down in that case.

That the jury should have returned a separate finding as to each of the eighth and ninth exceptions taken by complainants to the auditor’s report, and that their verdict as to this was not in proper form, has been adjudged in this case when it was formerly before this court (72 Ga., 412), and as to the present suit is res ad judicata ; but whether this omission was so material as to have justified the court, had there been no other error in the record, in setting áside the verdict, especially as no éffort seems to have been made to have it reformed before it was received and recorded, we are not prepared to hold.

The remaining grounds of the plaintiff’s motion are the general grounds that the verdict is contrary to law, etc., and contrary to certain specified charges of the court; and upon these it is not our purpose to pas3 in judgment; and as there is to be another trial of the case, we conceive that it would be improper to do so.

The defendant demurred to the right of the complainant, Hallie R, who was still a minor, and for whom he was guardian, to maintain this suit by prochien ami, but the demurrer was overruled. He also objected on several grounds to the amendment ofiered and allowed to be made by complainants to the fourth exception to the auditor’s report, and these objections were overruled. These decisions are made the subject of his cross-bill of exceptions.

We think the demurrer setting up the disability of this infant complainant to maintain this suit by hérnext friend was properly overruled. Johnson, by her next friend, etc., vs. Janes, 41 Ga., 596, rules the precise point,adversely to the demurrer.

We do not think that the amendifient to the exception'made á hew and distinct couse of action; its purpose was to supply defects in the original exception and to specify errors and omissions in the guardian’s accounts and returns, which had been too generally alleged therein. The averments contained in this amendment were sufficient, as has been shown, to require the defendant to .answer to the alleged fraud, by means of which it was charged his dismission from the trust was procured. They are made specific by reference to. the allegations in complainants’ bill, and if those allegations are not sufficiently full and clear, they may be made so by an amendment to the bill.

It does not appear that the order referring this case to the auditor prescribed any time in which exceptions to the auditor’s report were to be filed, and this being the case, the report was subject to exceptions for such time as the court might allow. Code, §4203 and citations.

If the original action would not have been barred by the statute of limitations, an amendment which introduced no new and distinct cause of action would not have been barred. Hines vs. Rutherfordfil Ga , 606. The defendant can, therefore, take nothing by his cross-bill, and the decisions to which it excepts are affirmed.

In order to bring this tedious litigation to a close, it would be well to submit to the jury trying it the special issues of fact out of which the contested questions arise, and make it incumbent upon the court to decree on their finding of these several issues, as provided by the act of 27th February, 1876, Code, §4206, and the 7th rule of practice in equity causes. The controversy relates mainly to these points:

1st. As to the gift by the defendant of the Floyd County plantation to the father of the complainants.

2nd. As to the gift of the Fontenoy mills property, or the income thereof, by the defendant to his children and grandchildren.

3d. As to the investment by the defendant in a house and lot in Greensboro for plaintiffs and their mother.

4th. As to the procurement of administration on the estate of Junius Poullain by the defendant; what property went or should have gone into the hands of this administrator, together with its value; what action, if any, the defendant took, as guardian of the complainants, to bring him to account, and what he received, as well as what he should have received from him as such guardian.

5th. What returns, if any, the defendant made as guardian to the ordinary, and when they were so made, and by what vouchers, if any, the returns of such items were supported—especially as to expenditures paid out for the maintenance and education of his wards; what was, or should have been, the income from their estate, etc.

6th. What was the age of Anna M. when defendant was? dismissed from the guardianship of her property; what notice she had of his application for such letters dismissory - upon what sort of an accounting with the ordinary such, letters dismissory were obtained, and by what vouchers-, the final account was accompanied, and whether or not there was evidence going to show that the ordinary,. in> granting this judgment of dismission, examined this-final' return, as well as all others, and the accompanying.: vouchers.

Questions carefully framed and submitted to the-jury in? writing, and so classified, separated and numbered, as., would enable them to return a clear and intelligible' answer to each, would, as it seems to us, result in ascertaining the facts that bear upon the questions above ■ suggested and enable the court to render a final decree.. Had there been no reference to an auditor, and no report made by him to which exceptions were filed, this would' obviously have been the proper course to take with this • case, and we should not have hesitated to give it that direction. What authority, if any, the order referring .the? case gave the auditor over other questions than the investigation and taking the account, or whether-his'report*, when made, was accepted and approved by th’ejcourt, .we? are unable to determine, as the record fails tt> 'give either ’ the order of reference or to show how the report was disposed of when it was made to the court. If it should turn out, however, that, by the terms of the order, the power of the auditor did not extend beyond the investigation and statement of the accounts, and that the report, when made, was not accepted and approved by order of the court, then we see no objection to postponing its consideration until the facts essential to fixing the basis on which the account shall be taken are ascertained in the manner we have indicated rather than directed. When these facts are established, if in favor of complainants, then the report may be recommitted with a view of ascertaining the several amounts for which the decree should be rendered; or if all of them should be found in favor of defendant, then no further investigation into the matters need be had. In saying that this report states results without giving the evidence, even in outline, on which it is made, and that if is meagre and imperfect as to facts and issues essential to the determination of the points in controversy, we design to cast no reflection upon the auditor; under the law as it stood when it was made, it perhaps could not have been otherwise, but as the law now stands, these deficiencies are obviated, and cannot, if its plain directions are followed, again occur. Code, §3097 (a) to (f).

Judgment reversed.  