
    *Griffith & al. v. Bird & als.
    March Term, 1872,
    Richmond.
    Parent as Guardian—Charging Wards with Mainte» nance.—G., who was the guardian of two of his children, maintained and educated them at his own expense, and made no charge against them. He died in February 1861; up to which time his estate was ample to pay his debts, but, by losses incurred since his death, it is not sufficient to pay them. In a question between creditors of G., his two children, for whom he was guardian, are not to be charged in the guardianship account with the expense of their maintenance or education.
    The case is sufficiently stated by Judge Christian, delivering the opinion of the court.
    Beale and Mayo, for the appellants:
    A father, if of liability, is bound to maintain his infant children, even though they have property of their own. Judge Spencer, in Edwards v. Davis, 16 John. R. 281, and Robertson, J. 15 Gratt. 513.
    The duty of educating them by natural and moral law, as binding, is not so clearly defined in our own English jurisprudence; though this, too, is recognized as a positive right by the courts of some of our sister States. Stanton v. Wilson, 3 Day’s R. 37; Parson’s Cont., 3d edi., page 245, and note.
    In Myers v. Wade, 6 Rand. 444, Judge Coalter said: “Had the widowed mother possessed an estate sufficient for their maintenance and education, although I am not prepared to say she would have been bound to expend it in that way, yet had she thought proper to do so, it would have been a voluntary donation, in no wise a bar to their future claim to their own estate. ’ ’ This dictum *fully endorses the moral right of the child; is sustained by reason, and we think affirms a legal principle, never contradicted, in asserting that voluntary expenditures for education by a parent is in no wise a bar to the future recovery of his separate estate by the child.
    In Evans v. Pearce, 15 Gratt. 513, Judge Robertson further said, that courts would look with liberality to the circumstances of father and child, and in cases proper would authorize the income of the child to be applied to its support.
    Is this such a case? Every witness who speaks of the pecuniary condition of the father places his fortune, after payment of debts, at forty or fifty thousand dollars. His ability to educate is beyond dispute; his insolvency, rather that of his estate, was caused by losses after his death. The English rule, as laid down by Eord Thur-low, was first an inquiry as to the father’s ability; secondly, the ascertainment of the amount required to be taken from the child’s income. 1 Tucker’s Com., Book 1, p. 129.
    If of ability, the father was always bound to maintain and educate his infant child. See Wood’s Institutes, p. 63; Brodie v. Barry, 2 Ves. & B. 36; Darley v. Darley, 3 Atk. R. 399; Adams’ Equ. 531, and note; Parson’s Cont., 3d edi., p. 256; 1 Thomas’ Coke, 109; Evans v. Pearce, 15 Gratt. 513.
    The last authority recognizes the principle and the relaxation of the old rule. In but one case was retrospective allowance sanctioned. If the father be of ability to educate, there can be but one ground upon which an application to chancery, for the use of the child’s income in aid of education, can be supported, and this is the refusal or neglect of the father so to expend his own means. And we affirm, both upon principle and authority, that the aid of equity has always been limited to remedy either the want of means by the father, or the refusal by him to use them, if able, towards the maintenance *and education of the child. We further say, that all applications to those courts, upon the principles of their general jurisdiction, or under statutory enactment, for their sanction of expenditures of the income of the child’s separate estate, either made or to be made, rest upon the allegation that it is for the interest of the child that such sanction is asked. See 2 Story’s Eq-, § 1346, p. 577.
    The statute law of Virginia is silent as to the right of the father-guardian to expend his infant child’s estate in any manner other than a stranger, as such may do, and does not at all affect the general doctrine of courts of equity as to his duty to maintain and educate out of his own means, if able. In the case of any guardian, the statute law, '$ 8, p. 588, Va. Code 1860, does expressly supersede the necessity of any precedent application to authorize a sale of personalty, “when deemed best for the ward,” by declaring that any such sale, made to meet proper expenditures, may be sanctioned by the court whenever, upon authorizing the disbursement, the court would have ordered the sale.
    Neither this, or any section of our Code, touches the question of the father’s duty to educate, if able, but leaves that where the courts have placed it, an element in the consideration which they must weigh in reaching the conclusion “'when deemed best for the ward.” If able, social and moral duty requires the father to educate. If he does educate his child, in the absence of evidence the legal presumption is he does it in discharge of that duty; nor is there a word in the statute book, or dictum or decision in the reports, or deduction on principle of law or reason, which will justify the demand of a creditor, years after the death of the father, that this duty, voluntarily met, shall, in a court of chancery, be made, by implication, the foundation of equitable offset to the legal demands of the child.
    *Eyons, for the appellee:
    I submit that the rule, as now settled in its strongest form against the parent, is, that whenever what is called a special case is made, such as showing that the means of the father are inadequate to the maintenance and education of his children, who have a separate property, without neglect or injury to the other members of his family, the court of chancery will always make an allowance out of the income of the child for its maintenance.
    By the common law, the child and the servant, under the feudal system, were put upon the same footing. The parent, being entitled to all the services of his child, and all the profits of his labor during infancy, was bound to maintain it; but never was bound, and is not now bound, to educate it. 1 Black Com., ch. 16, p. 451. When, however, the child has a fortune independently of his father, if it appears that the father is not of ability to maintain the child according to its means, the court of chancery will order an appropriation from its income for its maintenance. Hughes v. Hughes, 1 Br. C. C. p. 387, notes 1 and 3.
    The rule was subsequently varied so as to allow the past maintenance, as well as the current maintenance, to the father. Reeves v. Brymer, 6 Ves. R. 425; McPherson on Infants, 41 Taw Tibrary, p. 141; Ex parte Board, 2 Myl. & K. 439, 8 Cond. Eng. Ch. R. 73; Carmichael v. Hughes, 6 Eng. L. & E. R. 71; Newport v. Cook, 2 Ashm. R. 332; Evans v. Pierce, 15 Gratt. 513. In the last case no authority is cited by either court or counsel, unfortunately, but still the court says, “the court will look with liberality to the circumstances of each particular case, and to the respective estates of father and children, and will authorize the income arising from the estates of infants to be applied to their support whenever, under all the circumstances, it appears to be proper.”
    The statute authorizes also, not only the appropriation of the ward’s income to its maintenance and education, *but empowers the courts ' to invade the principal for that purpose. Code ch. 128, p. 588, ‘U 7, 8, 9.
    Now, it is submitted that the rules thus expounded by the courts apply with conclusive force to this case.
    If the father were alive, settling his account, and seeking to replenish himself by the charges for the maintenance and education of his children, he would be allowed both, upon proof of inadequate means of his own; but with the most adequate means he would be allowed the charges for education and the expenses unavoidably incident to it. How much stronger is the case when the children have been supported and educated, in the language of the British courts, “in a style suitable to their fortune,” whereby the father has contracted a large debt, and the creditors, as I have said, who furnished the means, are to lose them, unless the children be made to do now what they would have been made by the court of chancery to do, if their father had asked for it: to abate their demand against the estate of the father by a fair allowance for their maintenance and education.
    Will the court-encourage a practice under which a parent may spend the income of his children upon their maintenance and education, and then not only turn his creditors adrift without satisfaction, but render his securities ■ responsible for the very income which the children have enjoj;ed, and without which they could not have lived “in a manner suitable to their fortune”?
    Instead of doing this, the court will adopt the more just and equitable rule, of considering that as done which ought to have been done, as there can be no doubt that if the father had applied to the court for an appropriation of the income to the maintenance and education of his children, it would have been made. This court will not now allow the false pride of the father to operate as an injury to the innocent creditors, but make the appropriation now which would have been made if it had been *asked for earlier, and appropriate the income of the children to their education and maintenance.
    There is still another consideration which ought, I think, to have its weight.
    This is a controversy among creditors, in which, to say the most for the children, all are equally innocent, but in which, in reality, the children, under the circumstances, are entitled to the least favor. By the misfortune and fate of war a large portion of the fund out of which they would have been paid has been destroyed.
    Will this high court, by a rigid enforcement of a technical rule and a mere form, throw the entire loss upon those creditors least obnoxious to favor.
   CHRISTIAN, J.

delivered the opinion of the court.

This is an appeal from a decree of the Circuit court of Westmoreland county. The bill was filed by the creditors of E. C. Griffith, who departed this life in the year 1861, seized and possessed of considerable estate, real and personal. The object of the bill was to have a settlemen t of the accounts of his administrator, to ascertain the amount of his indebtedness, and to effect a sale of his real estate for the payment of his debts.

The said Griffith in his lifetime had qualified as guardian of two of his children, to wit, Eleanor and Erederick, and received as such guardian certain real- and personal estate derived by them from their grandmother.

An account, taken by the commissioner, of the outstanding debts against the estate, shows that Griffith was very largely indebted, and that, indeed, his whole estate, real and personal, was not sufficient to pay his debts. Among the debts reported by the commissioner were balances due from the said Griffith, as guardian of his two wards and children, Eleanor and Erederick, amounting to the sum of $2,518.73 due to each, and which the commissioner reports among his fiduciary debts.

After the commissioner had returned these accounts, *and after a decree had been entered directing a distribution of the fund in the hands of the administrator, and also directing a sale of the real estate of the decedent, Willoughby Newton, one of the general creditors, filed his petition, praying that the sale of said real estate of E- C. Griffith might be postponed until the further order of the court, and that the said commissioner should institute an inquiry into the circumstances of E- C. Griffith, and- his expenditures in improving the real estate, and in the maintenance and education of his children, Erederick and Eleanor, and report the facts to the court.

Upon the coming in of this petition the decree of sale was set aside, and the inquiries suggested by the petition of Newton ordered to be made; and the report of said commissioner, together with the evidence taken by him, was returned to the court at the October term, 1869. Whereupon, a decree was entered, in which the said Circuit court declared that there was no sufficient evidence that any permanent improvements had been made by Griffith in his lifetime on the real estate of his wards; but declared further, “that the defendants, Frederick Griffith and Eleanor Fairfax (who was Eleanor Griffith), are bound to account to the estate of their father and guardian for all the expenses of their education.” Accordingly, the court decreed that “the report of commissioner Baker be referred to a commissioner of this court, with instructions to reform the guardianship account according to the principles herein declared, stating clearly and distinctly all the expenses of their education, including board, tuition, books, travelling and other necessary expenses of said infants, and make report to the court.” From this decree Frederick Griffith, in his own right, and as trustee for his sister Eleanor Fairfax, has obtained an appeal from this court.

The court is of opinion that the decree of the said Circuit court was manifestly erroneous in affirming a liability on the part of Frederick and Eleanor, the infant ‘^children of E- C. Griffith, to his estate, for moneys by him voluntarily expended in their maintenance and education. It is a well settled principle of law, governing the relation of parent and child, that a father, if of ability, is bound to maintain his infant children, even though they may have property of their own. 1 Tuck., Book I, p. 129; Thomas’s Coke on Bitt. p. 159, Note A; Evans v. Pearce, 15 Gratt. 513.

It is true that, where the infant has separate estate, a court of chancery may, upon the application of the father or friend of the infant, direct the estate of the infant to be applied to its maintenance and education, whenever, under all the circumstances, it appears to be proper. But where the father, of unquestioned ability to maintain his infant children, does not petition the court to have any of the profits of their separate estate applied to their support, and makes no charge against them during his lifetime, his estate will not be allowed anything for their support, without the clearest proof that justice requires it. Evans v. Pearce, supra.

In the case before us, the ability of the father to afford his children a liberal education is beyond dispute. According to witnesses, whose relations to the deceased gave them opportunity of knowing his pecuniary condition, he was worth forty or fifty thousand dollars at the time of his death, after the payment of his debts. The insolvency of his estate was caused by losses after his death. He raised no charge against his children during his life; he left no note or memorandum from which such a charge could be raised by his personal representatives, who were his second wife and her brother; and the administrator de bonis non, who is a party to the suit, asserts no such demand in favor of the estate. But the claim is raised by one of the general creditors, who is seeking to swell the assets of the estate by depriving the wards and children of the decedent of an acknowledged debt of the highest dignity due from their father and ^guardian. It is not to be tolerated that this creditor should be permitted to come into a court of equity, and put himself in the shoes of the father and his personal representative, to enforce a claim which neither the one in his lifetime, nor the other after the death of the decedent, ever thought of asserting.

We are therefore of opinion that the said decree of the Circuit court of the county of Westmoreland should be reversed.

The decree was as follows:

The court is of opinion, for reasons stated in writing, and filed with the record, that the decree of the said Circuit court is erroneous, in affirming a liability on the part of the defendants, Frederick Griffith and Eleanor Fairfax, to account to the estate of their father and guardian, E- C. Griffith, for the expenses of their education. It is therefore decreed and ordered, that the said decree to this extent be reversed and annulled, and that the appellants recover against the appellee, Willoughby Newton, their costs by them expended in the prosecution of their appeal here; and that the cause be remanded to the said Circuit court for further proceedings to be had therein, in accordance with the principles herein set forth.

Decree reversed. 
      
      Parent as Guardian—Charging Wards with Haintenance.—Cited and affirmed in Stigler’s Ex’x v. Stigler, 77 Va. 171, where also is cited Evans v. Pearce, 15 Gratt. 515. Distinguished in Hauser v. King, 76 Va. 737. See also, Windon v. Stewart, 43 W. Va. 711, 28 S. E. Rep. 776.
     