
    M’Alister vs. Olmstead, et als.
    
    M’Alister, by will, appointed Niehol guardian of his children and executor, and died. Niehol qualified as executor, but did not take upon himself the duties of guardian; but, after acting as executor of the will six years, renounced the guardianship. Olmstead was appointed guardian and receipted in full to Niehol for the entire estate: Held, that the appointment of Olmstead was legal and valid, and that though Niehol was named guardian in the will, and may have done an act appropriate to the character of guardian, that did not make him such.
    One of the heirs died without issue, and no letters of administration were ever taken out upon his estate. Olmstead received his portion as guardian: Held, that Olmstead was liable for all that he received as the property of his wards. The guardian is not permitted to contest the validity of his wards’ title to the estate which he received as belonging to them. Whatever he received he is bound to account for.
    The securities of a guardian are liable to the full extent'of his obligation.
    The proper mode of taking an account is to allow as credits to the guardian such sums as were properly paid and for which there were vouchers produced; and where no vouchers were produced, to have heard proof and to have allowed such credits as were reasonable for boarding, tuition fees, clothing, &c. &c.
    Where the general result of an account taken is correct, the court will not reverse, though there may be some partial errors in the taking of the same on both sides.
    Perkins and Olmstead drew a joint bill on a commission house in New Orleans for the benefit of Olmstead. Perkins paid the money and prayed that it might be allowed as a set off against the claims of complainants: Held, that it not appearing that it was agreed at the time the draft was drawn that Perkins should pay the draft, and that the payment should go towards the discharge of his bond in the hands of the administrator, the credit could not be allowed.
    If Perkins advanced this sum of money to Olmstead for his private purposes when he knew that Olmstead was insolvent, with an agreement that it should be applied in extinguishment of a debt due to him as trustee, this would constitute Perkins particeps in a fraud upon the complainants, and he would be held liable for the amount, notwithstanding the agreement that it should be considered as a payment.
    This bill was filed by a portion of the heirs and devisees of Charles M’Alister, deceased, in the chancery court at Franklin, Williamson county, on the 12th day of January, 1837, against their guardian and his securities, for an account.
    Charles M’Alister, a citizen at the time of his death of the 
      town of Franklin, Williamson county, made his last will and testament on the 7th day of October, 1818, and died in some short time thereafter. His will, at the October sessions of the county court of Williamson, 1837, was admitted to probate and duly recorded. He left a widow, Elizabeth M’Alis-ter, and five children, John, Frances, (who subsequently intermarried with Humphrey Marshall,) Josiah, James, William and Charles M’Alister. The decedent disposed of his earthly estate as follows: “I do hereby devise to my dear wife all my real estate in the town of Franklin during her life or widowhood, and at her death or intermarriage I devise the same to my children or the survivors of them. I do also bequeath to my said wife all my slaves, all my household furniture, and the dividends or proceeds of all my bank stock; but if she should marry, then and in that case, it is my desire that she should have only one-half or a moiety of my slaves, and all my household furniture, and no more of the proceeds of my bank stock than she may have received of dividends previously. It is my desire that out of the proceeds of my bank stock and the use of my slaves my children be educated and supported during the widowhood of my said wife, if said funds be deemed sufficient for that purpose by my executor hereafter named; but if not, then it is my desire that my executors draw for and appropriate so much of my property as they may deem sufficient to supply the deficiency of education and support of any and all my children. It is my will and desire that the balance of my property, except as hereinbefore excepted and qualified, be equally divided between my children- I do appoint my friend John Nichol, merchant, of Nashville, guardian of my children. I do appoint John Nichol executor, and my dear wife executrix, of this my last will and testament.”
    John Nichol and Elizabeth M’Alister qualified according to law as executor and executrix, but no evidence appears in the record that Nichol ever took upon himself the duties and office of testamentary guardian of the children under this will. It appears that Charles M’Alister died possessed of the following real estate, to wit: a store house and dwelling house in the town of Franklin, a small framed house, and some out lots, and a tract of land of about one hundred acres county of Williamson, of inferior quality; that he died p0ssesse¿ 0f two thousand dollars of stock in the Nashville Ban}Cj seVen slaves of medium value, besides a considerable amount in notes, bonds and money, in which his estate chiefly consisted. In 1822 Josiah died a minor, without issue, and no letters of administration were ever taken out upon his estate. In 1823, M. D. Cooper, John M’Alister and H, Petway were appointed commissioners by the county court of Williamson county to settle with the executor and executrix of John M’Alister, deceased, who found a balance in the hands of John Nichol of twenty-four thousand four hundred and eighty-eight dollars thirty-seven cents in notes, obligations and judgments. This settlement was produced at the January sessions of the county court of Williamson county, read and ordered to be recorded, which was done accordingly. On the 4th day of September, 1823, Elizabeth M’Alister, the widow of Charles M’Alister, deceased, intermarried with Charles G. Oimstead, a citizen of Williamson county at that time. At the July sessions of the county court of Williamson, in 1825, the following entry was made pn the records of said court:
    “State of Tennessee, Williamson county court, July sessions, 1825. July 9th, 1825. John Nichol, one of the executors and appointed testamentary guardian for the chiL dren of Charles M’Alister, deceased, appears in court and Renounces said guardianship.”
    A full and final settlement was made at this court by commissioners with John Nichol. Charles G. Oimstead was appointed guardian of the minors of M’Alister, deceased, of which an entry was made on the records of the county oourt in the following words:
    ‘.‘State of Tennessee, Williamson county court, July term, 1825. Charles G. Oimstead is constituted and appointed guardian of John 1). M’Alister, Frances M’Alister, Charles M’Alister, James M’Alister and William M’Alister, minor orphans of Charles McAlister, deceased, who gave bond of sixty thousand dollars, conditioned for his faithful guardianship, with Thomas H. Perkins, Nicholas Perkins, senior, Archibald Lvtle, William E. Owen and Lemuel Donalson his , . securities.”
    At and during the same court a settlement took place between Nichol and Olmstead, Nichol as executor and Olm-stead as guardian, appointed as aforesaid, upon the conclusion of which Olmstead executed to Nichol a receipt, which was in the following words:
    “Received of John Nichol, executor of Charles M’Alister, deceased, the whole amount of the notes, cash in hand, ne-groes, bank stock and lands spoken of in the schedule, being the whole of the estate which came to the hands of said John as executor of the last will and testament of Charles M’Alister, deceased, and likewise the whole of the estate which belongs to the children and legatees of the said Charles.
    July 11th, 1825. C hables G. Olmstead,
    Guardian of the heirs of Chas. M’Alister, dec’d.”
    This receipt was acknowledged in the county court as a part of the settlement of the executor, and was ordered to be recorded and was recorded accordingly.
    Upon the settlement aforesaid, subsequent to the marriage of Olmstead with the widow of the testator, the negroes were divided in accordance with the provisions of the will, and Olmstead, in right of his wife, assumed the ownership of half of them, and claimed one-sixth of the estate of the deceased minor, Josiah. Olmstead made a settlement with Humphrey Marshall, in right of his wife, Frances, and John M’Alister, for their interest in the estate, and it appears that they were satisfied in regard thereto.
    At the July sessions oí the county court of Williamson, 1826, Olmstead made a return of the state and condition of the estate of the heirs of M’Alister, deceased, in his hands, and returned in his hands the sum of twenty-nine thousand nine hundred and fifty-three dollar's and sixty-five cents, giving in his account a detailed statement and swearing to the truth of the same before that tribunal, in pursuance of the act of the assembly in such cases. This was the only return ever made by him as guardian. He engaged subsequently in merchandising in the town of Franklin upon the monies and effects of the minors in his hands, with a relative of his as a partner. The partner becoming dissipated, the adventure turned out disastrously; and large sums were lost also in speculations in the article of cotton. He made, at the instance 0f j\irs. Olmstead, valuable improvements on the real estate of the heirs in the town of Franklin. The minors (the boys) as they grew up, became headstrong, ungovernable and reckless in the'expenditure of money, and the guardian expended sums for them time after time, without keeping any regular account of their transactions. In 1832 Mrs. Olm-stead died, and Olmstead, finding his affairs in a state of irretrievable confusion, left the State of Tennessee for the State of Kentucky, in 1836.
    The complainants, William, James and Charles M’Alister, minors still in 1837, by their next friend, Gilbert Marshall, chairman of the county court of Williamson, filed this bill in the chancery court at Franklin, against Charles G. Olm-stead, William Donalson, administrator of Lemuel Donalson, deceased, William E. Owen, Thomas H. Perkins and Archibald Lytle, the securities of said Olmstead for the faithful performance of his duties as guardian according to law, praying a decree for an account of the estate of the testator. The bill charges that the guardian had returned in 1826 that he had twenty-nine thousand nine hundred and fifty-eight dollars and sixty-five cents in his hands, exclusive of the real estate and the rents thereof, the slaves and their hire, and the bank stock and the dividends thereof; that he had settled with Humphrey Marshall in right of his wife, Frances, and with John M’Alister, and that no return had been made since 1826, and that they were in actual sufferance for the want of the necessaries of life, and that they were unable after repeated applications to obtain a settlement with him, or even a statement of the condition of the estate; that Olmstead was reputed and believed to be insolvent, and had abandoned the State of Tennessee and had gone to the State of Kentucky.
    The bill further charges that Olmstead had loaned a large sum of complainants’ money to Thomas H. Perkins, one of the said Olmstead’s securities, and prayed that said Perkins be enjoined from paying over the said sum so loaned in discharge of any debts he might be bound to pay as the security of said Olmstead under a different liability. They pray some fit person be appointed their guardian; that some allow-anee be made them for immediate support, &c.
    The clerk and master, at the April term, 1838, was, by an interlocutory order, directed to report instanter what would be a suitable maintenance for each of the complainants. The clerk reported that it would require six hundred dollars per annum to support Charles, he being then lately married, and three hundred dollars per annum for each of the others.
    This report was confirmed, and Janies Parks was appointed guardian, and ordered, if necessary, to sell such portion of the bank -stock as he might deem necessary to raise such sums of money before mentioned. The court also directed suits at law to be instituted against Thomas H. Perkins on certain notes in the hands of Parks, given by Perkins to Olmstead individually, and by him deposited amongst the papers of his wards as a portion of their estate. By consent of parties Humphrey Marshall and wife were made complainants.
    The defendants answered separately. William Donalson stated that he had no personal knowledge of the transactions detailed in the bill, and prayed for strict proof thereof.
    Thomas H. Perkins stated that he knew that the decedent, M’Alister, died possessed of a large property, real and personal, but what amount in value or what in specific articles he knew not; that John Nichol was appointed by the will óf the decedent guardian .of the complainants; he admits that he executed a bond with Charles G. Olmstead and Nicholas Perkins, Lemuel Donalson, Archibald Lytle and William Owen, called in the bill of complainants a guardian bond, but whether or not the county court of Williamson county had jurisdiction at the time of the execution of'said bond to appoint a guardian for said children, and whether said Olm-stead was duly and legally appointed guardian or not, and whether the said bond was a good and valid bond, and whether he was responsible thereon in this court, be submitted, to the court and required the complainants, he being an innocent surety, to bring themselves within the rules of law before they obtained the relief sought by this bill, dec. He stated that he did not know what amount came to the hands Qjmsteacp He further stated that he, together with one ]\[jch0ias p. Smith, as trustee for Nicholas Perkins, deceased, purchased of Oimstead a number of slaves, for which they executed their notes to said Oimstead bearing date the 15th July, 1S29, one for the sum of nine thousand five hundred and twenty-nine dollars and sixty-one cents, due on the 15th July, 1830, and another for the sum of five hundred dollars, due on the 15th July, 1830, the third for the sum of one hundred and forty dollars and thirty-nine cents, upon which several notes he had made several large payments. He stated that in March, 1836, and before the filing of this bill, he, as the security of said Oimstead, drew a bill jointly with said Oimstead, on Brander, M’Kenny and Wright, commission merchants, of Néw Orleans, for the sum of three thousand two hundred dollars; that suit was instituted against him by said commission merchants in the federal court at Nashville, and judgment recovered against him for the sum of three thousand four hundred and ninety dollars and twenty-five cents and costs of suit, on the 24th day of October, 1837. He prayed that he might be allowed the amount of said judg-* ment as a set off against the notes aforesaid.
    A- Lytle answered and stated that he knew but little in regard to the matters alleged.in the bill, and required proof thereof. He admits that Oimstead intermarried with the widow of the testator, and was appointed guardian of the complainants by the county court of Williamson; that a bond was executed by Oimstead and the securities as therein stated, but alleges that the testator, by his will, appointed John Nichol testamentary guardian of his children, and^prays the judgment of the court upon the question whether the county court had power to appoint a guardian unless the said John Nichol had declined to act or had been removed by competent authority. He states that Oimstead had expended large sums of money for the benefit of the complainants, and that an account ought to be taken of such sums for the benefit of securities. This defendant also insisted that complainants could not have a decree for the part of the deceased child, Josiah, without an administration was taken upon the estate of • i ■. -j- • _ * said deceased Josiah.
    Charles G. Olmstead filed his answer. After admitting that he was oppointed guardian of the complainants by the county court of Williamson, he stated that Nichol was appoint-* ed testamentary guardian by the will of M’Alister, deceased; that he had taken upon himself the office and duties of guardian, and continued guardian for six years or thereabouts; that he had not renounced to a competent authority, and that the appointment of respondent was a void act. He admitted that he made the report as set forth in the bill of complainants; alleged that he had embezzled or concealed nothing; that he was then in a state of utter destitution; that he had embarked with the monies of complainants in cotton speculations and in merchandise, and that his adventures had proved disastrous; that he had kept no regular accounts of the expenditures of the complainants, but that they had been enormous; that they were extravagant, headstrong, dissolute and reckless, and that he was entitled to the largest credits for expenditures made for them; that he had settled fully with H. Marshall in right of his wife, Frances, and with John M’Alister; that he had made valuable improvements upon the dwelling house of the testator, which belonged to his heirs, for which he prayed allowance be made in the account; he insisted that the devises and bequests in the will, conferring upon the widow of the deceased certain real and personal property so long as she remained a widow and forfeiting half thereof in the event that she married, were in restraint of marriage and contrary to the policy of the law, which is to encourage marriage, and therefore void by reason of the condition attached; and that “the true interpretation of the devise of the real estate was that a life estate in the same was given to the widow at all events, and that the bequest of the personal property was to the widow absolutely.” He stated that the provision in the will of the deceased was totally inadequate for the support and education of the children. He stated that fife loaned between nine and ten thousand dollars, belonging to complainants, to Nicholas Perkins, and took a note and deed of trust upon his slaves for the repayment of it. In order to raise the money he sold'the said slaves to N. P. Smith and Thomas H. Perkins. The sale under the deed of trust was the source of the three notes, one for the sum of about nine thousand dollars, one for about five hundred dollars, and the other smaller; that the smaller note belonged to the estate of Nicholas Perkins, deceased, and the other two to complainants, Such is the substance of his elaborate answer.
    Replications were filed to these answers and proofs were taken, and the cause came on to be heard before the honorable L. M. Bramlett, chancellor, at the October term, 1837, of the chancery court at Franklin, upon the said bill, answers, replications and proof, who thereupon decreed and directed that the clerk and master should take an account of all the property and effects of Charles M’Alister, deceased, which went into the hands of C. G. Ohnstead as guardian, and report what disposition had been made thereof; that he ascertain what sums were due each of the complainants, giving the guardian all just credits; and that as to all monies received or which should have been received by said guardian, and which remained in the hands of said guardian, should be charged with interest compounded annually. He further directed that in taking said account the clerk and master should ascertain when the said Charles G. Olmstead intermarried with the widow of said M’Alister, and when he became chargeable with the rents of the real estate and the hire of the negroes in accordance with the provisions of the will, and charge said guardian accordingly, with interest compounded annually as aforesaid, giving all just credits. He further directed the clerk and master to report the number of heirs and legatees said M’Alister left; when Josiah died; what became of his estate; and all other facts and circumstances in relation thereto. He was also directed to report if the testamentary guardian of the orphan children and legatees of Charles M’Alister, deceased, acted as such or took upon himself the office and duties of guardian, and if he did, how long, &c. The question whether the securities were chargeable with compound interest was reserved, and all other questions.
    
      The clerk and master made his report on the 15th of October, 1838, in which he set forth the facts substantially as,above set forth. He reported that Nichol had never taken upon himself the office and duties of testamentary guardian, but had renounced as above stated; that he had adopted as the basis of account the return of Olmstead in 1826 to the county court of Williamson; that he had deducted therefrom one-sixth, as the portion of Olmstead in right of his wife, in the estate of the deceased minor, Josiah; that he had allowed all just credits; that he had taken an account in con-nexion with the return of 1826 of the hire of the slaves and rents of real estate, in accordance with the interlocutory decree of the court; that he had not allowed Olmstead any thing for improvements; that he had allowed the defendant credits for the support of the children, including all expenses for the first two years of his guardianship, two hundred and. seventy-five dollars per annum, and for the remainder of the time he acted as guardian four hundred dollars per annum; that the guardian had kept no regular accounts, and that he found much difficulty in ascertaining the proper sum which should be allowed him therefor, but reported the following as the result of his investigations; due Charles M’Alister, the sum of seven thousand one hundred and nine dollars and eighty-four cents; James M’Alister, eight thousand one hundred and forty-nine dollars and nineteen cents; Wm. M’Al-ister, eight thousand eight hundred and eighty-seven dollars and fifty-eight cents.
    This report was excepted to by complainants and by defendants, and the exceptions coming on for argument and argument being had, the court determined that the defendant Olmstead, as the guardian of the complainants, and the other defendants, as the securities of said Olmstead as guardian, were responsible to and bound to account with the complainants for the execution of the trust of guardian of complainants, by virtue of his appointment as such guardian by the county court of Williamson at the July term, 1826: and the court sustained the exception of the complainants to the sums allowed the guardian, in the absence of vouchers, for the support of said minors annually as being too lai’ge, and al^o sustained the exception to the allowance of Oíié-sixtíi! ^ Josiah’s interest to Olmstead in right of his wife',- and reservjng the questions arising on the exceptions of the defendants, ordered the clerk and rqaster to amend his report in conformity with the opinion of the court, and to take such qther and additional testimony as to any and all credits to be allowed the defendant Olmstead for the boarding, maintenance, education and support of said minors, &c. and ip the absence of vouchers to ascertain what would be a reasonable allowance therefor. He was also directed to ascertain and rpport to the court whether any, and if any, what sums of money Thomas H. Perkins was indebted to"Charles G. Qlmstead as the guardian of complainants.
    At the October term, 1838, the death of Thomas H. Perkins was suggested, and complainants filed their bill of revi-vor against Nicholas Perkins, administrator pendente lite, of Thomas EL Perkins, deceased, and on motion, at the April term, 1839, it appearing to the court that a copy of the bill of revivor and subpoena had been served on the administrator, the bill was ordered to be revived against said Perkins, and said Perkins having failed to answer, the bill was taken as confessed and set for hearing. The court revived the orders of the October term, 1838, and at the October-term, 1839, the report of the clerk and master came in. He reported that Thomas H. Perkins, deceased, was indebted to the said guardian the sum of nine thousand two hundred and eighty three dollars and eighty-one cents, and modified his previous report in conformity with the decree of the court, The court, on the exception to the report, allowed the guardian credit for the improvements placed on the real estate one-sixth of their estimated value, and refused to allow the guardian for any sums except those expended and for which vouchers were produced; refused to allow the defendants a credit for Josiah’s par-t; refused to allow the guardian any compensation; allowed the complainants interest an nually compounded. Exception being filed as to the allowance of compound interest on the sum due after the removal of Olmstead and the appointment of Parks, the exception was overruled; and upon exception being taken by complainants to that part of the report which disallowed compound interest on that part of the fund signated as Josiah’s part, the exception was overruled; and upon the report so corrected and modified, in conformity with the opinion of the court, the court decreed that Charles M’Alister recover of the defendants the sum of eight thousand two hundred and sixty-five dollars and sixty-four cents, with interest from 9th November, 1839, William M’Alister the sum of nine thousand six hundred and sixty-four dollars and eighty-two cents, with interest from same date, and James M’Alister nine thousand six hundred and eighty-two dollars and sixty-two cents, with interest from same date and costs of suit. The court further decreed that Nicholas Perkins pay the sum of eight thousand one hundred and seven dollars and forty-six cents, the amount borrowed of the guardian, Olmstead, by T. H. Perkins, and that said sum when paid be credited fro rata upon the several sums due respectively to complainants. From this decree the defendants appealed.
    
      Ewing, for defendants.
    The defendants are not responsible upon their bond in this court. • Charles G. Olmstead was not guardian of the complainants; John Nichol was appointed testamentary guardian; by proving the will and taking-out letters he accepted all the trusts of the will. 4 Cond. E. Chancery Reports, 93: 10 Yerger’s Reports, 263. One of the trusts was a guardianship of the children; Nichol kept the estate six years, and acted in all respects as guardian. After a lapse of two years from his acceptance of the trust of the will he is to be regarded as guardian. Governor vs. Bosley, 6 Yerger, 220. Nichol never resigned his office of guardian. What is called a resignation or renunciation in or to the county court was. a nullity. Whatever power the county court might have with regard to guardians appointed by itself that court could not receive the renunciation of a testimentary guardian. Niehol could only have renounced his guardianship by not becoming executor or by renouncing such executorship, or, having once acted, by renouncing his trusts to the chancery or circuit court. There could not be two guardians at the same time deriving their authority from , , . , ,. . . • f i sources. Olmstead would be liable as an intruder and the securities would be liable on this as on a voluntary )30I1(j. The remedy against Olmstead might be in a court of chancery, and he might be treated as guardian, but against the securities the remedy would be at law. The intrusion was subsequent to the bond. It follows if this be so that the securities would not be such for one who was a statutory guardian, and therefore not liable for compound interest, According to the case of Deaderick and Wharton compound interest would be given against the defaulter but not against the securities.
    2. The securities insist that they are not liable for the share of Josiah M’Alister, deceased, if Olmstead be declared guardian, as his share was received without the intervention of an administrator, and was in his hands therefore not as guardian but as executor de son tort. In this character he will not be allowed to distribute. 2 Murphy: 4 Paige, 48: 2 Maddux, 394: 10 Yerger, 371: 10 Yerger, 383. He is liable to the rightful administrator. Olmstead should have reduced this share to possession it is said. This may be true, but surely he was not hound to administer for that purpose. But it is said he receipted for it as guardian. What principle of law prohibits him and securities from going behind the receipt and proving the. truth as it exists? It would be no answer either in law or equity to a rightful administrator of Josiah to reply that he had distributed the avails of Josiah’s interest'to the rightful distributees; Josiah might have created debts; to these a distribution would be no bar. This question is fully settled by the authorities referred to.
    3. A larger allowance should have been made Olmstead for the support of these children; from their character, their property and their station in life a less expense than that set down for the-various years could not well occur; that Olm-stead did expend more upon them than these sums there is not a shadow of doubt. The allowance in no year exceeds the income; and where the income is not' very large, if the guardian keeps within it during the entire minority of his wards, the court should be satisfied. It is apparent in this case that vouchers have not been kept for all payments, or if kept that many of them have been lost. It is impossible a guardian to keep vouchers for every thing, yet allowances are constantly made without vouchers. In the absence of vouchers, where it is most evident that expenditures were made, proof should have been heard and reasonable allowances made. The improvements are such as a court of chancery would have sanctioned, and being now made without the order, an allowance should be made for a permanent and useful improvement of the real estate of the wards.
    4. The draft paid by Perkins was a transaction between Perkins and Olmstead in his individual character, and it would be the consummation of a gross breach of trust by Olmstead, and a fraud by Perkins, to allow the amount of the draft'as a credit on the note of Perkins.
    
      Campbell, for complainants.
    1. The clerk and master reports that Nichol never took upon himself the office and duties of guardian, and there is no proof that he ever did. He renounced in the county court, and Olmstead was appointed and gave bond as such and gave the defendants as securities. They are estopped from denying their own acts of record.
    2. Olmstead received of the executor of M’Alister all the estate of said M’Alisjter as the property of his wards for whom he was appointed guardian; he gave his receipt for it to Nichol as guardian; he returned it to the county court as guardian, and held it during a series of years as guardian. The court will not now permit him to pick a flaw in the title of his wards to the property so received and so returned, and set up as a defence against the claims of complainants that a portion of the property will belong to the administrator of Josiah when he shall be appointed. A guardian enters upon land for his ward, receives the rents and profits as guardian: will it be pretended that the court should permit the guardian to evade an account of the rents and profits of the land by alleging an outstanding title in some third person to the land which has not been asserted? surely not; it is his “duty to sustain and support the title of his ward’s property. Story on Agency, 8, 9> 209; 217. The defendants urge that complainants claim the property as the distributees of Josiah, and that they can only recover it through the medium of an administrator. That point does not arise in this case-Olmstead received this property as the property of his wards and as their guardian, and was returned to the proper court as such, and complainants say that the law does not permit him to gainsay his own recorded acknowledgments.
    3. The defendants further urge that-Olmstead became executor in his own wrong by intermeddling with Josiah’s part. This is not so. 1 Williams on Executors, 140.
    4. There is another ground upon which Olmstead is liable. A guardian is bound to secure the property of his ward. If a loss occurs to his ward by his negligence he is responsible. Olmstead, if he was guardian, was bound to collect and account for Josiah’s part. Josiah was an infant, owed no debts, and Nichol paid his portion in accordance with law into Olm-stead’s hands. If Nichol had notified Olmstead that he had Josiah’s part and Olmstead did not. receive it, and the share was subsequently lost by the insolvency of Nichol, Olmstead would have been bound for it,
    5. The accessory obligation follows the principal. Whatever was Olmstead’s duty to do as guardian the securities are bound for the performance of that duty. If Olmstead received property as guardian and is bound therefor, so are his securities. If it be the duty of Olmstead to secure and improve the property of his wards his securities are bound for the faithful performance of that duty.
    6. The complainants excepted to the report of the clerk and master; and the decree of the court in confirmation thereof is this: The testator provided in his will a fund for the support and education of his children; the guardian paid for his wards money raised out of the general property, and not from the fund designated by the testator; the court has allowed him all the money he paid. This was erroneous. If the fund set apart by the testator was insufficient he should have filed his petition in chancery, made known the fact, and procured a legal appropriation of other funds to the support and education of the minors, if in the- iudgment of the court ♦ , . it was necessary.
    7. The defendants except to the report of the clerk and master, and the decree of the court in confirmation thereof in this, the defendants were not allowed for monies alleged to have been paid by thé guárdian for which payments no vouchers were produced, and were not allowed an ¿nnual sum for defraying expenditures. This was correct. The law requires the guardian to keep regular accounts with his wards, to make settlements annually, and when he does settle to produce his vouchers. If the law authorized the course insisted upon by the defendants it would lead to the most 'extensive frauds upon the estates of minors. The court will not permit the guardian to take advantage of his own neglect, and supercede thé rulés of evidericé pointed Out by law;
    
      Alexander, for Thomas H. Perkins, administrator.
    1. The clerk has reported the note of one hundred and forty dollars and thirty-nine cents and the note for five hundred dollars; both given to Olmstead individually; as belonging to the wards’ estate. They are given to Olmstead individually, and the presumption therefore is that they belong to him. The ¿n-swer of Olmstead is not evidence against his co-defendant, Perkins, and should not be regarded as establishing the ownership of the notes.
    2. The clerk and master reported against payments which should have been allowed, and the court confirmed the report disallowing them. A payment made by Perkins to Olmstead is presumptive evidence of payment of an antecedent debt, and not of a loan. 2 Starkie, 1090. Perkins was not bound to take care that the money was properly applied where, the trust was of a general nature, as the case here was. 2 Story’s Eq. 384-5.
    The chancery court directed a trial at law in the first instance to test in the proper tribunal the credits claimed on these notes. T. H. Perkins died and the court directed the clerk and master to report on the question as to whether the payments should be allowed as credos. He reported against them, and the court confirmed the report. The cause was thus transferred from law to equity. This was erroneous, , T , . , , , - . , . 1st. In the suit brought on these bonds by complainants, at law, they had full, effectual and complete remedy. 2d. case Olmstead being the payee of all the notes, suits would necessarily be instituted in his name for recove» ry. To bring this case now into equity would be changing the parties so to affect the application of the rules of evidence. This cannot be done, as it would be depriving the defendant of his legal rights. Equity follows the law in such cases. Grisley’s Evidence, 34: Story’s Eq. 394-5-6: Norris Peake, 34: 2 Starkie, 39, 40: 7 Term Rep. 663: 7 Term Rep. 670: 7 Yerg. 297.
   Gheeií, J.

delivered the opinion of the court.

1. Was Olmstead’s appointment as guardian legal? We think it was. Although Nichol was named guardian as well as executor in the will, that did not make him such; and not having assumed the performance of the duties of guardian, but on the contrary renouncing that character in court, we can.not consider him such because he may have done an act appropriate to the character of guardian.

2. Are the securities liable for Josiah’s part of the estate? We cannot criticise the settlement between the executor and guardian to see if he received" more than his wards were entitled to of the estate. Whatever he received for them he is bound to account for to them. It would be monstrous if a guardian were permitted to contest the title of his wards to the estate he may have received for them in his character of guardian, upon the ground that he had received more than they were entitled to. If Nichol paid to this guardian, for his wards, money which a future administrator of Josiah may be entitled to demand, certainly this guardian is not responsible for it, but Nichol (if any one) would have to answer to such administrator. The question, therefore, whether this share could have been received without an administrator, does not arise. Olmstead received the fund as guardian and is bound to account for it, and his securities are liable to the extent of his obligation.

3. Probably the mor^satisfactory manner of taking the account would have been to have allowed such sums as were properly paid, and for which there were vouchers produced, and where no vouchers existed, to have taken the proof and made such allowance as was reasonable. The decree making the last reference authorized this course; and where no voucher existed for the payment of boarding, proof was made as to what was reasonable, and that sum was allowed. It is true, that for some years the.allowance was small, but the defendant’s answer and the proof show they boarded part of the time where very little was paid. On the other hand the allowances for some of the years’ expenses are extravagantly high, and such as ought not to have been made, had a full allowance been made for each year. The average expense of the lowest is about two hundred and forty dollars per an-num and of highest about three hundred and fifty dollars. This we think an ample allowance; and although strictly some of the details of the account may be erroneous on both sides, we consider that the result does ample justice to the defendant, and therefore will not, for the sake of attaining the same end by a somewhat different process, alter it.

4. The proof does not satisfy us that Perkins and Oim-stead agreed, at the time the draft on the New Orleans house was drawn by them, that Perkins should pay the draft, and that it should go towards discharging the bond Olmstead held, as guardian, on Smith and Perkins. It is very probable Perkins the more readily became bound for Olmstead from the knowledge that he owed him this money; but, unless it was agreed (and we think it was not) that the sum for which the bill was drawn should be a payment of the note, the payment of it afterwards by Perkins could not entitle him to claim a credit on the note for that. sum. Indeed, if he advanced this sum to Olmstead for'his private purposes when he knew he was insolvent, with the agreement that it should be applied in extinguishment of a debt due as trustee, thus enabling him to commit a gross breach of trust, it is difficult to perceive how he could have been excused from liability therefor to the cestue que trust. Let the decree be affirmed.  