
    
      Anderson v. Thompson.
    November, 1840,
    Richmond.
    (Absent Staiíakd, J.)
    Equity Practice — Suit by Legatees against Another Legatee and Administrator — Liability of Administrator to His Codefendant — Case at Bar. — Bill bled by two legatees against another legatee and the administrator, for a settlement of the administration account, and distribution of the estate; and question whether, upon the pleadings and proofs in the cause, the administrator should be held liable to his cod efendant for his share of certain slaves, claimed and forcibly taken from the administrator by the plaintilts, under an alleged parol gift of the decedent in his lifetime.
    Slaves — Parol Gift in Remainder — Effect.—A father delivers a slave to his infant son residing with him, and calls upon persons present to take notice that he gives that slave to the son. but says at the same time, that he claims an estate in the slave for his own life: Hist.d, nothing passes to the son by such parol gift.
    Guardians — Disbursement for Maintenance and Education of Ward — To What Extent Allowed. — A guardian shall not be allowed, for his disbursements for the maintenance and education of the ward, more than the profits oi the ward's estate: and those profits shall be taken exclusive of the increase of slaves belonging to the ward.
    Berryman Johnson, late of Louisa county, died in the year ISOS, having duly made his last will, by which he bequeathed one third of his personal estate to his wife Augusta A. and the remaining two thirds to his sous Pulaski A. and David B. tobe equally divided between them. He appointed his brother Thomas Johnson executor of the will, and his wife Augusta A. guardian of the two children. The will was proved and admitted to record in Louisa county court, the 14th of October 1805; when Thomas Johnson renouncing the executorship, the court granted letters of administration to the widow, cum testamento annexo. But she never qualified as guardian of the children. In the year 1808, she intermarried with William L-. Thompson.
    On the 14 ih of June 1813, the county court made an order that Thompson and wife should deliver to Thomas *Anderson, upon his giving bond and security according to law, the unadministered estate of the testator remaining in their hands. This order was made on the motion of Anderson, who was bound as the surety of the administratrix in her official bond, and in consequence of the failure of Thompson and wife to give him countersecurity, they having been ruled to do so. In 1816, Anderson obtained possession of 25 slaves, which were admitted by Thompson to belong to the estate of Berryman Johnson deceased.
    At August term 1819, the county court made an order appointing commissioners to settle the account of the administration of Berry-man Johnson’s estate by William L. Thompson and wife. By an instrument under the hands and seals of Pulaski A. Johnson and David B. Johnson, dated the 28th of August 1819, those parties bound themselves to Thomas Anderson and William L. Thompson in the penalty of 5000 dollars, with condition “ to abide by and stand to the award and arbitrament, or the report,” of the commissioners appointed by .the county court. And by another instrument dated the 1st of September 1819, purporting to be an agreement between Thomas Anderson “ appointee to the estate of Berryman Johnson deceased,” William L. Thompson “ administrator of said Berryman deceased,” Pulaski A. Johnson and David B. Johnson, but signed and sealed by Anderson and Thompson alone, those parties bound themselves, “ severally, distinctly and apart, in the penalty of five thousand dollars each, to abide by, ratify, acknowledge and confirm the report, award and decision” of the said commissioners.
    The certificate of the commissioners, dated the 11th of September 1819, is in the following terms : “Agreeably to an order of the county court of Louisa, bearing date August term 1819, to us directed, we have proceeded to examine, state and settle the account of William L. Thompson administrator, and Augusta Ann his x'wife, adminis-tratrix, on the estate of Berryman Johnson deceased, and find a balance due said estate of 1358 dollars 65 cents. We beg leave further to state, that upon a second view of the subject, under which are included accounts in favour of William B. Thompson administrator and Augusta Ann administra-trix, against the heirs of Berryman Johnson deceased, for board, schooling, clothing &c. supported by various vouchers to our satisfaction, we find a balance of 1746 dollars 91 cents due said administrator and adminis-tratrix.” The accounts referred to in this certificate, being returned to the county court, were severally ordered to be recorded on the 13th of September 1819.
    One of the accounts is headed, “D’r, David B. Johnson and Thomas Anderson appointee to the estate of B. Johnson, in account with William B. Thompson another has a caption precisely similar, except that the name of Pulaski A. Johnson is substituted for that of David B. Johnson. Prom 1806 to 1813 (both years inclusive) the sum of 120 dollars per annum “for board, schooling, clothing &c.” is charged in each of these accounts ; and in that of David B. Johnson, charges at the same rate per annum are made for board during portions of the years 1816 and 1817. Interest on the several charges, from the expiration of the years to which they respectively apply, is allowed and included in each account. No credits whatever are given in either, except that a deduction of S dollars, “for services,” is made from the amount of David B. Johnson’s board for the year 1817.
    In January 1820, Pulaski A. Johnson'and David B. Johnson exhibited their bill in the superior court of chancery holden at Richmond, against William B. Thompson and Thomas Anderson ; setting forth the will of their father Berryman Johnson, the qualification of his widow as administratrix with the will annexed, her intermarriage with Thompson, and the order of the county court *of Bouisa by which the estate of the decedent was committed to Anderson : stating that mrs.. Thompson the former administratrix died in 1814 : charging that the order of the county court appointing commissioners to settle the administration account of Thompson and wife was made ex parte, on the motion of Thompson ; that the settlement was made by the commissioners in the absence of the complainants, and without due notice to them ; that several of the charges which the commissioners allowed against the estate of the testator were improper, and unsupported by vouchers ; that several of the credits given to the estate were less in amount than they should have been ; that the charges against the complainants for maintenance and education were also improper and excessive, as the complainants were thereby brought largely in debt to their guardian, though the profits of the estate bequeathed to them ought to have been amply sufficient to maintain and educate them; that the estate of the testator was still in the hands of Anderson, under the order committing the same to him as aforesaid, and Anderson was about to sell a portion thereof, in order to discharge the debt pretended to be due from the complainants to Thompson. The bill prayed, that Thompson might be compelled to settle an account of his own and his wife’s administration of Berryman Johnson’s estate; that Anderson might also be compelled to settle the account of his administration of that estate, and to deliver up the property in his hands, for distribution according to the testator’s will; that he might be injoined meanwhile from paying away or delivering any portion thereof to Thompson ; and for general relief.
    The injunction was awarded.
    Anderson answered, that three of the slaves belonging to the estate, valued at 1725 dollars, had been delivered by him to the complainants as part of their proportion of said estate, they promising to account for the same in the final distribution ; that another slave, valued at *550 dollars, had been delivered by him to Thompson on the same terms; and that the plaintiffs, claiming 16 of the negroes received by respondent a's part of the estate, under an alleged verbal gift of their father in his lifetime, instituted a suit in the county court of Bouisa to recover them, pending which they took forcible possession of the said negroes, and had retained them ever since. He submitted whether the plaintiffs should not be compelled to give such security for the return of those slaves, as might be sufficient to indemnify the respondent, in the event of that suit being determined in favour of the estate. He declared his readiness to settle the account of his administration, and to deliver up the part of the estate which yet remained in his hands, to the parties entitled thereto. The questions touching the accounts impeached by the bill, he submitted to the court.
    Thompson, in his answer, denied that the order of Bouisa county court for the settlement of the administration account was made ex parte. He alleged, that it was made with the consent and approbation of the plaintiffs; and that they moreover had notice of the time and place appointed for the settlement, were present during the first day, and afterwards voluntarily absented themselves. He set forth the instrument by which the plaintiffs bound themselves to abide by the report of the commissioners ; insisted that the settlement ought not to be disturbed ; and prayed that the injunction, awarded to restrain Anderson from paying the balance which appeared to be due him, might be dissolved.
    The plaintiffs replied generally to the answers of the defendants.
    The facts alleged in the answer of Thompson were substantially proved by the evidence in the cause.
    On the 9th of June 1823, the court made an order directing a commissioner to examine, state and settle the ^account of the administration of Berryman Johnson’s estate by W. B. Thompson and wife ; and on the 14th of June 1824, made another order, directing the same commissioner to state an account of the transactions of Thomas Anderson as appointee of’Berry-man Johnson deceased.
    Commissioner Thomas Badd, to whom the execution of the foregoing orders was referred, made his report on the 2d of June 1826. He returned five several accounts : 1. An account of the administration of W. B. Thompson and wife; 2. An account of the administration of Thomas Anderson appointee; 3. 4. 5. Accounts of W. B. Thompson, David B. Johnson and Pulaski A. Johnson, respectively, with Thomas Anderson appointee. By the three accounts last-mentioned it appeared, that on the 31st of December 1825, there was due from W. E. Thompson a balance of principal and interest amounting1 to 149 dollars 14 cents ; from David B. Johnson a balance of principal and interest amounting to 430 dollars 74 cents ; and from Pulaski A. Johnson a balance of principal and interest amounting to 165 dollars 65 cents. These balances were on account of the hires of slaves belonging to the estate.
    In the account of the administration of Thompson and wife, the commissioner adopted the settlement made in 1819 by the commissioners of Louisa county court. He charged Thompson and wife with 1358 dollars 65 cents, the balance appearing by that settlement to be due from them to the estate on account of their transactions in the proper character of administrators ; to which he added a charge of 32 dollars 30 cents, principal and interest, for the hire of a slave in 1807, not included in the settlement by the commissioners of the county court : making the whole amount chargeable against them on the 1st of September 1819 (the period of the settlement by those commissioners) 1390 dollars 95 cents, of which 957 dollars 99 cents was principal. The entire balances reported by the same commissioners to be due to Thompson *and wife, for the board, schooling and clothing of David B. and Pulaski A. Johnson, that is to say (an error of excess in addition being corrected) 1699 dollars 36 cents on account of David B. and 1506 dollars 20 cents on accoun't of Pulaski A. Johnson, amounting in the whole to 3205 dollars 56 cents, were credited to Thompson and wife. The excess of the credits was therefore 1814 dollars 61 cents, as of the 1st of September 1819, of which 1155 dollars 68 cents was principal : and calculating interest on the last-mentioned sum to the 31st of December 1825, the commissioner produced a balance in favour of Thompson and wife, on that day, of 2253 dollars 63 cents.
    In the account of Thomas Anderson’s transactions as appointee, the hires of slaves belonging to the estate constituted the only items of charge against him, and abalance of 910 dollars 57 cents, principal and interest, was reported to be due from him to the estate on the 31st of December 1825. But the facts relating to the disposition of sundry slaves belonging to the estate were stated by the commissioner in the following terms :
    “1819. — William B- Thompson had Micajah in October this year, valued at 550 dollars. David B. and Pulaski A. Johnson had Edmund, Charles and Kate early in this year, valued at 1725 dollars. Pulaski A. Johnson took forcible possession of Polly and.all her children this year; and David B. Johnson took forcible possession of Jenny and all her children this year : see the depositions of P. Wade and A. Bowles.
    “1820, Dec’r 31. By the hire of Mary Ann till fall, to W. E. Thompson — when Pulaski A. Johnson took her by force and sold her: see P. Wade’s deposition.
    “1821, Dec’r 31. By the hire of Jem this year to D. B. Johnson, and sold by him : see P. Wade’s deposition.
    “1822. Delivered William E. Thompson the 31st of October, Eewis at 275 dollars, Eliza at 200 dollars, and Polly at 150 dollars.’’ *In addition to the accounts above described, the commissioners made a statement of the number, names and value of the slaves which W. E. Thompson, David B. Johnson and Pulaski A. Johnson had respectively received. The value of the slaves Edmund, Charles and Kate, received by David B. and Pulaski A. Johnson in 1819, with interest thereon to the 31st of December 1825, was stated at 2346 dollars, so that the amount chargeable to each of those parties at that date was 1173 dollars. The value of the slaves Micajah, Eewis, Eliza and Polly, received by W. L. Thompson, with interest thereon to the same date, was stated at 1485 dollars 50 cents. Polly and her children (seven in number) stated to have been forcibly taken by P. A. Johnson, were valued at 1675 dollars, and Mary Ann, stated to Jiave been also taken and sold by him, was valued at 250 dollars ; making together the value of 1925 dollars. Jenny and her children (five in number) stated to have been forcibly taken by David B. Johnson, were valued at 1175 dollars, and Jem, stated to have been also taken and sold by him, was valued at 350 dollars ; making together the value of 1525 dollars. On the values of these slaves, no calculation of interest was made.
    By the evidence in the cause it appeared that the three slaves Edmund, Charles and Kate were delivered by Anderson to the plaintiffs about the month of May 1819. It appeared also that the slaves Jenny and Polly, and their children, were forcibly taken possession of by the plaintiffs in the same year, as stated in the commissioner’s report; and that this occurred at an early period of the year ; probably as early as February, but certainly prior to the delivery of the slaves Edmund, Charles and Kate.
    In relation to the alleged parol gift from Berryman Johnson, under which the plaintiffs claimed the slaves Jenny and Polly and their children, the evidence was as follows :— Thomas Johnson and his wife, being examined *as witnesses in the cause, deposed that in the year 1805, about the end of summer, they were at the house of Berry-man Johnson, and he called on them, as well as other persons present, to take notice that he was about to give away two negro girls to his two sons. He then called the girl Polly, took her hand, and put it into the hand of Pulaski A. Johnson ; he also called the girl Jenny, took her hand, and put it into the hand of David B. Johnson : and then he requested these deponents and the other persons present to take notice, that he gave those two negro girls to his two sons aforesaid. He further stated that he claimed a life estate in them. This occurred about three or four weeks before his death. These girls, whenever the deponents heard them afterwards spoken of by the family (which was frequently), were considered as the property of the two sons to whom they were respectively given and delivered as aforesaid.
    Two of the witnesses examined in the cause deposed, that although the slaves claimed and taken by Pulaski A. and David B. Johnson, respectively, were retained by them in the neighborhood of Anderson for a considerable time afterwards (perhaps as much as six months), yet Anderson, so far as the witnesses knew or had heard, took no steps whatever to regain the possession of them. But by other evidence it appeared that Anderson did retake from David B. Johnson the slave Jenny and several of her children ; though it seemed that all of these were afterwards sold to pay David B. Johnson’s debts. According to the deposition of one witness, “ Anderson had more trouble about the estate than he ever knew any man to have about an estaje of the same size. Many of the slaves were taken from his possession by the legatees, and the said Anderson was riding to and fro, to try and reclaim them. One of the legatees went so far, as to be taken up and tried before Bouisa court for' stealing one of the negroes.”
    ^Pending the suit, Anderson purchased of Pulaski A. Johnson all his interest in his father’s estate, for the sum of 65 dollars. The precise time of this purchase did not appear ; but it was prior to the year 1823.
    In January 1821, a negro boy named Phil, one of the children of Polly, was seized by the sheriff of Bouisa, as the property of Pulaski A. Johnson, under a writ of fieri facias sued out against the said Pulaski A. by William B. Thompson. An indemnifying bond was required by the sheriff and executed by Thompson, and the slave was thereupon sold. In April 1822, the slave Jenny was seized by the same sheriff, as the property of David B. Johnson, under two writs of fieri facias sued out against the said David B.— one.of them by William B. Thompson, the other by Nathaniel Thompson. Indemnifying bonds were required by the sheriff of those parties respectively ; which being executed, the slave Jenny was thereupon sold. In the indemnifying bond given by Nathaniel Thompson, William B. Thompson was the surety.
    In February 1821, two .attachments were sued out against Pulaski A. Johnson and David B. Johnson, as absconding debtors ; one by a creditor of both the defendants, against both ; the other by a creditor of Pulaski A. Johnson, against him alone. Both attachments were levied on the negro woman Polly and one of her children.
    In the year 1800, Berryman Johnson had bound himself as the surety of John B. Anderson. in a bond executed by the latter as executor of John Andei'son deceased. The bond was in the penalty of ,£1500. By a certificate from the clerk of Hanover county court (in which court the executor qualified) it appeared that on the 20th of April 1824, the date of the certificate, a suit in chancery was pending in the said court, in the name of the legatees of John Anderson against his executor and others, wherein a large balance had been reported due from the said executor to the estate of his testator.
    *The plaintiffs Pulaski A. and David B. Johnson excepted to commissioner Badd’s report, because it adopted the settlement made by the commissioners of Bouisa county court, “ the irregularity of which report was the foundation of this suit, and to correct which report the court ordered a statement of accounts to be made by its own commissioner.” Various objections to the settlement made by the commissioners of the county court were specified ; among others the objections, that the expenditures mentioned in the guardianship account “were incurred without legal authority, as the said Thompson was not the guardian of the plaintiffs ; that the expenses charged are beyond the portion (the revenue) of orphans’ estates which can be applied to the purpose of maintenance ; and that, in the said guardianship account, the estates and the pretended wards are credited with nothing, but all the disbursements are charged to them as if supplied by the defendant Thompson from his exclusive private funds.” No exceptions to commissioner Badd’s report were filed by either of the defendants.
    Several depositions were taken in reference to the’reasonableness of the charges made for the board, schooling and clothing of the plaintiffs; It appeared that the sum paid for their schooling in the year 1811 was about 10 dollars 80 or 90 cents; that their clothing was of plain and ordinary description ; and that the profits of Berryman Johnson’s estate at the time of his death were only from 50 to 100 dollars.
    On the 13th of April 1830, the cause came on to be heard upon thebill, answers, exhibits, examinations of witnesses, the report of the commissioner, and the exceptions thereto. The court approved the report, and overruled the exceptions thereto : and being of opinion that the defendant Thompson was entitled to recover the sum of 2253 dollars 63 cents, with interest on 1155 dollars 68 cents part thereof from the 31st of December *1825 till paid ; also the sum of 303 dollars 52 cents, being one third of 910 dollars 57 cents reported due from the defendant Anderson, with interest thereon from the same date till paid ; and the further sum of 625 dollars 86 cents, with interest from the same date, that being his one third of the whole value of the slaves as reported by the commissioner, after deducting therefrom 1485 dollars 50 cents, the value of slaves received by-him, and 149 dollars 14 cents, the amount reported due from him for slave hire; and that, although there appeared to be in the hands of the defendant Anderson, of the funds from which these several sums ought to be paid, only the sum of 165 dollars 4 cents, the balance of the 910 dollars 57 cents aforesaid, after deducting therefrom the three sums .of 430 dollars 74 cents, 165 dollars 65 cents, and 149 dollars 14 cents, reported to be in the hands of the plaintiffs and the defendant Thompson, yet the said defendant Anderson was primarily liable to Thompson for the whole amount due to him, inasmuch as the funds aforesaid, at the instance of Anderson, were committed to his keeping, and had been in part voluntarily surrendered to the plaintiffs, and in part improperly permitted to be taken by them and removed from the state, or otherwise disposed of: and being farther of opinion that the plaintiffs, who had received, as nearly as could be estimated, equal portions of the funds aforesaid, in maintenance, in slaves, and in the hires of slaves, and who, pending the suit, had without authority taken possession of the residue of the slaves held by the defendant Anderson, were bound to refund to him moieties of the sums which he would be compelled to pay to the defendant Thompson, with the exception of the said sum of 16S dollars 4 cents ; —therefore decreed that Anderson pay to Thompson 3183 dollars, with interest on 2086 dollars part thereof from the 31st of December 1825 till paid ; that Pulaski A. Johnson and De.vid B. Johnson each pay to Anderson 1508 dollars 98 cents, with *iutereat on 1042 dollars SO cents part thereof from the same date till paid ; and that the plaintiffs and the defendant Anderson pay to the defendant Thompson his costs.
    After the term at which the foregoing decree was rendered, to wit, on the 3d of July 1830, Anderson exhibited a bill of review, reciting the previous proceedings, and alleging, that at the term when the decree was rendered, he was without counsel; that he had employed as his counsel John Forbes esq., and he had been informed by that counsel, that by reason of some inadvertency or forgetfulness the case had escaped his notice, and hence he had failed to perform the part of counsel for this complainant. The bill further shewed, that in no part of the pleadings and proofs was an effort made or a pretension insinuated by Thompson, to subject this complainant to liability on account of the slaves claimed by P. A, and D. B. Johnson as gifts from their father, and taken possession of by them ; and charged, that there was good reason for such forbearance, because Thompson knew that in the several suits prosecuted by this complainant to recover the said slaves, the title had been decided to be in the said donees, and because Thompson himself had procured an execution to be levied on one of those slaves as the property of P. A. Johnson, and the slave to be sold under that execution, and was privy to and participated in the levy of other executions on the said slaves. In addition to these allegations, the bill of review contained the following assignment of errors apparent on the face of the proceedings and decree.
    “I. To arrive at the result which the decree exhibited, this complainant was subjected to liability for the negroes that had been taken and disposed of as aforesaid by the plaintiffs; and this was grossly erroneous :
    1st, Because no claim had been made in the pleadings of either of the parties, or before the commissioner, *to charge this complainant with those slaves. The claim was for the first time heard of (and then not by this complainant, as he had no counsel) in the note prepared for the decree by Thompson’s counsel, and it was therefore a complete surprise on him to have it so asserted. If the claim had been ostensibly justified by the documents and proofs then in the record, it was wholly irregular to decree on it as a Flatter of account, as it had not been asserted before. On the supposition that such seeming proofs were in the record, the claim ought to have been asserted by an exception to the report; and if that exception had been sustained, the report should have been recommitted, anda, reformed report, on notice (to give this complainant an opportunity of resisting the claim), should have been required before he was made chargeable therewith.
    “2dly, Because some of the documents and proofs furnished the most satisfactory reason why the claim to make that charge had not been asserted, and cogent evidence against it, if it had been asserted ; and i f this -complainant had had the slightest warning that any such claim was pretended, that proof would have been strengthened by record evidence that would have rendered it impregnable. This complainant is made chargeable to Thompson, claiming in right of his wife as legatee of B. Johnson, with certain slaves as part of the estate of IS. Johnson, that had been claimed and taken by his sons as gifts made to them by their father in his lifetime : and this is done not only in the face of the proofs in the record that such gifts were made, but of the solemn and deliberate acts of the said Thompson affirming the title of the sons under the said gifts, and causing a part of those slaves to be sold as the property of the sons, to pay debts due by them to him and others.
    “ II. To arrive at the result the said decree exhibits, the court assumed that Thompson was entitled to charge *the estate of B. Johnson with the balance he claimed to be due to him from the plaintiffs on the guardianship accounts, after a setoff of the balance due from Thompson on the administration account of himself and wife. Nothing could be more erroneous. If any thing was due on the guardianship accounts, they were respectively individual debts of the wards (the plaintiffs) which in no wise charged the estate of B. Johnson, and could on no conceivable principle be made a charge on this complainant for that part of the estate of B. Johnson, which the plaintiffs had taken or received from him.
    “III. If the claims of Thompson on the guardianship accounts could in any manner be made to affect this complainant’s responsibility to the estate of B. Johnson, then he insists that those claims were not substantiated, but on the contrary the plaintiffs’exceptions to those claims should have been sustained. By overruling those exceptions, the extraordinary result is produced of suffering a guardian to recover of his ward, for board and schooling during a part of his minority, his entire estate, and leaving him indebted to the guardian, while the established principles of law forbid the guardian to apply to the ward’s support and education more than the profils of the estate.
    “ IV. By the decree, this complainant is not only made chargeable with the said slaves as a part of the estate of B. Johnson, though the slaves were claimed and taken by the plaintiffs as their property, so treated and admitted to be by Thompson, and so adjudged in the suit for the slaves, but he is made chargeable with the shares of the plaintiffs (supposing them to belong to the estate of B. Johnson), made a debtor to the plaintiffs for those shares, though thev had all the slaves, and then made liable to Thompson for this debL so created in fa-vour of the plaintiffs, in order to discharge the claim of Thompson on the plaintiffs. Taking the decree on its own principles, the plaintiffs are liable to this Complainant for the whole value of the slaves, yet he is made debtor to them for their shares of the value thereof, and then, instead of setting- off these liabilities, leaving the plaintiffs indebted to him for the excess, he is made to pay to Thompson the amount of the plaintiffs’ shares of the value of the slaves, and the plaintiffs (notoriously insolvent) are decreed to pay to this complainant the full value of the slaves.
    “ V. Were it conceded that this complainant -was justly accountable,' as far as Thompson is concerned, for the said slaves as part of the estate of B. Johnson, still the decree is erroneous and flagrantly unjust. On this postulate, the whole of the estate of B. Johnson would be constituted of the following items, shewing together the aggregate of the estate, to ope third of which each of the plaintiffs, and the defendant Thompson in right of his wife, is entitled.
    “Balance due on the administration account of Thompson and wife... $1390.95
    Amount of negroes delivered to Thompson. 1485.50
    Amount of negroes delivered to plaintiffs. 2346.00
    Balance of this complainant’s administration account. 910.57
    Amount of negroes claimed and taken by P. A. Johnson. 1925.00
    Amount of negroes claimed and taken by D. B. Johnson. 1525.00
    Total. 9583.02
    Plaintiffs and defendant Thompson each entitled to one-third, or. 3194.34
    “The defendant Thompson then, as his full share of the estate, is entitled to. $3,194.34
    and is chargeable with balance of his administration acc’t. $1390.95
    455*with negroes received by him. 1485.50
    with balance due this complainant. 149.14
    •-- 3025.59
    leaving due to him from the estate . of B. Johnson but. 168.75
    And this would probably be extinguished by the charge of interest on the balance due on his administration account.
    “P. A. Johnson, as his share of the estate, would be entitled to. $3194.34
    and he is chargeable with negroes received by him $1173.00
    negroes claimed and taken by him. 1925.00
    and the balance due this complainant. 165.65
    - 3263.65
    leaving him indebted the sum of... $ 69-31
    which would be augmented by the charge of interest on the value of the slaves taken by him.
    “D. B. Johnson, as his share of the
    estate, would be entitled to. $3194.34
    and he is chargeable with negroes received by him $1173.00
    negroes claimed and taken by him. 1525.00
    and the balance due this complainant. 430.74
    - — — 3128.74
    leaving balance due to him from estate. $ 65.60
    which would be reduced by the charge of interest on the value of the slaves taken by him.
    *“And yet, from these materials, this complainant has been subjected to the said decree, totally ruinous to him, for the payment to Thompson of 3183 dollars with interest.
    “VI. The said decree is erroneous though the sum decreed to be paid by this complainant were actually due from him as administrator of B. Johnson, because no bond of indemnity was required by it to be given to this complainant, though the decree is, in effect, one for the payment of the assets of the estate to the legatees, and though it appears from the documents in the case that B. Johnson was responsible as a surety for the administration of John B. Anderson on the estate of John Anderson deceased, tha. a large claim is made on B. Johnson’s estate on account of that responsibility, and that a suit is depending to enforce it.”
    With the bill of review, the complainant exhibited attested copies of the executions sued out by Nathaniel Thompson and William L. Thompson, respectively, against the goods and chattels of David B. Johnson, and levied on the negro woman Jenny as his property, as before stated ; attested copies of the indemnifying bonds given by those plaintiffs, respectively, on occasion of that levy ; and attested copies of portions of the record in three suits, instituted upon the said indemnifying bonds ir the superior court of law for Louisa county. Two of these suits were against Nathaniel Thompson, at the relation of Thomas Anderson appointee of the estate of Berryman Johnson deceased. In these the jury found that the title to the negro woman Jenny, in the respective declarations mentioned, was not in the relator of the plaintiff, and the court rendered judgment for the defendant. The third suit was against Nathaniel Thompson and William L. Thompson, at the relation of Anderson Bowles, to whom David B. Johnson, by a deed dated the 10th of December 1820, and recorded in Louisa county court the 12th of February 1821, had *conveyed the negro woman Jenny and four of her children, upon trust for the ,purpose of indemnifying Richard A. Perkins as his bail in sundry suits specified in the deed, and as his surety in a bond to Charles Thompson. In this action, verdict and judgment were rendered for the plaintiff. The two judgments first mentioned were rendered in October 1826; the other in October 1828. There were also exhibited with the bill of review, attested copies of the before mentioned attachments against Pulaski A. and David B. Johnson, as absconding debtors; and a like copy of the proceedings at a court held by the justices of Louisa county, the 21st of February 1821, for. the examination of Pulaski A. Johnson upon a charge of “feloniously stealing a negro woman named Mary, the property of Berryman Johnson’s estate in the hands of Thomas Anderson appointee of the said estate.” The prisoner was acquitted.
    The chancery court refused to allow the bill of review to be filed.
    Whereupon Anderson, by petition to a judge of this court, referring to the bill of review for the errors imputed to the decree, and complaining also of the error in refusing to allow the bill of review to be filed, prayed an appeal from the said decree, and from the said order of rejection : which was allowed.
    Eeigh and R. O. Stanard, for appellant.
    Johnson, for appellee.
    
      
      He had been counsel for the appellant.
    
    
      
       Executors and Administrators. — See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt, 6.
    
    
      
       Guardian and Ward. — See monographic note on ■'Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   TUCKER, P.

In the examination of this case, I think it unnecessary to advert to the bill of review which was offered and rejected, because the question whether the decree is erroneous on its face, is fairly presented by the appeal from that decree. It is proper also to dispose succinctly of some minor points which have been much insisted on in the argument, and have been deemed all-important by the respective counsel. It *has been contended that the arbitration bonds, as they are called, conclude all objection to the award of the commissioners. And so far as the administration account is concerned, that might safely be admitted ; for I think all parties are content with the report of 1390 dollars 95 cents as due from Thompson on that account, But the guardianship account formed no part of that reference. There does not appear to be any such order of reference, nor do the bonds make any allusion to such an account. And though it is contended that the charges for board &c. should be considered as distributions, and therefore as belonging to the administration account, yet such a course would not only be inconsistent with the principles laid down in Garrett &c. v. Carr &c., 3 Leigh 407, but it would lead to the absurdity of considering the defendant Thompson as making distribution after his powers were revoked ; for part of his charges are subsequent thereto. Ñor did Thompson himself ever consider his charges against the children as so much distributed ; as appears by his account as slated by the commissioners at his instance. I think, therefore, the guardianship account was coram non judice, and that it has not yet been settled, for commissioner Eadd was no more authorized to settle it than the former commissioners, and if he had been, he has merely taken their report (which was without authority) as the'foundation of his.

But admitting the gtiardian’s account to have been before the first commissioners, how have they settled it ? They have reported annual charges against the two boys, without one cent of credit for the profits of their estate. Either there were profits, or there were not. If there were, they should have been credited. If there were none, there could be no propriety in raising such an account for board and education against these youths. The law expressly provides (1 Rev. Code, ch. 108, § 25, p. 410,) that if an orphan hath no estate, or not sufficient 'x'for a maintenance out of its profits, he shall be apprenticed to learn a trade, or some occupation which will enable him to get an honest livelihood. What has been done with these boys 7 What education has been given them in return for absorbing the whole of their little property ? What occupation have they been brought up to, to fit them 1o struggle for themselves ? I see nothing. Eleven dollars seems to have been the cost of their instruction for one year, and their style of living appears to have corresponded. The account therefore seems to me inadmissible. The self-constituted guardian should be strictly confined to the profits of the estate, wherever it is so scanty. He should not be permitted to keep his wards idle and unemployed, and eating up their little patrimony, so that when they come of age their whole property goes into his hands for board, and they are turned adrift without a cent, and what is worse, without a trade or calling to support them. Were it otherwise, a small property would be worse than none. A penniless orphan stands a chance, by being bound out, to learn a trade and get the rudiments of education ; while the boy who has a pittance is kept at home in idleness, and his guardian swallows up the pittance in charges for board. In this case the boys, who were old enough in 1805, in their father’s lifetime, to be brought in to receive possession of two slaves, must soon have been able to get their own living, instead of spending what their father left. I am therefore of opinion that not a cent above the profits of the estate should have been allowed to their father in law, and the accounts should be «restated upon this principle.

As to the pretended gift of the slaves by Berryman Johnson to his sons, I am clearly of opinion it gave them no title. He did not intend they should have them till after his death, and such a gift in remainder cannot be made by parol. I am also of opinion that Anderson was answerable for them. They were in his possession, *and forcibly taken from him by the sons of the testator. He ought to have reclaimed them. But he not only failed to do this, but voluntarily afterwards delivered others to the sons. The abduction was in February, and the delivery to them of other slaves was in the May following. If therefore they have too many, he is clearly responsible, for he might at least have retained those he afterwards gave up, as an indemnity in part of those taken away.

It is objected, however, on the part of Anderson, that the attempt to charge him with these slaves is nowhere made in the pleadings. This is true, but it may and does result from the settlement of the administration account of Anderson, if, by the eloigning of the slaves through his fault, they cannot be had in specie. The demand against him must be for their value, which enters therefore properly into the account. But if this were not so, the pleadings may be amended, or a cross bill filed, on the going back of the cause.

Upon the whole, 1 think the decree should be reversed, arid the decree entered which has been prepared.

The decree of the court of appeals was as follows :

“The court is of opinion that although, as between Pulaski A. and David B. Johnson and the appellee, on a bill to resettle the administration account, it was competent to the latter to offset against the distributable surplus (if any) in his hands due to them, such proper advances as he may have made for their support and education, not exceeding- the profits of their estate, yet it never could be competent to him to make such offset against the appellant, the personal repre-tative, or to recover any part of such advances out of the testator’s estate in his hands to be administered, if the portions of the said Pulaski and David had been fully satisfied by payments, or by the property forcibly taken by them. The court is further of opinion that the settlement of *the guardianship account by the county commissioners in the first instance, and afterwards by commissioner Dadd, was without authority, and therefore not binding, no order for such settlement having ever been made, and none such having been contemplated by the bonds of the parties: and further, that if regularly before the said commissioners, it is grossly erroneous on its face, as it presents very large debits against- the wards, without a single credit for profits of their estate; that if there were profits, they should have been credited ; and if none, the wards should have been bound out, instead of being incumbered at maturity with a heavy debt for the charges of their infancy. The court is further of opinion, that upon the present aspect of the case, the pretended gift of Berryman Johnson to his two sons is unsupported, and that the appellant is responsible on the settlement of his account, for the value of the slaves eloigned (except the slaves Jenny and Phil, whom the appellee is proved to have had sold under execution for his benefit), the said appellant having not only failed to reclaim them or their value, after they had been forcibly abducted, but moreover delivered others to them voluntarily, when they had already more than their share. The court is therefore of opinion that the said decree is erroneous, and that the same should be reversed ; that the account of advances by the appellee, the self-constituted guardian, should be referred to a commissioner, with instructions to allow no more for advances for the maintenance and education of the complainants, than the profits of their estate (exclusive of the increase of young negroes, which are not in this regard to be estimated as part of the annual profits) ; that the accounts of the administrator Anderson should be also recommitted for the purpose of ascertaining the distributable surplus, in which account should be charged the value of the slaves eloigned, except the slaves Jenny and Phil abovementioned, and if any balance should *appear to be due to the appellee in right of his wife as distributee, after charging him with the balance due on his administration account, and with what he has already received, a decree for the same against the appellant should be made; for, as against him, the appellee stands in the relation of a distributee seeking his portion of the residuum from the administrator, instead of being turned over to make reclamation from other legatees who are overpaid, or from wrongdoers who have carried off the estate. Therefore it is decreed and ordered that the said decree and order be reversed and annulled,” with costs to the appellant. And cause remanded to the circuit court, to be further proceeded in pursuant to the principles of the foregoing opinion and decree.  