
    Lewis J. Phillips et al. vs. Anderson Davis et al.
    
    1. Guardian and Ward. Liability of sureties. The securities of a guardian cannot be made liable for an account for the work and labor of the wards done for the guardian. Nor can the guardian himself, on a bill filed by the wards for a settlement of the guardian accounts.
    2. Same; Act of 1Y62, eh. 5, § 18. If a guardian spend more in maintaining his wards, than the interest and profits of his wards estate, without the intervention of a chancery court, he is liable to the wards to the amount of the principal.
    8. Same. Settlement. Chancery court. On a bill filed by the ward against his guardian and securities lor an account, it is competent for the ward to show that the credits claimed by the guardian for disbursements should not be allowed, because they had been paid and discharged by work and labor, or otherwise, and therefore should not op
      
      erate as a discharge as to the fund in his hands as guardian. To this extent, a court of chancery may consider such adverse claim, and for that purpose and no other, it may be allowed in the settlement.
    EBOM HENDERSON.
    This bill was filed in 1852 in chancery, at Lexington, by the complainants against the defendant as their guardian and his securities, to enforce a settlement of his accounts, and to have an account for the personal labor and services of two of the complainants, which they allege to have been rendered the defendant while they were his wards. The Chancellor ordered a reference to the master, directing an account to be taken of the amount of the estate of complainants, which came into the hands of the defendant as guardian, and also what the services of the complainants were worth. The master’s report shows the estate - to have amounted by the report of the guardian in 1839, to the sum of $229 61; and on final settlement with the clerk of the county court in 1847, he was allowed credits which reduced the estate to $38 23, which together with interest made the sum of $53, admitted to be due the complainants. The report as to the value of the services of the complainants, shows that they had labored for the defendant between 8 and 12 years, for which they had received no compensation, and which the master estimates at $480 in value. The proof shows that the education of the children was neglected, and that neither of them could read or write. The bill also seeks an account of the rents and profits of the land belonging to the estate, about 25 acres of which, the proof shows, might have been rented for $1 50 per acre, per annum. It seems, however, that the widow was entitled to dower out of the land, which had never been assigned. The cause was heard by Chancellor Jones, at the December term, 1853, who decreed against the defendant and Ms securities, for the sum admitted to be due, and for the sum of $480, the value of the complainant’s services. From this decree the defendants appeal.
    C. H. Williams, Sr., and Weight, for the complainants,
    urged, that it was the duty of the guardian, and within the scope of the bond to improve the whole estate, both real and personal, and that he should have been held accountable for the annual rents, though the complainants were content to abide by the decree below. They cited upon the main question, the act of 1762, ch. 5, §18.
    Shebwsbbeey, contra:
    
    Argued, that the sum of $480 for the work and labor of the wards, constituted no part of the estate of the complainants as wards of defendant, which was chargeable against him as guardian, and consequently no decree for that item could be rightfully rendered against the defendant and his securities, as guardian. That if such liability existed by reason of the personal services of the wards, it was individual and not fiduciary in its character, and separate and distinct from any obligation of his as guardian. He, therefore, asked a modification of the decree, pro tanto.
    
   Caeutuers, J.,

delivered tbe opinion of tbe court.

The complainants file this bill for a settlement with the defendant as their guardian appointed in lSSY.

They are his grand children. In his first report, March 1839, to the clerk of the county court, he shows that he had in his hands $229 61, and in that, and subsequent reports and settlements with the clerk, he presented and was allowed charges for clothes, provisions, schooling, &c., by which very nearly the whole amount in his hands was exhausted. Against these charges a claim was made by the complainants for services for a much larger amount, and upon reference a balance was reported in their favor of $533 10, for which a decree was given against' the guardian and his securities, and an appeal to this court.

The securities of the guardian cannot be made liable for an account for work and labor against their principal, nor can the latter in this proceeding, and the decree on that basis is erroneous. But certainly it was competent for the wards to show, that the credits claimed by the guardian for disbursements should not be allowed, because they had been paid and discharged by work and labor, or otherwise, and if so, should not operate as a discharge as to the fund in his hands as guardian. To this extent such adverse claim may be considered, and for that purpose, and no other, allowed in the settlement.

The proof in this case puts it beyond all doubt, that a just compensation of complainants for their services would more than discharge the account of defendant for his outlay for them and leave the amount originally received into bis bands for them untouched. It was a small pittance, and being aware of their poverty, under the guidance, control and management of a hind and industrious mother, they were enabled by their own toil, and hers, to live without any encroachment upon it. The mother had full confidence in the defendant, her father, and from the death of her husband, submitted every thing to his control and management, and taught her children to reverence and obey him. According to the proof, he received their labor on his farm for seven or eight years; even the little girls aided in picking out his cotton. In the face of this proof, can he be permitted to charge the family for every little item of food and raiment he furnished them? No court of conscience could permit it. After allowing his account as made out by himself, and placing a low estimate on the services rendered by his grand children by disinterested witnesses, well acquainted with all the circumstances, his claim is more than liquidated. In one of his settlements with the clerk of the county court he received a credit of $25, for that amount paid for schooling, and afterwards admitted it to be incorrect, but still permitted it to remain on the record.

It is proved that he has permitted his wards to grow up without having them learned even to read or write, and now desires to turn them out upon the world pennyless as well as ignorant, after having occupied the position of father to them from their infancy. It would have been supposed that their near relationship and destitute orphanage would have guaranteed to them better treatment. If he had bound them out to good men, which it was his duty to do, if their estate was not sufficient to support them, and he was not willing to raise them up in the right way himself, they would at least have been plainly educated and received something for their labor at the termination of their apprenticeship.

But independent of this view, the law does not permit a guardian to expend more than 'the interest and profits of his ward’s estate, without the sanction of a chancery court. So he would be liable for the principal in his hands at all events, and without any adverse claim on their part.

In this case, however, under all the circumstances, if we can do' no more, we can make the defendant account for the said amount of $229 61, with interest at annual rates from the time he received it up to this time, and a decree will be rendered for that amount, with all costs against the guardian and his sureties, after it is ascertained and reported by the master,' for which a reference will now be made.  