
    *Evans v. Pearce & als.
    January Term, 1860,
    Richmond.
    [78 Am. Dec. 635.]
    (Absent Allen, P., andLEi, J.)
    c. Peresst asid Child - -Allowance to Father’s Estate tor 5 mpcrt <>i Child —Case at Bar. — A father has property of his infant children in his possession, and (luring- his life does not apply to the court to have any of the profits of that property applied to their support, nor does he malte any charge against them during his life. His estate will not he allowed any thing for their support without the clearest proof that justice requires it.
    
      n. Same “Guardian De Facto — Case at Bar.  — In such a case the father will he treated as a guardian: and his accounts will he settled on the principles applicable to guardians’ accounts.
    This was a bill in the Circuit court of the city of Richmond, filed by the administrator and some of the children of William Evans deceased, ag-ainst his widow and other children, two of whom were infants, for a settlement and distribution of his estate. The widow thinking that the administrator did not attend to the interests of the estate, took upon herself its defence. The only matters of controversy relate to the profits of certain property belonging to two of the children of William Evans, derived from their grandmother, which was ! in his possession and managed by him. ¡
    Evans had been married three times; and | at his death he left three children by the first marriage, two by the second, and one by the third; and another child by the second marriage had died after her mother and in his lifetime. The mother of the second wife left by her will certain real estate and slaves to her daughter for life, and after her death to her children. This property went into the possession of Evans in the lifetime of his wife, and after her death he continued ;t'to hold it and rented out the houses, and seems generally to have hired out the slaves.
    The accounts having’ been referred to a commissioner, he made his report, settling the account on the principle applicable to guardians’ accounts, and ascertaining the amount due from Evans for the rent of the houses to be one thousand one hundred and seventy-seven dollars and forty-three cents, and for the hires of the slaves, six thousand two hundred and eighty-two dollars and sixty cents; a part of this last sum being for hires and interest thereon, the actual amount for which the slaves were hired not being proved but estimated by the witness.
    The defendant Mrs. Evans excepted to the report of the commissioner:
    1st. That whilst William Evans was treated by the commissioner as guardian of his sons, and charged with the annual profits of their property, he was allowed nothing for their maintenance and education.
    2d. That Evans was charged with interest on the profits of the estate of the children whilst they were living with him.
    3d. That he was charged with interest upon conjectural hires.
    It appears from the evidence that Evans was the owner of real estate, valued at his death at about fourteen thousand dollars; and he owned twelve or thirteen slaves. He was indebted to other persons beside his children for about the sum of seven thousand dollars; and was a plasterer, and carried on his business until his death in 1854: though it appears that for the last ten years of his life, his circumstances had not improved but had been impaired. The oldest of the sons to whom the property in controversy belonged, had worked at the business of his father as a plasterer for four or five years.
    On the hearing of the cause, the court overruled *the exceptions, and gave a decree against the estate of Evans for two-thirds of the amount reported: the other third belonging to him as the heir and distributee of the child who had died. Erom this decree Mrs. Evans obtained an appeal to this court. • ‘
    August & Randolph, for the appellant.
    Steger, for the appellees.
    
      
       They were sitting In a Special court of appeals.
    
    
      
       Areui and CSiild — Duly of Parent to Support Child.
      —It Is a well settled principle of law, governing the relation of parent and child, that a father, if of ability, is bound to maintain his infant children even though they may have property of their own. Griffith v. Bird, 22 Gratt. 80 ; Windon v. Stewart, 43 W. Va. 719. 28 S. E. Rep. 779, both citing the principal case. But see 6 Va. Law Reg. 585, 596. where this proposition of the principal case is said to be a dictum.
      See the principal case distinguished in Hauser v. King, 76 Va. 737.
      Termination of Guardianship — A Oowance for Infant’s Support. — In no case will an allowance be made a paren t for the maintenance of his child, after the guardianship has terminated, without the clearest proof that justice requires It. Stigler v. Stigler, 77 Va. 171, citing the principal case. See also, Griffith v. Bird, 22 Gratt. 73, and foot-note.
      
      As to both the propositions set forth above, see monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
       Guardians De Facto. — See principal case cited in Martin v. Fielder, 82 Va. 460, 4 S. E. Rep. 605.
      See generally, monographic noteon “Guardian ana Ward” appended to Barnum v. Frost, 17 Gratt, 398.
    
   ROBERTSON, J.

The father, in this case, rendered himself responsible as the guardian de facto of two of his infant children, by retaining in his possession the lands and slaves to which they became entitled on the death of their mother, and receiving the rents and hires. His accounts as such guardian have been settled in a suit brought after his death by his administrator. Exceptions have been taken to this settlement by his widow, who has taken upon herself the defence of the estate, because, as she alleges, the administrator has failed to protect it as he ought to have done from the claims asserted against it.

The objection to the compounding' of interest, and to the charge of interest upon conjectural rents and hires, cannot be sustained. The charges of interest are in conformity with the rule which has been established for the settlement of the accounts of guardians; and one who makes himself guardian de facto is certainly not entitled to be treated with more favor than if he had been legally appointed.

The only question in the case, about which there can be any doubt, is whether the estate should be allowed credit for the support and education of the children out of the income of their property.

A father, if of ability, is bound to maintain his infant children, even though they may have property of their own.

The court, however, will look with liberality to the ^circumstances of each particular case, and to the respective estates of father and children, and will authorize the income arising from the estates of infants to be applied to their support whenever, under all the circumstances, it appears to be proper. But when the application to allow the income so to be appropriated is not made, as it ought to be, in advance, and is delayed,, as it has been in this case, until after the guardianship has terminated, the court will not permit it without the clearest proof that justice requires it.

Such proof is not furnished in this case. One of the infants was kept at work as an apprentice at the trade of his father for several years; during which period his services must, at the least, have been worth his support. It is not alleged that the father was at any extraordinary expense for the support or education of either of these children: and there is nothing in the case from which it can be inferred that he did not consider himself of sufficient ability to support and educate them in the same way that he did his other children, or that he designed to put them on a different footing in this respect. It is very possible that he was not fully aware of the extent of his responsibility as their guardian. He must have known, however, that he was liable to them to some extent, yet there is not the slightest indication of any intention to offset this liability, or to make a charge against thém in any form for their support or education. The fact that no such charge was intended, would not, it is true, be conclusive against its allowance, if it appears to be proper; but it is'a strong circumstance to show that it is not proper — that he not only considered himself to be, but really was of ability to maintain his children out of his awn means, and that he did so maintain them.

If any other person has acted as their guardian, it would hardly be contended that the income of their *property in the hands of such guardian could now be subjected to reimburse to his estate the expenses incurred by him in maintaining them; and I cannot see how the fact that he was himself both father and guardian could give him any right to use their income that he would not have possessed if the guardianship had been in other hands.

The objection to the charge of interest against the guardian, while his wards lived with and were supported by him, rests substantially on the same ground with the claim to charge for their support out of the income of their estate; for the interest is part of their income.

I am of opinion to affirm the decree.

DANISH and MONCURE, Js., concurred in the opinion of Robertson, J.

Decree affirmed.  