
    *Bennett v. Claiborne & als.
    March Term, 1873,
    Richmond.
    i. Guardians — Expenditures—Case at Bar. — D qualified as guardian of C, in August 1858, and acted as such until his death in April 1861. His executor W acted as guardian of C until April 1862. and had. the account of D settled, showing due from him to C $4,133.98; for which sum W gave his bond to B, who qualified as guardian of C in April 1862; and. afterwards paid B, at different times, $2,551. B ceased to act as guardian of C in December 1863, when S became guardian. The income of the estate of C in the hands of the guardians was not equal to the expenditures upon her; but her whole income, including that in the hands of her father’s ex’ors, during the whole period of the guardianship, was equal to her expenses; and these were only suitable to her estate and condition in life. Hums:
    1. Same-Same — Scaling.—The estate oí D is to be charged with the amount found due from him; and credited for the money paid by his ex’or W at its scaled value.
    2. Same —Same—Same.—B haying received the amount of an ante-war bond, and paid ante-war expenses of C incurred during the guardianship of D, these payments to the amount of said bond are not to be scaled; but all other disbursements of B are to be scaled.
    3. Same — Same— Income of Ward Liable. — The guardians are entitled to have the whole income of C applied to pay their expenditures upon her.
    In December 1866 Ellen A. Claiborne filed her bill in the Circuit court of Pittsylvania county, in which she set out, that in 18S8 Deonard Claiborne, her father, died; she being- then an infant of every tender years: That David H. Clark was appointed her guardian at the August term 1858 of the County court of Pittsylvania, and ^continued to act as such until his death; That he left a will, by which he appointed John W. Wilson his executor; That on the 21st of April 1862 Coleman D. Bennett was appointed her guardian, and acted as such until December 1863, when he relinquished the guardianship, and Samuel D. Drewry was appointed, and acted until the plaintiff arrived at the age of twenty-one years. She says that no one of these guardians has returned an inventory of her estate: That Clark settled but two accounts of his guardianship; and after his death, and during the minority of the plaintiff, Wilson undertook to render an account of Clark’s and his own transactions as guardian ; which she insists is erroneous, and should not have been confirmed. The balance found due to the plaintiff on this settlement, of $4,133.98, was never paid by said Wilson to Bennett, but was in some way so arranged between them as to have that appearance. She, therefore, objects to the allowance of said credit to Wilson, as executor of David H. Clark; That in Clark’s settlement of his account of 1859 he is credited with expenses of the plaintiff beyond her income, which she is advised is illegal; and she objects to the same for that reason. She also objects to the account settled in 1860 on several grounds. She says that Bennett has settled no account; and she is utterly in the dark as to his proceedings ; but judges, from the charge of $4,133.98 made as so much money received' by him from said Wilson, as ex’or of Clark, that some arrangement was made between them, by which, without paying money, the indebtedness of Clark was transferred to Bennett. She is advised that nothing short of paying what was due her by the first to the second guardian, can discharge the former, though it may subject the second guardian to her; and as to both, she insists on such relief and responsibility as the law imposes on them.
    *On the surrender of said Bennett as guardian as aforesaid, Samuel H. Drewry was appointed; and he has failed to render any account, or return any inventory as such guardian; and she is utterly unacquainted with- his proceedings. How far he may have settled, if at all, with Bennett; how much money he may have received, if any, from him, she knows not; certain it is, that the transactions of said Clark and his executor Wilson, Bennett and Drewry, are so blended and dependent one upon another, that without an investigation of the transactions of all of them she cannot obtain her rights or show what they are. And making Wilson, in his own right and as executor of Clark, Bennett, Drewry, and the sureties of the several guardians parties, she prays for a settlement of the accounts; that each of them may show what he has received of her estate, and how he has disposed of it, and that any balance due to her may be decreed in her favor; and for general relief.
    Wilson and Bennett answered separately, Bennett not until May 1868, and the bill was taken for confessed as to Drewry and the sureties. Wilson insisted that though the income of' the ward’s estate was not sufficient in the first year of Clark’s guardianship, to meet the expenses of his ward, yet up to the death of Clark, which occurred on the 23d of April 1861, her income was sufficient to cover the expense incurred during the whole period of guardianship, and he was entitled so to apply it. He said that after Clark’s death he had his account settled by a commissioner, and this account was confirmed by the court; and upon this settlement there was due to the ward from his testator $3,756 50 of principal and $246 06 profit, up to the 4th of October 1861, which amount with the interest thereon to the 21st of April 1862 amounted to $4,133.98; and for this amount he, (Wilson,) accounted with C. D. Bennett, *who had before that time qualified as guardian of the plaintiff; and on that day, the 21st of April 1862, he executed his bond to Bennett for that amount, and sometime after-wards he paid to Bennett $2,S00 of said amount.
    Bennett says he qualified as guardian of the plaintiff on the 21st of April 1862, and acted as such until December 1863. He insists that the expenditures upon the plaintiff were not more than became her estate and her condition in life, and not more than the income of her whole estate, some of which was in the hands of the executors of her father; and that the whole income for the whole period of her wardship was to be applied, if necessary, to her expenditures during the same period.
    As to the sum of $4,133.98 referred to in the bill, as the amount turned over by Wilson, the executor of Clark, the former guardian of the plaintiff, it is true respondent gave Wilson a receipt for that amount, and it is also true the whole amount was not then paid to him; but the sum of $2,551.11 has been paid. The receipt was given for the whole amount, to facilitate a settlement between the-parties, and for no other reason; | and he submits to the court the question, whether the estate of Clark, or both, shall be responsible to the plaintiff for the amount. Said Wilson is responsible to respondent on his bond.
    He further says, there is filed among the vouchers sundry bonds taken by David B. Clark, the plaintiff’s former guardian, from her mother and brothers, all of which are believed to be solvent, and they all come within the stay law. He did not suppose the plaintiff desired her mother and brothers to be sued on said bonds; and he is willing they shall be delivered over to her. *At the May term, 1867, the court made a decree directing commissioner Neal to take an account of the several guardianships, and make report thereof to the court.
    The commissioner returned his report, by which he made Clark debtor to the plaintiff on the 21st of April 1861, of principal and profit, aggregated$4,237.81. This sum was carried into Wilson’s account, and he is charged with it and credited by the amount of his bond to Bennett for $4,133 98, and he is made debtor of principal $103.83, and creditor of profits $36.81.
    The commissioner reported Bennett to be indebted to his ward on the 21st of December 1863, when his guardianship terminated, in the sum of $4,854.62; reduced by a payment to Drewry of $3,000, leaving due from him $1,854.62; and Drewry to be debtor on the 24th of December 1865 of $124.11, and creditor on the account of profits $104.39.
    - The commissioner further reported that the expenditures for the plaintiff were not more than her income in the hands of the executors of her father and her guardian, during the time that Bennett was -her guardian, and that they were suitable to her estate and condition in life. To this report Bennett filed five exceptions: -
    1st. Because on the 14th page of the account there is an error in the addition of his credits of $200 — $781 should be $981.
    2d. Because he is not allowed interest on the sums paid by him for plaintiff for taxes, and clerk’s tickets.
    3d. Because the commissioner has not credited the defendant with the sum of $40 paid on the 4th of January 1864, Confederate tax on the property of the plaintiff, assessed whilst the plaintiff was guardian, and has not credited him with the further sum of $76.00, her *tax account for the year 1864; nor with the stamps on bonds sued on, $1.00.
    4th. Because he has scaled a balance found due said defendant December 21, 1863, of $879.45, down to $348 63 cts., contrary to the act of 1865-66, when part of that balance had been paid by defendant to satisfy debts contracted by D. A. Clark, her former guardian, before the war.
    5th. Because the commissioner has charged said defendant with the following bonds, to wit: Wm. C. & Thos. P. Claiborne’s bond, for $205 54, with interest; bond of same for $50 with interest; Mrs. B. W. Claiborne’s bond for $138'90 with interest; Bettie Claiborne’s bond for $138 90 with interest; when all said bonds are solvent and all under the stay law, and all executed to her former guardian, and all due from the mother, brothers and sisters of the plaintiff; and all of said bonds were tendered to the plaintiff before the commissioner, and she agreed to take her mother’s bond, and not have it sued on.
    As to the first exception, the error is plain. The second need not be noticed. The receipts show the payment of the taxes referred to in the third exception, and that they were for taxes of 1863, though paid in 1864. Upon the fourth exception the account shows that the payments made by the guardian for the expenses of his ward were scaled; of these payments upwards of $400 were for expenses incurred whilst Clark was the guardian, and due in 1860 and 1861; and Bennett received during the period of his guardianship, the amount of the bond of P. T. Harvey, $249 75.
    The bonds mentioned in the fifth exception, were as stated in the exception, except that it may be doubtful whether since the war the brothers and sisters are able to pay. They were all subject to the stay law; but the ^commissioner thought the guardian should have brought suits upon the bonds and obtained judgments, which would have been liens upon the real estate of the obligors.
    The cause came on to be heard on the 9th of June 1868, when the court sustained the third and fifth exceptions of Bennett to the report of commissioner Neal; and having a statement made according to his views, made a decree against Wilson, exeuctor of Clark, for the sum of $763 49, with interest from the 21st of April 1862; against Bennett for $3,953 83 with interest from the 21st of December 1863; and against the defendant Drewry, for $19 72.
    In the statement made out by the order of the court, the amount of the bond of Wilson to Bennett is not charged to Clark or Wilson, but is charged to Bennett; and the $3,000 paid by Bennett to Drewry, is Credited to Bennett and charged to Drewry at its scaled value in gold, and fixed at $139 48.
    Prom this decree Bennett applied to a judge of this court for an appeal, which was allowed.
    Ould & Carrington, for the appellant.
    Marshall, Jones & Bouldin, and Crump, for the appellee.
   ANDERSON, J.,

delivered the opinion of the court.

The court is of opinion, that the execution of the bond for $4,133 98 cents, by John W. Wilson, executor of David H. Clark, to C. D. Bennett, the second guardian, does not discharge the estate of said Clark from its primary liability to the appellee, for so much of her estate as was received by said Clark as guardian. And it appearing that the said David H. Clark departed this life on the 23d of April 1861; that John W. Wilson qualified as his executor, and as such was guardian *in fact of the said appellee, until the qualification of the appellant, on the 21st of April 1862; and that the estate of said Clark was indebted to his said ward in the sum of $4,237 81 cents; and that the disbursements made by his executor for her benefit, from the death of the decedent to the 21st of April 1862, exceeded the profits which came into the hands of the said executor by the sum of $36 81 cents ; the court is of opinion, that the estate of David H. Clark, on the 21st day of April 1862, was liable to the said appellee for the said sum of $4,237 81, less the sum of $36 81 aforesaid, balance due the executor on profit account.

And it appearing further, from the answers of both said Wilson and Bennett, that the former paid to the latter, upon the bond aforesaid, the sum of $2,551 11 cents, at different periods, in Confederate currency, the court is of opinion, that the said appellee, Ellen A. Claiborne, is entitled to a decree against the estate of David H. Clark, for the said sum of $4,237 81, less the sum of $36 81, with interest from the 21st of April 1862 till paid, subject to a credit for the sum of $2,551 11 at its scaled value, at the dates of payment.

The court is further of opinion, that the appellant, in the re-statement of his guardianship account should be debited with the sum so to be credited as aforesaid, to the estate of David H. Clark, and with the scaled value of all monies received by him, except the sum of $249 75, D. T. Harvey’s bond and the interest he received thereon, being a land bond executed to his predecessor, D. H. Clark; he should be charged with the face thereof, and should be credited by only the scaled value of the disbursements made by him, including the amount paid by him to S. D. Drewry, his successor, except to the amount of the principal and interest he collected on said bond, and to that extent should be credited *for his disbursements without scaling; it appearing that he paid off old debts without scaling, exceeding that amount. The balance struck will show the state of the account between the appellant and his ward.

The court is of opinion that there is no error in the decree sustaining appellant’s exceptions No. 3 and 5, to report of commissioner G. D. Neal; and that the appellant should be allowed to discharge his liability for the bonds referred to in said 5th exception, by bringing them into court and filing them with the papers in the cause, to be turned over to the appellee, Ellen A. Claiborne. The court is also of opinion, that as the expenditures for the ward by her guardian Bennett, and the executor Wilson did not exceed the aggregate of her income from the whole of her etsate, and were not greater than her station in life, and her estate justified, the said guardians are entitled to be credited for said disbursements. Foreman v. Murray & wife, 7 Leigh 412.

But the court is of opinion that there is error in the decree, in not sustaining- the first exception of appellant to said commissioner’s report, in crediting him for $200 less than he was entitled to; which seems to be an error in addition, and is not likely to occur in remodelling the account.

There is no exception to the statement of the guardianship account of Samuel D. Drewry: and there is no error in the decree against’him. It is considered therefore, by the court, that the decree of the Circuit court, so far as it is in conformity with the principles herein declared, be affirmed; and sb far as it is not in conformity thereto, be reversed and annulled; and that the ap-pellee, John W. Wilson, executor of D. H. Clark, out of the assets in his hands to be administered, pay to the appellant his costs in prosecuting his appeal here; and that the cause be remanded to the Circuit court ' of Pittsylvania ^county, with instructions to recommit the guardianship account of C. D. Bennett to a commissioner thereof, to be. restated, in conformity with the principles herein declared ; and for further proceedings to be had therein.

Decree reversed.  