
    *Hooper and Wife and William Savage v. Royster and Wife.
    April, 1810.
    i. Appellate Practice — Certiorari—Transcript of Record in Another Suit. — in a suit in Chancery, the bill having: referred to the proceedings in another snit, “as now remaining: of record in the same Court;” and the answer having admitted that such a suit was brought, and such a decree as stated in the bill, existed; the Court of Appeals will award a writ of certiorari for a transcript of the record referred to, and receive it as evidence, so far as admitted by the answer,
    a. Guardian and Ward — Payment of Money to Guardian-Competency of Witnesses to Prove. — An administrator, to whom a credit for a sum of money paid by him to the guardian of one of the distributees has been allowed by a final decree in Chancery, is a competent witness, in behalf of the ward, to prove the payment of the money to her guardian; though the latter was no party to the decree.
    3. Samet — Board of Ward — Declaration That No Charge Will Be Made Therefor — Effect.—Proof of the parol declarations of a guardian that she did notintend to charge her ward for board is admissible to repel a charge for board in her life-time, exhibited by her representatives after her death. But, in such case, she ought not to be charged with interest on a sum of money received for the ward, unless such interest would exceed the amount of a reasonable compensation for board.
    4. Samet — Allowances —Schooling — When Allowed from Principal. — A guardian may be allowed for moneys paid and advanced for the clothes, schooling and other necessary expenses of the ward, out of the principal of such ward’s estate; if it appear that, from extraordinary circumstances, such disbursements were unavoidable without culpable neglect on the part of such guardian; otherwise such allowance ought to be made out of the profits only.
    5. Samet — Payments to Guardian — Scaling.—Money received by a guardian for a ward, during the paper money times, ought to he reduced by the scale of depreciation; to be applied as on the last day of the year in which i’t was received.
    6. Samet — Investments — Reasonable Time Allowed Therefor. — A reasonable time ought to be allowed a guardian to put the money of a ward out at interest; and, in this case, six months were considered as such reasonable time.
    7. Samet — Payments to Guardian — Scaling.—If money was received, by a guardian for a ward, within six months previous, to the 1st of January, 1777, (when the scale of depreciation commenced,) it should he reduced according' to the scale, as at the end of six months from the time when received.
    8. Appellate Practice — Interlocutory Decree — Want of Proper Parties. — On an appeal from an interlocutory decree, if proper parties to the suit appear to he wanting-, the Court of Appeals will not leave it to the Chancellor, hut will itself direct such, parties to he made.
    9. Contribution — Suit Therefor against Legatees— Parties.  — In a suit for contribution against legatees or distributees, the executor or administrator, or, if he he dead, the person who succeeded, him in the executorship or administration, ought to he made a party; unless it appear that the account of such executorship or administration has been regularly made up, and the estate thereupon delivered over to the legatees or distributees.
    Upon an appeal from an interlocutory decree of the Superior Court of Chancery for the Richmond District, in a suit brought by Eittleberry Royster and Nancy his wife, late Nancy Farris, orphan of Sherwood Farris, deceased, against William Savage and Elizabeth Gathright, administrators of Joseph Gathright, Jane Gathright, administratrix of Miles Gathright, and Anne Whitlock, administratrix of Benjamin Gathright, deceased.
    The bill stated that the complainants, together with Mitchell Earris, being the distributees of Sherwood Farris, deceased, had instituted a suit in the same Court against William Farris, administrator of the 120 said Sherwood Farris, *to compel a settlement of his administration account; that, in the progress of that suit, William Farris claimed a credit for the sum of 1581. 15s. 10 3-4d. paid Anne Gathright as guardian for the complainant Nancy, and, to support the claim, produced a receipt for that sum, dated August 2d, 177-, signed “William Gathright, jun. for Anne Gathright;” that the Court directed an issue to try whether the payment was made to William Garthright as stated, and whether he was empowered bj' Anne Gathright to receive such payment; the Jury found that the money was paid, and that William Gathright, jun. had authority to receive it; in consequence of which a decree was rendered establishing the credit; “all which would more fully appear, reference being had to the record of the said suit now remaining in the said Court;” that Anne Gathright had never accounted for this sum; that she died about the year ——, leaving property of considerable value; but whether she left a will or not the complainants could not certainly say ; that her property was divided on her death among her three sons Joseph, Benjamin and Miles, of whom the defendants were the legal representatives ; and concluded with praying a decree against them for the said sum of money with interest, and for such other relief as might be consistent with equity.
    The joint and several answer of the defendants admitted the intestacy of Sherwood Farris, the administration of William Farris, the guardianship of Anne Gathright, and the suit instituted against William Farris, as stated in the bill: but neither admitted or denied the validity of the receipt for 1581. 15s. 10 3-4d., but called upon the plaintiffs for proof according to law ; alleging, however, that * ‘if the said receipt were genuine and authorized by the said Anne Gathright, still her representatives had a claim against the complainant Nancy for a much larger sum, namely, for ten years’ board, schooling and clothing, furnished by Anne Gathright to the said Nancy ; that the said Anne Gathright made a will; (of which a copy was exhib121 ited;) that the *said will disposed of several negroes (particularly two named Major and Frank) which belonged to her deceased husband William Gathright, sen. and were not at her disposal, except under his will; that, therefore, the defendants required the plaintiffs to show her title to the said property; that, supposing, however, that all the slaves and other property mentioned in her will belonged to her, (which the defendants did not admit,) her distributing the same on a belief that it would go according to her will was an evidence of her opinion that she was exempt from any liability for the said receipt; the said Anne Gathright having been a woman of great economy and justice in her dealings ; and that if, contrary to the expectation of the defendants, they should be decreed to account for such portions of her estate as had come to the hands of those whom they represent, they prayed that it might be in proportion to what each had received. The will of Anne Gathright dated November 28,1780, (referred to in this answer,) appears to have devised her landed property to her sons William and Benjamin, and her slaves and personal property in various proportions to Benjamin, Miles and Joseph, her daughters Jane Anne Gathright, and Anne Whitlock, her grandson Mitchell Farris, and her granddaughters Anne Gathright and Anne Farris; appointing her two sons Miles and Joseph executors: but whether they qualified as such, or the will was ever admitted to record, does not appear. Sundry depositions were taken to support and repel the credit claimed by the defendants for the board, schooling, and clothing of the complainant Nancy, during the time of her residence in the family of Anne Gathright; from which it appeared that the said Nancy had lived, and been genteelly entertained there, 8 or 9 years; that she went to school part of the time, and was well clothed; but that Anne Gathright had repeatedly declared she did not intend to make an3r charge for her board.
    With respect to the validity of the receipt for the 1581. 15s. 10 3-4d. ; it was proved by the deposition of John Farris, 122 *that he always understood that William Gathright transacted the chief of his mother’s business in the time of her being guardian for her granddaughter Nancy Farris; that he verily believed that Anne Gathright was herself incapable of “transacting the duty” which her guardianship required; and that he always understood that she was guardian to Nancy Farris, in the year 1777. It was also proved by the deposition of William Farris, (the administrator of Sherwood Farris,) that he took a receipt (without saying for what sum) of Anne Gathright, as guardian of Nancy Farris, for her proportional part of the money due her as orphan of the said Sherwood Farris; and that William Gathright did the business for Anne Gathright, as guardian of Nancy Farris, with the said deponent.
    A transcript of the record in the suit referred to in the bill, was not inserted in the record sent to the Court of Appeals, but was afterwards brought up by certiorari; from which it appeared that a verdict had been found, (on an issue directed in that suit,) setting forth, “that the receipt in the following words, ‘Received August 2d, 177-, of William Farris, 1581. 15s. 10 3-4d. for Anne Farris, orphan of Sherwood Farris, deceased, to remain without interest till January next, as the interest is settled till then.
    ‘William Gathright, jun. for Anne Gathright.
    ‘John Warriner, jun.’
    was the proper hand-writing of the said William Gathright, jun. ; and that he was empowered by Anne Gathright to receive money for her ward Nancy Farris, orphan of Sherwood Farris, deceased;” and a decree had been thereupon pronounced, allowing William Farris credit for the said sum of 1581. 15s. 10 3-4d. in the settlement of his account as administrator of the said Sherwood Farris.
    The late Chancellor (on the 29th of September, 1803) “being of opinion that the plaintiff Nancy was not chargeable with board, nor entitled to interest for the use of the money claimed by the bill during such time as she abode in her grandmother Anne Gathright’s family, adjudged and 123 *decreed that the defendants, out of the goods and credits of their intestates respectively, pay to the plaintiffs 1581. 15s. 10 3-4d., with interest thereon, at the rate of five per cent, per ann. to be computed from the time when she ceased to be longer a member of that family: but, forasmuch as data for exactly measuring that period are not supplied, and the defendants are understood not to have admitted the things bequeathed to their ■intestates by the said Anne Gathright to have been her property, the Court directed one of the Commissioners to inquire into these matters, and report them, as they shall appear to him, to the Court, with the value of that property;” from which decree the defendants William Savage and Hooper and wife prayed an appeal, which was allowed them.
    ■ Nicholas and Randolph, for the appellants.
    Wickham, for the appellee.
    On behalf of the appellants four' points were made; 1. That Anne Gathright was never chargeable with the money decreed; in support of which it was observed that the present defendants not having been parties to the suit against William Farris, the record in that suit was not admissible evidence in this; independently 'of which record, there was nothing to prove the payment of the money but the deposition of William Farris, who was clearly an interested witness;
    2. That, if she was ever chargeable, the credit claimed for board ought to be allowed ; her declarations that she did not intend to charge it, not being sufficient to bar her right;
    3. That if the receipt were allowed, its true date was probably in the paper money times, and therefore the scale of depreciation ought to be applied, according 124 to the cases *of Granberry v. Granberry,  and Call v. Ruffin ; and,
    4. That all the proper parties were not before the Court; as was evident from Anne Gathright’s will.
    In answer to the first point, it was ■ said that the record in the first suit was not introduced as absolute or conclusive testimony, but merely as introductory to, and explanatory of, the deposition of William Farris; that a copy of that record would have been no evidence before the Chancellor, since the papers being in his own Court, he should have looked into the originals. In the case of Burk’s Ex’r v. Tregg’s Fx’r,  such was the principle established on the plea of nul tiel record: and it would have been the same, if the copy in question had been incidentally produced as evidence to the Jury. In this cause, the bill referred to the papers in the other suit, as now remaining of record in the Court. This made them part of the bill, and authorized the giving them in evidence, so far as by the rules of law they were evidence; viz. to shew that such a suit had been brought, and such a decree existed; whereby it appeared that William Farris was disinterested ; the decree in his favour having settled the matter as to him.
    Even if the record was not read in the Court below, (as it should have been,) the Court here ought to inspect and receive it as evidence; this being an interlocutory decree, and this Court having obtained possession of the transcript by writ of certiorari; as, in Alexander v. Morris,  where the decree was interlocutory, depositions, taken after the allowance of appeal, were, nevertheless, admitted to be read in the Court of Appeals.
    2. As to the board, the Chancellor has been liberal enough. Since it was evident that Mrs. Gathright never intended to charge the plaintiS Nancy with board, and held a considerable sum of money belonging to her, for many years; he, very properly, refused to make the one part}' liable for board, and the other for interest. Besides, if the profits of the orphan’s estate were not sufficient for her maintenance, her 125 ^guardian had no right to consume the principal in expenses, but should have had her bound out according to law. 
    
    3. Whether the scale of depreciation ought to be applied, or not, does not appear. But, admitting that paper money was paid, the decree not being final, it will not be too late for the Chancellor to apply the scale hereafter. So also,
    4. Proper parties may be introduced at any time before the final decree.
    In reply, it was urged that a mere reference to another suit does not make it part of the bill, unless the record be filed, or made an exhibit; that the evidence necessary on the plea of nul tiel record is very different from that required in Chancery suits; that copies there are always received, and, indeed, are most proper, because the papers, and those only, which were before the Court below, ought to be inserted in the record to be sent to the Court above.
    William Farris was not a competent witness ; for, notwithstanding the decree was in his favour, he was not altogether' discharged, since a bill of review might be obtained, and, therefore, he might, eventually, be interested.
    As to the question of depreciation, the Chancellor will never allow for it, if this decree be affirmed; for he could not have got to the sum of 1581. 15s. 10 3-4d. without disallowing the depreciation.
    Mr. Wickham’s suggestion, that, proper parties may be made hereafter, ought not to prevent this Court from now directing them. Is a man to be condemned unheard, because he may be heard hereafter? Principles are now to be settled. If this Court affirm the decree, its decision will be understood as declaring that all the proper parties are already made.
    Friday, May 18.
    
      
      Appellate Practice — Certiorari,—On this subject, see monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
      Guardian and Ward. — On matters relating to the subject of guardian and ward, see monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt 398.
    
    
      
      Same — Support of Ward — Declaration That No Charge Would Be Made Therefor — Effect.—In Armstrong v. Walkup, 9 Gratt. 372, 375, it was held that a guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and in fact kept no accounts against themSAMtrBliS, J., in delivering the opinion of the court said, as the guardian “was under no previous obligation to support and educate them (i. the wards) at his own expense, a promise to do so was made without consideration, and would not he binding on him. The office he held made it his duty to take care of the persons and property of his wards, and to provide for their support and education out of the profits of their estate. A mere promise to persons having no authority to contract on the subject, and for no consideration, does not affect the rights of the guardian to have compensation. Hooper v. Royster, 1 Munf. 119.” To the same effect, the principal case is cited in. Hurst v. Hite, 20 W. Va. 205. In fact, this last case quotes the excerpt given above from Armstrong v. Walkup, 9 Gratt. 375.
    
    
      
       Decrees. — See generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
       Legatees — Suits against. — See monographic nota on “Legacies and Devises” appended to Early v. Early, Gilm. 124.
    
    
      
       1 Wash. 246.
    
    
      
       1 Call, 333.
    
    
      
       2 Wash. 215.
    
    
      
       3 Call, 89.
    
    
      
       1 Rev. Code, p. 173, s. 11.
    
   The Judges delivered their opinions.

JÜDGH TUCKRR.

The first question in this cause respects the proof of the payment of the sum of 1581. 15s. 126 *10d. by William Farris, administrator of Sherwood Farris, deceased, to Anne Gathright, as guardian of the complainant, Nancy Royster, who was a daughter of the said Sherwood Farris. And the proof rests entirely upon the deposition of William Farris the administrator, by whom the payment is alleged to have been made. As it is short, I shall transcribe the whole as it appears in the record.

“Question by the plaintiff. Did you, or did you not, take a receipt of Anne Gathright, as guardian of Nancy Farris, for her proportional part of the money due her as orphan of Sherwood Farris, deceased, you being administrator of the said Sherwood Farris, deceased?”
“Answer. I did take a receipt, and I was the administrator.”
“Question by the plaintiff. Did William Gathright do the business for Anne Gathright, as guardian of Nancy Farris, with you?”
“Answer. He did. And further he saith not. ”

Were there no objection to the competency of the deponent as a witness, I am clearly of opinion that this deposition, standing alone and unsupported by the receipt which he says he took for the monej', (the amount of which is not mentioned, nor even hinted at,) ought to be wholly rejected as proof of such payment to the guardian.

But the objection to his competency appears evident upon the face of the deposition ; for, as administrator of the father of Nancy Farris, he was chargeable to her for any legacy or distributable portion of her father’s estate in his hands, and, consequently, could not be permitted to discharge himself by his own oath, only, that he had paid it over to her guardian.

But to remove that objection, the plaintiffs resort to a record in a suit between themselves and this witness, as administrator of S. F. in which the Chancellor directed an issue to be made up between the parties, to try whether Anne Gathright, (who was not a party in that suit,) on the second day of August, 1777, was the 127 guardian of the plaintiff *Nancy, and also to try whether an exhibit in these words, “Received August 2d, 177-, of William Farris 1581. 15s. 10 3-4d. for Anne Farris, orphan of Sherwood Farris, deceased, to remain without interest till January next, as the interest is settled till then.” (Signed) “W. Gathright, jun. for Anne Gathright, ” was undersigned by the said W. G., jun. with his proper hand; and also to try whether the said W. G., jun. was empowered by the said A. G. to receive money due to her ward; on which trial those ■facts were both found in the affirmative; which record is in part recited, and is referred to in the complainant’s bill, in this suit, as then remaining in the same Court of Chancery. But that record was not made a part of the record in this suit, when sent up from the Court of Chancery, neither doth it appear that it was read in evidence there at the hearing. Mr. Wickham, however, contended, upon the authority of Alexander v. Morris, (3 Call, 104,) that, this being an appeal granted from an interlocutory decree, this Court would allow that record to be read; more especially as, being a record of the same Court, it was probable the Chancellor had inspected it previous to pronouncing his decree. But I have very great doubts of the propriety of such a practice, as it may be productive of great inconvenience and injury to suitors in general. For can it be thought reasonable, that a party, by referring in a general way to a suit between other persons, although in the same Court, should put his adversary to the trouble and expense of hunting for, and taking copies from the papers in a suit, or perhaps a dozen suits, determined twenty or fifty years ago, and, after all, perhaps net meeting with the papers referred to, when the party making the reference might have produced an authentic copy, and annexed it to bis bill or answer, without further expense than paying for a copy of so much as he himself might deem material to his own cause. Or, suppose a person (against whom a decree may have been pronounced in any of the other 128 Chancery District Courts) *to apply to a gentleman of that bar .for his advice whether to appeal irom a decree or not. He produces the record certified by the clerk, and the counsel, upon examining it, discovers manifest error, and advises an appeal. If, upon an exhibit which shall afterwards be brought up by certiorari, as in this case, the Court shall affirm the decree, (although such exhibit was probably never produced in the Court below,) the defendant will be liable to pay damages at the rate of ten per cent, per ann. which he would never have incurred if the exhibit had been made a part of the record originally. T therefore think the practice too dangerous to be countenanced by this Court: more especially as, in the present case, the defendants have not admitted the payment, but called for proof to be made of it.

But, if it were admitted that this record might be read here for the purpose of shewing that the administrator is no longer liable to the plaintiff Nancy, and therefore a competent witness to prove the payment of her distributive part of her father’s estate to her guardian, still I am of opinion it ought not to be admitted for any other purpose. Now the amount of the money paid to William Gathright, jun. as the agent of Anne his mother, nowhere appears but in that record. This Court certainly will not admit it for that purpose; for Anne Gathright, not being a party in that suit, had no opportunity to cross examine the witness; and, if we look into that record, he contradicts his own evidence in this cause; for there the money appears to have been paid to the son, who gave a receipt for it, and here the witness says that he took a receipt from (not that he paid the money to) the mother.

Again, if we are to inspect that record, it affords a presumption, at least, that the money was paid to the guardian during the period when paper money was the only circulating medium in this country; if so, it ought to be scaled according to the value, as established by the act of Assembly, within a reasonable time after the time of the payment. 129 *1 also think the defendants are entitled to a reasonable allowance for board, as well as clothing and schooling, notwithstanding the generous intention of the guardian not to charge any. For the plaintiffs coming to ask for equity, ought to do it. Loose declarations are not to be attended to.

But, whether this be correct or not, she certainly has not waived her claim for moneys paid and advanced for clothes, schooling, and other necessary expenses, (board excepted,) an account of which ought to be taken, and all just and reasonable disbursements allowed out of the profits of the ward’s estate, if sufficient for that purpose; but, if those profits, during that period of the ward’s infancy when she was too young to be bound out as an apprentice, shall prove insufficient to compensate the guardian for such, just, reasonable, or necessary disbursements, the balance ought to be made good out of the principal of her estate. But for advancements subsequent to that period, no allowance beyond the profits of the ward’s estate ought to be made, unless it shall appear, that, from extraordinary circumstances, such disbursements were unavoidable without culpable neglect on the part of the guardian: in which case the same ought to be allowed out of the principal of the ward’s estate, (if the profits thereof shall be found insufficient,) with interest on the same from the end of each year. And that, forcany balance which maj’- be found due to the ward at the period when she ceased to reside with her guardian, interest at the rate of five per cent, per annum ought to be allowed to the ward. And, in settling and adjusting the accounts, all payments and receipts of money, between the first day of January, 1777, and the first' day of January, 1782, are to be considered as made in paper money, unless the contrary be proved; and the account stated in paper to the time of the last payment; and the balance either way reduced by the scale of that month, and carried to the account of subsequent specie articles if any there be.

Upon the whole, I am of opinion that, upon the record **now before us, there is neither evidence of the amount of any payment, nor of the time of any payment, nor even of the certainty of any payment made by W. Farris the administrator to A. Gathright the guardian; that the decree be therefore reversed, and the cause sent back to be proceeded in, in such manner as upon further evidence, if offered to the Court, may be consonant to equity.

JUDGE ROANE

observed that the decree of the Court, about to be read, contained his sentiments, and he did not wish to add any thing to it.

JUDGE FLEMING.

The difference in the opinions of the Judges being on two points only, I shall be short in my remarks, and confine them to these, two points. 1. With respect to the sufficiency of the evidence to prove the receipt of the 1581. 15s. 10 3-4d. by Anne Gathright, guardian of the appellee, Nancy Royster, as in the proceedings mentioned. It appears to me that the record in the suit between Farris and Farris, in which the present appellees and another were plaintiffs, to call Wm. Farris, administrator of Sherwood Farris, deceased, to render an account of his administration of that estate, and in which the said administrator had a credit for the said 1581. 15s. 10 3-4d., having been particularly referred to in the bill, and by the answer admitted to be truly stated therein, I have no doubt but that record was proper evidence in this cause. I am also of opinion, that Wm. Farris was a competent wit" ness to prove the payment of the said 1581. 15s. 10 3-4d. to Wm. Gathright, as agent of Anne Gathright, guardian of the appellee, Anne Royster: he, being exonerated from any liability for the same, by the decree in the suit of Farris v. Farris, was a disinterested witness, and no exception was taken to his deposition.

2. With respect to the board of the appellee, Anne Royster, during her residence with her grandmother and guardian Anne Gathright, the latter was repeatedly 131 heard to declare *she did not intend to charge her ward with board. And our act of assembly concerning guardians and orphans, declares that where the profits of an orphan’s estate are not sufficient for his or her maintenance, such orphan, if a boy, shall be bound, out until the age of 21 years, and if a girl, to the age of 18 years. I am therefore of opinion, that the charge for board, beyond the profits of her estate, ought not to be allowed.

The following was entered as the decree of the Court.

1‘A majority of the Court is of opinion that there is no error in so much of the decree rendered in this cause as exempts the appellee Nancy Royster, from the charge for board, during the time of her residence in the family of Anne Gathright, deceased, her guardian and grandmother, in the proceedings mentioned, and provides for the ascertainment of the time when such residence ceased; nor in so much thereof as disallows to the appellees interest upon the money claimed by the bill, during the time of such residence; nor in so much thereof as decrees to the said appellees the sum of 1581. 15s. 10 3-4d., with interest thereupon, at the rate of five per centum peí annum, to be computed from the time when such residence ceased; (subject, nevertheless, to any deduction which may result from the effect of the principles and provisions declared by this decree;) the receipt of the said money not having been denied by the answer, and being established by the testimony.
“The Court is also of opinion, that there is no error in so much of the said decree as provides for the ascertainment of the several and respective proportions of the estate of the said Anne Gathright, deceased, with the relative values of each, which came to the hands of the respective intestates of the appellants, chargeable with payment of the debts aforesaid, in order to a just and ratable contribution 132 ^between them, severally, to the sum decreed. But inasmuch as it is not proved that the said guardian ever agreed to waive her claim for moneys paid and advanced for the clothes, schooling, and other necessary expenses of the said Anne Royster, during her residence with her as aforesaid, this Court is of opinion, that the same ought to have been ascertained and allowed to the appellants, in so far as such advances were suited to the estate and condition of the said Anne Royster, and did not, after she came to an age to be bound out, in the event of the profits of her estate being inadequate to her support, exceed those profits: unless it shall appear that, from extraordinary circumstances, such disbursements were unavoidable, without culpable neglect on the part of her said guardian; in which case the same ought to be allowed out of the principal of the said Nancy’s estate, if the profits thereof shall be found insufficient, with interest on the same from the end of each year. And that there is error in so much of the said decree as omitted to direct such ascertainment and allowance; subjecting the same, if need be, to the operation of the scale of depreciation.
The Court is further of opinion that, although the payment of the said 1581. 15s. 10 3-4d. to the guardian is established as aforesaid, the particular date of such payment is not ascertained, and that if, on inquiry, it shall be found to have been made between the last day of December, 1776, and the last day of December, 1781, the same is liable to be reduced by the scale of depreciation, to be applied as on the last day of the year in which such payment shall be found to have been made; and, as a reasonable time ought to be allowed a guardian to put the money of a ward out at interest, six months from the time of the receipt of the said 1581. 15s. 10 3-4d. is hereby allowed for putting the same out at interest; if it shall be found that the same was received prior to the first day of January, 1777, and that the said six months from the receipt thereof will extend to the year 1777, when the scale of depre133 ciation commenced, the *sarae shall be scaled at the rate of depreciation existing at the end of the said six months, from the time the same was received by the agent of the said Anne Gathright; and that the said decree is also erroneous in not having provided for such ascertainment, and eventual reduction, as aforesaid.
‘ ‘The Court is further of opinion that, as by the will of the said Anne Gathright, made an exhibit in this cause, her sons Miles Gathright and Joseph Gathright were made her executors; and as it does not appear that their accounts of such executorship have ever been regularly made up, and the estate delivered over by them to the legatees mentioned in the said will; the said decree is also erroneous in not having made those who succeeded the said Miles and Joseph Gathright, now deceased, as executors of the said Anne Gathright, parties to this suit: and also, inasmuch as it appears by the said will that Jane Gathright. Anne Gathright, (now Whitlock,) Anne Gathright, the granddaughter, as also Mitchell Farris, (to whose rights the appellees have succeeded,) and the appellee Anne Royster, were also legatees in the said will, there is further error in the Court’s having proceeded to a decree before the first three were made parties to the suit; and in not making the last, in her own right, and as representing Mitchell Farris, to be also contributory to the sum decreed.”
“It is therefore decreed and ordered, that so much of the decree aforesaid as is above declared to be not erroneous, be affirmed; and that the residue thereof be reversed; that the appellees pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here: and the cause is remanded to the Superior Court of Chancery for the District of Richmond, to-be proceeded in pursuant to the principles herein before declared, in order to a final decree. ’ ’ 
      
       Taliaferro v. Minor, 2 Call, 196.
     
      
       1 Rev. Code, 173.
     
      
      Note. See also, ibid. p. 322, s. 12.
     