
    In the Matter of the Judicial Accounting of Stephen S. Otis, Guardian, App’lt, v. Henry Hall, Ward, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 1, 1889.)
    
    GtJABDIAB AST) -WARD.
    . Where a guardian took the infant into his family with the avowed intention of rendering care and maintenance gratuitously, made no charge at any time, and knowing that pension moneys would be coming to him agreed that they should be paid over to him when of age, with interest, he cannot on final accounting credit him with services and then make his charge for maintenance absorb the claim and the pension, and bring the ward in debt to him. He stands, by his act and design, in the place of a parent, and must abide by the rule that in such case no charge can be made for service on one hand nor for board and maintenance on the other.
    Appeal by Stephen S. Otis from a judgment of the supreme court, fourth department, affirming a decree of the acting surrogate of Lewis county, settling the final account of the appellant as guardian of one Henry Hall, an infant. It appeared that on his own application Otis was, on the 14th of May, 1866, appointed guardian of the person and estate of the infant, and in February, 1886, he presented his final account, verified in the usual manner. The ward excepted to every item of credit claimed by the guardian “for any money paid, or for food, clothing or care provided,” upon several grounds, and among others, (1) that while still an infant the guardian “took him into his family” as one of its members, without any intention of charging for his board, care or support, and in that character retained and treated him; the infant, in the meantime, working for the guardian on his farm and otherwise as he dictated, and in such labor earning more than enough to pay for his board, clothing and maintenance; (2) that the money with the receipt of which the guardian charged himself was granted by the government of the United States to the ward as pension money on account of his father’s services as a soldier and death in •the rebellion of 1861, and was inapplicable to any demand of the guardian, and was not in fact so applied by him, and the war’d asked that Otis be decreed to pay over to him the funds so received with interest
    The issues thus presented were heard by the acting surrogate and from his report it appeared that the exceptions were well founded in fact, and as matter of law he decided, 1st. That having assumed the relation of parent to his ward, the guardian can make no charge for support and the ward cannot receive for services ; 2nd. That having agreed with the step-father of the ward that ho would pay over to the ward the money he should receive and interest when he became of age, and having taken the child on that agreement, the guardian cannot now charge for support and take that money for recompense.”
    The surrogate therefore charged the guardian with the sums received by him, with interest, and after deducting his commissions and certain expenses directed him to pay the balance, viz.: $1,042.56 to the ward, with costs of the proceedings. Upon appeal by the guardian the decree of the surrogate was in all things affirmed by the supreme court and the guardian appeals to this court.
    
      Elon R. Brown, for app’lt; Kilby & Kellogg, for resp’t.
    
      
       Affirming 6 N. Y. State Rep., 592.
    
   Danforth, J.

It is well settled that where parties sustain the relation of parent and child, either by nature or adoption, the former in the absence of an express promise cannot be required to pay for services rendered by the child, nor the latter be obliged to pay for maintenance. No case has been cited to the contrary, but the learned counsel for the appellant, while conceding that “ such is undoubtedly the rule of law,” contends that a different doctrine should prevail in a court having in respect to matters of this sort a somewhat larger jurisdiction, and that the surrogate erred in not disposing of the question upon equitable principles.

He might have done so had a case been made for such relief,. Voessing v. Voessing, 4 Redf., 364; Hyland v. Baxter, 98 N. Y., 610, but we find nothing in the record which required his interference. It seems that the guardian took the infant into his family with the avowed intention of rendering care and maintenance gratuitously. He made no charge at any time, and knowing that pension moneys would be coming to the child, agreed that they should be paid over to him when of age, with interest. The account actually presented by the guardian to the surrogate credits the ward with these moneys to the amount of $576.57, credits him also with services rendered after the year 1875, in the sum of $250, but makes the charge for maintenance and care absorb both items, and claims as due from the ward a balance of $665.80. All this is contrary to the agreement on which he was permitted to take the child, and inconsistent with his conduct afterwards. He not only treated the child as a member of his family and assumed the character of parent, but taught the child to call him “father,” his wife “mother,” and told the neighbors that he had adopted him and that the child would be his heir. The account now presented is at variance with those relations, and in the absence of evidence that the support furnished exceeded the ordinary necessaries supplied in a farmer’s family, there was nothing to call for any allowance, and, moreover, the case actually made would have justified a finding that the boy’s services were of such importance as to-furnish a full compensation for his support.

Such a finding was not necessary, for under the circumstances the guardian stood, by his act and his design, in the place of a parent, and his case forms no exception to the general rule that where that relation exists no charge should be made for services on one hand, nor for board and maintenance on the other.

We agree, therefore, with the supreme court, and its judgment, should be affirmed.

All concur.  