
    SUPREME COURT—IN BANCO.
    APRIL TERM—1874.
    
      Allen, Gh. J., Harris and Judd, J. J.
    
    In the Matter of the Guardianship of Rosa Bartlett Duncan.
    The principal of a ward’s estate must be invested by the guardian, and the income and profits accruing from it are all that he may expend for the maintenance of his ward, without the order of the Probate Court to use the principal for such purposes.
   Mr. Justice Judd

delivered the opinion of the Court.

Daniel P. True was qualified as guardian of Rosa Bartlett, a minor, on the 25th of July, 1859 ; and received the sum of 11,097.45 as his ward’s estate. No accounts were filed by Mm as required by tbe statute and tbe terms of his bond, but on tbe 10th October, 1873, be is brought into Court on tbe petition of bis ward who bad become of age and bad married.

In tbis account, thus compelled, tbe guardian charges tbe sum of $1,830.75 for board of tbe ward from June, 1858, to July, 1870, twelve years, at tbe rate of $3 per week, and shows an expenditure of $240, for clothing and schooling. It does not appear that tbe funds of tbe estate were invested, or that tbe guardian bad made application to tbe Court to be allowed to use tbe principal for .the maintenance of tbe ward. Both parties appealed.

S. B. Bole for tbe guardian. Our statutes allow a guardian to use tbe principal of a ward’s estate for maintenance. Commissions should be allowed on tbe interest charged against him.

L. McCully for the ward. Tbe guardian may not break into bis ward’s"principal without leave of the Court, and then only on express and necessary cause shown.

Per Curiam: The Civil Code authorizes a guardian to pay all just, debts due'from tbe ward out of bis personal estate; but tbe “debts” mentioned in tbis section are not those incurred by tbe guardian for maintenance of tbe ward during tbe progress of tbe trust.

After the debts which were incurred by tbe ward before the inception of the trust are paid, tbe balance constitutes the principal, which must be invested by tbe guardian, and tbe income and profits accruing from it are all that tbe guardian may expend for maintenance of ais ward. Tbis is tbe obvious meaning of Sections 1357 and 1358 of tbe Civil Code.

A guardian may not of bis own .authority encroach upon the principal of a ward’s estate for tbe purpose of maintaining bis ward, and it is imperative upon him to obtain tbe leave and direction of tbe Court before he can touch tbe principal for such purposes. ,

In tbis ease, however, no application was made by the guardian for the direction of the Court, but he has assumed the authority.

Honolulu, April 28th, 1874.

It is the duty of a guardian to keep the money belonging to the trust estate properly invested, and if he neglects to make investments he is chargeable with interest.

Walker vs. Wetherell, 6 Vesey, J., 473; In re Bostwick, 4 John., ch. 99; De Pegster vs. Clarkson, 2 Wendell, 78. Applying these principles to the case before us, the guardian True must account for the whole of the principal sum remaining in his hands, after paying the debts of his ward, which we find as follows:

Amount of cash, received by guardian........................ $1,097 45
Deduct debts of the ward, viz.: for clothing, sehooling, &c„ of Rosa Bartlett from June 1, 1858, to July 25, 1859, when the trust began.................................$ 68 00
Also board, washing and lodging' for same period, 59 weeks at $3............................................................ 177 00
Also statute commissions.......................................... 106 82
- 346 82
Principal when trust began was........................ $750 63

It is not necessary to enquire what would be the cost of board, clothing, schooling, etc., of a girl of the condition of this ward, for, be the same much or little, the guardian was authorized to expend for these purposes only the income or interest arising from the fund — unless he obtained leave of the Court to break in upon the principal.

For this reason it will not help the guardian any to allow him commissions on the interest earned, for he claims that he spent all the interest in the support of his ward, and much more.

We therefore decree that the guardian pay over to the husband of his late ward, the sum of $750.63 less the costs below, which may be allowed out of the fund, for a proceeding for settlement of accounts was necessary. Costs of-this appeal to be paid by the guardian.  