
    Thomas Dawes, Jun., Esq., Judge, &c., versus Joseph Howard and Al.
    The father of minor children having property of their own, is, notwithstanding, bound, if he has ability, to support them; otherwise of the mother.
    Where a father, having little or no property of his own, takes the guardianship of his children so situated, he will be allowed a reasonable charge for their board in his family during their minority.
    This was an action of debt on a bond given by the defendants to the judge of probate, as sureties with Samuel Treat, deceased, upon his being appointed guardian to his five minor children. The writ was thus endorsed: “ This suit is commenced for the benefit of Samuel Treat, Maria Treat, Ann Treat, Mary Treat, and Lucius Junius Treat, children of Samuel Treat, deceased, and heirs of Lemuel C. May, deceased.”
    The defendants confessed the forfeiture, and prayed to be heard in chancery.
    The Court appointed two commissioners to hear the parties, and to receive and state the account of said Treat, exhibited by the defendants, (consisting of charges for the * main- [ * 98 ] tenance of the said children,) which the defendants prayed to be allowed in mitigation of damages claimed by the plaintiff in this action.
    The commissioners reported that the deceased guardian had received sundry sums of money for his minor children, as they were legatees named in the last will of Lemuel C. May, deceased, amounting in the whole to 2452 dollars 70 cents; that, as to the account exhibited by the defendants, they found no charges made by the late guardian in his lifetime, nor any vouchers among his papers in support of said account, which, they say, was wholly assumed by the defendants, his sureties, as what they suppose he would have been entitled to exhibit and claim, had he seen fit so to do ; that the charges were all reasonable that he did in fact support his said children, during the time the said account charges; and that he had little or no property of his own.
    
      Heard, for the plaintiff,
    argued that the deceased father of these minors was bound to provide for their maintenance. 
    
    In England, when a parent is poor, and unable to support his children, the chancellor may direct the interest of their funds to go in aid of the parent, but not the principal, except for the advancement of the minor, as the apprenticing him out, which is only changing the principal, not diminishing it.
    It appears that the account offered by the defendants is wholly assumed by them. No charge was made by the father in his lifetime against the children, and as the father was under a natural obligation to support his children, no implied promise could be raised.
    
      Thurston, e contra,
    
    contended that the practice had been to go behind the interest, if that proved insufficient. 
      Comyns says, “ The Court may make a liberal allowance out of the infant’s estate to a mother, a guardian, who is in distressed circumstances.”  And our law makes no distinction in this respect between fathers and mothers. [ Chief Justice. That is true in the case [ * 99 ] of pauper children, but * where minor children have property of their own, the father is, notwithstanding, bound to support them, if of ability ; but it is otherwise with the mother.]
    
      Heard, in reply.
    If a stranger had been guardian, and the father died, could his administrator- recover against the guardian the amount of the board of the children, while living with the father, he having never made any charge thereof, and there being no evidence that he intended to do so ? If the administrator in such a case could not recover, the present defendants stand on no better ground as to obtaining relief.
    
      
       1 Black. Com. 448. — 1 Brown’s Cha. Rep. 388, Hughes vs. Hughes — Ibid 268, Billingsley vs. Cricket.
      
    
    
      
       1 Vern. 254, 5, Barlow vs. Grant.
      
    
    
      
       2 Com. Dig. Chancery, 3, O. 1, 2. — 3 R. 6
    
   The Court,

after considering this cause, observed that, although, in England, guardians of infants were not permitted to trench on the principal of the funds belonging to their wards in any case, unless leave has been first given by tjie chancellor, upon application tc him, our statutes have altered the law in this respect, and have even made the real estates of minors liable to be sold for their sup port and education, when the personal estate shall be insufficient.

In the present case, they ordered the late guardian’s account to be charged with interest on the several sums received by him, and to be credited with the support of the minors at the rate of one dollar per week for each, and execution to issue for the ba lance of the account thus adjusted.  