
    Lewisburg.
    Cunningham v. Cunningham.
    (Absent Brooke, J.)
    1847. July Term.
    
    1. Infant children live with their mother on her dower estate, and are supported by her, for which no charge is made by her. But during this time the nett proceeds of her estate are not equal to her expenses; and the guardian of the children pays these expenses to a largo amount, which she has not repaid him. Upon a bill by one of these children, after coming of age, against his said guardian. Held : That as it is impossible to ascertain how much of the advances of the guardian were applied to the support of the ward, a proper and reasonable allowance should be made for the support of the ward, annually, and credited to the guardian.
    2. Two months allowed guardian for collecting and investing the annual proceeds of the ward’s estate.
    3. In stating the guardian’s account, it should be closed at the period when the guardianship terminated; and from that time the account should be adjusted on the ordinary principle, as between debtor and creditor.
    4. It is error to aggregate the principal and interest due on the guardian’s account, and give a decree for the whole sum, with interest thereon.
    This was a bill filed in the Circuit Court of Hardy county by Solomon Cunningham against his former guardian George Cunningham, to surcharge and falsify the account settled by the guardian before the commissioner of the county court of Hardy, by which he had been appointed guardian of the plaintiff.
    
      Solomon Cunningham, the father of the plaintiff, died in 1821, possessed of a large estate in land and a number of slaves, and leaving a widow and eight children. The defendant was one of his administrators, and in February 1823 he held bonds to the amount of 1452 dollars 76 cents, which then fell due for the rent of land and hire of slaves. In November 1823 he qualified as guardian of the plaintiff and five of the other children.
    
      The children being all of them young, lived with their mother on the land assigned to her for her dower; and she furnished them with every thing for their support, without making any charge against them; but her expenses incurred in carrying on her farm and supporting the family, to the amount of 3416 dollars, were paid by George Cunningham, and had never been repaid to him by the widow. And having been examined as a witness, she said that what was raised on the land assigned to her went to the support of the children, and she expected the children to pay for these expenses.
    
      George Cunningham’s guardianship of the plaintiff terminated in February 1833, when another guardian was appointed.
    The accounts of the guardian having been referred to a commissioner, he stated an account in which he allowed to the guardian two months for collecting and investing the annual profits of his ward’s estate. He refused to allow the guardian a credit for any portion of the amount paid for Mrs. Cunningham, or to charge the ward for maintenance; and he settled the account on the principles established as applicable to the accounts of guardians, to the termination of the guardianship in February 1833, and then on the ordinary principle of debtor and creditor to November 1st, 1842, when he reported a balance of principal and interest due the plaintiff of 2685 dollars 78 cents.
    The cause came on to be finally heard in September 1845, when the Court decreed that the defendant should pay the plaintiff the aforesaid sum of 2685 dollars 78 cents, with interest thereon from the 1st of November 1842 till paid. From this decree the defendant applied to this Court for an appeal, which was allowed.
    
      J. W. F. Allen, for the appellant,
    objected first, to the commissioner’s report, that no allowance was made to the guardian either for what he had paid for Mrs. 
      
      Cunningham, or for the support and maintenance of the plaintiff. And he referred to Jackson’s adm’r v. Jackson’s heirs, 1 Gratt. 143.
    He objected second, to the decree, because it gave compound interest. This he insisted, on the principle applicable to ordinary debtor and creditor, which was the principle sanctioned by the Court below, was clearly erroneous.
    
      Samuels, for the appellee,
    insisted that it was the duty of Mrs. Cunningham to support her children if she was able to do it; and that there was no proof that she was not. He referred to Fawkner v. Watts, 1 Atk. R. 406; Wooddeson's Lect. 38 Law Libr. p. 245; 1 Bl. Com. 446; Myers v. Wade, 6 Rand. 444, Green, J. opinion: and he attempted to distinguish between this case and the case of Jackson’s adm’r v. Jackson’s heirs, supra.
    
    He insisted further that the plaintiff having been an infant until 1842, and the defendant having retained his estate, he should be treated quasi guardian, and his accounts settled accordingly up to that time.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as it appears the ward was supported by his mother, who has preferred no charge against him for his education and support, and as it furthermore appears the guardian advanced large sums to the mother by the payment of accounts to merchants and others incurred in the maiutainance and support of herself and family, including the said ward, it is but just and reasonable that some allowance should be made to the guardian for a portion of such expenditures in his account with the ward; and as from the manner said accounts were kept and advances made, it would be impracticable to ascertain the precise amount of the said expenditures which should be charged to the ward, a proper and reasonable allowance should have been made for the support of the ward annually, and credited to the guardian.

The Court is further of opinion, that although there was no error in holding that after the termination of the guardianship, the account should have been adjusted and stated upon the ordinary principles as between debtor and creditor; yet the Court in the final decree has departed from these principles by compounding the interest from .the time that the guardianship closed, and rendering a decree for the aggregate sum, embracing interest as well as the balance of principal due at the close of the guardianship, with interest on such aggregate sum of principal and interest from the 1st November 1842 until paid.

The Court is therefore of opinion that said decree in the particulars aforesaid, is erroneous; therefore for these errors it is reversed with costs, and affirmed in all other respects, and remanded, to be proceeded in according to the principles aforesaid in order to a final decree.  