#### *Chapline vs. Moore*&c. *M’ Afee and ux. vs. Moore &c. Chapline and ux. vs. Moore &c.*and *Moore vs. Chapline &c.*

Chancery.

*Case 25*

Cross appeals from the Mercer Circuit; W. L. Kebby, Judge.

*Infants. Executors. Guardians. Fees of counsel. Distribution. Husband and wife. Commission. Interest. Accounts. Parties. Practice.*

Parties.

Will. Moore dies and

Irvine and Given appointed his .administrators.

Appraisement.

Settlement of *151Irvine and Given’s administra tion account.

*150April 19.

Chief Justice Bibb

delivered the Opinion of the Court.

Lawson Moore, George Moore and William Moore were brothers. George died in 1810, in the county of Westmoreland, in tiie State of Virginia, leaving his widow, Hannah, and four infant children, Elizabeth, (now wife of Jacob Chap-line,) Judith Ellen Moore, (now’ wife of Robert M’Alee,) William B. Moore,, and Alien Lawson Moore.'

In 1812, one other of the brothers, William Moore died, in the State of Pennsylvania, and town of Carlisle, unmarried and intestate, leaving a considerable estate, real and personal.

In July 1812, administration of the goods and chattels, rights and credits of said deceased, William Moore, was committed, by the orphan’s court of the, county of Cumberland, and State of Pennsylvania, held in the town of Carlisle, to William Irvine and James Given, who entered into bond, in a penalty of sixty thousand dollars, with approved sureties, for the due administration and account of the personal estate.

The administrators, on the 23rd of September, 1813, returned an inventory and appraisement of the personal estate, to the amount of $42,059 13, an account of effects administered to the amount of $24,578 24, shewing a balance unadministered, of seventeen thousand Tour hundred and eighty dollars eighty-nine cents.

In this account of credits claimed by the administrators, of $24,578 24, is included a claim of $1426 *15130, for their services, founded on- an agreement of1 Lawson Moore with them, for their resignation, to allow five per cent on the monies theretofore paid, as well as upon those paid over to the administrator, *de bonis*non, to be appointed, and two ant! an half per cent upon all paper securities delivered over to their successor, when, and as the judgments, notes and hook accounts should *be*collected. The credit of *$1426 50,*thus claimed, was passed, *de bene esse, by*virtue of that agreement, by the orphan’s court, subject to any equity, which may, or can arise, when the minors arrive at age, if it is then thought proper to dispute the same. And upon the said settlement, the court entered of record, that it appeared to the court there were ample assets to discharge all debts.

Irvine anil Given’s resignation an(4 Leonard appointed administrator *de bonis rum.*

Ileal estate of the deceased in Pennsylvania purchased by Lawson Moore under proceedings had in Orphans court

Upon this settlement the administrators resigned, and the court appointed Christian Leonard, administrator *de bonis*non, who gave bond and security accordingly. His account was settled and approved by the court, on the 12th December, 1822, shewing a balance in his hands of ‡1434 24, for distribution.

On the petition of Lawson Moore to the orphan’s court, on the 15th September, 1812, stating that one half of the real estate belonged to himself as one of the heirs, and the other moiety to the four infants, under fourteen years, children of George Moore, deceased, the other heirs of William Moore, deceased, and praying partition of three several tracts of land, appropriate writs of inquisition, *de partitions*inquirendo, as known to the laws of Pennsysvania, were issued. Upon these inquests the number of acres of each tract, and values *per*acre, were returned, with a report, that a partition of the several tracts could not he made by division of the lands, without spoiling the tracts. At the September court, 1813, Lawson offered sureties to be bound with him for payment to the other heirs, their respective shares of the said valuation, and to take the whole of the lands, which being approved, eight 'several recognizances were acknowledged in court fey .Lawson Moore, and his sureties, to the guardians *152of the infants, conditioned for the payment of the sums due to the other heirs respectively. The court had theretofore appointed Thomas Urie and John Helpelstein, guardians for the infant heirs, and they had executed bonds with security for the faithful performance of their duties. The aggregate valuation of the three tracts, after deducting the costs of the inquisitions, amount to §19,052 52 cents, the half of which was §9526 26 cents, which gave to each of the infants the sum of §2381 56 1-2 cents, and so the recognizances require that sum to be paid to the use of each, on or before the 25th of September, 1814, with interest from the 25th March, 1814.

Widow and children of Geo. Moore come to Kentucky, and she marries A. Chapline.

Moore’s settlement with his brother's widow,shortly before her and Chap-line’s marriage.

Moore’s accounts, as guardian of his brothers Children.

In the latter part, of the year 1813, Lawson Moore brought the widow and *children of*his brother George Moore, from Westmoreland county, Virginia, to the county of Mercer, Kentucky, settled Mrs. Moore with her children, on a small tenement, on a tract of land belonging *to*him, *where*she and the survivors respectively continued to reside, until the marriage of Mrs. Moore with Abraham Chapline. Allen Lawson Moore died in Mercer unmarried, intestate, an infant of tender years, in Í814.

On the 25th March, 1819, very shortly before Mrs. Moore’s marriage with Abraham Chapline, Lawson Moore stated an account against her for house rent, articles of provision, &e. &c. with credits also made out by him for boarding and clothing her children, making a debit against her of §1920, the credits amounting to §1351, leaving a balance of §574, for which he took her note, and also her receipt for §1139 to himself as guardian of the children; this sum he charges against the children.

After the intermarriage of Jacob Chapline and Elizabeth, at their instance, Lawson Moore was summoned by the county court, to make his account as guardian, never having rendered any. He exhibited his accounts to the commissioners of the comity court, on the 30th September, 1820, which, when reported, the county court refused to approve.

*153Bill of Chap-line, and wife for surrender of her note to Moore, and amended bill for an account of V7m M core’s estate.

Answer and cross bill of the other distributees againsl Moore, for account.

Lawson M. 'Ore’s answer, and his account;

. Abraham Chapline and wife, Hannah, had, in September, 1819, exhibited their bill, to set aside the note obtained from her by Lawson Moore; in October, 1820, Lawson answered. Upon the coming in of this answer, Abraham Chapline and wife amended their bill, Called for an account of the estate of William Moore, received by said Lawson, claiming the share to which the mother was entitled *by*the death of her son Allen Lawson Moore, making the other children parties.

The defendants, Jacob Chapline and wife, Elizabeth, and Robert M’Afee, and Ellen his wife answered, and made cross bill against Lawson Moore, Abraham Chapline and wife, and William B. Moore, chai’ging Lawson with the recognizances given by him for the real estate, and charged him as having received considerable sums of the personal estate, and prayed for an account, and settlement, and a decree for the balance due from him ás guardian.

To this amended bill, and to this cross bill, Lawson Moore for himself, and as guardian to William B. Moore answered, and exhibited the account whicli had been rejected by the county court. He charges himself with the real estate only, from which he deducts a large sum for his salary, expenses of himself and horse ingoing to Pennsylvania, and to Westmoreland in Virginia, att.ornies’ fees, copies &c. amounting to four thousand nine hundred and seventy dollars twenty eight cents, reducing the assessments of the real estate for which he holds himself accountable to ‡15,074 24, one half of which he passes to the credit of the heirs of Geo. Moore generally. Against that moiety, he exhibits an account against the children generally, for charges and exp.nses, in removing them and' their mother to Kentucky, amounting to the sum of nine hundred ninety-six dollars eighty-nine cents, leaving a balance of seven thousand five hundred thirty-seven dollars, twelve cents, as due on the 25th March, 1814; against this he exhibits his accounts for support and education, and articles furnished the children individually, including the receipt obtained from the mother by said Lawson, for her account *154against the children. The account against his ward, Elizabeth, wife of Jacob Chapline, amounts to $863 56; against his ward, Judith Ellen, wife of M’Afee, to $762 52; against the deceased child, Allen Lawson Moore, including the funeral charges, to *$64 42.*

Moore’s cross bill against Chapline and wife.

Decree of the eirouit court

By a cross bill, the defendant Lawson Moore, prayed a decree over against Jacob Chapline, provided it should be found that the advances in money, and a tract of land conveyed to him, on account of his wife’s share, should overgo her proportion. The receipt for this land is of the 24th April, 1821, for $3375, and expresses that Jacob Chapline is to pay the surplus, if any, above his share, to Ellen Moore.

The circuit court charges Lawson Moore with the sum of $707, as half of the personal estate received by him, which added to the recognizances for the real estate, is made an aggregate of $10,233 *26,*of real and personal *estate for*the shares of George Moore’s children. Against this aggregate sum, the court allowed, as a credit to the guardian, $1096 35, part of the account (N) (as stated in the commissioners report,) the- whole being for $1246 35, and allowed the sum of $1389 72, part of the account (M) as stated in the report, (the whole of this account, amounting to $4935 78.) These allowances, together with #64 *42,*against Allen, deceased, are set off against the before mentioned aggregate of real and personal estate, so as'to reduce the amount to $7682 77. This reduced sum was divided between the surviving children of George Moore, to the exclusion of the mother, and from their respective shares thereof so produced, the accounts of the guardian against the children individually, were *deducted. To M’Afee and*wife, a balance of $2,046 46, with interest at the rate of six per cent, from the 22d February, 1826, till paid, is decreed. Tiie share of William B. Moore, is left in the hands of the guardian Lawson, until some Íierson is lawfully authorized to demand it from lira, subject to his future advances. Against Jacob Chapline and wife, the sum of $1576 49, with inter*155estat six per cent, from 26thof February, 1826, till paid, is decreed in favor of Lawson Moore, as a surplus above the share of Ellen. The hill of Hannah Moore, the widow, is dismissed, no part of the estate being allowed her, and the account and settlement complained of on her part, not having been deemed worthy of reform.

Objections to the several parties,

Lawson Moore's account against his wards, &e

£l The guardian complains of the decree for. not al* lowing the whole of her claims; the heirs complain of the allowances made, and of the short allowance for their share of the personal estate; the widow of George Moore, now the widow of Abraham Chapline, complains of the refusal to allow her a distributive share as one of the heirs of her deceased son, and of the affirmation of the nate obtained from her shortly before her marriage.

The following charges in the accounts, M and N, referred to in the decree, will exhibit the principal subjects of complaint against the decree, in fixing the sum for which Lawson Moore is accountable, as due on the recognizances.

(Ac’t. M.) The Estate of Wm, Moore, of Car-lisle, To Lawson Moore, JDr.

> a — 1. 1812. To my services eight months, at-

> a — 2. My expenses travelling to and from, and stay there, this 350 00

> a — 3. Horso expenses same time, 150 00

> *>•*— 4. My expenses travelling to Westmoreland county, in Virginia, to get the names, ages, &c. of said children, in order to lay in thejr claim to the estate of the deceased, William Moore; (commissioners’ report states this trip to get affidavits to prove the heirs of the estate,) 1Q0 00 ---833 33

> a — 5. 1813. To my services W months, attending to the estate at Carlisle, 500 00

> « — 6. My expenses travelling a_d stay there this year, 350 00

> a — 7. Horse expenses same time, 150 00 -1000 00

> r — 8. 1814. To my services this year, 12 months, 500 00

> *r~*9. Expenses travelling and stay there this 475 00

> r — 10. Horso expenses this year, 180 00

> ■ ' 1155 00 r — 11.1815. To my services this year, three months, 125.00

*156Lawson Moore’s account against his wards, &c

> • — 12. My expenses, travelling and stay &c. 180 00

> • — 13. Horse expenses, 33 00 ■338

> r — [4. 1816. To services this year, trip to Car-lisle, on same business 3 months, 125 00

> r — L5. Expenses, travelling and living there, 190 00

> r — 16. ' Horse expenses same time, 40 00 355 08

> f — 17. 1820. To services this year, attending to business of the estate at Carlisle, 2 months, 83 33

> x — 18. Expen es going and coming, self ana horse, 126 00 ■906 33

> a — 19. 1814. April 30. To cash paid James and Thomas Duncan, as per receipt and contract, 915 74

> a — 20. 1812. To cash paid for county seal, to affidavits and witnesses, 3 0Ú

> a — 21.1814. 29 April, Cash paid Ramsey, clerk orphan’s court, per receipt, 3 20

> it — 22.1812. To cash paid Chinn, for copy of inventory, 11 83

> a — 23. ---paid Ramsey, on copies of confirmation of real estate, 5 00

> <t~24. --Sundry examinations of different offices, G 00 $4935- 78

> (Act’. N.) The heirs op Geo. Moore, deceased, To Lawson Moore, Dr.

> r — 25. 1812. To expenses travelling to Westmoreland county, Virginia, to lay in the claim nf the heirs to (he estate of William Moore, deceased, $150 00

> r — 26. 1813. o ditto, on 2nd occasion, to move the to 150 00

> a — 27. To «nods purchased to clothe the family, 90 37

> a — 28. To money exponded in moving the family, . 356 50

> team,

> account for boarding, 2i2 00

> a — 31.1814. To cash paid Thomas Allen, clerk, $1 90, and another fee bill of later date, 58 cents, 2 48

> a — 32, To cash paid Thomas Urie, guardian, per receipt, 15 00

> — 33 To cash paid A. Caruíhers, as per receipt, '' 20 00 $1246 35

*157Items of th® account alwjel e(i by the circuit court,

money re-owed by tratort/efom's *non.*

The summary of these accounts, and the sum with which the guardian charges himself, before he applies the advances to the surviving children separately, is thus:

> Lawson Moore, to the heirs op George

> Moore, Dr.

> To one half of the amount of the valuation of the real es- *,*tate, . $9526 26

> *Cr.*By half of the account, ¡VT, 2467 89

> By- account N, for expenses of moviugthe family &c. 1246 35

> By guardian’s account B, against Allen L, Moore, ' 64 42

> ---3778 67

> Balance due the heirs of George. Moore, with interest from the 25th March, 1814, 5747 59

> $9526 26

After the aforegoing accounts against the wards, charges numbered, 1, *2,*3, 5, 6, 7, 19, *20, 21, 22,*23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33, as here stated, were admitted by the court; number 4, 8, 9, 10, 11, *12,*13, 14, 15, 16, 17, 18 and 25, as here stated, were rejected. Having allowed those items in the account, against the estate, one half thereof is charged by decree against the children of George Moore, and having allowed all of the account N, except one item, the whole of that is charged to the children. Thus for expenses of looking after the estate of Lawson Moore, has been allowed by the decree, $1389 72, and for expenses of bringing the children to Kentucky, including three other small charges, the sum of $1096 35, making together the sum of $2650 49, wiiich is deducted from the sum for which the guardian is to account to the wards separately, and thereafter the indi vidual charges upon the wards are allowed.

Lawson Moore admits in his answer, of reoeiving some advances from the agent of the administrator *de bonis non,*out of the personal es*tate,*at onetime amounting to one thousand dollars, and other sums, which he says, he does not recoilect; but has not charged himself with any portion of the personal *estate,*but resists iiis liability to the wards for that, because, he says, he gave a re*158ceipt for that, not as guardian, but obliging himself to refund it in case of a deficiency of personal assets, and because he expended the whole of tha sum of $1000, in removing the family to Kentucky. Tite deposition of Mr. Helpenstein, to whom this receipt was given by Moore, for the money, proves it to be for $1414 50; but whether this receipt includes the whole amount of the personal estate received from Helpenstein, cannot be distinctly understood from his two depositions; it may, or it may not include the whole amount received from Helpenstein, the agent of the administrator *de bonis non.*The court charged the guardian with $707, of this receipt. Thus it was, that the decree made the amount of real and personal estate, belonging to George Moore’s heirs, *$10,233 26, from which was*deducted the before mentioned allowances of $2550 49; reducing the sum divided among the surviving children of George Moore, to $7682 79; this sum is made to carry interest from the time the recognizances for the real estate fell due, and against *this the*accounts for support and education are allowed.

Moore’s objections to the decree.

tobargee of Moore ¡1-gainst his wards held to be outrageous, at first blush.

After swallowing the whole personal estate charged upon the guardian by the decree, the allowances made to him in that decree have reduced the amount due on the recognizances for the real estate, by the sum of one thousand seven hundred and eighty dollars forty-nine cents, before the charges *for support*and education of the wards begin. But the guardian is not content with this, he has appealed, and insists upon his account as stated to the commissioner; he insists on the rejected items, and objects to being charged with any part of the personal estate.

For the aggregate of- his own expenses and services in the management of the estate *the*guardian of one half and owner of the half charges $3939 33; half of this he charges upon the wards; and upon his wards, for removing them from Westmoreland to Kentucky $756 50, together with the sum of $915 74, for the fee to Messrs. Duncans, making an aggregate charge upon the estate of his wards of $3641 40, not to mention peccadilloes. These charges are distinct from their support and education, *159and not accompanied by one single ‘correspondent increase of their estate. They are charges made by the guardian upon the wards, to reduce their moiety of the real estate due them by his own recognizances, entered into before the orphan’s court as the purchaser. The expenses of his management thus demanded by his account, exceed one third of the estate of the infants.

Moore charS*!S/°rpursu SOnaI estate" in the hands ^j^iswator an(] Sll!|r(ii. ans in Penn-sylvania, not a owe

The *charges*are notoriously outrageous, at first blush. But it is said, the guardian has been in pursuit of the personal estate, with a view to prevent a sacrifice of the real estate. How stands that matter? In all this pursuit; with sucli copious charges for services rendered and for expenses, not a dollar of the personal estate has been acknowledged by the guardian as chargeable to him for the benefit of his wards. The benefit is speculative merely. In 1813, the wards had guardians appointed for them by the orphans’ court of Pennsylvania resident on the spot, men of character and integrity, bound with sureties for the performance of their duties. The administration of the personal estate in Pennsylvania had been committed in 1812, before Lawson Moore’s arrival in Carlisle, to men resident there, of known repute and responsibility, and they too were bound in bond, with sufficient sureties, in the penalty of sixty thousand dollars, for their faithful administration. The fear of insecurity of the real or personal estate was *imaginary. It is*a fear which a court cannot, under the circumstances, regard.

The attempt to remove the administrators, Messrs. Irvine and Given, seems to have grown out of L. Moore’s eagerness to get the control of the whole estate, real and personal. But it is said that by his exertions the lands have been sold at a *high*price, Be it so, he has not been the loser. He took them at the price of $19,052 52, and sold them for $20,-063; he sold two of the tracts for $15,712, on the fourth of March. 1814, before his recognizances fell due or began to carry interest, and the third he sold on the 29th November, 1816, for $4351, as is agreed by the parties. He has sustained no loss for which to ask remuneration; whereas the charges which he *160asks against the infants, if allowed, would throw a loss upon them, to his great gain.

No one may assume an agency for an infant anil thereby bring charges and loss on them.

Charges of Mooro against his wards, for his travelling expenses and services in Pennsylvania, unjust.

The allowances made by the court for services and expenses of 1812 and 1813, and charged upon the estate, amount to $1833 1-3, the one half of which has been deducted from the purparts of the infants. This allowance cannot be approved by this court. Lawson Moore of Kentucky, the owner of one half the estate, chose to go to Carlisle to look after his own interest; he had never seen the children of George Moore; he did not know their names; he assumed an agency for them, unsolicited even by those having the custody and care of the children, and charges them with wages and his expenses. For such services the law will imply no assumpsit, nor will equity. It is contrary to the principles upon which courts of equity act in the exercise of their jurisdiction as the guardians and protectors of infants and their estates, to permit any one to assume an agency for infants, and bring charge and loss upon them by that agency.

In 1812, September, Lawson Moore sued out process for partition of the lands. According to the laws of Pennsylvania the lands are valued and the inquisition was returned into court, and at September term, 1813, he takes the lands at the valuation, as permitted by the laws of that state: the infants are there represented by their proper guardians of their estate, duly appointed by the orphans’court: and now he charges the infants for this. líe instituted the process, the law took care of the infants, and provided them with guardians, and yet this person, who was no guardian, brings a charge upon the infants for supposed benefits by him conferred, in the pursuit of his own interest. At *the*same term of the orphans’ court, the administrators presented an account of the personal estate, and upon inspection, the court declared the assets were ample to pay all debts. From this time forward the defendant was the sole owner of the real estate, he was the debtor to the infants, by the recognizances, *for*the value of their respective portions of the real estate so transferred by law to him, and he was cognizant of the account of the administrators, and of the suf*161Sciency of personal assets to pay all debts. Up to this time he had acquired no claim upon the infants lor ms expenses anil services m the management the estate. He was neither administrator nor guardian then, the law had fully provided administrators and guardians to take care of the interest of the infants. ' From this time forward all his trips to Pennsylvania have not brought any increase of the funds of the infants in his hands which he is willing to account for. His charges for these trips are without colour of right.

Account of Moore ahf“ moving them* and their from Kentucky,he-tore he was appointed d;an, disaN lowed,

Argument cfare^forthe removal of the widow au<i clllldrfln‘

The charges for removing the infants to Kentucky, are exorbitant, and without foundation for claim against the children for any part. Who asked Lawson Moore to remove the children from Virginia to Kentucky? What prompted him to remove them? His answer states he found them in poverty and obscurity: they were the children of his brother: “he will not attempt to describe his feelings on that occasion” — “he saw nothing of liberality or charity extended towards them” — to the mother “he gave it as his opinion that she could make out better to support herself and children in Kentucky than where she was” — “he informed her that he would do for them every thing in his power, and in case William Moore’s estate should prove insolvent, he would support her out of his own estate; for at that time what would be saved from William Moore’s estate was entirely uncertain; he most solemnly denies that he was actuated or influenced in those offers of friendship *by*any future pecuniary motive whatever.” ■This is the account which he gives himself. The deposition of Barnett states, that Lawson Moore did promise Mrs. Hannah Moore that if she would move to Kentucky he would take her and her family out free of expense. A desire to better their situation, feelings for his relations, friendship, uninfluenced by any future pecuniary motive whatever, were his inducements to desire and advise the mother to remove herself and children from her father, and from “a most destitute and helpless condition,” “where “he saw nothing of liberality or chanty extended towards them.” These generous, liberal, charitable, and disinterested feelings of friendship and c®n*162sanguinity were praiseworthy. Actuated by them., he says lie removed the mother and the children to Kentucky. In the gratification of those feelings he looked for his reward. It is clear that the children could make no assumpsit to pay for their removal, and the mother could not for the children, and did not even for herself. But the uncle claims his compensation and pecuniary reward, because of the supposed benefit resulting to the children by removing them from a condition of want and obscurity in Westmoreland to plenty and light in Kentucky. They were not removed from Virginia until after Lawson Moore had become their debtor by the recognizances, for upwards of nine thousand five hundred dollars. That sum might have removed want and obscurity from them in Virginia. *The light of*the inheritance, glimmering upon them, discovered them to an uncle, who before knew neither their ages, names, nor existence. Judge Parker of Westmoreland, had agreed to undertake the guardianship of the children, and was prevented by their removal to Kentucky. Under the guardianship of Judge Parker, and the protection of their grandfather, who in their utmost need, had still given with good will, according to his means, the children might probably have done well in Westmoreland, and escaped heavy charges, and a law suit with their guardian, in coining at their inheritance. The mother there might have been instrumental in propping the decline of her father, who had been paternal to her and her children in their poverty. The mother and the children, there, might have escaped the wound inflicted upon their feelings by the unjust and unmerited assault which has been made, in this cause, upon the conduct of her father, to help out the charges for removing the children to Kentucky. If, however, they have done better, and grown more luxuriously, by being transplanted to the soil of Kentucky, those feelings of the uncle which prompted him to advise and undertake the removal, uninfluenced “by any future pecuniary motive whatever,” will have received their own gratification. Under the circumstances, this court can see no foundation for raising a charge against the children for the expenses of their removal. He was not their guar*163¿lian; he had no power to command or direct their movements; as their uncle, he gave the advice and persuasion; he promised the removal as the sy of fi'iendship and consanguinity; he was then their debtor by recognizances; he had no right to prescribe his own terms of payment, nor will equity help him to convert his arrangement with the mother into a charge upon the children.

Gaurdian no¿;s ward^with clothing, furmshed them pointment^as of good will and courtesy,

Moore’s charge againsl his wards, of one half the sum he paid counsel employed by himself, to represent him in the affairs of the estate, before he was appointed guar dian,' disallowed.

The charge of ninety dollars some cents, for clothing to the mother and children furnished in Westmoreland cannot be allowed. At that time, Lawson Moore was not guardian; he was their debtor it is true; their estates were separate and distinct; those articles were incidental expenses of removal, bestowed upon *the*mother and children, without account as to how much to this and bow much to that; with his own money and goods he had a right to be bountiful, but with the money of the infants, none. The time, the manner and the circumstances, bespeak it a bounty, a gratuity;'his after appointment of guardian gives him no claim to charge these goods .upon the infants and their estates in the aggregate. Persons are not to be encouraged to furnish infants with goods, as of good will and courtesy, and after-wards to charge them as for necessaries.

The credit of $457 87 cents, for one half of the receipt of Messrs. Thos. and Jas. Duncan to Lawson Moore, dated 30th April, 1814, was also erroneously allowed. This receipt was given for nine hundred and fifteen dollars seventy-four cents, as paid by Lawson Moore, upon a contract by him with them, of the sixth of September, 1812, by which he retained them as counsel for himself and the heirs of George Moore, to support the interest of himself and co-heirs in the estate of Win. Moore, deceased, in all cases where Messrs. Duncans had not been previously retained against the estate, they to haye for their services .five per cent upon the whole estate, real and personal, after payment of the debts and expenses. Upon this contract Messrs. Duncans passed their receipt, at the foot of an account of particulars, for the sum of $9 5 74 cents. But this sum was paid partly by the accounts standing against them in the books of William Moore, deceased, as *164appears by the face of the account, by the. deposition of Mr. James Dnncan and by the allowances to the administrators in the settlement of their accounts. The allowance made to Lawson Moore by the decree of one half of this receipt, has conver ed the amount of those book accounts, to the exclusive benefit of Lawson Moore, and moreover charges the one half thereof upon the shares of the children of George Moore. If it were proper to have allowed this contract of Lawson Moore with Messrs. Dun-cans, to charge the infants, yet those accounts should have been deducted from the amount of $915 74, receipted for by Messrs. Duncans, as payments made out of the joint funds of Lawson Moore and the infants, and half the residue only carried to the credit of Lawson Moore, on his account as guardian. But by allowing a credit for half of the whole amount of the receipt, the heirs of George Moore have lost their moiety of the book accounts, and lost the like sum out of their shares.

Argument a-against Moore’s claim for contribution in the payment of his counsel.

Messrs. Irvine and Given, from their appointment in 1812, to their resignation in September, 1813, accounted for the administration of $23,151 74 cents; to which is added the commission agreed upon. They had in their hands, ready to administer, seven thousand four hundred and twenty-six dollars fifty cents, in money, a sum more than sufficient to pay all the debts subsequently paid by the administrator *de bonis non.*The administrators retained for their services the sum of $1426 50 cents, according to the agreement of Lawson Moore, they passed over to the administrator *de bonis non*the rights and credits of the decedant, together with six thousand dollars in money. The administrator *de bonis non*charges himself with $17,480 89 cents; the balance reported by former settlement, after deducting the *allowance*of $1426 50, and for interest on judgments &c. $757 28, making in all $18,238 17, according to his settlement of 1822. Deducting the sum of six thousand dollars in money, and the debt (sued for and' finally reported as lost, by verdict for defendant) of $7983 40, which was put in suit by the former administrators against Michael Ege, and there remained the farther sum of $4254 97 to be accounted for *165*by*the administrator *de bonis non;*of this he reports a long list of insolvents and debits against him which were never collected, shewing that of the $17,480 89, turned over to him by the iormer administators, he had collected only about two thousand dollars, over and above the sum of $6000, in money, received from the former administrators. Messrs. Irvine and Given, had in fact paid and provided the money to pay all the debts and more than enough, as early as September, 1813, and the orphan’s court then declared of record the assets were amply sufficient; they did not resign until they had provided fully for all the creditors. Therefore, the real estate was secure from the creditors before Lawson Moore made his election to take it at valuation, and entered into the recognizances to the infants for their moiety. His after trips to Carlisle were not on account of the interest of George Moore in the real estate; that was his own by election. As to his attention to the personal estate, whatever it may have been, it was voluntary; it has been attended by no beneficial effect to the heirs of George Moore. Of the administrator *de bonis non*he received fourteen hundred dollars and upwards; the administrator *de bonis non*has suffered him to discount with Messrs Duncans their book accounts against the contract of Lawson Moore of 1812, and the administrator *de donis non*has paid to Messrs Duncans their per cent-age, on the amount of the personal estate remaining after debts and expenses, which remained unadjusted by the receipt of April, 1814; he has paid the additional two and a half per cent to the former administrators; the account of his administration was not presented to the orphan’s court until the 12th December, 1822, and the balance therein reported for distribution, the guardian by his answer does not admit he has received. In all this, there is no benefit resulting to the infants by any operations of Lawson Mobre, so far as this court can see. In the settlement of the administrators, Irvine and Given, Lawson Moore agreed to give them for their services and for resignation, five per cent} on the moneys collected by them, and two and a half per cent on the monies to be collected by their successor; these *166sums are allowed in the settlements, $1426 50 in the first, $47 25 in the last; the administrator *de bonis non*has been allowed for his services $300, and there is allowed to Mr. Caruthers for his services as attorney and counsellor at law, the sum of $245, and to other gentlemen of the profession, sums amounting to $90, have been allowed in the two settlements with the orphans’ court. To attorneys and counsellors, the sum of $335: to the administrators upwards of seventeen hundred dollars; making together $2,108 75 cents, already paid out of the personal assets by the administrators. If this receipt and contract of 1812 of Messrs. Duncans and Lawson Moore be added, then the whole would be $3096 20 cents, (the receipt of $915 74, and the commission on the balance of personal estate $71 71,) making the allowance for attorneys and counsellors fees $1322 45.

It is the duty of executors and guardians to employ able counsel) and they will be allowed in thoir accounts the customary charges for such services.

It is the duty of executors, administrators or guardians, in suits necessarily to be prosecuted or defended, to draw to their aid the services of *wen*learned iu the profession of the law, and for so doing they should be allowed, in settling their accounts, such sums as are usually paid for like professional services by men ordinarily prudent iu their own affairs, provided they have, actually employed gentlemen of skill and ability and have actually paid for their services. In the settlement with the orphan’s court such fees have been allowed. But when such fees have already been allowed, and deducted out of the estate, to the credit of the administrators, the allowance of the additional sum claimed by Lawson Moore, by reason of the contract of the 6th Sept. 1812, and receipt founded on it, would be extravagant. It cannot be traced to any equitable principle. When Lawson Moore made that contract he was not the guardian of those infant children; that contract was not necessary nor beneficial to the infants, so far as this court oan seefrom the circumstances appearing in the record. The real estate was not in litigation; the administrators, Messrs. Irvine and Given, were men of integrity, fair character, responsibility, and were men well skilled in business; they had given ample security for the faithful discharge of their duties. The administrators, the better *to*discharge *167their duties, and knowing that some demands were already disputed, retained as their counsel in all cases, Mr. Caruthers, a gentleman of integrity and iug the reputation as standing among the foremost in his profession; for his services, as well as for the occasional services of others, allowances have been made in the accounts as settled by the administrators before the orphan’s court. The acts of the administrators in employing counsel in the legal affairs and management of the estate were the acts of the fiduciary legally constituted to take care of estate. The employment of Messrs. Duncans by Lawson Moore was an act of his own; he was not a fiduciary; he was neither an administrator nor a guardian; he had no trust to act for the infants.

Guardian not allowed to ^arilíwith fees of counsol nnnecesto representhira as their cobefoie^hisTa’ pointmenAo" the guardianslliP-

It is true that Messrs. Duncans were gentlemen of integrity, and standing among the first in the profession of the law, but the act of Lawson Moore in employing them grew oat of a desire to get the control of the estate; he desired to get possession of the stock of merchandise to bring to Kentucky, this the administrators would not-permit; he conceived a jealousy and suspicion, (unwarrantable as it appears to this court,) of the administrators. Either Mr. Lawson Moore’s eagerness to come into quick possession of the estate, or his suspicion of the admiuistrators, (although men of the first respectability and established good character,) or his distrust of the powers and capacities of the constituted authorities of Pennsylvania to enforce a faithful administration, or the damages in case of default in the administrators, produced the contract of 1812, with Messrs. Duncans. This court cannot give in to any such distrusts or apprehensions. The interests of the infants was placed upon a sure and stable foundation by the act of the law, in appointing administrators capable and trust worthy, and binding them also by very sufficient sureties. Mr. Lawson Moore attempted to remove the administrators; his application to the court failed. It was to the interest of the infants to have their inheritance under the management of agents appointed by law and bound for a faithful account; they were incapable of managing it for themselves; it was the interest of Mr. Lawson Moore *168to manage his inheritance for himself; he was capable; the infants could not act, and must be passive to the or(|jliances 0f t[|6 ]aw for their safety; here the interests of Mr. Lawson Moore and the interests of the infants separated. The Pennsylvania administrators and Pennsylvania guardians were safe agents for the infants; Mr. Lawson Moore was eager to be his own agent as to his interest in the estate.

Moore’s olaim forpart sel foes° disallowed.’

charges of the guardian count in°the name of the grandfather

The dissimilarity of interests and capacities in conducting the affairs, caused Lawson lVloore to sue writs of partition, and upon their return to become the sole owner of the lands, and hound to the Pennsylvania guardians, in the recognizances — thus he obtained the control of the real estate. By contract he induced Messrs. Irvine and Given to resign, and Mr. Leonard came in, as administrator *de bonk non;*this was in September, *1813;*the children were yet in Westmoreland; in the winter of that year he brought them to Kentucky and after become their guardian. As guardian and debtor to them by recognizances, their interests were not very similar; but as guardian for the infants who inherited one moiety, and as heir of the other moiety, on his return to Carlisle, in 1814, he controlled the whole estate; he retains personal estate under a refunding receipt; he discounts with the Messrs. Duncans their book accounts, his contracts with them and with the former administrators, are carried into effect by the administrator *de bonk non;*his accounts remain open until December, 1822, and the accounts of Lawson Moore as guardian are yet in litigation. In all this we are unable to perceive the benefit which has resulted to the infants by any agency of Lawson Moore in the management of the estate, upon which the contract of 1812, and the receipt grounded on it, can or ought to be for any part decreed against the infants.

The next item of the guardians account, is that referred to in the commissioners report, account N. Jsf0. 8 and exhibit D. It is an account stated by the grandfather, Smith, against the orphans of George Moore, deceased, for boarding, at fifty dollars each; jn 1813, and schooling Elizabeth and Allen Lawson, *169sax dollars, amounting to two hundred and twelve dollars, dated 15th November, 1813, with an order to the guardian of the orphans to pay it to Mrs. Hannah Moore, dated same day, witii a receipt subscribed with her name, as having received it of .Lawson Moore, guardian, on the 12th day of March, 1814; to this the wards excepted, because they owed Mr. Smith nothing, and because the account is not proved. This account is dated about the time of the departure of Mrs. Moore and her children *from*Westmoreland. There is no proof of the justice of such account, nor of payment of it; the'answer, the circumstances and the depositions repel the justice of the demand.

againstthe wards for boar<j1-S &cJe° e

Item foreepi' s of papers notai owed'

Fee.bills against the i(an’not gainst the ward,

Expenses of affidavits, reje° e ’

Fee of the clerk of the ^r^forservices rendered the guardian>not a*" *170lowed against theward.

*169The charges for copies obtained in 1812, amountIng to $22 83, were excepted to by the wards, as not supported by any proof, and if obtained were for the defendant, Lawson’s, own benefit; the copies are not produced as called for, and there is no evidence to sustain the charge. In 1812, Lawson Moore was not the guardian. These are disallowed by this court.

The fee bills of Thos. Allen, are for services rendered Lawson fi'oore himself, but describing him as guardian, the one for entering his attorney, in this suit against him as guardian, and for a copy of the order appointing commissioners to settle his accounts. The other is for a copy of his appointment as guardian, with the county seal &c. These are disallowed by this court.

The charge for county seal to affidavits, is not a proper charge against the infants! These are affidavits taken in Jefferson county, Virginia, to prove Lawson Moore the heir — the children of George Moore, or that he left any children, are not stated .in any one of the affidavits.

The charge for Wm. Ramsey’s receipt, as clerk of the orphans’ court, is disallowed; the services were rendered for Lawson Moore himself and no(t for the benefit of the heirs; the charge is for entering satisfaction, acknowledged by himself as guardian, upon J*is recognizances to the children for the price of the *170land, and filing the evidence of his guardianship— for this purpose, no doubt, the copy of his appoint-with county seal, was obtained, according to Air. Allen’s fee bill on the 5th of March, 1814, and filed in the orphan’s court of Pennsylvania on the 29th April, 1814.

Guardians shall not be *comTtsa'XC'*gainst his ward to effect the capital of theincome" may be anticipa ted, and Sníry'cases part of the capital aport?erfroman the chancellor, not otherwise.

The receipt of the 26th October, 1813, for one dollar twenty-five cents, is disallowed by this court; there is nothing in the cause, nor on the face of the receipt, to shew what the tax was for, or that the heirs of George Moore were bound for any part of it.

The sum of $15, paid to ThosUrie, the Pennsylvania guardian, as by his receipt, is allowed; so also, the receipt of Andrew Caruthers for $20.

These accounts, M and 2V, were *the great*subjects of litigation between the parties, the decision . upon them is preliminary in its nature,.for if Lawson bnd been entitled to the credits claimed upon these accounts, it would have materially changed the credits to be allowed for maintenance of the infauts. A court of equity never sanctions the conduct of a guardian to break in upon the capital of the infant’s estate, by his own authority; the court lnay (J(; applied to under extraordinary' circumstances’ and has rarely permitted by its own order a rednetion of the capital; the circumstances must be cogent and extraordinary to indine the court to assent/to break in upon the capital; the income may be anticipated under suitable circumstances, but for the mere purpose of maintenance of a child in health an(j infalUy-, a court of equity will not permit a sinking of tire capital. Cases of hardship may occur where the estate of the ward is not sufficient for *maintenance*and education out of the yearly *profits*or interest, but it is better that an individual should sufier such a hardship, than to break through a general rule, to tiie endangering the interests of all infants. The claims of the defendant upon these accounts of general charges are against established rules for the safe keeping of the estates of infants and the Gontrol of their guardians.

*171Moore’s claimsa£ain-c‘his ^ces before*" hisapooint“eat to tbeir hclTtobeunjust,

Before be was guardian, he says, be rendered services, which were beneficial by converting the land into money at a high price; that was done under the authority of the laws of Pennsylvania, and in pursuance of his writ of partition; by that he became bound in the recognizances for *the*value of tbeir part, otherwise he could not have converted .their lands into money, not even if he bad been their guardian; upon a mere speculative opinion of what the value of the estate might otherwise have been, this court cannot act for the purpose of releasing a part of those recognizances; but for that proceeding, the infants would have had precisely what they inherited; he has chosen to take it at its appraised value, and upon the terms prescribed by law; there that matter ends. His claims after that time are very extraordinary; before be brought the children to Kentucky, he owed them $2881’ 56'1 2 cents each, with current interest after the 25th March, then ensuing, amounting together to $.9526 26 cents. Being so indebted, he brings the children from their native place to another State, for this he asks this court to allow him, one hundred and fifty dollars* for the arrangement, two hundred and fifty dollars for the use of a wagon, and three hundred and fifty-six dollars and fifty cents, for expenses for thirty-nine days, making in all, seven hundred and fifu-six dollars, and this he asks by way of reducing the capital; neither the father nor the mother, nor the guardian, would he allowed for such a charge, neither can one standing in the attitude of the defendant. But for what did he bring them to Kentnc* y? To become their guardian. Having become so, he enters an exonerature upon his recognizances, and when he is brought to account, as-s a court of equity to permit him by his guardianship, to reduce the capital, by the sum of ‡3178 *61,*for services and his own expenses, independent of the maintenance of his warcis, and having so reduced it, his accounts for mantainance ea<h year overrun the annual interest; this is not permissible. The only reason offered by the defendant in this case is, he has been hunting after the estate, but has not charged himself with any thing as the beneficial result to the infants, for such extravagant waste of their estates.

*172Facts of the co =e between Moore and the V7ÍJ0W, mother of his words, and bis *o-him*for their maintenance.

In settling the questions between Mrs. Ilannali Moore, now Mrs. Chapline, and the defendant Lawson, her claims upon her children, and her claims upon the defendant Lawson, are inseperably connected. Lawson Moore, the guardian, placed Mrs. Hannah Moore in a house of his in the country, with the use of the curtilage, a small garden, and a small lot of ground, the whole tenement between four and five acres; he furnished her with such articles as were necessary for house keeping, and with supplies of provisions &r., for the subsistance of herself and children, from about the 1st January, 1814, until her marriage with Abraham Chapline, in 1819. Lawson Moore admits in his answer,- that she was destitute of support in Virginia, except by her labor and the assistance of her father: that he induced her to come to Kentucky with her children, by promises of friendship, and that if William Moore’s estate *proved*insolvent, he would support her out *oi*his own: that he told her he would provide her á place, and a negro hoy to assist her, but afterwards when the prospect of the estate became brighter, that it was understood that her boarding of the children would enable her to pay the rent and the hire of the boy, and this before she left Virginia; but he denies that he promised her the house and boy free of charge. That Mrs. Moore was left destitute by the death of her husband, and that she lived in a house provided for her by her father, and supported her children iii Virginia, by her own industry is clear from the proof, as also, that she was reluctant to part with her friends, but was induced to come to Kentucky by the promised friendship of Lawson Mooj’e; but the proof goes only to state that herself and children were to be brought to Kentucky clear of expense; friendship and assistance in Kentucky was promised; but the proof does not go so far'as that Lawson Moore was to provide her a home free of rent. The proof is clear, that in Kentucky her children lived with her, that she was industrious, frugal, spun and wove, and provided them with clothing manufactured at home. That she was promised by Lawson Moore, the guardian, compensation *for the maintenance of the*children out of their estate, and *173that he furnished the supplies with a view, en his part at least, to compensation from the estate of his wards.

Parc,ntsumJ,cr iis;lt;0n to maintain ^]j"no(. br allowed for their supportoutofthe tate^oxcept" where the distressed cirthTMparonts°f require it.

jjJunt^painst his ward- and their mother, m'ent*withhe*

As to the mother’s right to compensation out of the interest yearlj'acv.rumg to the children, there is no (¡ifficulty, for her needy circumstances are clearly made out, as v ell as her industry and prudeuce for the support of her children. Although parents are under a natural obligation to support their children-, and therefore, in the general, no allowance will be made, to father or mother in capable circumstances, out of the separate estate of a child; yet to the mother, and even to the father in distressed circumstances, a suitable allowance will be made for the support of the child. When that suitable allowance is ascertained, Lawson Moore is entitled to have it applied in account between himself and Mrs. Moore, and when that account is settled, then he is entitled to credit with his wards for so much, as he has paid on their account in satisfaction of their dues to the mother.

Standing in this attitude, Lawson Moore furnished the mother with various articles, of the product of his farm, and merchandize &c. from time to time, for four years, without agreement as to price. Very shortly before the marriage of Mrs. Moore with Abraham Chapline, and with a full knowledge of the intended marriage, Lawson Moore, stated an account of great length against Mrs. Moore, amounting to nineteen hundred and twenty-five dollars; he stated an account for her against himself, as guardian of the children, for boarding, washing, mending and making cloths, viz: against Elizabeth for four years, at $54 per year, $216 for boarding; washing, mending and making cloths, two years at six dollars, $12, $.228; against Judith, for five years hoarding, at same rate, $270;, washing, mending and making cloths, at six dollars per year, and finding some clothes, six dollars, $36, $306; against William, boarding four years and one month, at same rate, tvi o hundred and twenty dollars fifty cents; washing, mending and making for five years, at six dollars per year, anti finding him clothing five *174years, at five dollars per year, $55, $275; total a* gainst the three, $809; there is added, “to sundry c)0(.j1jrlg furnished for children for six years, omitted heretofore, 250 dollars:” to making sundry clothing &c. 50 dollars; to boarding up to this *25th*March, 1819, 40 dollars; total $1139. To each child’s account, is then added *one*hundred and thirteen dollars more, in figures without explanation, supposed however, to *he*one *third of the three*additional items, added after the first summing up, so that Eliza’s account is 341; Judith’s 419 dollars, and William’s 389 dollars; upon this account against himself, is endorsed, L. Moore’s account against Mrs. *Moore, up to'*this time, 1708 dollars, amount of ill’s. Moore’s account “for boarding, clothing &c. up to tiiis time, *$1139;*balance due L. Moore, $574;” for this sum of eleven hundred and thirty-nine dollars, he took Mrs. Moore’s receipt to hi-nseíf as guardian, and her sepa) ate note to himself for 574 dollars, expressing that it was upon a settlement of that date, and for the balance of *his*account for things furnished “since I came to Kentucky.” Lawson Moore charges each of the children with tiie amount so stated against them respectively in this account, and exhibited Mrs. .v.oore’s receipt on it as bis voucher. Mrs. Moore, now Mrs. Chapline, exhibited the account so made against her, and prayed for relief against this settlement and note.

Settlement Moorewith the mother of his wards on secomfmar-61 riao;e, and the notes taken the.eon, set iniquity and hisimposition on her confidence.

Moore’B ac*175count against the brother of anowed. ’

*174This settlement cannot stand. It was founded in mistake and ignorance of her rights on the part of Mrs. Moore, and an imposition on her weakness and confidence in Lawson .woore; it was in fraud of the contemplated marriage, and of the rights of the cli*ldren. Mrs. Moore could not write, and was incapable of settling without assistance *such*accounts; no person but herself anti Lawson Moore was present at this transaction, although otheis were in Me adjoining room, and were called in to witness the receipt and note, her daughter signing her mo« ther’s name,

In this account, she is charged with a horse, sad¿le and bridle, furnished her brother John on her *175father’s order, and his expenses to this country, at one hundred and seventy-five dollars; this is the order spoken of for 212 dollars, of the 15th Novemher, 1813, and Mrs. Moore, in her needy condition, is charged with her brother’s expenses, and with a horse, saddle and bridle, which she never aot, and upon an order which cannot be allowed against the children; she is charged witii her brother’s funeral expenses, to the amount of twenty-eight dollars, and with Doctor Hunn’s account against her brother, thirty-live dollars, the whole charge on account of her brother, amounting to two hundred and thirty-eight dollars.

Personal estate of tiie -t ^dted7passe« according to the laws of ^ere the^’ owner was domiciliated *fj*1,13 tate of one intestate and without father, passes to an^ brothers and sisters,

lore’s setttement with his wards’ mother,

Upon the death of Alien Lawson Moore, under age, unmarried and intestate, his share of the estate of William Moore, passed to the mother, brothers and sisters, according to the laws of Kentucky. Alleu, the infant son, was domiciliated and died in Kentucky; the estate was personal, and passes according to tiie law of the country wherein he was domiciliated, and died, (Embry vs. Miller, 1 March, 300.) Allen died in the year 1814, and from that time his mother became entitled to her fourth part oi his estate; this was not brought into account.

Again: the note, account and receipt taken by Lawson Vloore, purport to be for things furnished since she came to Kentucky; instead of 1925 dollars, Lawson tí oore’s account is stated at 1708 dollars, and the c-edit allowed her, stated at $1139, instead of $1350, as in the account furnished to her; thus the ordor on the account, againsithe children whilst in Virg’nia, and the horse furnished in Virginia to her brother on that order, are kept out of view, and that ordor of Mr. Smith left to be exhibited against the children as paid by the guardian. By this actounfc the children after being charged from January 1st, 1814, with hoarding and clothing up to the 25th March, 1819, are then charged with an additional sum of three hundred dollars, for six years clothing omitted, and making sundry clothing, et ceteras, running back by this charge for six years, to March 1813, before the children came to Kentucky. Tiie credit of 212 dollars, for 1813, and the sum of 300 dollars, in the receipt as taken from Urs. Moore, would charge the children with 512 dollars improperly. *176The sum of 212 dollars, cannot be allowed, for the rea* sons before mentioned; the charge of 300 dollars, this court is of opinion should not be allowed, because part of it is for the year 1813, before the children had any income, *before*the mother had any claims for allowance, and if allowed, the stuns to the mother, and the stuns charged by the guardian, independent of the mother’s allowance, when adde^ would exceed a proper expenditure annually upon the children, and the allowance first stated at the rate of sixty dollars per year for boarding and clothing by the mother, is a liberal allowance out of the estates of the wards, when compared with the kind of clothing which the mother could furnish, and with the supplies furnished by the guardian.

Charges against the vv.irc'.s, disaltowed, lie-cause made partly for tlicir maintenance before their astute foil to them, and besanso the proper expenditure would be thereby exceeded.

Accounts againsttho •wards settled.

Amount the guardian had received of the adminis tntor being left uncertain above a certain Mini, ordered that his account for that suco and the claim of the svar-is agninst him, or the administrator stand, Unprejudiced ibr the balance.

This requires that the account stated by Lawson Moore, for Mrs. Moore, against *each of*the children, should be abated by one hundred dollars; the residue of the charge of fill3, seems to have been added for boarding from January, to 25th of March. The mother’s account, against Elizabeth, will he reduced to two hundred and forty-one dollars fifty cents; against Judith, to three hundred nineteen dollars fifty cents; against William, to two hundred eightv-nine dollars. These deductions require correspondent reforms in the guardian’s accounts against the children.

Although fhe guardian has not by his answer, exhibited an account of the personal estate which he did icceive, and deifies he is, as a guardian, accountable for it, yet he admits he did receive a part of the personal estate on a receipt to refund it, in case of deficiency. By the deposition of Helpenstein, and by the answer together, it is plain he did receive $1414 50, but whether that sum includes all he received, cannot be told. By the final settlement of the account of the administrator *de bonis*non, it does appear, that there is in his hands for distribution, the sum of $1 134 *24.*This account, however, was not settled with the orphan’s court of .Pennsylvania, until the 12th December, 1822, after answer filed in this cause. It does not appear that the guardian has received that balance, so far as it *177exceeds the receipt given in 1814 to Kelpenstein; it is clear however, that the account so reported by the administrator *de bonis non,*has carried to the credit of the administrator, the sums which Lawson Moore paid to Thomas and James Duncan, on his •contract with them, by means of the accounts which they owed William Moore, deceased, discounted as proved by Duncan’s deposition, and by *the*receipt for $915 74, of which those accounts compose a part; the administrator *de bonis non,*has also received a credit for the additional two and an half per cent to Messrs. Irvine and Given, by virtue of Lawson Moore’s contract with them; also a farther sum paid Duncans upon Lawson Moore’s contract, and charged by the administrator *de bonis non,*against the estate. All these sums so paid on Lawson Moore’s contracts, diminished the balance in the hands of the administrator, and are proper charges against Lawson Moore, in settling his account with his wards. But the difficulty is to ascertain whether these sums are, or are not, included in the receipt of $1414 30, spoken of by the answer, and in Helpenstein’s deposition. Therefore, it seems proper to charge the guardian, Lawson Moore with one half of $1414 50, the amount so receipted for by him, and to make a decree without prejudice to the claim of the heirs of Geo. Moore, to any farther sum which they have a right to have, either from the guardian, Lawson Moore, or against the administrator *de bonis non, or*against the Pennsylvania guardians, who are beyond the jurisdiction of the court of chancery in Kentucky. Thus the sum of seven hundred and seven dollars twenty-five cents will he chargeable against Lawson Moore, as guardian of George Moore’s children, on account of the persona!estate so received by him.

Items allowed the guardia».

Of all the charges by the guardian made against the estate of William Moore, deceased, and against the heirs of George Moore, as stated in his answer, and as stated in the accounts of the commissioner, .M and N, (independent of the separate accounts against his wards,) this court allows but two items, the receipt of Urie for fifteen dollars, and that of Garuthers for twenty dollars, these to be defrayed *178equally by the four children of George Moore the» alive.

Guardian’s account against Allen *í.*Moore, adjusted.

On the death of one of spy-era cannot ' claim his v the adniinistrator direct ly, but there adminisfrator to receive * and thstributeit.

Interest to be accounted for *179by the guardian.

*178In the account of the guardian against the ward, Allen L. Moore, the whole of Doctor Hnnn’s account is charged to Allen, whereas, upon the face of the account, only thirty-one shillings are for medical services to Allen, the residue for services to William B. Moore. Making this correction, the account against said Allen, is reduced, for support, educationj funeral expenses, &c. to sixty dollars forty-two cents, to which is to be added his share of Urie’s and Caruther’s account above mentioned, making eight dollars 75 cents, in the aggregate, sixty-nine dollars seventeen cents, charged upon Allen L,.-M«orete§hare of the real and personal estate.

Uponthe*qeaf &• of Allen L. Moore, an infant vm^married and intestate, his share was of right to be distributed amoqg his mother, sisters and brother, in equal" proportions. So that upon the death of Alien, the shares of Elizabeth, Judith and William, each received an accession of $595 *39 cents, on*aecount the recognizance to him, for his part of the real-estáte, together with the interest thereon, running from the 25th Mm oh, 1814, at the rate of gjs j)er cent per annum, and also, an accession of his share of the personal estate, deducting therefrom the charges against bin, of sixty-nine dollars seventeen cents; the balance to be distributed, is $107 70, which divided between the mother, brother and sisters, gives to each *j}.2S*92, and the mother is likewise entitled to her share, of 595 dollars 39 cents, on account of the recognizance aforesaid for the real estate, with like running interest as above. These' shares of Allen Moore, deceased, however, in the hands of his guardian, although to *he distributed to*his mother, brother and sisters, *ought to have*been sought by them of the administrator, who is the proper representative of the personal estate; to that, end the administrator of said Allen, appointed, or to be appointed, must be made a party.

As to the shares of the personal estate charged upon the guardian, they ought to carry interest from the ¡jme that Lawson Moore received, the per*179sonal estate, which appears by the deposition of Heipoustoii), wii, receipted for a? early as 1814.

Guardian to be allowed his ace unt fortheschoolingancl maintenance of the wards, to be settled by a commissioner.

Settlement of Moore with his wards mother set aside, and ordered that the account bo referred.

Debts against a feme,not recovered of her after married husband, on his death survive against her, and his administrator is not liable.

Animadversion on tho guardian’s accounts,and the duty of tho chancellor in the protection of in-infants.

Against the shares of the said wards, the guardian will be entitled to his accounts against them respectively for s¡ booling and clothing, and maintenance when properly adjusted; to that end the accounts should be referred to a commissioner to state and report.

The receipt of Mrs. Moore to Lawson Moore, duid her note to him for the balance, so as aforesaid stated, upon the settlement in the bill complained of, must be cancelled, and annulled, and the accounts between them, should be referred to a commissioner with power to take testimony and stiite the accounts *accordingly, with*direction to report thejestiinony. and his decision and statement the inspection and revisal of tl. able the court to make a final

The debt claimed by L. now the widow Chapline, not having been collected of her husband Abraham Chap' has now again become the debtVqi u-srs. uiiaprii the widow, so that tho executor, c^>sluain^W>iit'£fr''of Abraham Chapline, is not a necessary party.

From the testimony, it seems that Lawson Moore having in his hands, after the death of Alien L. iVsoore, the fund belonging to rs. Moore, the mother, has kept her ignoi ant of her right, charging extravagant prices for articles furnished, so as to swell an account against her and' the children. Having a large sum in his hands due the wards, he has cha''god then) with articles at credit prices; sufiered the wards themselves to have accounts in the store; his accounts are stated very loosely; his account for boarding, drawn up for Mrs. Moore, the mother, and receipted by her to him, and charged by him to the wards, includes, probably portions of time for which he has again charged.boarding in other accounts; in the account of Elizabeth, he has charged Jher with Miss Bradhurn’s account, and the same charge is repeated in the account of E. '.'oore &Co. Although required by statute, to account annually *180to the county court, whose duty it is to put the sut - plus of each year’s income, above the support and maintenance of the ward, to interest, (1 Digest, 643,) the guardian failed to render any account-from 1814, until summoned in 1820, and then his accounts are .yery loosely stated; hjs claims for salary, for twelve months in this year, and twelve months in the next, include periods when he was at home; he charges for the same trip twice, with other examples of carelessness and inattention; besides his exorbitant claims for services and expenses, from 1813 to 1820, are applied by relation to the 25th of March, 1814, so as to reduce the capital and stop the interest. His accounts against his wards, are stated with a carelessness that runs to waste, and an extravagance that tends to devour, insomuch as to call for animadversion and strictest scrutiny of a court of chancery, whose especial duty requires of them to take care of infants and of tlieir estates.

Commissions refused the unfaithful guardian,and the exemption from the compounding of the interest on him. allowed for his only compensation.

Decree and mandate.

As to the claim which has been urged in argument for commissions, for the care and trouble of the guardianship, the only allowance which this court can make, is to forbear to charge interest upon the balance of each year’s income, in the hands of the guardian, exceeding the annual disbursements for the wards, so as to charge him with only the simple , interest running on the capital in his hands.

It is, therefore ordered, and decreed, that each and every of the decrees made in the cases aforesaid, be reversed and annulled, that the cases be remanded to the circuit court, with leave to the complainants, Mrs. Chapline, Jacob Chapline and wife, and Robert M’Afee and wife, to amend their bill so as to make the administrator of Allen L. Moore, deceased, (who has been, or may be appointed) *a*party, and for such farther proceedings, orders and decrees to be had, made and pronounced as may consist with the principles and directions expressed in the aforegoing opinion, and with the principles, and usages of equity.

Lawson Moore to pay the costs of each appeal.

*181petition for a re-hearing,

*The counsel for Lawson Moore moved the court for a rehearing, on the following Petition for a Re-hearing by*Jas. Haggin, Esq.

It is true that the sum in controversy in this cause, is sufficient to threaten the pecuniary ruin of Lawson lVioore, but to a man who has passed the meredian of his life, and whose moral integrity has never yet been questioned, the effects of the opinion pronounced, in a pecuniary sense is no longer the chief consideration. This being a suit for an account, the counsel for the defendant had apprehended nothing involving character would be earnestly pressed. They had, they will acknowledge, discovered some indications of bitterness in the record, but this they supposed foreign from the questions to be decided, and had neither expected to vindicate their client from unjust aspersions, nor to minister to his possible gratification by animadversions upon his adversaries. And indeed, when remarks of counsel derogatory to the motives of the defendant, would have been answered and his conduct reconciled, the counsel was deemed out of or- , der, and accordingly silenced. It was, therefore, certainly with surprise and regret that they witnessed the severity of remark with which the opinion abounds. His case is of peculiar hardship. Whatever is said of others, witnesses, attornies, administrators, guardians, of the many personages brought into review, (and they are numerous,) all receive the encomiums of this honorable court, except Lawson Moore. He is lacerated with an ingenuity and severity rarely displayed. We are obliged in justice to the man to say that we trust lie will yet be found not to have merited so much asperity. Nay, we do find an exception, in the high estimation put by the court upon some of the witnesses. The opinions and advice of eminent lawyers, under whose counsel Moore deported himself in Pennsylvania, affords no mitigating circumstances worth a name; and the receipt of the grandfather Smith, for the board of the wards before Moore became their guardian, notwithstanding the high virtues the grandfather appears to have displayed, avails nothing when it would exonerate Moore of the payment of $232 a second time.

*182Petition for re-heaviug.

But we would not multiply remarks, perfectly recollecting, that we have already trespassed in the argument of *this cause.*

it is supposed that the journies of Lawson Moore to Carlisle, and his stay there, and his disbursements and compromise with the first administrators,, and the efforts expediting the sale of the land, were all useless — the effect of groundless jealousy, inordinate solicitude to get possession of the effects, and productive of no béneficiai result. On, the contrary, we would have taken it for granted, in the absence of all proof, that a *man*of ordinary prudence, advised of the death of a connexion, who had been largely engaged in trade, would visit the state of his *residence and there*ascertain the condition of his affairs. Such must have been the rejections of Law-, son Moore, whose circumstances in life and whose habits were averse to a distant and expensive journey; still he went, surely not from any exceptionable motive. When he arrived at Carlisle he found Given, who was no creditor or friend, the active administrator. And although his son, who *lived with*William Moore, as his nephew, recognized Lawson as his father, and although Lawson ■'.'.more had with him letters of James Morrison, William Viorton and Alexander Parker of Lexington, well known at Car-lisle, still *-ir.*Given took pains privately to disparage him, by insinuating that he was a drunken impostor, and to discourage him as to his prospects from the estate of his brother, by discrediting the books, and by the exhibition of an entry in pencil marks and an unknown hand, representing William Moore to have been a partner with a Bankrupt of the name oí West — refused him free access to the books, or the liberty of taking copies or extracts. Tins administrator entered into an amicable arbitration with a youth of the name of Frazier, who had been raised in the store, and without the knowledge of Lawson Moore, permitted a recovery for upwards of $700, when in truth Frazier, by his own deposition taken in this suit, was only entitled *to*about $¿00. They entered into a similar arrangement with a dissipated youth of the name of Homes, and went into trial, and permitted an award for up*183Wards of ‡300, without affording to Moore or his counsel an opportunilv to defend, although Duncan; who is admitted to be eminent in the profession, hearing of the demand, had expressly made known his ability to defeat it, and the latter judgment was arrested by a positive and unwelcome interference on the part of Moore and his attorney. Tine attorney of the administrators refused to commune with Moore in relation to the affairs of the estate, and for this but one cause can be assigned, to-wit, the collision between the heirs and the administrator. They advertised a sale of the goods under the most propitious circumstances, the season, the demand of distant merchants, then in attendance, and the probability of a *peace,*all required an instant sale, but consumed several days with remnants, and then postponed. the sale for several weeks, notwithstanding the remonstrance of the heirs, and ultimately Mr. Given, the active administrator, and this same Frazier became large purchasers. These combined with many other circumstances, created and confirmed suspicions on the part of Moore and his counsel, who are admitted to have deserved his confidence, highly injurious to the integrity of Mr. Given. And thus admonished by facts, and under the advice of bis counsel, Moore deemed it due to himself and coheirs to obtain, the earliest possible control of the estate. True he had an additional motive for expedition — land in that country, as in this, had acquired an estimate surpassing all experience, and Moore ami in's friends deemed it very important that he should avail himself of that crisis, and the land could not be sold until it was ascertained, that the personal estate was equal to the demands of creditors. Therefore, Moore with the advice and concurrence of the lawful guardian, the legitimate representative of the heirs, agreed to give the administrators five per cent upon the monies, and two per cent upon tiie notes taken &c. Not for the purpose of bringing off the goods as supposed, for they had been sold, but to obtain Ihe co-operation of one in whom they could confide, and to bring the land into market. And although the requisition of the per ceutage may seem exceptionable, yet in truth all *the*ad*184ministration services did not, as we apprehend, cost more than usual in Pennsylvania and in Kentucky.

*183Petition for a re-hearing.

*184Petition for a fe-hearing.

Is it true that nothing was gained by this measure. On the contrary, we would not doubt that this administration, taking the usual course, and without the attendance and importunity of Lawson Moore, the sale of the land would have been deferred until its fall and then it would not have brought more than one half the sum, most probably not exceeding one third. This however is said to be speculative. We answer, that it is proved satisfactory, none conversant with the times can doubt, and the witnesses all, on both sides, affirm it. Moore* we acknowledge, did speculate rather badly. The guardians, although justified in so doing, would not venture *to*take the land at appraisement. Citizens would not then venture so much: but Moore, to close the concerns of the estate, and return to his family and domestic pursuits, incurred the hazard, and had the good fortune to indemnify himself.

We repeat that the land, but for the interference of Lawson Moore, would riot have equalled the heirs' to the amount of $9000. Under his superintendence it amounted to near nineteen thousand. This advantage then was gained. More than one half the amount of the sales are imputable to the services of Lawson Moore. Should not the co-heirs then contribute to his indemnity, in the proportion which they are enriched by him. No, it is said, because he found his individual profit in it. To test the principle, suppose the share of Lawson Moore had Ireen bur one filth, and relying upon the justice of the co-heirs with whom he could not consult, because of their absence from the country or their infancy, he had taker, precisely the steps now proved; his disbursemeuts then would have surpassed his interest, and surely the principle which would forbid contribution in the present, would apply equally in the case supposed. The amount involved can afford no criterion: but infants cannot promise, nor will the law create a promise under the circumstances, says the court — therefore, it cannot be allowed in equity. We would solicit further reflection upon this rule of *185equity. For we have understoodthatthewant of redress at law, where justice required it, but the law would not imply an assumpsit, afforded a motive the interposition of the chancellor. Thus joint securities, at one time, could only obtain contribution in chancery, because it was supposed the law implied no promise from the delinquent security, to him who paid the money. In the case of Shrieve and Grimes, it was decided that the law would imply no assumpsit on the part of Shrieve, the landlord or proprietor, for improvements made by Grimes, without a contract, and that Grimes could only recover in chancery, therefore he sued in chancery, and obtained his redress. Indeed we believe the cases are numerous where chancery has relieved because the law did not create a promise commensurate with the demands of justice; and we would submit it to this court, if there can be a difference, in equity, between the liability of adults and of infants in such cases. The redress is not the effect of contract, express or implied — it is the dictate of right and of justice. An infant may make no contract for the sale of his land; but he sells, and the purchaser improves. The contract is void, but the infant must pay for improvements. In no case of improvements made upon the land of an infant, has it been held that he was exempt from the rule, that one may not profit by the loss of another. Suppose five tenants of land, one an adult, the others infants; the adult discovers that the act of limitations is running and will cut off the redress; he, therefore, sues in the name of all the tenants; pays fees as for as a valúable estate; gains the possession, and upon bill subsequently filed for rents and profits, shall claim contribution for fees advanced to counsel &c. &c. We would believe it impossible that- the chancellor would reply, that although the estate has been saved by the exertions of this joint tenant, that still as he was in part interested, he must bear all the bur-then of the litigation. If it be the rule, we would believe it is not the understanding and the usage of ©ur country upon such subjects. On the contrary, we hope that it will be found tbat between all holding real or personal interests, as joint tenants, tenants *186in common and co-partners, infants or adults, *eon*tribution is due from the absent or inert, for all reasonable disbursements, in the improvement, presernation or *recovery*of the estate or right,

*185p8titionfora re-hearing,

*186Petitior. for a re-hearmg-,

-phere can be no hardship in it, for the contribution is predicated upon a greater profit to the co-partner.

if we are correct in the principle applicable to the subject, doubtless much is due to Moore for services and disbursements; and we deem it at present unnecessary to enquire how much; this would alone be proper upon an argument.

If Moore might be expected to distrust the administrators and their counsel, he *surely*was justifiable in engaging the Duncans, and should, therefore, pay them something, and how much that shall be, may likewise with greater propriety be discussed upon hearing.

Touching the charge for the removal of the family, we will only say that the Pennsylvania guardian made the advance for that *purpose,*and approved the measure. It was not entirely officious on the part- of Moore, and we yet think, if Moore is to be compensated, the preponderance of proof is with him in amount. Indeed we would suppose that this charge for expenses *&c.*incurred with the privity and funds of the lawful guardian, would have been sanctioned by this court, but for the testimony of the witness, Barnett. Moore was certainly influenced by affection for his brother’s children, in leaving his home and domestic duties and attending them to Kentucky". We do not think he would have undertaken it for strangers; yet we do not apprehend, that, therefore, it would have been said by this court, that he must again account for the money he received from the Pennsylvania guardian, who has all the powers of a rational father of the child, and expended in pursuance of the expectations and design of that guardian, had not a Mr. Barnett deposed that it was to cost nothing. That witness, however, was incorrect, for in his gebond deposition he distinctly denies it. This deposition in s© *187great a record has escaped the vigilance of this court; but we repeat, that it máy be found in page 19, and the circumstances and proof are, therefore, on this subject in favor of the claim.

Petition for a re'heaTins*

Decorum be-kTM°chand |,ar>

Rules ofpractice in this ^gument of cross appeals,

Say, however, that the Pennsylvania guardian abused his trust; that he improperly handed this money to Moore, and authorized its application 'to purposes beyond the pale of his authority, and that although Moore did so apply it, he and not the guardian is answerable to the heirs a second time, still the widow would seem to us to be chargeable, and that an implied assumpsit would lie against her for all that she received, not that wc would cancel gifts and. bounties, but because no present was made.

As to the charge of the same item a second time, we cannot discover it, and our client says the opinion is predicated upon a mistake.

■ A re-hearing is respectfully requested.

The Court overruled tho motion for a re-hearing — The Chief Justice said—

The bar is the nursery from which the bench is supplied. Ttic bench has an influence ■in the proper cultivation and training of the bar. They have mutual action and re-action. To imprint the administration of the laws upon the public confidence, and to maintain it through successive generations, an elevation of character in the *bench, and*a pride of character in the bar, are important in the highest degree. This elevation and pride of character, the judge and the counsellorshould mutually respect and cultivate. Not the one, nor the other should wantonly assail. These truths should ever be remembered. Their application ta the petition will not be misunderstood, the commentary need not be expressed.

The rule of practice .established and prevailing m this court, at the time of the argument of these cases, applicable to the argument of cross appeals and writs of error, required, that the counsel for the plaintiff below should open the argument upon the errors on his part assigned; that the counsel for the defendant below should, next in order, be heard in answer to that assignment, and should open the ar*188gument of the errors assigned on his part; that the counsel for the plaintiff .below, should next be heard in maintaining his assignment, and in answer to the errors assigned by the defendant; lastly’, that the counsel of the defendant' be heard in maintaining his own assignment of errors. Under this rule the counsel for the defendant, Moore, was in the attitude of concluding the argument, and when bound by the rule to confine his reply to the maintaining of the assignment of errors on his part, he was, in the opinion of' the court, travelling out of his pwn assignment into the assignments of his adversaries; for this cause he was stopped bv the court, and required to conform to the rule. The rule of practice,and the requisition upon the counsel to confine his argument within its limits, Were explained at the time.' fie was stopped only for the purpose of explaining the rule, and requiring his compliance With it.

*First*opinion a'dhered to.

Crittenden,- *for Chapline and Moore’s*heirs; *Haggin, Mayes’*and *Daviess,*for Lawson Moore.

The counsel in his petition, by stating his opinion and inference from the facts, instead of stating the whole of the *facts, has given*a *coloring,*which distorts the act of the court: That rule was complicated and difficult of execution, and therefore, the court have, by a written rule, declared that cross appeals and writs of error shall be heard as one cause; the counsel for the plaintiff below to open the argument; the counsel for-the defendant to be heard next in order, and the counsel for the plaintiff to conclude.

If there be an asperity in the. opinion formerly delivered, it is'th'é asperity of truth and fair inference from the facts disclosed by the record.

This court finds no cause for opening their decree, nor for changing their former opinion.

The petition is overruled.