#### Jackson’s Heirs v. Jackson’s Adm’r &c.

September, 1844,

Lewisburg.

(Absent Bbooke and Baldwin,* J.)

Guardian and Ward†—Support and Education ot Ward —Improvement oí Ward’s Realty — Administration Accounts‡—Credits—Case at Bar.—21 *J.*dies in 1821, possessed of a tract of land, an improved lot, slaves, and other personal property, and debts due bim; leaving a widow, and five infant children. In 1822, *B. S.*qualifies as his administrator. Dower in the land, and her distributable portion of the personal estate, is not signed to the widow until 1834, when the land and slaves are divided under a decree of the court; but she retains possession of the tract of land, and all the personal property, but three slaves; keeps her children, and supports and educates them; a reasonable allowance for which, exceeds the whole income of the estate, as well that in her hands, as that in the hands of the administrator. Soon after the death of 21 *J.,*the widow builds a house on the land, and makes others permanent improvements thereon, which are suitable to the estate, and obviously for the benefit of the infants; the cost of which is paid by the administrator. Whilst the widow is holding the estate, and supporting and educating the children, she becomes indebted to several successive mercantile firms, of which the administrator is a partner, for goods purchased for the use of herself and the children. These accounts run from the death of 21 to the time of the division of the estate in 1834. The administrator rents out the lot, hires out the three slaves not retained by the widow, collects the debts, and administers the estate, but he never settles his 1 1 1 1 administration account. Upon a bill brought by ' the children against the administrator and widow, for a settlement of the administration account, and division of,the estate: Held, 1. *Tb.at the allowance for the support, maintenance, and education of the infants, must be limited to the amount of the interest, rents, hires, and other annual profits of the estate. 2. That the principal of the infants’ personal estate in the hands of the administrator, may be applied to the payment of the cost of the house, and other permanent improvements put upon their land. 3. That in stating the administration account, it should be brought down to the time of the division of the estate, and that the rents, hires, or other annual profits of the estate in the hands of the administrator, and the interest on the annual balances of the administration account, should not be involved in that account; but should be put into the account between the administrator and the widow. 4. That, the administrator is entitled to credit on his administration account, as at the time of the division of the estate, for the value, at that time, of the house, and other permanent improvements put upon the land, so to be ascertained by deducting the depreciation thereof from decay, from the amount of his disbursements therefor. 5. That he is entitled as against the widow, to the interest on the disbursements made by him for the house, and other permanent improvements on the land, from the time they were made, to the time of the division; and to the difference between the disbursements, and the value of the said improvements at that time, to be ascertained as aforesaid. 6. He is entitled as against the widow, to credit for the amount of the store accounts, made by her with his successive firms, with interest thereon, so far as the same is sustained by satisfactory proof, either direct or presumptive, or may be obtained from her by an examination upon interrogatories. 7. The widow is entitled as against the infants, to the whole annual profits of the estate, including the interest on the annual balances on the administrator’s administration account, up to 1834; and to the interest on the distributable share of each, in the hands of the administrator, up to the time they respectively come of age; to be a credit to her in her account with the administrator.

This is a suit brought in the circuit superior court of law and chancery for the county of Augusta, by the children of Thomas Jackson, against his administrator and widow, for an account of their administration ; and a division and distribution of the estate.

Thomas Jackson died in the latter part of the year 1821, leaving a widow and five infant children. In 1822, Robert Steele, the brother of Mrs. Jackson, qualified *as administrator on the estate; and in 1824, Mrs. Jackson qualified as administratrix. At the time of the death of -Thomas Jackson, he possessed a valuable farm of 290 acres, adjoining the town of Greenville, in the county of Augu’sta, on which he resided; several lots in the town, one of which was improved; a number of slaves, and other personal property; besides debts due to him ; and he was indebted to a very small amount.

*67The widow resided on the farm, from the death of her husband until the year 1834; retained possession of all but three of the slaves, and the other personal estate; keeping her children with her, and supporting and educating them. Her dower in the land, and her distributable portion of the slaves, were not assigned to her until it was done under an order in this cause in 1834. The three slaves not kept by the widow, were hired out by Steele, the administrator ; and the hires were received by him. He also rented out the improved lot in the town of Greenville, and received the rents.

Before the death of Thomas Jackson, the house in which he lived being old and uncomfortable, he had determined to build another; and soon after' his death, the widow and administrator carried out his intention, and built a house, in which she and the children resided.

In 1832, the eldest son having come of age, and Charles B. Peyton having married one of the daughters, and qualified as guardian of the infant children, they filed this bill; and the administrator and administratrix having answered, the accounts were referred to a commissioner; and commissioners were appointed, who divided the real estate and slaves between the widow and children. In taking the accounts, the principal subjects of controversy were in relation to credits claimed by the administrator Steele, for moneys paid by him for the building of the house; and for moneys advanced, and goods sold to Mrs. Jackson, for the use of herself and her children. It appears, that Steele was a Merchant in the town of Greenville; and did business as such, not only by himself, but as a partner in several mercantile firms, successively established there; with which Mrs. Jackson was in the habit of dealing, and making purchases on credit, according to her own discretion. These accounts had been running on ever since the death of her husband; and at the time of taking the accounts in this cause, amounted to several thousand dollars. Of these accounts, Steele had receipts for a small portion; he introduced proofs as to another considerable portion ; but for the remainder, offered no other evidence than of the general dealing of Mrs. Jackson at the stores.

The plaintiffs objected, that the administrator had no authority to expend the principal of their estate, in building a house; and that he must therefore look to the surplus annual profits, after providing for their support, for his indemnification; whilst it was clearly ascertained that the amount expended upon them, greatly exceeded the annual profits of the estate. The widow objected to the taking of an account of her dealings with Steele, because no such account was contemplated by the bill. She insisted these were private accounts between Steele and herself, and that he had an adequate remedy at law. But if the account was taken, she claimed the protection of the statute of limitations; insisted that Steele was not entitled to set up against her, debts due to himself and his-partners jointly; and objected to all items-of charge not proved, and founded only on proof of general dealing.

In 1836, the commissioner returned his report to the court; in which he stated 1st, the administration account of Steele the administrator; on which, after allowing him commissions, he made the administrator debtor to the estate on the 31st December 1836, of principal 2302 dollars 36 cents, and interest 1569 dollars 47 cents. 2d. Steele’s disbursements for the building of the house *2652 dollars 13 cents. 3rd. His account with Mrs. Jackson, shewing the amount due from her to all the mercantile firms of which Steele was a partner, to be 1951 dollars 23 cents, excluding all items of which there was no proof. 4th. An account including the items in the account only sustained by proof of general dealing; and thus increasing her indebtedness to Steele to 4378 dollars 96 cents. There was an additional statement appended by the commissioner to his report, which would change the amounts above stated slightly; and it also appeared from the report, that there was a debt of some four or five hundred dollars, still due the estate; which the administrator had not collected, but which being still good, he was willing to deliver over to the plaintiffs.

The report of the commissioner was excepted to by plaintiffs and defendants; and was recommitted, to have an account of the expenses incurred in the maintenance and education of the plaintiffs; and of the sums due to the defendants, or either of them therefor. This account being reported by the commissioner, the cause came on to be heard on the 6th of February 1838, upon the reports and exceptions thereto, when the court recommitted the report; and after declaring that the administration account should be with Steele alone; that he was to be held primarily liable to the distributees, for the whole personal estate; and that after the time when the administration was, or might have been closed, both Steele and Mrs. Jackson are to be considered, and treated as guardians, gave the following instructions. 1. Bet the commissioner state the administration account, charging the administrator with all the property inventoried, except the slaves, with the money on hand, and debts collected; crediting him by lawful disbursements, but no commissions, as he has failed to settle according to law; and excluding from the account, all rents, hires and profits; also all accounts for dealings with the widow. *When this account is closed, and the sum to be distributed ascertained, he will assign one third to the widow, and. two thirds to the children ; which two thirds is to be set apart as a capital, not to be diminished for improvements, nor for support and maintenance: and its accruing interest shall enure to the benefit of the widow, in consideration of the support and maintenance of the children, by way of *68credit against the heavy accounts of the defendant Steele, against her.

Let the commissioner then state the accounts, between the widow and defendant Steele; charging her with dealings at the various stores of the defendant; with the building account; with all items of individual account; with such part of the personal estate inventoried, as was retained by her: and crediting her with her distributive share of the personalty; with the annual interest upon the two thirds assigned to the distributees; with all rents, hires, and profits, whether in produce, or money received by said Steele; and all items of individual debit between them, which she may establish. In this account no interest is to be charged, or credited to, or against either party, save annual interest on the share of the distributees, herein before allowed as a credit for the widow. Interest is denied the defendant Steele, because his claims against the widow, are for the most part unliquidated mercantile accounts, which he very unreasonably neglected to settle; accounts too, of ruinous magnitude, of which she seems to have been kept in ignorance, by this neglect. For a like reason, it is denied upon the building account; with the additional consideration in favour of its disallowance, (if her distributive share should not wholly, or quite extinguish that account in limine,) that it is but a fair apportionment of the loss between the two wrongdoers, to deny him interest, whilst we make the widow accountable for the principal. In this account, moreover, the widow is not to be charged with items of mercantile account, supported *by evidence of general dealings only. And the commissioner is authorized to make a special statement, charging, and crediting interest pro and con; and allowing items of account, upon evidence of general dealing, according to the pretensions of either party, to meet the contingency of a'change of opinion on the part of the court, upon these points.

In obedience to the order, and instructions of the court, the commissioner made a report ; which was set aside as not conforming to his instructions: and subsequently, another report was made; which was approved by the court, and made the basis of its decree. By this report, the administrator Steele, is found indebted on his administration account, on the 31st December 1836, in the sum of 3997 dollars. Mrs. Jackson is found indebted to him at the same date, in the sum of 69 dollars 8 cents, upon the account made out according to the instructions of the court. Upon the account charging interest, she is indebted 1754 dollars 87 cents; and upon the account charging her with items,-upon evidence of general dealing, she is indebted 4414 dollars 51 cents.

The cause came on to be finally heard on the 23d of June 1840, when the court approved the first and second accounts of the commissioner; and after, by consent of the plaintiffs, crediting the sum of 69 dollars 8 cents, stated to be due from Mrs. Jackson to Steele, upon the amount stated to be due upon his administration account, made a decree for the balance found due upon that account, in favour of the plaintiffs: and directed that the bonds belonging to the estate of Thomas Jackson, not collected by his administrator, should be surrendered to the receiver of the court; who was directed to proceed to collect the same: and giving liberty to the plaintiffs to resort to the court for farther relief, if the receiver should fail, through the past neglect or laches of the administrator, to collect it.

*From this decree, the administrator Steele applied to this court for an appeal, which was allowed.

Stuart and J. B. Baldwin for the appellants.

Michie and Price for the appellees.*

*

Judge Baldwin had been counsel in the cause.

†

 Guardian and Ward—Education of Ward—Liability of Ward’s Realty.—Until March 19, 1873, real estate of infants was not liable to the payment of any charges of his guardian, or *guasi*guardian, for his maintenance or education. Gayle v. Hayes, 79 Va. 548, citing the principal case; Garrett v. Carr, 1 Rob. 209; 1 Min. Inst. 442.

On all questions arising from the relation of guardian and ward, see monographic *note*on ‘‘Guardian and Ward” appended-to Barnum v. Frost, 17 Gratt. 398.

‡

Administration Account—See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

*

The cause was argued before the appointment of the present reporter.

STANARD, J.,

delivered the opinion of the court.

The court is of opinion, that according to repeated adjudications, the allowance to guardians, or those who act as quasi guardians, for the support, maintenance, and education of infants, is limited to the amount of interest, rents, hires, or other profits of the estate of the infant, unless under very special circumstances. But the principle does not. operate, so as to exclude all allowance for permanent improvements, put by the guardian, or quasi guardian, on the real estate of the infant; or to limit such allowance to the amount of the interest, rents, hires, or other profits of the estate. The principal of the estate may under circumstances be applied in making such improvements; and if they be suitable, and obviously for the benefit of the infant, the expenditure therefor may be defrayed out of the principal of the estate. In this case, under its circumstances, a credit against the principal of the infants’ estate, should have been allowed for the fair value of the dwelling house, and other permanent improvements, at the time the estate was divided ; and the cost of them, subject to deduction for decay, from the time of their erection to the date of the division, would be the proper measure of that credit.

The court is further of opinion, that as it appears, that a reasonable allowance for the support and maintenance of the infants, exceeded the whole of the interest, rents, hires, and other profits of their estate, no part of the said interest, hires, reqts, and other profits should have been charged in their favour, against those who furnished *that support and maintenance ; and therefore, that all the interest involved, and charged in the administration account, during the infancy of the children, should have been separated from that account, and the principal only of the balance of that account, treated as *69the -subject of distribution among the distributees.

The court is further of opinion, that the application of the foregoing principles to the accounts between the parties, require that those reported by the commissioner, and made the basis of the decree of the court below, should be remodelled. In stating the administration account of the appellant, it should be brought down to the date of the division of the estate, in June 1834; and without involving in it any charge for rents, hires, or profits, or the interest on the balances; so as to shew the balance of the principal distributable among the distributees. Against this balance, the administrator should be allowed credit for the value of the dwelling house, and other permanent improvements on the real estate, to be ascertained in the manner aforesaid; and the residue will be the net amount distributable among the distributees, for which the administrator is responsible to them. Any receipts of the administrator subsequent to the date aforesaid, (of June 1834,) subject to credit for proper disbursements in course of administration, are also distributable as aforesaid; as are the proceeds of any outstanding debts due the estate, not collected at the time the court below may render its decree, as the said proceeds may be from time to time received. In stating the account between the widow and the administrator, she should be debited, 1st. With the annual interest on the disbursements by the administrator, for the erection of the dwelling house, and other permanent improvements on the plantation, from the date of the disbursements to the division aforesaid of the estate; and at the date of that division, with the difference of the amount of those disbursements, and the amount to be as aforesaid ^credited to the administrator on the administration account, as the then value of the said dwelling house and improvements, if such disbursements exceed such value. 2d. With the perishable estate retained by her, and charged to the administrator in the administration account. 3d. With all the supplies, and money, and other disbursements furnished her, or the children, or estate, not belonging to the administration account, by the administrator, or the mercantile firms of which he was a partner, and of which there is satisfactorj' proof direct, or presumptive, that the evidence in the record furnishes, or that may be brought in by the examination of the party to be charged, on interrogatories, or of witnesses, or otherwise: these charges to be brought into account from year to year, as the supplies were furnished, or the disbursements made. And she should be credited, 1st. With interest from year to year, on the annual balances of the administration account, which are not as aforesaid, to be involved in, and blended with the final balance on the administration account. 2d. With all rents, hires, and profits of the estate received by the administrator, or for which he is accountable; such rents, hires, and profits, not being chargeable, or charged in the administration account. 3d. With the amount of her distributable share. 4th. With the annual interest upon the shares, respectively, of the distributee infants; of the balance due on the administration account, and distributable as aforesaid, from the date of said division, to wit, June 1834, until they respectively attain lawful age. This account between the administrator and widow, to be annually balanced, and interest to be charged oh the annual balances, in favour of the party entitled to such balance. The consequence is, that in respect to the shares of the distributable balance of the administration account, (if such balance there be,) the administrator will be liable to a decree in favour of the children distributees, for the shares of those who *were adults at the time of division, (June 1834,) with interest from the date of said division; and for the shares of those then infants, with interest from the dates at which they respectively attained full age.

The court is therefore of opinion, that the decree is erroneous, and that it be reversed and annulled ; and that the appellees pay to the appellant the costs expended in prosecuting his appeal in this court; and the case is remanded, for further proceedings in conformity to the principles, and opinion, herein before established and declared.