#### *Armstrong’s Heirs v. Walkup & Others.

July Term, 1852,

Lewisburg.

1. Guardian and Ward — Compensation*—Case at Bar.— A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he'would not make any charge for it, and in fact kept no accounts against them.

2. Same — When Error to Make Joint Decree in Favor of Several Infants. — It is error to make a joint decree in favor of several persons who have been wards of the defendant’s testator, where one of them is an infant; though the decree be made with the consent of the next friend of the infant.

3. Guardian and Ward — Payments to Guardian — Liability to Third Persons. — A payment made to the husband of one of three wards, who is the guardian of another of them, though intended to be a payment to all, is not to be credited against tbe third ward, who is then an adult, she not having authorized him to receive it, but is to be credited against the husband and wife and his ward. ,

4. Same — Accounts Hust Be Stated Separately. — The accounts of the three wards should be stated separately from the commencement, or at least from the time when their expenses differed in amount.

This was a suit in the Circuit court of Greenbrier, instituted by Josiah-J. Walkup and Ann Eliza his wife, Sarah Jane Elliott and Elizabeth M. Ellio.tt, the last being an infant suing by her guardian and next friend J. J. Walkup, against the administrators with the will annexed and heirs of John Armstrong, who had been the guardian of the female plaintiffs, for the settlement of his guardian accounts. ’ The-accounts were referred to a commissioner, who in 1850 made a report, bringing down the account to that time, and presenting alternate statements. And there was also an account of the administration upon Armstrong’s estate by the administrators.

The heirs of Armstrong excepted to the first statement of the guardian’s account because he was not allowed anything for the support and education of his wards; and they excepted to both statements because *he was charged with compound interest after his death, and because the account was not credited with 1279 dollars 9 cents, as of the 9th of October 1847 paid by the administrators to the plaintiff Walkup for the wards. They also excepted to the administration account on several grounds, one of which was, that the administrators were allowed credit for the payment of debts of inferior dignity to that of the plaintiffs.

The plaintiffs excepted to the commissioner’s second statement, because, in that statement, the guardian was allowed compensation for the support and education of his wards. It appears that Armstrong, having no children of his own, took these children, who were then quite young, to live with him. There is some evidence, too, that he repeatedly said that he did not intend to make any charge against them for their support and education; and an uncle of the plaintiffs, who was examined as a witness, stated that he was prepared and should have taken the children with him to Ohio upon the death of their mother, but for the promise of Armstrong that he would keep them without charge; and it a-ppears that although they lived with him, one of them until her marriage and the others until his death in 1846, he did not keep any account of their expenses, but treated them as if they had been his own children.

In May 1850 the cause came on to be heard, when the court held that the second statement of the commissioner’s report was correct in making an allowance to the guardian for the support and education of his wards, and overruled the exception of the plaintiffs to this statement, and sustained the first exception of the defendants to the first statement. The exceptions to both statements, because interest was compounded after the death of Armstrong, and for failing to credit in that account the sum of 1279 dollars 9 cents paid by *the administrators, were also sustained. And the first exception of the heirs of Armstrong to the administration account was overruled, because, though it is true the debts due from, the guardian has preference over all other debts, yet as the plaintiffs could resort to the real estate of the guardian for satisfaction of their claim, the court would substitute the creditors who could only resort to the personalty, to the right of the plaintiffs against the real • estate, should they have satisfaction out of the personal estate. It is unnecessary to notice the other exceptions. The report was therefore recommitted to be reformed according to the principles of the decree.

In 1851 the commissioner returned his report reformed according to the principles *175of the decree of the court, to which there were no exceptions. By the first statement of this report the balance found due to the plaintiffs was 3599 dollars 29 cents of principal and 1009 dollars 77 cents of interest, with interest on the principal from the 26th of May 1849. By the second statement there was due to them 1031 dollars 65 cents of principal and 397 dollars 38 cents of interest, with interest on the principal from the same date. And there was due from the administrators of Armstrong on account of the personal estate 1365 dollars 27 cents, with interest on 1205 dollars 10 cents, a part thereof, from the 9th of October 1850.

In October 1851 the cause came on again to be heard, when the court, being satisfied that the opinion before expressed in favor of allowing the guardian for the support and education of his wards, was incorrect, was of opinion to adopt the first statement in the amended report; and the plaintiffs waiving the necessity of taking separate accounts against the guardian, and consenting to' take a joint decree for the amount due, it was decreed that the sum of 4602 dollars 6 cents, with interest on 3599 dollars 29 cents, part '^thereof, should be paid to them. And in part discharge of this sum, there was a decree against the administrators of Armstrong for the amount reported in their hands. And it was further decreed that unless the residue of the debt, interest and costs decreed to the plaintiffs was paid to them within two months, the sheriff of the county should proceed to sell so much of the lands of which Armstrong died seized as would pay that residue. From this decree the heirs of Armstrong applied to this court for an appeal, which was allowed.

Wm. Smith and McPherson, for the appellants.

Price and Caperton, for the appellees.

*

Guardian and Ward — Compensation.—For the proposition that, a guardian of infants is entitled to compensation for their support, though he had promised their friends that he would not make any charge for it, and in fact had kept no account against them, the principal case, is cited with approval in the following cases;- Hurst v. Hite, 20 W. Va. 205; Hauser v. King, 76 Va. 737.. In this case it was held that the creditors of a committee of a lunatic could subject his right to compensation for board, to the payment of their claim. See the principal case cited in *foot-notes*to Sayers v. Cassell, 23 Gratt. 525; Rea v. Trotter, 26 Gratt. 585. See generally, mono-graphic *note*to “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.

SAMUELS, J.

This cause stands upon exceptions to reports of the account between John Armstrong and the female complainants, late his wards, and of the account between Andrew Beard and Joseph Beard, administrators with the will annexed of John Armstrong, deceased, and the estate of the decedent.

The guardianship accounts are stated in alternative forms, exhibiting different results, from a difference in the charges entering into those accounts: One is marked “first statement;” the other “second statement.”

The first exception by defendants to the report marked “first statement,” is because credit on the guardianship account is withheld from Armstrong’s estate for the support and education of the wards during Armstrong’s guardianship. This exception is met by complainants, by alleging that Armstrong promised to support and educate his wards without charge. There is proof in the record tending to show that Armstrong did so promise; yet as he was under no previous obligation to support and educate them at his own expense, a promise to do so was made without ^consideration, and would not be binding on him. The office he held made it his duty to take care of the persons and property of his wards, and to provide for their support and education out of the profits of their estate. A mere promise to persons having no authority to contract on the subject, and for no consideration, does not affect the rights of the guardian to have compensation. Hooper v. Royster, 1 Munf. 119. I am of opinion the exception should have been sustained.

The third exception is because 1279 dollars 9 cents, paid to complainant J. J. Walkup by Armstrong’s administrators, is not credited to the estate against the wards as of the 9th of October 1847, when it was paid. This exception places in a clear light the error committed in stating the account jointly throughout, between all the female complainants on one side, and Armstrong’s estate on the other. A correct mode would have been to state the account of each ward separately, either from the beginning or from the time when the claims of the wards ceased to be the same in amount. This payment to Walkup should be credited as of the day it was made, and applied to only such of the claims as he had authority to receive. It does not appear that he had authority to receive the money due complainant Sarah Jane Elliott: by crediting this payment on the aggregate of all the debts, her claim is improperly reduced in amount.

Defendant’s first exception to the amount of the administration on Armstrong’s estate, presents a question of no importance to them. Although the assets in the hands of the administrators should have been applied to pay debts in the order of their dignity, yet as the debts of the first dignity exceed the amount of the personal estate, and also bind the lands in the hands of the heirs, the creditors whose debts of inferior dignity have been paid, could, if not paid, have subjected the real assets by a bill to marshal assets, or ^otherwise; and as the land descended to defendants is bound for all the debts so far as they appear in the record, it is immaterial to defendants in what order they are paid.

Defendants’ 2d, 3d, 4th and 5th exceptions are taken with so little precision, that it is difficult if not impossible to understand what is objected to; moreover, it does not appear upon what proof the entries excepted to were made. These exceptions were properly overruled.

Complainants’ exceptions to the report marked “second statement,” have been overruled by the decision already made on defendants’ first exception to the guardianship account.

, The court erred in giving a joint decree-in favor of all the complainant’s for the aggregate of all their debts against defendants, notwithstanding it is stated to have been doné by consent of complainants. Elizabeth Margaret Elliott was an infant and therefore incapable of giving consent; nor-*176could her next friend give such consent for her. Under this joint decree, complainants J. J. Walkup,or Sarah Jane Elliott might receive the whole amount thereof, and thus the infant be left with no further security for her debt than that afforded by the individual responsibility of the party so receiving it.

I am of opinion to reverse the decree for the errors indicated, and to affirm it in all other things.

The other judges concurred.

The decree was as follows:

The court is of opinion that the Circuit court erred in not allowing the estate of John Armstrong deceased, a reasonable credit for his expenditures in the support and education of his wards, so as not to exceed the profits of their estate in his hands as guardian. *And in this, that after the claims of the female complainants ceased to be identical as to amounts, the accounts were still stated as joint only; and in this, that the sum of 1279 dollars 9 cents, paid to complainant Josiah J. Walkup, October 9th, 1847, was credited against the aggregate of all the claims under complainants, instead of crediting it against that of Walkup and wife, and that of his ward, which alone he had any authority to receive; and in this, that a joint decree was rendered in favor of all the complainants for the aggregate of all their demands, instead of rendering a separate decree in favor of Elizabeth Margaret Elliott, the infant, for her separate portion of the money due. And the court is further of opinion that there is no other error in the decree appealed from. Therefore it is adjudged, ordered and-decreed, that so much of the decree as is herein declared to be erroneous be reversed and annulled, and that the appellants recover of the appellees the costs of appellants expended in the prosecution of their appeal here; and that in all other things the said decree be affirmed; and that the cause be remanded to the Circuit court for further proceedings to be had according to the principles of this decree.

The principal case is cited in Holland v. Trotter, 22 Gratt. 139.