#### Olsen and another, Respondents, vs. Thompson, Guardian, Appellant.

*October 14.*

*November 5, 1890.*

Guaedians: Ftnal Accounting. *(IS) Charges for support of wards: Evidence. (4) Orders on annual accounts: Estoppel: Evidence.*(5) *Interest.*

1. Charges by a guardian of minor children for the support of his wards prior to his appointment as such guardian are only allowed when there are the strongest equities in favor thereof.

2. Minor children having no estate were taken into the family of their mother’s brother-in-law. Two years latera small amount of money was left them by their grandfather, and the said brother-in-law was appointed their guardian. Upon evidence tending to show, among other things, that when the children entered his family it was understood between him and their mother that no charge was to be made for their board, it is *held*that charges by said guardian for their board prior to his appointment were properly disallowed. .

3. Said guardian having been allowed, on his final accounting, for the board of his wards after his appointment, at the rate charged therefor in a previous account rendered by him, this court declines, upon the evidence, to hold such allowance insufficient.

4. Orders made by the county court upon the examination of annual accounts rendered by a guardian are not an estoppel against him at the final accounting (County Court Rule X, sec. 10), but are admissible in evidence, in connection with said accounts, to show the character of the claims made by him.

5. A guardian is chargeable with interest on the balance of the estate in his hands.

APPEAL from the Circuit Court for *Outagamie*County.

The following statement of. the case was prepared by Mr. Justice Taxloe as a part of tbe opinion:

The facts in this case are substantially as follows: In 1861, Matbias Olsen died intestate, leaving tbe respondents, Ms children. *Julia*was then one year old, and *Martha*less than two years old. Mathias left no estate, and no administrator of his estate was appointed. On October SO, 1866, it was known that the grandfather of the respondents had left *667them a small sum of money, and on tbat day tbe appellant was duly appointed guardian of said minor children. After-wards, in 1867, as such guardian, he received the money left by their grandfather, amounting to the sum of about $440. In 1869 the appellant filed in the office of the county judge an account as guardian, and again in 1872 he filed another account in said county court. The county court rejected and disallowed all the items of credit in said accounts so filed, excepting the sum of $12.22. No appeals were taken from the action of the county court in regard to these accounts by the appellant, and perhaps no appeal was allowable, or necessary to protect the rights of either party. Nothing further was done in regard to the guardianship of the appellant until June, 1886, when, upon the application of the respondents, the county court of Brown county cited the appellant to appear before that court and render a final account of his guardianship. In pursuance of said citation the appellant appeared before said county court, and rendered an account as such guardian, and after hearing the evidence of the respective parties the county court made the following-order and judgment therein:

“ On the 1st day of June, 1886, at a term of the county court, the said minors being represented by their attorneys, Messrs. Hudd & 'Wigman, and the guardian by his attorney, H. J. Huntington, after hearing proofs and allegations, the court found (1) that the guardian was duly appointed, and accepted the trust by giving bon'd in the sum of five hundred dollars, with Oasper Hansen as surety, which bond was accepted and .approved October 30, 1866; (2) that on the 1st day of May, 1869, *Thompson,*as guardian, presented to said court his account, which was on the 7th day of February, 1870, duly examined and passed on by the court; (3) that said *JuTAa*arrived at full age January 23, 1881, and said *Mcurthco,*July 28,1882, when they each became entitled to a full accounting by said guardian,— and ordered and *668adjudged that *Thompson*render a full account of bis guardianship on or before June 15,1886, and that the same be for examination and settlement at 11 o’clock a. m. on said day, and that five days’ notice of same be givén him.”

On June 15, 1886, at a term of the said county court, an order was entered reciting the appearance of both parties, the presence and examination of the guardian, and the following findings: *First.*That the amount properly chargeable to said guardian July 28, 1882, the date at which the youngest ward came of age, was $161.15; *second,*that the amount properly allowed and credited to him as of the date last aforesaid is $252.19; *tlwrd,*that the residue in his hands consists of money amounting to $514.96, as per Schedule A, hereto annexed; *fourth,*that the said *Julia*and the said *Martha*are entitled to said residue. Wherefore it is ordered and adjudged that the account of the guardian, as stated herein, be, and the same is hereby, approved and allowed. That the residue, $514.96, be assigned as follows: To *Julia,*$257.48, and to *Martha,*$257.48, each of said sums to bear interest from July 28, 1882, at 7 *%*per annum until paid. And that on payment of said sums the guardian be discharged.

From this judgment the guardian appealed to the circuit court of Brown county. The case was then removed to Outagamie county, and was there retried before. a referee appointed by the court to hear, try and determine the same. The referee made his report and judgment, and thereby found the same amount due from the guardian to the respondents as was found by the county court.1 The *669circuit judge affirmed tbe finding and judgment of tbe referee in all respects, and from tbe judgment of tbe circuit court tbe guardian appeals to tbis court.

*F. C. Cacly,*for tbe appellant.

. Eor tbe respondent there was a brief by *Sudd & Wig-man,*and oral argument by *T. B. Sudd.*

Taylor, J.

Tbe only matter in controversy between tbe parties in tbis case is whether tbe guardian should have been allowed more than tbe sum of $96 for board of said infant children while they bved with him, from 1864 to 1868. Tbe evidence- shows that tbe children lived in tbe family of tbe guardian from August 10,1864, to September 4, 1868. In bis account rendered to tbe county court tbe appellant made a charge as follows: “By expenses and services in caring for, clothing, and boarding said minors from August 10,1864, to September 4,1868, at $1 per week for each, *211i*weeks, $423.” Tbis item of tbe account was contested by tbe respondents, and be was allowed but $96 on tbe same, being the sum of fifty cents per week for each of tbe minors from tbe date of bis appointment, October 30, 1866, to September 4,1868, when said minors left tbe family of tbe guardian, and returned to their mother, who thereafter cared for them.

Tbe evidence shows that tbe guardian was tbe husband of tbe sister of tbe mother of tbe minors, and it tends to show at least that, when tbe children were taken into tbe family of tbe guardian, it was understood between tbe mother and tbe guardian that there was to be no charge made by him for their board. It also tends to show that *670be did not furnish them any clothing. The evidence also tends to show that when he was appointed guardian for the purpose of receiving the money left to the infants by their grandfather, the appellant stated to the mother that the interest on the money would clothe and school them so long as they remained with him, and it appears that he neither clothed nor schooled them while they lived in his family. It is urged by the appellant that, if he was entitled to anything for the board of his wards, he was entitled to recover more than was allowed to him, and that he should have been allowed for the board of the children from the time they first came into his family, August 10,1864, down to the time of his appointment as their guardian, October 30, 1866, as well as from the date of his appointment.

"We do not think the facts in this case are of such a character as to justify a court of equity in making any such allowance. It is evident to us that, had the mother supposed any such charge was to be made by her brother-in-law, she never would have consented to his appointment as their guardian for the purpose of receiving the small patrimony left to them by their grandfather, and that she would have found some way of supporting her infant children without applying a large share of it to the payment for their board while living with their uncle, when she had every reason to believe that no charge for board had been intended when they were taken into his family. Such charges for support previous to the guardian’s appointment are only allowed when there are the strongest equities in favor thereof. *In re*Besondy, 32 Minn. 385; *Villard v. Robert,*49 Am. Dec. 654, and cases cited in note on page 660. We find nothing in this case which entitles the guardian to any such allowance.

It is also urged that enough was not allowed for the board, during the time he was guardian and while the infants lived with him. That was a question of fact to be deter*671mined by tbe court below. Tbe allowance was probably fixed at tbat amount because tbe guardian in bis account rendered to tbe county court in 1872 charged at tbat rate for tbeir board. Under many of tbe authorities, no allowance should have been made to tbe guardian for tbe support of bis wards beyond tbe annual interest upon tbe estate in bis bands. See *Villard v. Robert,*49 Am. Dec. 654, and *Beeler v. Dunn,*49 Am. Dec. *761,*3 Head, *87.*And when tbe guardian claims for tbe board of bis infant wards when they are living in bis family, without first obtaining an order from tbe court to use tbe principal of tbeir estate to pay for such board, be must make a case which appeals strongly to tbe equity powers of tbe court. Tbe learned circuit judge refused to interfere in this case, because be thought be ought not to interfere because tbe board was furnished without first obtaining an order of tbe court permitting him to use tbe principal of tbe estate for tbat purpose ; and, although we are of tbe opinion tbat in a proper case tbe court might allow for such support out of tbe body of tbe estate without first obtaining an order for tbat purpose, we are not satisfied tbat tbe facts in this case would justify such an allowance, and, bad tbe trial court refused to allow anything beyond the interest of tbe estate in payment for tbeñ board in this case, we should have felt constrained to affirm such decision.

"While we are of tbe opinion tbat tbe orders of tbe county court made in this matter were not an estoppel against tbe defendant in this action, we think they were properly received in evidence for tbe purpose of showing tbe character of tbe claims made by tbe defendant in regard to this matter. Whether tbe decision of tbe county court allowing or disallowing any items of a guardian’s annual account when made and passed upon by said court as required by sec.'3972, E. S., would be conclusive upon tbe guardian or ward if not appealed from, were it not for sec. 10, Eule X, of tbe county *672court rules, need not be determined. Said sec. 10 of tbe rules declares that *“*no order of tbe court in reference to any annual account of tbe guardian shall be conclusive upon tbe final settlement of tbe guardian’s accounts, but upon sucb final settlement it shall be competent to examine and pass upon aE tbe guardian’s accounts subsequent to tbe time of bis appointment.” This rule must be held to be an authoritative declaration as to tbe effect which shall be given to tbe orders of the county courts made under said sec. 3972. See, also, *Willis v. Fox,*25 Wis. 646.

There can be no doubt but that tbe guardian should be charged with interest on tbe balance of tbe estate in bis bands. *In re Thurston,*57 Wis. 104.

*By the*Oourt.— Tbe judgment of tbe circuit court is affirmed.