#### *B. Villard and wife*v. *Robert and Chovin.*

Charleston,

Jan’y. 1848.

A guardian will not be permitted to expend upon the maintenance and education of his ward, more than the income of the estate, without the sanction of the Court.

*Before*Dunkin, Ch. *at Gilltsonville, February Sittings,*1847.

In this case Chovin, as administrator with the will annexed of M’Kenzie, (Mrs. Yillard’s father) received about $2500. This fund belonged, under M’Kenzie’s will, to Mrs. Yillard and Mrs. M’Kenzie — the latter of whom Chovin married, and thus became entitled to half the fund.

Chovin expended the *whole*fund (except about $200) on Mrs. Villard — as well his part as hers. Among other items in the expenditures for Mrs. Yillard, there were a Piano, a Harp and a Wardrobe, amounting to about $250 or $300.

When the case came up for a hearing on the commissioner’s report, the complainants, Yillard and Wife, made the objection that Chovin had no right to expend Mrs. Yillard’s share of the fund on her, but ought' to have limited his expenditures to the interest of the fund. They also excepted as to the hire of Nancy and her family. Nancy had been bequeathed, by the testator M’Kenzie, to his widow and daughter, to be fully and peaceably enjoyed by them, during the minority of his daughter, or until she married. — Since the death of the testator, Nancy had borne seventeen children, of whom six were alive.

Upon the exceptions, &c. his Honor pronounced the following decree.

Dunkin, Ch. In the case of *Yillard*v. *Robert's exix. and others,*the first question arises under the exception that the account, amounting to $2847, “is an expenditure of the capital of the fund.”

No charge whatever, is made against the complainant by Chovin, until 1836, when he received funds from the representatives of her father’s estate. About $1500 of the account is for expenditures scarcely falling within the terms “support and maintenance,” but for higher branches of education and elegant accomplishments. But a trustee should never permit such disbursements to encroach on-the capital of the minor’s estate, without the previous sanction of the Court, which is only granted in cases of urgent necessity. But as the principal expenses were in the years ”'6, ’39,- ’40, ’41 and ’42, it is deemed not inconsistent with the requisitions of this exception on the part of the complainant, that these charges in the account, may be deducted from the income received during a series of years, provided the capital remain unimpaired.

*414 Vesny, Jr.-369

3 Bra. c. C. 60 — 401.

íóo.

Then as to the hire of Nancy. In 1826, at the death of McKenzie, Nancy had no issue. It was stated, at the hear-t ing, that between that time and 1845, she had borne seventeen children, of whom six were alive at the date of the commissioner’s report. By the will of McKenzie his property (including Nancy) was bequeathed to his “widow and daughter, to be fully and peaceably enjoyed by them, during the minority of his daughter, or until she married,”

If there were any profits arising to the defendant from the possession of Nancy and her increase during this peried, he must account for them. But, as was ruled by Chancellor Johnston, at Walterboro’ in the case of *Pye and Wife*v. D. *Carr,*I think he is entitled to an account of the expense and trouble of raising young negroes, and that the profits or hire to be charged should be estimated in reference to this consideration.

It is ordered and decreed that the commissioner state the accounts on the principles herein declared.

The defendant, A. E. Chovin, appealed from the foregoing decree, on the following grounds:

1st. Because it is respectfully submitted that the defendant Chovin ought to be allowed the charges in his account for the education and other necessary expenses of Mrs. Villard; for although it be true, as a general rule, that a trustee ought not to exceed the capital, without lea'-e, yet if the expenditures be such as the Court would have allowed if leave had been asked, they ought to be allowed in an account which is otherwise fsir, just and liberal, as this is, for the executor (Chovin) expended not only Mrs. Yillard’s share of the estate on her but his own also.

2d. Because his Honor has not decreed that the complainants should surrender to the executor Chovin, the piano, wardrobe and harp, as it was contended at the hearing they should do, if they repudiated his account, and held him to a strict settlement, for they ought not, in equity, and good conscience, to keep these articles and make Chovin pay for them.

Colcock, Solicitor for defendants.

Martin, for complainants.

Colcock, *Solicitor for Chovin.*In the case of *Lee*v. *Brown,*the Master of the Rolls says: “If this had been such a case that the Court would have authorized the act that was done, I desire to be understood that it would be considered as properly done ; for the principle has been established since *Andrews*v. *Partington,*that, if an executor does without application what the Court would have approved, he shall not be called to an account, and forced to undo that merely because it was done without application.”

In the case of *Howe*v. *Earl of Dartmouth,*the *42Chancellor said “Lord Kenyon, who was a repository of Val-liable knowledge, produced a dictum of Lord Nort.iington, the Court would protect an executor in doing what it WOnld order him to do. The Court in this case would order him to do that,” &c.

Morton etvx. ! 123.

l Vern. 255. 3 Bro. C. 179.

M-lowv Williams,' 558. ’ ^VotTÍtTM7

“Money laid out on a child’s education has been allowed out of the principal of a legacy, and was considered most ad-anc* beneficial to the infant.”

“Executors cannot justify paying a legacy payable at 21 to the infant or for his use, except for express necessaries.” Con-must be true—

“If an infant borrows money to pay for necessaries, he is liable”

Cited McPherson on Infants, sec. XT, page 253, for cases where the Court will break into principal for maintenance and e^ucat'on'

Dakgan, Ch.

delivered the opinion of the Court.

The defendant, Chovin, was not the guardian of the complainant’s wife, but the administrator *de bonis non*with the will annexed of her father’s estate. By virtue of his administration he became possessed of the estate of the complainant’s wife, who was an infant, and' who resided with him, he having married her mother, the widow of the testator, Daniel 'W. McKenzie. In settling with the complainant’s wife for the share to which she was entitled under her father’s will, the defendant, Chovin, set up charges against her for disbursements made in the way of maintenance and education, which, if they do not swallow up, encroach largely on, the capital of her estate.

The Chancellor’s decree disallowing those charges that encroached upon the *corpus*of the infant’s estate, was in accordance with the plainest principles which govern the decisions of this Court in cases like the present. Placing *the*defendant in the most favorable point of view, and regarding him in the character of a guardian, such must be the result.— A guardian will not be permitted to expend upon the maintenance and education of his ward, more than the income of the estate, without the sanction of the Court. The Court itself, on an application, proper as to time, would proceed with the utmost degree of caution, and would withhold its sanction, except in a case of strong necessity or advantage to the ward, *very*clearly made out. In a case where the ward had considerable expectancies, or his estate had not yet been reduced to possession, or he was likely to suffer for the common necessaries of life, or exhibiting fine talents, it was dpsirable to expend his small estate in his education, with a view to his future advancement m life; in these and similar instances of necessity or advantage to the ward, the Court would authorize the expenditure of the capital of his estate. *43The Master of the Rolls in *Walker*v. *Wetherell,*says “ my impression is, that the rule has been never to permit trustees, of their own authority, to bleak in.upon the capital. I am not aware that the Court has ever sanctioned that conduct in a trustee. It very rarely has occurred, that the Court itself has broken in upon the capital for the mere purpose of maintenance; though frequently for the purpose of putting the child out in life; but as to mere maintenance, I doubt it, even upon a petition presented. It is a great misfortune if the capital is so small as not to leave a comfortable maintenance and education ; but what can the Court do?

'

& wife v- Logan, Speer¿c*-' '

*"*But whatever might be done upon particular circumstances, it is impossible to sanction a trustee in breaking in upon the capital. There are *no*particular circumstances in this instance upon the one side or the other. It is not shown that there were expectancies of fortune, which made it necessary to provide a suitable education. The capital might be exhausted in a few years. On the other hand, no particular extravagance upon the part of the executor appears. On the contrary, applications were made to him by some of the executors, stating that the children could not live upon the interest. This claim is therefore ungiacious. But it is ter that an individual should suffer a hardship, than that a general rule of the Court should be broken through, in a point that would endanger the interests of all children.”

When we turn to the facts of the case under consideration, we find that the expenditures were in the highest degree improper, and such as would not have been sanctioned if an application had been previously made to the Court. They were for an expensive education, a piano, harp, wardrobe, &e., that were unsuited to the condition and estate of the infant.

It was said in the argument, that Mrs. Villard had other estate or expectancies ; but to what amount was not stated. Such a fact, if it existed, does not appear in the brief, nor in the Master’s report, as it should, and was not submitted to the Chancellor. But if it had, I am not prepared to say, that it would have varied the decree. The objectionable expenditures run through a course of years, during which it was easy to have made application for the sanction of the Court. An expenditure made upon an emergency, suddenly arising and acted on by the guardian, might afterwards be sanctioned by the Court, where it proved to have been for the benefit of the ward. But these unauthorized encroachments upon the capital, by the guardian or trustee, are not to be encouraged, and it must be a strong case that would be exempt from the operation of the general rule.

As to the second giound of appeal, that the Chancellor did *not*decree a restoration to the defendant of the piano, harp, *44(fee., it is sufficient to say these questions were not made in tjrie p|eachtjgS. Jf Mr. Chovin has a right to these articles, he must assert it in the.proper way.

qqie decree of the Circuit Court is affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*