#### *Booth and wife*v. *Sineath and wife.*

Charleston,

Jan’y, 1848.

The Court refused to order an allowance to a guardian (who was the for the maintenance and education of his ward, where she had lived with him, and it appeared that he had expended nothing on the same — and where he 'had never made such charge in his returns to the Commissioner.

Commissions were alloweda guardian on moneys received for his ward, although not regularly accounted for — also on the sum found due by him, and ordered by the Court to be paid over to the ward.

It is the duty of every trustee submitting his readiness to account, to file with his answer a statement of his account.

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

The bill states that the defendant intermarried with Rebecca Broxson, widow of Henry Broxson, and mother of complainant, Henrietta Booth, sometime in 1832 or 1833, and that in February, 1833, he was appointed guardian of the person and property of complainant, then an infant of not more than two or three years.

That the estate of complainant consisted of two-thirds of a valuable tract of land and three hundred and forty dollars, which was received from time to time in various sums, from 1834 to 1836, the greater part of which was received in 1834 and 1835.

That the defendant never filed or passed any accounts with the Commissioner from the time of his appointment as guardian, until the year 1836, a space of three years.

That no further account was rendered by defendant until 1841, when he rendered an account for the years 1837, 1838, and up to January, 1841, in which no mention is made of the said sum of $340, or of the interest which had or ought to have accrued thereon. And that defendant stated, under the solemn obligation of an oath, that complainant was entitled to no other property than the aforesaid tract of land.

That in Febi uary, 1844, another account was filed, in which the same statement was made, since which, no account has-ever been made.

The complainant intermarried on the 8th day of October, 1846.

That whilst complainant was sole, and living with defendant and his wife, she was employed by them as a common servant and drudge, even so far as to be required to feed the horses of defendant, and the little education she received was from the Free School Fund.

That her clothing was derived from the labor of her own hands, in spilling and weaving for the defendant and his family.

*32The bill further refers to a copy of defendant’s account, and prays,

That defendant may be held to a strict account for the priu-cipal and interest of the aforesaid sum of money, and the rent arising from the land, and that he may be decreed to pay over the same.

The defendant admits that he intermarried with Rebecca Broxson, widow of Henry Broxson, as stated in the biU, and that in February, 1833, he was appointed guardian of Henrietta Broxson, then a minor two or three years old. That her estate at that time consisted of two-thirds of eight hundred acres of land, and a small amount in money due the estate of Henry Broxson, which has been since collected by defendant, and due return thereof made to the Commissioner in Equity tor Colleton district, from time to time, as will appear by his returns, on file in that office. That from the time of his intermarriage with complainant’s mother, until her intermarriage with Win. Booth, he supported, clothed and educated his ward in the same manner that persons of her class in the same neighborhood, were supported, clothed and educated.

That he always intended to charge the estate of his ward with such sum as was reasonable for her support and maintenance, but was informed by Malichi Ford, then Commissioner in Equity for the district aforesaid, that it was unnecessary to make such charge until he had a final settlement with his ward, when this Court would allow him such compensation for the maintenance of his ward, as was reasonable and proper under the circumstances.

The defendant admits the marriage of complainant, and ■ has been ready and willing to settle with them, andpay what sum was found tobe due, after deducting a reasonable allowance for the maintenance and education of said Henrietta, from the time he became her guardian until she arrived at sufficient age to labor for her support, and prays that an account of the maintenance and education furnished by him to the complainant Henrietta Booth, from the time of his appointment as guardian of her person and estate, to the time of her marriage, may be taken, and that he may have due allowance therefor.

The answer was sworn to, before A. Campbell* Commissioner, on the 1 st of February, 1847.

His Honor delivered the following decree.

Dunkin, Ch. On hearing the bill and answer in this case, and the evidence, by which it appears that Jesse S. Si-neath, as guardian of Henrietta Broxson, filed an account with the Commissioner of this Court, on the 22d day of February, Anno Domini 1836, by which he was indebted to his ward in the sum of three hundred and forty dollars 45 cents; that *33from above date he filed no accounts with the Commissioner, until the year 1840, when the aforesaid sum was neither included nor mentioned — so too, in 1842 and 1844 lie again filed and passed other accounts without reference or mention of the said sum of three hundred and forty dollars 45 cents; and as the other account: are for land rent, i'or which no account is desired, and the prayer of the bill for partition being abandoned, and all the above facts being fully sustained by ample proof — it is therefore ordered and decreed, That the defendant Jesse S. Sineath, do pay to the complainants the sum of three hundred and forty 45-100 dollars, with interest thereon, from the first day of January 1837, up to the day of final payment thereof, and that complainants have their execution therefor, and that the costs be paid by defendant.

Bice’s Eq. 2.

The defendant appealed,

1. Because his Honor refused to order a reference on the accounts of defendant, as guardian of complainant, to ascertain the real balance due by him.

2. Because his Honor refused to order a reference to ascertain what was a reasonable allowance to give defendant for the maintenance and education of his ward, on the ground that he had made no such charge in his accounts with the Commissioner, when the answer gives good and sufficient reasons for not doing so.

3. Because the decree does not allow defendant commissions on the money received for his ward.

4. Because the decree is, in other respects, contrary to Law and Equity.

Cab.N, for appellant.

Edwards & Williams, contra.

Dunkin, Ch.

delivered the opinion of the Court.

The circumstances detailed in the pleadings and evidence, well warranted the conclusion of the Chancellor, on the subject of the defendant’s claim for board and maintenance. Neither in the answer or at the hearing, was any suggestion made in relation to commissions. It is the duty of every trustee submitting his readiness to account, to file with his answer a statement of his account. But no exception was taken to this omission. The second ground of appeal is “ because the decree does not allow the defendant commissions on the moneys received for his ward.” This Court is of opinion, that the defendant is entitled to the charge of commissions, but it is not necessary to send the case back. Allowing the commissions, the balance due by the defendant on 1 January, 1837, was $329, instead of $340 45. This sum, with interest to 1 Jan. 1847, amounted to five hundred and eighty-two dollars, and, deducting commissions on this balance as if paid, according to *Vance*v. *Gary,*the balance then due would *34be five hundred and sixty-seven dollars fifty cents. It is or-¿erecj. an¿ decreed, that the defendant pay to the complainant this sum, together with the costs of the proceedings, as provided by the Circuit decree.

The whole Court concurred.

*Decree modified.*