#### *Mary Riddle*vs. *John*Riddle, administrator, *and others.*

A charge for board made by an administrator against infant distributees, who resided with him, he being their uncle, rejected on the proof.

The plaintiff, a distributee, haying been unreasonably tardy in the assertion of her right, interest not allowed her during the time she resided with the administrator.

An *ex parte*return *to*the ordinary in which an administrator strikes a balance against the estate, is not such an act as will giye currency to the statute of limitations in his fayor.

*Before*Waudlaw, Ch., *at*Kershaio, *June,*1852.

The decree of his Honor the Circuit Chancellor is as follows:

Waudlaw, Ch. James Riddle died in May, 1826, leaving a will by which he directed his whole estate to be sold, and made the following disposition of the proceeds: *“*the moneys of the same to remain in the hands of my executors to accumulate the maintenance and support of my two children, John Riddle, my son, and Mary Riddle, my daughter, that is I, the executor, do hind myself for the' welfare of John and Mary Riddle, that is to bring them up in a decent manner as the abi-*32littes of the case will admit, with common education, free from want, hound or bondage, till they arrive at the age of twenty-one. The moneys to he vested in the hands of the executors for support without extravagance; and when the said John and Mary come to the age of twenty-one, the balance of said moneys to he equally divided between the said John and Mary Riddle.” The executors appointed by the testator declined to act; and John Riddle, brother of testator, became administrator with the will annexed. He sold the whole estate of the testator on September *27,*1826, for $335. Immediately after the death of their father, the two children, John, then nine or ten years old, and Mary, then four or five years of age, began to reside in the house of their uncle, John Riddle, and remained there until the death of John on March 23, 1832, and Mary’s departure without leave in January, 1836. The children were poorly maintained and educated, and they labored according to their strength in the service of their uncle; but both were young, and John puny, so that their services were not very valuable. Whether the services of the children were equivalent to their board, and whether the administrator originally intended to charge them for board, are the principle questions in the case. On October 28, 1833, the administrator made his first and only return of expenditures, in which he sets forth no payment of money except $8, but charges each of the children for board at the rate of $47 a year ; and in this way exhausts the assets of the estate and' makes himself a creditor to the excess of $109 42.

On August 12, 1835, the defendant, John Riddle, conveyed his whole estate to James W. Cantey, in trust to sell the same at his discretion and pay all the debts of the grantor; then to permit the children of grantor to have certain specified uses of the estate during the life of the grantor; and upon his death to divide the residue equally among the children of grantor. It was admitted that the trustee had sold the estate and delivered the securities for the purchase money to the Commissioner of this Court, under certain proceedings not distinctly brought to my notice.

*33John Riddle, the administrator, died, insolvent, before June, 1848.

The plaintiff, Mary Riddle, has received the grant of the administration of her brother John. In her own right, and as administratrix and sole distributee of her brother John, she filed the original bill in this case, January 9, 1846, against John Riddle as administrator (and against his sureties, who were not made parties regularly,) for an account of her father’s estate. The administrator answered that he had exhausted the estate according to his return above mentioned, and he relied upon the statute of limitations. The matters of account was referred to the Commissioner, and that officer took evidence, and at June term, 1847, made a report, in which, submitting to the Court whether the administrator was entitled under the circumstances to charge board, he expressed the opinion, that, if the administrator was entitled to charge board, the estate of the testator would be exhausted, nay brought in debt to the administrator.

The plaintiff filed exceptions to this report, insisting in various forms that the administrator gratuitously supported the children, that their services were equal to their maintenance, and that he was not authorized to exceed their income in his expenditures for maintenance. For lack of time or some other reason, this report and these exceptions were not considered at June term, 1847, and in 1848 the administrator died; and at June term, 1848, the case of the plaintiff was marked abated. At June term, 1850, the plaintiff filed a bill of revivor and supplement, in which she charged the death and insolvency of the administrator, and that his estate was unadministered unless by the Ordinary as a derelict estate, and also set forth the execution of the trust deed aforesaid by John Riddle, and made the Ordinary, and the trustee, James W. Cantey, parties to the suit. The Ordinary answered that John Riddle left no estate' independent of that in the trust deed, and the trustee answered admitting the facts above mentioned as to the trust deed, and suggesting that the beneficiaries of the trust, the children of the grantor, were necessary parties.

*34In this state the case was presented for my determination. I think there is nqthing in the suggestion that the beneficiaries of the trust deed should be made parties. The legal estate is clearly in the trustee and he sufficiently represents the beneficiaries.

The defendants have not proved a state of facts in which the bar of the statute of limitations is applicable. It does not appear that the plaintiff had attained full age more than four years before she filed her original bill, and although there was considerable delay in filing the bill of revivor, this may be excused on the consideration that there was no representative of John Riddle’s estate. There is no irreparable breach of continuity *in*the suit.

The main controversy between the parties is as to the claim of the administrator to absorb the whole estate in the maintenance of the legatees. In general, one entrusted with the management of the estate of an infant, cannot exceed the income in providing maintenance for the infant, without the previous leave of the Court or upon some sudden emergency. But a different rule may be established as to a particular estate by a testator or other person creating the trust. The will in the present case is drawn inartificially and is obscure, but as I construe it, particularly that the monies shall be *vested*in the executors for the support of the legatees, and that the *balance*shall be divided, some discretion in expending the *corpus*of the estates in maintenance of the children is given to the executors ; and I suppose the administrator on the will succeeded to the authority of the executors in this respect. The awkward phrase, *to accumulate the maintenance,*has the same bearing. Still the trustee is bound to show that he has exercised such discretion judiciously; and a more liberal construction of his conduct should be made where he has expended the *corpus*of the estate in payments to others, than where he claims to retain it for maintenance furnished by himself. Wherever a father or other near relative of the infants is the trustee, in such case, he should show distinctly his purpose to charge for mainte*35nance; or maintenance before such manifestation may be justly inferred to be afforded gratuitously. If the trustee exact from the infants all such labor and service as they are capable of rendering, the inference is especially strong that he expected no compensation for board beyond their services. *Booth*vs. *Sineath, 2*Strob. Eq. 31. In the present case the trustee did not manifest his purpose to charge his wards for board, until seven years after their residence with him began and after the death of one of them, and he availed himself of their labor to the full extent of their- capacity. Much contrariety of evidence exists on the naked question, whether their services on the whole were equivalent to their board — hut setting aside the testimony of the daughters and sons-in-law of the administrator, who have an interest in the matter, the clear preponderance is in the affirmative of the question. But a circumstance remains to be mentioned which seems conclusive of the matter. The administrator repeatedly declared that he had invested the funds of his testator in the purchase of a,negro woman, for the reason, that the increase of the slave would afford more profit to the children than interest on the money, and according to one witness, said, the children, when they attained full age, should have the negroes or the money at their option.

These views lead me to the conclusion that the administrator’s claim for board should be rejected. On the other hand there has been unreasonable tardiness in the assertion of the plaintiff’s right; and as the allowance of interest is to some extent a matter for judicial discretion, I am of opinion no interest should be allowed to plaintiff until after January, 1836, when she left her uncle’s house.

It is ordered and decreed, that the Commissioner re-state the account on the principles of this opinion. Parties have leave to apply for any other orders which may be necessary, to the execution of the decree. Costs to be-paid out of the estate.

The defendants appealed and now moved this Court to reverse the decree or to modify the same upon the grounds:

1. Because his Honor should have allowed compensation *to*
      *36John Riddle, the administrator, for board and maintenance, clothing, &c.

2. Because the claim was barred by the statute of limitations, and especially the claim of complainant as administra-trix of her brother John.

The complainant also appealed on the ground, that the decree should have allowed complainant interest on the fund in the hands of the administrator, arising from the sales of the property under the will, from the time the money from the sales became due, or the expiration of twelve months after administration.

Kershaw, for defendants,

cited White and Tud. Lead. Cas. 164.

Clinton, for ■ complainant,

cited Harp. Eq. 224 ; McM. Eq. 275.

The opinion of the Court was delivered by

Dunkin, Ch.

In reference to the complainant’s ground of appeal, and the first ground of appeal on the part of the defendants, this Court is entirely satisfied with the views and the conclusions of the Chancellor.

Assuming that the legal representative of John Riddle, the elder, is now before the Court, and relied upon the plea of the statute of limitations, in the same manner as the intestate did, it seems to the Court that it was properly overruled. John Riddle was the administrator *cum testamento annexo*of his brother "James Riddle, under whose will the plaintiff claims. He was a direct, technical .trustee, and, as such, could never avail himself of the statute so. long as that relation subsisted. If the complainant had not filed a bill for account until June, 1850, she would be entitled to relief unless the defendant could establish some act on his part purporting to be a discharge of his trust, or unless such a length of time had elapsed as would authorize the Court to presume the demand satisfied. The latter is not suggested, and the position would be obviously untenable from the condition of the parties. Nor could it, with *37more reason be surmised that he had done any act *’purporting*to *be*a *discharge*of *his trust.*It is true that, after the death of plaintiff’s brother (a minor,) and when the plaintiff was about eleven years of age, the administrator made his first and only 'return to. the Ordinary. It did not purport to be, and could not be, a *settlement*of the estate, or a discharge of, the duties which he had assumed when he undertook to execute the will of his brother. If an *ex parte*return to the Ordinary, in which an executor or administrator strikes a balance against the estate, should be regarded as a discharge of his trust, from which time the statute would run against a bill to account, it would be an alarming disclosure, as well to creditors as to legatees and distributees of the deceased. But the defendants have not insisted on this; nor is any other act of discharge suggested. The complainant was not bound to file her bill within four years after she arrived of age, and could only be precluded by such lapse of time as would bar m any other case of direct trust. Whatever was due to the complainant constituted a debt at the time of the execution of the deed to J. W. Cantey, who, thereby and by the express provisions thereof, became a trustee for the creditors of John Riddle, and, for the reasons stated, the statute could not avail him against the complainant’s demand.

It is ordered and decreed, that the decree of the Circuit Court be affirmed and the appeal dismissed.

Johnston, Dargan and Wardlaw, CC., concurred.

*Decree affirmed,*