#### *J. P. Prince and wife*vs. *William Logan.*

1. As a general rule, the Court will not sanction an encroachment on the capital of a minor’s estate. If the estate is large, the income should he sufficient. If it he inconsiderable, the income should aid in supporting the minor, if necessary. In those cases in which the Court will permit the application of a portion of the capital, the emergency should he great, and the expediency manifest.

2. A. D. was appointed guardian of his sister, the wife of complainant, in 1830, and made regular returns until December 1836. The capital of the ward’s estate was $662,94 ; the annual income not quite $50, and th e aggregate of interest about $240. The entire expenditure of the guardian until his last return was about $130, leaving from the income about $110. Until 1832 it was inferrible from the testimony that the family were living together. Tlje negroes of the mother worked on the farm. No charge was made fog: board in the returns of 1831 or 2, nor until the return of June 1833. The guardian made returns in June and December, 1833, and in April 1836. No charge was made for board after June 1835. Allowing board from June 1832 to June 1835, it was held that $110 was not so inadequate as to warrant an encroachment on the capital of the minor’s estate, it appearing also that the ward and sister of the guardian resided on the farm with him,j|and that he had not paid any sum for board.

3. In each annual return of the guardian was a charge of $4,00, paid to the commissioner and register for passing the’account. There is no warrant for this charge. The Act of 1827 is explicit; “for examining and filing each return of a guardian or trustee, one dollar.” The additional $3 is for a supposed report made in each case. No such report is made, or required to be made. The Commissioner is required to make one general annual report of all guardians who have made or failed to make their returns.

*Before*Dünkin, Ch. *at*York, *June*Term, 1842,

The facts of this case are fully presented by the reports of the commissioner, the complainant’s and defendant’s exceptions, and the decree.

*Commissioner1 s Report.*

On the 2d day of July, 1830, Amos Davis was appointed by this Court the guardian of the estate of Mary A. Davis and Sarah C. Davis, now Mrs. Prince, wife of the complainant J. P. Prince. On the 30th of October of the same year, he ex*30ecuted his bond with Gordon Moore as security. After-wards, by leave of the Court, William Logan and Sarah Davis were substituted in place of said Gordon Moore, and joined said Amos Davis in another bond for the faithful performance of his duties as guardian aforesaid. Said Amos Davis made regular returns to the Commissioner of this Court from the time of his appointment up to 1836, when he, with his wards, and Sarah Davis, one of his securities, left this state. Amos Davis has since died, and is totally insolvent, as it is alleged, and without administration having been taken out upon his estate. The bill in this case was filed to make the defendant, William Logan, account to the complainants for their portion in the hands of their guardian aforesaid. At June Term, 1840, the matter of account was referred to the commissioner. On the reference no evidence was offered to charge the ddfend-ant, so far as Mary A. Davis was concerned; and it was stated, and seemed to be admitted, that since the filing of the bill in this case she had married and died. .

In making up the account between the defendant and Mrs. Prince, I have allowed the defendant credit for sums paid by Amos Davis, and boarding his ward, which together exceed the income of the estate, and to meet which the guardian had to break in upon the capital of the estate. As a general rule, the Court will not suffer a guardian to touch the capital of the estate in his hands, without special leave. But under particular circumstances the Court will sanction the guardian in doing that which the Court would have allowed. The credits allowed are' for boarding, cash paid for tuition fees and clothing, all of which were necessary and proper. I have rejected some credits allowed to the guardian by the former commissioner in his .settlement, because there was no proof before me as to their payment by Davis. I have allowed the defendant no interest on the balance in his favor. According to the plan adopted, the amount due by the defendant on the 1st of June, 1841, was §404,96. Should the Court decide that I have erred in allowing the defendant credit for sums exceeding the income of the estate, then the balance due will be §800,23, the capital of the estate, deducting, I suppose, the commissions for receiving and paying out.

*31
      *Complainant's Exceptions.*

The complainants, J. P. Prince and wife, except to the commissioner’s report in this case, on the following grounds.

*First.*Because the commissioner has allowed charges made by the guardian, Amos Davis, against his ward Sarah C. Davis, to an amount greater than the income of her estate — whereby the principal sum which went into his hands is diminished near one half.

« *Second.*Because the commissioner should have charged the defendant with the sum of eight hundred dollars and twenty-three cents, the amount of the estate of Sarah C. Davis, (now Sarah C. Prince,) with interest from January, 1836 — as no return has been made or proof offered of expenditures made by Amos Davis, for his ward, since that period — and the principle adopted by the commissioner, of allowing the excess of expenditure beyond the income, would in effect be allowing him to break in upon the capital of his ward.

*Third.*Because the commissioner has allowed usual commissions, when the guardian is only entitled to commissions for receiving, his return having been made singe 1836, and no sum paid to his ward.

*Defendant's Exceptions.*

The defendant, William Logan, excepts to the report of the commissioner, on the following grounds :

*First.*Because the commissioner should have allowed to the defendant all credits allowed to the guardian, Amos Davis, in his settlements with the commissioner in Equity.

*Second.*Because the commissioner has not allowed the defendant interest on the credits.

*Report of*Commissioner, *June*Term, 1842.

It being referred to the commissioner to ascertain and report how much of the amount received by the guardian, Amos Davis, was principal, and how much interest; also, what would be a suitable allowance for the board of Sarah C. Davis, if any thing should be allowed—

He begs leave to report, that from an examination of the proceedings in partition of the estate of Elnathan Davis, he finds $662 94 cents, the principal amount received by Amos Davis, and that interest computed on the sum of *32$392 85, from 1st October, 1832, and on the sum of $270 09, from the 1st January, 1832, up to this time, would be the interest.

The commissioner then reports the principal amount received by Amos Davis, $662 ,94

And interest up to the 22d January, 1842, $457 34

Making principal and interest, $1120 28

The commissioner would further report, that the guardian charges himself with $9,40 received upon the bond of J. Williams, which does not appear from the return whether it was all principal or a part interest.

The commissioner would further report, that from the testimony offered before him, he would suggest six dollars per month, as a suitable allowance for the board of Clarissa Davis, That there is no evidence that she was ever engaged in any of the duties of the household — but on the contrary, all the testimony seems to conflict with that idea. One thing- is certain, that from the testimony of the witnesses, Amos Davis was unable from his circumstances to hoard his sister for nothing.

Dunkin, Ch. This case was heard on report and exceptions,

The estate of Elnathan Davis, the father of Sarah Clarissa Prince, (formerly Davis,) was divided in 1830 and 1831. At the time, the widow and children resided on the farm. At the division, the real estate was set off to Amos Davis, brother of Clarissa, and who had been appointed her guardian. He was to pay her for her share of the realty, $270 09, with interest from 1st January, 1832, Two of the negroes, Ben and Sylvia, were allowed to the widow, the remainder to Amos Davis, who was to pay Clarissa for her share of the personalty, $392 85, with interest from 1st October, 1832. It seems that the capital thus amounted to $662 94.

There was another sister, who is since dead. The girls were small at the time of their father’s death.

The returns of Amos Davis, as guardian, were duly rendered, until December, 1836, after which he removed from this country, and is since dead.

*33In the account filed with the commissioner’s report, the guardian is allowed credit for sums exceeding the annual interest on the ward’s capital. The complainant is content that the interest should be absorbed, but objects to any allowance beyond that sqm.

It is conceded as a general rule, that the Court will not sanction an encroachment op the capital of the minor’s estate. If the estate is large, the income should be sufficient. If it be inconsiderable, the income shquld aid in supporting the minor, if necessary. 38 at there are cases in which the Court permits the application of a portion of the capital. The emergency, however, should be great, und the expediency manifest- it contended that this case constitutes such an exception, and that as the Court would originally have authorized the excess of expenditure, it will now sanction it.

The annual incqme of the ward!s estate was nqt quite $50. Cjlosing the account in Dec. 183(5, the aggregate of interest would be about $24Q. Deducting the charge for board, (on which the Court will presently commept,) the entire expenditures of the guardian during these years, ac? cordipg to his own returns, was 145,51. Scarcely any thipg was paid until the last two years.

It has been said, that the guardian made his annual re? turps, six in number. In each returp is a charge of $4 paid to the commissioner and register for passing the account. There is no warrant for this charge. The Apt of 1827 is explicit; “ for examining and filing each return of a guardian or trustee, one dollar.” The additional $3 is for a stipposed report, made in each case. No such report is inade or required to be ipade. The commissioner is required to make one general annual report of all guaidians who have made, or failed to make, their returns. If no compensation is allowed for this, it is, or may be, proper matter for the Legislature. But the impropriety of allowing such charges, is fully illustrated by the returns in this case. In the first year, nothing was receiyed, and there was one payment of seven dollars, besides the four dollars for making the return, or settlement as it is termed. The second year, the sum of $9,40 was received, and 2,11 paid away — and in making this return, the estate was charged *34$4. The two next years are scarcely different. This misapprehension on the part of the officer, works an injury to those who are least able to bear it, and it should be corrected.

The entire expenditure of the guardian, then, till his last return in December, 1836, was about $130, leaving from the income about $110.

Then as to the board — It is very questionable whether any allowance should be made for board, until after the year 1832. The Court rather infers from the testimony, that the family were living together. The negroes of the mother worked on the farm. No charge for board is made in the returns of 1831 or 1832, nor until the return of June, 1833. Again, the guardian made returns in June, 1835, December, 1835, and April, 1836. No charge is made for board after June, 1835; but allowing board from June, 1832, to June, 1835, the only inquiry is, whether the sum of $110 is so inadequate as to warrant an encroachment on the capital of the minor’s estate.

This would allow the guardian *nearly*$40 per annum. It is to be observed, that he has not paid this, or any other sum, for board, but his ward and sister lived on the farm with him. The testimony is loose and inconclusive enough; but if under the circumstances stated, an application had been made in June, 1832, to encroach on the capital, in order to ailow a larger sum than $40 per annum for board, the Court would not have regarded this testimony, as presenting a case sufficiently strong to authorise a departure from the ordinary rule.

It is ordered and decreed, that the defendant pay to the complainants, the sum of six hundred and sixty-two dollars and ninety-four cents, with interest from 31stDecember, 1836, deducting therefrom, a commission of two and a half per cent on the aggregate amount of principal and interest so to be paid.

Benj. F. Donkin.

[L. S.] Sealed and examined, Sept. 19th, 1842.

W. I. Clawson, c. e. y. d.

*35South Carolina, )

*York District. )*

I,W. I. Clawson, Com’r. inEq’ty. for York district, do certify that the above and foregoing is a true copy of an original report, filed in my office in this case.

In testimony whereof, I have hereunto set my hand and seal.

W. I. Clawson, c. e. y. d.

Nov. 13, 1842.

The defendant appealed, on the following grounds :

1. Because his Honor refused to allow for the board of Clarissa Davis.

2. Because his Honor should have overruled complainant’s exceptions to commissioner’s report.

3. Because his Honor erred in deciding that this case was not one which would justify a breaking in on the capital of the estate of ward.

4. Because his Honor should have decreed the complainants to pay the costs, as they never called on the defendant to account before the filing of the bill.

Williams and Witherspoon, for the appellant.

Dawkins and Allston, contra.

*Per Curiam,.*

This Court concur in the views taken by the Circuit Chancellor. The appeal is dismissed.

Harper, Ch., absent.