Sims, J.,
after making the foregoing statement, delivered the following opinion of the court.
*50There are five assignments of error by appellant. They will be considered in their order as stated below.
[1] 1. That the 5% commissions which were allowed appellant in his ex parte settlement as administrator of S. H. Bliss, deceased, was disallowed by the decree under review — that “when the court came to enter said decree complained of it took as a basis the whole amount of money and other personal property coming into petitioner’s hands as administrator and allowed no credit for said commissions.”
The decree in this particular was based on the master commissioner’s report, to which no exception was taken by appellant and as the disallowance of such commissions does not appear on the face of the report, this assignment of error comes too late under the well-established rule 'on the subject.
But if we look to the evidence in the record, on- which the master commissioner’s report and decree were based, we find that there is an error of fact in this assignment of error. The decree under review held that $5,998.82 was the amount of the estate of the ward which came into the hands of the guardian from the estate of S. H. Bliss, deceased. This was the net amount thus derived as per said ex parte settlement and as per the master commissioner’s report mentioned in the above statement of the case, and was left in the hands of the appellant after allowing him 5% commissions as administrator of S. H. Bliss, deceased, on all of his receipts, including 5% on the $10,000 value of the twenty shares of Farmville mill stock.
Hence, there is no merit in this assignment of error.
2. That the decree, while allowing appellant commissions as guardian, did not allow same until the end of the account in September, 1917, whereas such allowance should have been made at the beginning of the guardianship account, tó-wit: in the year 1911.
*51There is also an error of fact in this assignment of error. The decree expressly provides that the guardian shall “be credited with 5% on the $5,998.82 received from the administrator as of September, 1911.”
Hence there is no merit in this assignment of error. But it should perhaps be here stated that it will be seen below in this opinion that we have reached the conclusion, which is hereinafter set forth in detail, that the guardian has forfeited a part of such commissions, under the statute in such cases made and provided.
3. This assignment of error is as follows:
“3rd. That the court, by said decree, has fixed the sum of $250.00 per year as a reasonable and adequate one for the support and maintenance of your petitioner’s ward during the years 1911 to 1916, inclusive. Your petitioner submits that the trial court seems to have arrived at these figures arbitrarily, since R. W. Garnett,, on page 35 of the record, testifies that he considered $40 the proper amount per month for the support and maintenance of said ward, and Mrs. M. T. Garnett, on page 25 of said record, states that she would say $30 to $35 per month was necessary for the support and maintenance of said ward; that both of 'these witnesses, uncle and aunt, respectively, of said Phil-lippa Spencer, were summoned in her behalf and that theirs is the only evidence before the trial court, other than the evidence of this petitioner, which seeks to show the proper amounts necessary for the support and maintenance of said Phillippa Spencer; that taking the lowest figures of Mrs. Garnett, the annual support for the said Phillippa Spencer would be $360, and taking the figures of Mr. Gar-nett, it would amount to $480. Your petitioner claimed ■and introduced evidence to show that for a girl of the kind and station of his ward a sum per annum of something like $600, on an average, was not excessive, but necessary and proper; and that all his expenditures in her behalf *52were made in good faith, and according to his best judgment.”
There is no evidence in the record which we have been able to find tending to show that for a girl of the kind and station in life of said ward a sum of something like $600 per annum on an average was not excessive, except the testimony of the guardian, to the effect that he made about that expenditure and his testimony in one place to the effect that he considered such expenditures essential and necessary.
At other places in his testimony, however, the guardian shows that during the whole period from September 1, 1910, he did not exercise any control over such expenditures, except to remonstrate with his ward and at times with her uncle-in-law, Mr. Garnett; that he allowed the ward, a girl of twelve years of age in September, 1910, and who had only reached the age of eighteen years in 1916, to herself control the amount of her expenditures. As he testifies, “She did the buying; I did the paying.”
It is true the guardian testifies that he had conversations with his ward “I reckon a hundred times. I have told her she was spending too much and spending it too fast, and I also told her uncle, R. W. Garnett.” But he made her no definite allowance to spend at any time; made no effort, after the first year from September, 1910, to keep her expenditures within her income, as he himself admits in his testimony, except to remonstrate, as aforesaid, after the bills were made and when or after he paid them. And during the first year from September 1, 1910, the expenditures were approximately $500.00 and the next year approximately the same amount, so that it is apparent that the effort testified to by the guardian to restrict expenditures the first year of his guardianship, was not substantially different from his action in that regard in succeeding years.
[2] It should be said, in justice to the guardian, that *53"there is no suggestion in the evidence of the existence of any bad faith or turpitude on his part in all of his transactions. But the testimony of the guardian himself is to “the effect that he did not himself regard the expenditures in excess of the income as judicious or proper. And the evidence plainly establishes the fact that he abdicated his ■authority and control over the estate of his ward and the income therefrom and over the conduct of the ward in the matter of expenditures. Such abdication may have been due to the very affection of the guardian for his ward or to some other cause, but to whatever cause due, it constituted a plain dereliction of the very duty which the office of guardian is created to perform, and no guardian can devolve such duty upon his ward, even with the consent of the latter, or upon any other person, or thus escape responsibility for injudicious and unreasonable disbursements in excess of the income of the ward which are made without authority of the instrument under which he acts, if there be such, or, if there be none such, without previous authority of the court.
[3] Touching the disbursements by a guardian for the support and maintenance and education of his ward in excess of the income from the estate, the test of whether there will be an allowance of credit therefor in the settlement of his accounts, is well established under the statute in Virginia (Sec. 2604 of the Code), as expounded by the decisions of court. That test is not, as claimed by appellant, merely that the guardian has acted in good faith, but that the disbursements are such as the court would have authorized had application been previously made to it. If they are such disbursements they will be allowed, although made by the guardian without previous authority, but not otherwise. And the court in acting on the subject will be guided by its determination of whether the expenditures in excess of the -annual income were actually made and by its further deter*54mination of whether they were judicious and proper from the standpoint of the interest of the ward. Barton v. Bowen, 68 Va. (27 Gratt.) 849, 855; 1 Minor’s Inst. (2nd ed.) 473-4.
[4] Therefore, on the question of whether there was error in the decree under review in its allowance of the expenditures aforesaid of only $250 per year from September 1, 1910, to September 1, 1916, and $403.51 from September 1, 1916, to September 1, 1917, we are of opinion that the’ evidence in the record sustains the conclusion that under the facts and circumstances of this case, such expenditures-were injudicious and improper and should not be allowed,, to the extent that they annually exceeded the annual income of the ward with which' the guardian is chargeable.
It is true that one of the witnesses for appellee, Mrs. Gar-nett, stated that in her opinion $30 or $35 per month would be a fair amount to support the ward in keeping with the-ordinary circumstances of her family, and Mr. Garnett testified that he thought that $40 per month would be a reasonable amount for a young lady situated in the normal school and situated in life as is the said ward;-but the testimony of the latter on this subject applies only to the period after September, 1916, and the testimony of both of these witnesses and of the guardian furnished evidence from which the learned and experienced chancellor of the court below, was warranted informing his own opinion in the premises and he was not, nor are we, bound by the expression of opinion even of witnesses for appellee.
[5] However, it is apparent from the facts mentioned' in the statement preceding this opinion, that the annual income of the ward for which the guardian is accountable amounted to over $250 per annum. We are of opinion that under section 2603 of the Code, a guardian acting in good faith has the discretion to expend the wlioN of the income of the estate of his ward for the "maintenance and educa-*55Con” of the latter. Action in good faith by the guardian in making expenditures for such purposes or either of them is the stándard applicable to and is the tese of whether there will be allowance of credit therefor in the settlement of his accounts, so iong as such expenditures are kept within the ward’s income. It is only to the extent that the guardian, of his own authority, breaks in upon the corpus of the trust fund for the maintenance or education of his ward, that the standard and test first above mentioned must be applied.
[6] We are, therefore, of opinion that, so far as actually made, the expenditures in question for the respective years from September 1, 1910, to September 1, 1917, to the extent of the net annual income with which the guardian is chargeable for such years, respectively, after deducting lawful charges of administration, should be allowed in the settlement of his guardianship accounts, but no further. Of course, if there should be an excess of such income for any year over such actual expenditures, the surplus becomes a part of the principal for the succeeding year under the well-settled rule on that subject.
The assignment of error under consideration is, therefore, partly well taken.
4. The fourth assignment of error by appellant is that the decree under review did not allow appellant commissions on the whole $10,000 value of the twenty shares of Farm-ville mill stock to which he was entitled as administrator of S. H. Bliss, deceased.
The same remarks above made concerning the first assignment of error apply also to this.
Hence, there is no merit in this assignment of error.
5. The fifth assignment of error by appellant is that the decree aforesaid did not allow the appellant the $176.49 mentioned in the statement preceding* this opinion, being the net amount paid by him in good faith to the said widow on account of her share of the estate of S. H. Bliss, deceased, *56as distributee of such estate prior to the discovery of the existence of the will of such decedent.
We are of opinion that this assignment of error is well taken.
[7] Under the statute law of Virginia the personal estate (as is also the real estate) of a decedent is expressly made assets for the payment of his debts. And where there' is sufficient personal estate to pay all debts, the administrator, although he may have no actual notice of their existence, takes the risk of personal liability for payment of debts if he distributes the personal estate before awaiting the twelve months’ period allowed by statute in Virginia for presentation of debts and before then obtaining protection from personal liability therefor by refunding bonds or before such protection is afforded him by order of court under the statute law in such case made and provided, unless the creditor’s laches or other conduct thereafter should bar the demand. Sections 2706, 2707, 2708 of the Code; 7 Am. & Eng. Encycl. Law (1st ed.), pp. 318-319, and note 1 and authorities there cited.
[8-11] Whatever may be the true solution of the much-debated and centuries-old question of the nature and origin of the law of succession to property — whether it be a natural' right or one which is the creature of “juri positives merely,” as it is regarded by Blackstone — it is a right which all authorities agree may be regulated by the sovereign and by virtue of the statutes of distribution (which have become wellnigh universal) ; wherever such statutes exist it has become a right which is vested in the persons entitled to take upon the death of the intestate, subject to such conditions as the statute law may impose upon the devolution of the title. 7 Am. & Eng. Ency. Law, pp. 346, et seq., and authorities cited. And, by the statute of distribution of personal estate (section 2557 of the Code), where a person dies intestate as to his personal estate, his distributees *57(which include his widow) are entitled to the property after the payment of taxes, expenses of administration and debts of the decedent. It is true that there is no statute in Virginia placing any limitation of time upon the probate of a will. Nor, on the other hand, is there any provision of statute in favor of or saving any rights of persons taking personal property under an .unknown and unrecorded will, as against distributees, as there is of the rights of persons taking real estate under an unknown and unrecorded will. By section 2547a of Pollard’s Code of Virginia, such a saving of rights in real estate is made for a period of seven years. It is the duty of an administrator to distribute the personal estate after the payment of debts. 7 Am. & Eng. Encycl. Law, p. 315. It is also his right so to do. 18 Cyc., p. 594. It is out of regard for creditors only that administrators cannot be “compelled” to make distribution of the estate within the year from their qualification. So that where there are no creditors, there is nothing in our statute law to forbid an administrator from distributing the personal estate within the year. And the true policy of the law, in the absence of such a statute, would seem to favor a reasonably prompt distribution amongst those entitled under the statute of distributions, rather than a holding of the estate by the fiduciary for the year. Such holding in such a case as that we have under consideration would be for his own benefit alone; since it would not be for the payment of debts, because it is known that none exist or the fiduciary is willing to take that risk; and not to await the possibility of the discovery of a will, since, as aforesaid, there is no statute fixing any period for the probate thereof, were one discovered, and if that chance is to be eliminated, under the law in Virginia as it now stands, the fiduciary could never distribute the estate.
[12] As we think, the duty of an administrator to distributees under the statute is to distribute the estate with *58reasonable diligence; and with respect to distributing the-estate, notwithstanding the possibility of the existence of an undiscovered will, that possibility always exists; and if the administrator acts with reasonable diligence to ascertain whether a will exists, and when acting with reasonable prudence in that regard, does not think and has no> reasonable grounds to think that a will exists, he may safely distribute the estate, so far as persons taking under a then unknown and unrecorded will are concerned, whether it be-within the year of, or after the expiration of the year from,, the qualification. Certainly such must be the rule after the expiration of such year; otherwise, as above-indicated, no-personal estate could ever be distributed without placing a liability of personal responsibility on such a fiduciary, which the measure of care and diligence on his part which is fixed by law (11 R. C. L., p. 140-2), does not warrant; and we do not feel that there is any principle on which any different rule can be made applicable within the year.
We come now to consider certain assignments of error by appellee under rule VIII of this court, which is invoked in the reply brief for appellee.' These assignments of error will be considered in their order as stated below.
[13] 6. Section 2679 of the Code is invoked by appellee against the allowance of any commissions to the guardian.
This statute, so far as material, is as follows:
“If any fiduciary wholly fail to lay before such commissioner a statement of receipts for any year, within six months after its expiration, and though a statement be laid before the commissioner, yet if such fiduciary be found chargeable for that year with any money, not embraced in this statement, he shall have no compensation for his services during said year, nor commissions on such money unless allowed by the court. * * *” (Italics supplied.)
The italicized words were added to this statute in the enactment of 1867. Under the statute as it has since stood, *59the court will allow commissions to a fiduciary on receipts as to which he is in default under the statute, only to the-extent that he gives a reasonable excuse for such default. See authorities- cited to Section 2679, 1 Pollard’s Code 1904.
[14] As appears from the statement preceding this opinion, the guardian laid before the commissioner of accounts statements of his receipts for the first three years of his guardianship and for the year September, 1915, to 1916-within six months after his qualification and after the expiration of such subsequent years; but that he failed to do this for the years September, 1913-1914, September, 1914-1915; and that for the years he did settle his ex parte accounts as guardian, he did not embrace in his statement some $3,333.33, being the portion of his ward’s estate derived from the Farmville mill stock of S. H. Bliss’ estate, and some.$1,665.49 derived from other assets of the latter-estate. He accounted, however, in the ex parte settlements he did make, as it would seem from the record, for the dividends he received on six shares of such stock of the value of $3,000 from September, 1910, up to September 23, 1916. This was done in good faith, as it would seem from the record, and we think furnishes a reasonable excuse pro tanto for the default of the guardian under consideration. But that leaves him still in default in not charging himself with $333.33 of said $3,333.33 and with said $1,665.49, or an aggregate of $1,965.49 of the receipts with which he is found chargeable; and the record shows no reasonable excuse for this default or for the failure of the guardian to settle his ex parte accounts for the two years, September, 1913-1914, and September, 1914-1915, aforesaid.
We are, therefore, of opinion that the guardian, in the settlements of his accounts, should be allowed no commission on $1-96,5.49 of the said sum of $5,998.82 with which he is chargeable as derived from the estate of S. H. Bliss, deceased, as aforesaid; and that he should be allowed no-*60commissions on his receipts for the years September, 1913-1914, or September, 1914-1915, aforesaid.
[15] The commissions to which the guardian is entitled should, of course, be credited as of his rest-day at the end of each yearly statement in the settlement of his accounts which is to be made.
[16] In this connection we will say that since the fixing of a rest-day of fiduciaries is within the reasonable discretion of the commissioner settling their accounts and of the court acting thereon, and since the appellant, as administrator of S. H. Bliss, deceased, treated the funds in his hands as distributable prior to the expiration of the year after his qualification as such, and since the qualification of a fiduciary will be treated as relating back to the beginning of his action as such, when such action antedates his qualification, we approve of the statement in the decree under review in Its provisions fixing September 1, 1910, as the date for the beginning of the account of the appellant as guardian, and the latter, under the statutory rule on the subject (Sec. 2608 of the Code), should be charged with interest on the $5,-998.82, above mentioned, as received from the estate of S. H. Bliss, deceased, as aforesaid, from September 1, 1910. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112. As to the dividend on the ten shares of bank and three shares1 of warehouse stock derived from the estate of P. B. Bliss, deceased, the guardian should be charged with his receipts of same during each current year of the yearly statements of his accounts, the interest thereon to be debited by charging interest on the yearly balance found in the guardian’s hands.
[17,18] 7. The appellee invokes the rule applied in the case of Gregory v. Parker, 87 Va. 451" court="Va." date_filed="1891-02-12" href="https://app.midpage.ai/document/gregory-v-parker-6808609?utm_source=webapp" opinion_id="6808609">87 Va. 451, 12 S. E. 801, and the authorities therein cited, against the allowance of any commissions to appellant as administrator of S. H. Bliss, deceased, on the twenty shares of Farmville mill stock, on the ground that the administrator had no authority to convert *61that stock into money, since it was not necessary to do so to pay debts of such estate and that he did not in fact convert it into money, but retained it in kind and distributed it in kind between himself and his ward as distributees or devisees of that estate.
The rule invoked is well established, and is a sound and just rule in cases to which it is applicable. It does not permit of commissions being allowed to fiduciaries on unconverted assets which are distributed in kind or which should have been so distributed, except under peculiar circumstances (Allen v. Virginia Trust Co., 116 Va. 319" court="Va." date_filed="1914-06-11" href="https://app.midpage.ai/document/allens-v-virginia-trust-co-6812972?utm_source=webapp" opinion_id="6812972">116 Va. 319, 82 S. E. 104; Darling v. Cumming, 111 Va. 637, 69 S. E. 940). But the position taken by appellee iii the bill in this cause makes such rule inapplicable therein. The bill insists upon the liability of the guardian for the money value of said stock as fixed by the decree under review, and which was also so fixed by the ex parte settlement of appellant as administrator of S. H. Bliss, deceased, and by the master commissioner’s report in the cause. Appellee is bound to the theory that the stock has been converted into money by the position taken in the bill that the guardian is chargeable with such money value. The appellee, in insisting upon such theory and upon the guardian being so bound, cannot, when such position is sustained by the court, insist that the guardian should not be allowed commissions on such value because of a different theory. A litigant may not be allowed to take different and inconsistent positions in the same proceeding, but must abide by his position taken and by the issues by himself made in the pleadings.
We conclude, therefore, that the assignment of error under consideration is not well taken.
[19, 20] It should be here noted that the bill also seeks to hold the guardian chargeable for the money value of the specific property which came into his hands in kind from the estate of the grandmother of his ward. But the court *62below rightly declined to sustain such position of appellee. .Such property was not only not in fact converted into money, but was never treated by the guardian or charged to him in -his ex parte settlements as converted. Moreover, the rule aforesaid applied in the case of Gregory v. Parker was applicable in such case. The decree under review accordingly denied the guardian any commissions on such specific property, and was correct also in that regard.
[21] 8. There remains but one other matter for our consideration. Appellee urges that certain interest appearing in the ex parte settlements of the guardian as allowed him on small items of disbursements, aggregating some $76.77, were improper allowances, and that there should be no such allowance of interest to the guardian in the settlement of his accounts yet to be made.
This position is well taken. It does not appear, indeed, that there is anything in the decree under review which rules against appellee on this point, but since the question is raised, we feel that we should not leave the subject unmentioned. The rule is well settled that a guardian is not entitled to interest from date of expenditure on small individual items of disbursements in the yearly statements. It is only when a large sum' is disbursed early in the year and when, under the circumstances, it would work an unreasonable hardship upon the guardian not so to do, that interest will be allowed him on any item of disbursement from the date of payment. As to small items of disbursement, no interest should be allowed during the year. 1 Minor’s Inst. (3d ed.), p. 496.
For the foregoing reasons, the decree under review will be reversed in part and in part affirmed, and the cause will be remanded for further proceedings not in conflict with this opinion, with costs to the appellee as the party substantially prevailing.
Reversed in part and affirmed in part.