27 Va. 444 | Va. | 1828
The Judges delivered their opinions.
The Chancellor properly held in this case, that the sureties for the Guardianship, and not those for the Administration, were responsible. Mrs. Myers’ admission, in her Answer, that upon qualifying as Guardian, she received the estates of the infants into her hands, though not conclusive, is prima facie evidence against her sureties, and is not contradicted. She was not Guardian for John, and consequently, her sureties are not responsible for his share of his father’s estate in her hands, and as to this part of the subject, the Bill should have been dismissed; but, if there were no other objection to the Decree, it should not be reversed on that account, since nothing is decreed to him.
A Gurdian cannot, under any circumstances, justify the applica
The intestate, Benjamin Myers, died in 1795, leaving a widow and eight children; the eldest child about seventeen years of and the about three. In his widow took administration, and gave bond and security.
At some period or other, but when does not appear, she settled her Administration accounts; the latest date in which account is in July 179S.
In April, 1799, she became Guardian of seven of the children, the eldest son, Isaac, having attained his age of twenty-one about
The dividend of the estate coming to each child, was about three hundred and fourteen dollars.
Joseph Purcell took administration on the estate of Elizabeth, and gave bond in December, 1S12; she was born in 17S0, so that she was probably about thirty-two years of age when she died. It is not alleged in the Answer that she had received her share of the estate; the allegation being, that all had been expended in maintaining and educating. It seems, however, that she asserted no claim during her life against her .mother. On the contrary, it is in proof* that when on her death-bed, she said she had some money out in. the hands of S. Carr, of which, she intended the landlord of the house then leased by her mother should be paid his rent, and after payment of her debts, she intended the residue for her mother. She made no Will though, and Carr paid the money, about 0270, after payment of debts, toi Purcell, as her Administrator, about which time Joseph Purcell, Thomas Myers, and Sarah, now Mrs. Hansborough, stated that Purcell and Wade talked of claiming the estate of Elizabeth. But Thomas and Sarah proposed to give it up to their mother, if Purcell and Wade would agree to it; but they said, as they had got nothing, or expected nothing from the estate of Benjamin Myers, they considered it but right to receive what was coming from Elizabeth’s estate.
It seems that Myers, the mother, kept the family together, raised and educated them reputably; that she was industrious and careful, keeping a tavern and boarding-house, devoted herself to her children, and hut for the misfortune of losing her house by fire, would probably have been now solvent, and able to give them something. From age and misfortune, however, she ultimately became paralytic and insolvent; after which, to wit, in 1815, this suit isinstitut
Surely, it seems to me, they had a right to sanction these proceedings in their mother towards them, evidently so beneficial to them. This, they and their husbands have done, as it seems to me, not only by their long silence and acquiescence, but by their express declarations, except in the case of John, who does not seem to have been present on the consultation, whether their mother should have Elizabeth’s property, agreeably to her dying wish. Thomas was about twenty-four years of age when he made these declarations. He and John were probably bound out at their age of seventeen, but John was quite young when bis father died,and for a longtime not in a condition to be bound out. But, even he acquiesces for four years after he came of age. They all knew the meritorious exertions of their mother in their favor, and that there was no possible way of keeping the family together, and raising them in the credit in which they were raised, except the one adopted; and no doubt these considerations operated on their consciences to produce the acquiescence and abandonment of their claim, at least so long as their mother was in health and in some degree of prosperity.
Although, therefore, I approve of the Law as, in general, an ex-provision in the case of infants not having estate sufficient to as the estate was not but probably applied as their father intended, I can see nothing in that Law to prevent those interested, when they come of age, to approve and sanction a departure from it, which must have tended, as in this case it seems, to me it did, especially in the case of the females, so much to the general advantage of the whole family. This, too, is the view very properly taken of it by the youngest daughter. On these- grounds, I think, the Bill ought to have been dismissed. But, there' can be no pretext, as it seems to me, to give them the share of Elizabeth, or to charge interest in the case of the daughters, from their age of eighteen, instead of twenty-one. The interest of their estate, until that age, had they then sued for it, would surely have been allowed for their maintenance and education-. If the Bill is dot to be dismissed, the Account and Decree ought to be reformed jn these particulars. It is not a case in which the Court ought to go to one cent beyond what the Law imperiously demanded. Had the-
If the application for relief was to the equity of the Court, 1 should not incline to aiford it upon the facts in this case, but the Plaintiffs Tely on their legal rights, which they have never relinquished, and come into the Court of Chancery, because, in the state of the parties, the whole controversy could not be settled in a Court of Law, and for the settlement of the accounts of the Defendant, Elizabeth Myers, both as Administratrix and Guardian. As to the former, there is now no controversy, it having been admitted by the parties to have been correctly settled. As to the latter, her account as Guardian, she admits, in her that when she rs such, she received the estate into her hands in that capacity, but she insists, that the Plaintiffs have no claim against her, as the whole of it was expended on their maintenance, and some small advancements. For the latter, she has credit. By the 26th section of the Act concerning Guardians, her defence ns to the former is forbidden. Under that section, whatever might be her motives, she could expend no part of the principal of the estate on the maintenance of her Wards, without the approbation of the Court. Such a defence could not be made at Law, and to allow it in a Court of Equity, would be to repeal the Statute. Beyond the interest upon the principal estate, she was not at liberty to go. The Decree was therefore correct in disallowing any credit for the principal so expended: but, as she might expend the interest on the maintenance of her Wards, it is erroneous in not allowing her a credit to that amount, until her Wards respectively attained the age of twenty-one years. It is, therefore, to be reversed, and the Decree agreed upon by a majority of the Court, entered.
Decree of the Court.
The Court is of opinion, that the said Decree is correct in disallowing any credit for the principal expended by the Appellant, Eli zabeth Myers, in the maintenance of her Wards; but the same is erroneous in charging her with any interest before her Wards attained the age of twenty-one years; therefore, it is Decreed and Ordered, that the said Decree be reversed and annulled, and that the Ap
Absent, Judges Cabeke and Cabb, the latter of whom had rendered the Decree of the Court below, and therefore did not sit in the.case.