Opinion
09-11-1855
ARMSTRONG'S heirs v. WALKUP & als.
Smith and McPherson, for the appellants. Price, for the appellees.
1. Upon the coming of age or marriage of a ward, or the death of the guardian, the guardianship terminates; and from that time only simple interest is to be charged on any balance then in his hands, or which he afterwards received.
2. The estate of the ward having come into the possession of the guardian, his bond of office binds him in his lifetime, and his estate after his death, for the interest, hires and profits received by him, whether received before or after the expiration of his authority as guardian. But from the termination of the guardianship, the same to be accounted for on the ordinary principles governing accounts between debtor and creditor.
3. A guardian is not to be charged interest upon the moneys received by him from the day it is received; but he is to be allowed six months in which to invest it.
4. A guardian retains his female wards in his family, and treats them as his children, but they are required to work as children might be; though the condition of his family did not require their services. The guardian is to be allowed a reasonable compensation for their board and clothing; and he is not to be charged for their services.
This is the sequel of the case of Armstrong's heirs v. Walkup & others, 9 Gratt. 372. When the cause went back to the Circuit court, that court made an order directing a commissioner to state and report an account between the parties in accordance with the decree of the Court of appeals.
The commissioner stated the accounts of the three wards separately. He allowed the guardian sixty dollars a year for the maintenance of each of them, but charged him for their labor after they were twelve years old, at seventeen dollars and fifty cents a year. The guardian's accounts are brought down to November 26th, 1846, the death of the guardian, and simple interest upon the amount then due is charged. These statements are made upon the evidence in the record when the case was before this court. According to this statement of the accounts, there was due to Sarah Jane Elliott, on the 26th of November 1846, nine hundred dollars and thirty-six cents, with interest from that date. There was due at the same date to Ann Eliza, the wife of the plaintiff Walkup, eight hundred and seventy-two dollars and twenty-two cents; and he being charged with the sum of one thousand two hundred and seventy-nine dollars and nine cents, paid to him by the administrators of Armstrong on the 9th of October 1847, the amount due this ward was then extinguished, and there remained a balance of three hundred and thirty-five dollars and twenty cents, to be applied as a credit upon the amount due Elizabeth M. Elliott, of whom Walkup had qualified as guardian, leaving the amount due to her at this last date, of five hundred and fifty-nine dollars and two cents.
After the cause went back, both the plaintiffs and the defendants took testimony in relation to the services rendered by the wards in their guardian's family. It was proved that the guardian and his wife were industrious people, and allowed no idlers about them; and that the girls worked in the family. Several witnesses estimated their services at a dollar a week, or fully equal to the expense of their maintenance after they were twelve years old. But it was also proved that Armstrong's white family, besides his wards, consisted only of himself and wife; and that he had a negro woman with three or four children, some of them females about the age of the wards, and able to work; and that the wards were treated with kindness and affection by Armstrong and his wife; indeed as if they had been their own children.
Upon this new evidence, the plaintiffs insisted that the commissioner should make a statement of the accounts, disallowing any compensation for the maintenance of the wards beyond their own services. This statement was made; and according to it, there was due to Sarah Jane Elliott, on the 26th of May 1847, one thousand five hundred and sixty-three dollars and forty-six cents, with interest thereon from that date. There was due at the same date to Ann Eliza, the wife of the plaintiff Walkup, one thousand three hundred and ninety dollars and thirty-one cents, leaving still due to her, after crediting the sum of one thousand two hundred and seventy-nine dollars and nine cents, the sum of one hundred and eleven dollars and twenty-two cents, with interest from that date; and there was due at the same date to Elizabeth M. Elliott, one thousand two hundred and forty-four dollars and twenty-eight cents, with like interest.
The commissioner also stated an account of the administration upon Armstrong's estate, in which he charged the administrators with the amount of two bonds which had been executed to Armstrong in his lifetime by William and Elijah May, for the purchase money of land; and which the administrators stated the obligors had refused to pay, because there was a controversy as to the title to the land; and he disallowed a credit for the amount of a bond which they had paid in 1851. The amount reported in the hands of the administrators on the 16th of October 1854, was one thousand one hundred and ninety dollars and forty-one cents of principal, and four hundred and forty-seven dollars and twenty-six cents of interest.
The plaintiffs excepted to the report of the commissioner, because commissions were allowed to the guardian; and to the first statement, because no allowance was made for the services rendered by the wards.
The heirs of Armstrong excepted to the second statement of the commissioner: 1st. Because it was not authorized by the decree of the Court of appeals. 2d. Because only fifty dollars a year was allowed for the support of the wards until they were twelve years old. And 3d. Because no allowance was made for their maintenance after the age of twelve.
The administrators excepted: 1st. Because they were not allowed a credit for the amount of the bond paid off by them in 1851. 2d. Because they were charged with the two bonds of the Mays.
The cause came on to be heard in October 1854, when the court overruled the exceptions of the defendants, and the first exception of the plaintiff; and sustaining the second exception of the plaintiff, adopted the second statement of the commissioner, and decreed in favor of the plaintiffs for the sums found due to them respectively by that statement. And unless the same should be paid within thirty days from the date of the decree, the sheriff of the county was appointed a commissioner to sell upon the terms stated in the decree, so much of the land of Armstrong in the bill and proceedings mentioned, as should be sufficient to pay off the debts, interest and costs decreed to the plaintiffs. And the exceptions taken by the administrators were overruled; the court being of opinion that the questions raised by these exceptions were concluded by the decree of the Court of appeals. From this decree the heirs of Armstrong applied to this court for an appeal, which was allowed.
Smith and McPherson, for the appellants.
Price, for the appellees.
OPINION
SAMUELS, J.
The court is of opinion, that the decree of this court, rendered in this cause when formerly here upon appeal, did not preclude the administrators of John Armstrong deceased from showing that a portion of the assets with which they were charged had become unavailable without default of the administrators, and therefore not proper credits for the estate; nor from showing any proper debits to the estate for money paid in discharge of debts due from their intestate, which had been omitted from the account, without default in the administrators; and that the Circuit court erred in holding the said administrators concluded by the decree of this court from asking relief against the errors alleged to exist in these particulars.
The court is further of opinion, that upon the arrival at full age or marriage of the wards respectively, or upon the death of John Armstrong, his authority as guardian ceased; and that from the termination of the guardianship, the account between the several wards and John Armstrong in his lifetime, or his estate after his death, should be taken, charging simple interest on any balance then in hand and on money thereafter received, on the ordinary principles governing accounts between debtor and creditor, as contradistinguished from the principles governing accounts between guardian and ward, during the guardianship.
The court is further of opinion, that as the money of the wards derived from the estate of their mother, their slaves and land, came to the hands of John Armstrong as guardian, his bond of office bound him in his lifetime, and his estate after his death, for the interest, hires and rents respectively received by him, whether received before or after the expiration of his authority as guardian. So much thereof as was received whilst his office continued, to be accounted for as guardian up to the time he ceased to be guardian; and thereafter the balance then in hand, and any interest, hires or rents thereafter received, to be accounted for on the ordinary principles governing accounts between debtor and creditor.
The court is further of opinion, that the estate of John Armstrong should not be charged with interest on the several sums of money received as principal, interest, hires or rents from the day of the receipt thereof, but should be allowed six months in which to make investments.
The court is further of opinion, that the credit allowed to Armstrong's estate for the board and clothing of his several wards, is reasonable, and was properly allowed; and further, that no charge should be allowed to the several wards for services rendered to their guardian whilst living in his family; that the condition of the guardian's family did not require the services of these hired girls in its domestic affairs, so that those services were of but little value to him. The guardian being charged by law with the custody of the persons of his wards, they, being females, were properly retained by him in his own family, and should not have been hired or bound apprentices to strangers, unless necessity had required it. The labor performed by the wards had the effect of instructing them in arts and skill which will be useful to them through life; they should not be permitted to allege that the guardian, under the circumstances, should have hired them out, or bound them apprentices, and not having done so, be charged for services rendered. A due regard for the proper custody of their persons should not be overlooked for any pecuniary consideration whatever, much less for any value attached to their services.
Thus the court is of opinion that the decree of the Circuit court is erroneous. It is therefore adjudged, ordered and decreed, that the same be reversed and annulled, and that the appellees do pay to the appellants their costs in this court expended; and that the cause be remanded, with directions to have the accounts reformed upon the principles of this decree, upon the materials now in the record, and upon such further proof only as may be taken to show at what periods Armstrong's wards severally ceased to be under his control as guardian, by their arrival at full age or marriage, or by the death of Armstrong. Which is ordered to be certified, & c.
DECREE REVERSED.