bound to take heed accordingly. The ward is not to be judge of his own necessaries; it is the guardian rather, or the court.2 It is held that the guardian appointed in one State may sue a foreign guardian for the support and education of wards left with the former by consent of the latter guardian.3 So, wherever a town is liable for the support of a ward as a pauper, his guardian may claim reimbursement for necessary expenses incurred after the ward's property has been exhausted. A guardian is presumed to furnish all necessaries for his infant ward, and a stranger who furnishes them must in general contract with the guardian himself.5 But where the guardian makes purchases, the party furnishing the goods is not bound to see that payment is made from the ward's income. This risk must be run by the guardian himself, for the facts are within his own peculiar knowledge. And the usual principle is, where the guardian has contracted for his ward's support without express restriction, that the creditor holds the guardian liable individually, relying upon the latter's promise, while the guardian may reimburse himself out of the ward's estate so far as justice permits. § 338. Same Subject; Using Income or Capital, &c. The doctrine has been repeatedly declared that no guardian can expend more than the income of his ward's estate without proper judicial sanction. This is the settled rule in chancery, and it is universally applicable in the United States. And a similar principle prevails under the civil law. But to what extent the guardian renders himself personally liable, by exceeding the income without previous sanction of the court, is not quite clear. The English rule is undoubtedly strict. But as to probate guardians, and in modern practice, legal formalities have been considerably relaxed; though the rule is still that the cap 206. 1 McKanna v. Merry, 61 Ill. 177. 2 52 Hun, 119. 7 In re Bostwick, 4 Johns. Ch. 100; Myers v. Wade, 6 Rand. 444; 2 J. 3 Spring v. Woodworth, 2 Allen, J. Marsh. 403; Villard v. Chovin, 2 4 Fisk v. Lincoln, 19 Pick. 473. See Preble v. Longfellow, 48 Me. 279. 5 State v. Cook, 12 Ired. 67; Royston v. Royston, 29 Ga. 82. 6 Broadus v. Rosson, 3 Leigh, 12; Hutchinson v. Hutchinson, 19 Vt. 437. Strobh. Eq. 40; State v. Clark, 16 Ind. 97; Beeler v. Dunn, 3 Head, 87; 3 Dem. 140; Dowling v. Feeley, 72 Ga. 557. See Louisiana rule as to the authority of a family meeting. 36 La. Ann. 312. ital should not be encroached upon without judicial leave, to meet expenditures which are beyond the ward's means, however suitable to his social position. In most of the United States the guardian is, doubtless, justified in breaking the principal fund, under strong or sudden circumstances of necessity, for the benefit of his ward, and he may leave his conduct to the subsequent approval of the court when he presents his accounts. In cases of risk and uncertainty, however, the proper course is to obtain a previous order.1 The order in which the ward's property should be expended for his support and education is as follows: first, the income of the property; next, if that proves insufficient, the principal of personal property; lastly, if both are inadequate, the ward's real estate, or so much of it as may be necessary. A court should protect personal capital while there is income, and realty while there is income or personal capital at all. The ward's real estate can never be sold, except under a previous order of court. Nor can a guardian use, in maintaining his ward, the proceeds of real estate sold for the purpose of reinvestment only, any more than he could have used the real estate itself. He should ask to sell for the purpose of maintenance.2 In fair instances a court has ordered a sale of the ward's real estate for reimbursement of the guardian's expenses of support, though petition in advance is the safer; but a guardian who has enough personalty of the ward cannot charge the ward's realty by his contracts.4 In some cases it becomes both reasonable and necessary to exceed the ward's income, and the judicial sanction is granted 1 Story, Eq. Juris. § 1355; Chapline v. Moore, 7 Monr. 150; Davis v. Harkness, 1 Gilm. 173; Davis v. Roberts, 1 Sm. & M. Ch. 543; Royston v. Royston, 29 Ga. 82; Foteaux v. Le Page, 6 Clarke (Iowa), 123; Gilbert v. McEachen, 38 Miss. 469; Phillips v. Davis, 2 Sneed, 520; Cummins v. Cummins, 29 Ill. 452; Cohen . Shyer, 1 Tenn. Ch. 192. Some State codes lay down a strict rule concerning the previous sanction of the court to exceeding the ward's income. Boyd v. Hawkins, 60 Miss. 277; 63 Miss. 143; 91 Mich. 270; Jones v. Parker, 67 Tex. 76. But in other States ratification by the court is equivalent to a previous authority. 113 Penn. St. 46; Ward Re, 73 Mich. 220; 34 S. C. 496. 2 Strong v. Moe, Allen, 125; Rinker v. Street, 33 Gratt. 663. See St. Joseph's Academy v. Augustine, 55 Ala. 493. 3 Bellamy v. Thornton (1894), Ala. 4 Roscoe v. McDonald (1894), Mich. accordingly. Thus courts of chancery, or even of probate, authorize the capital to be broken upon, or, if need be, the whole estate to be consumed, where the property is small and the income inadequate for support. As where the ward's education is nearly completed, especially if he will thereby be fitted for a profession. Or where the ward is mentally or physically unfit to be bound out as an apprentice. So, too, in case of extreme sickness, or other emergency, or for the burial of a dead ward, where an unusual and sudden outlay becomes necessary. And the guardian can anticipate the income of one year in supplying the casual deficiency of another. And he may treat an increase of value in his ward's property as income. And he may use the accumulated profits of previous years where necessary. A young lady who is a ward may be allowed small sums by way of spending-money for her personal needs, apart from what may be actually necessary to eat and wear. In short, the guardian is allowed a liberal discretion in expenditures for maintenance and education, so long as he refrains from encroaching upon the ward's capital;7 and in extreme cases he may intrench upon the capital itself where this is for the ward's welfare. So it is held that he is limited in his disbursements, not to the income of the ward's estate actually in his hands, but to the income of the ward's estate wherever situated.8 § 339. Allowance to Parent for Ward's Support; Chancery Rules. As the father is bound to support his own children, he cannot, when guardian, claim the right to use the income of their property for that purpose; 1 McDowell v. Caldwell, 2 McC. Ch. 43; Farrance v. Viley, 9 E. L. & Eq. 219; Roseborough v. Roseborough, 3 Baxt. 314; 4 Dem. 304. 2 Johnston v. Coleman, 3 Jones, Eq. 290; Campbell v. Golden, 79 Ky. 544. 3 Long v. Norcom, 2 Ired. Eq. 354; In re Clark, 17 E. L. & Eq. 599; Hobbs v. Harlan, 10 Lea, 268. much less to disturb the prin Karney v. Vale, 56 Ind. 542. Brown v. Mullins, 24 Miss. 204; Speer v. Tinsley, 55 Ga. 89. 8 Foreman v. Murray, 7 Leigh, 412; Maclin v. Smith, 2 Ired. Eq. 371. And see In re Coe's Trust, 4 K. & J. 199. If the guardian pays money from the principal of his ward's estate to a suitable person for the ward's support, and 4 Carmichael v. Wilson, 3 Moll. 87; the money is reasonably expended, he Bybee v. Tharp, 4 B. Monr. 313. Long v. Norcom, 2 Ired. Eq. 354; Macphers. Inf. 337, 338. cannot recover back the amount from Mich. 268. cipal. But, as we have seen, a father is allowed, when his means are small, to claim assistance from their fortunes, to bring them up in becoming style. And where the father, when acting as guardian for his own children, might have reimbursed himself, any other person, as guardian, may help him; rather, however, for the future than for the past.1 The allowance of money for the maintenance and education of infants constitutes an important branch of the English as contrasted with our American chancery jurisprudence. Generally speaking, whenever application is made for the appointment of a chancery guardian, maintenance is also applied for; and the guardian receives no more than the annual sum fixed by the court. The ward's whole fortune is held at the disposal of the court, whether the infant was made a ward by suit or otherwise. If a suit be pending, the guardian receives his allowance through the receiver or some other officer of the court. If there be no suit pending, the executor or trustee pays the annual sum fixed by the court; and if the whole proceeds of real estate be ordered for maintenance, the tenants are safe in attorning to the guardian. But parties making payment are discharged only to the extent of the allowance decreed.2 1 Macphers. Inf. 219; Clark v. Montgomery, 23 Barb. 464; Beasley v. Watson, 41 Ala. 234; Welch v. Burris, 29 Iowa, 186; Myers v. Wade, 6 Rand. 444; Walker v. Crowder, 2 Ired. Eq. 478. See supra, §§ 237-240. As to parents, and those like a stepfather who choose to stand in place of a parent, the rules of maintenance which have already been stated apply as to such allowances, in a guardian's accounts. If the guardian, or the person with whose claim he charges himself, was of adequate means, and bound legally to maintain the child as parent, or fully undertook to supply the place of parent, education and support cannot generally be allowed from the ward's maintenance is the less readily allowable. Folger v. Heidel, 60 Mo. 284. Yet future maintenance is chargeable where the ward's means were disproportionate to the parent's and needful to provide in suitable style; and even past maintenance may be thus allowed. Supra, Part III. c. 2. And if one in place of parent has undertaken the function upon some such proviso, the ward's income may be used. The circumstances may always be considered and the proportionate means as between the ward and the person fulfilling the parental functions. Voessing v. Voessing, 4 Redf. 360. The guardian of an insane ward may properly charge for the expense of boarding the ward at an insane asylum; the ward's estate being sufficient for such expenditure. Corcoran v. Allen, 11 R. I. 567. 2 Macphers. Inf. 106; Ex parte Testamentary guardians are, however, frequently authorized by the testator to apply at discretion from the income of the infant's fund, or from the capital, for his support; and such discretion will not be controlled so long as the guardian acts in good faith. But trustees and guardians frequently procure an order of maintenance, notwithstanding, in order to relieve themselves of all responsibility.1 Doubts were formerly entertained of the power of chancery to interfere in these and other cases where the infant had not been made a ward of chancery by suit. No such doubts now exist, however; and the court will, on petition, and without formal proceedings by bill, settle a due maintenance.2 § 340. Secular and Religious Education of Ward by Guardian. Courts of chancery treat the guardian as the proper judge of the place where his ward shall be educated, and will, if necessary, issue orders to compel obedience. But if guardians disagree as to the mode of their ward's education, the court will exercise its own discretion, and will not consider itself bound by the wishes of the majority. Parol evidence of the deceased father's wishes is admissible, and the court will pay attention to such wishes, although informally expressed, in judging of the mode of education of children as well as in the appointing of a guardian.* Starkie, 3 Sim. 339. Chancery will control the discretion of trustees as to allowance. In re Hodges, L. R. 7 Ch. D. 754. 1 Macphers. Inf. 213; Livesey v. Harding, Taml. 460; French v. Davidson, 3 Madd. 396; Collins v. Vining, 1 C. P. Cooper, 472. In Mississippi the sum for maintenance and education must be fixed in chancery. Dalton v. Jones, 51 Miss. 585. But as to personal estate, the American rule is, usually, that if the court would have authorized the expenditure upon application before it was made, the expenditure will be sanctioned upon settlement of the guardian's accounts. Rinker v. Streit, 33 Gratt. 663. 2 Story, Eq. Juris. § 1354, and cases cited. And see Kettletas v. Gardner, 1 Paige, 488. Trustees may be authorized by the terms of the trust to expend a certain sum for maintenance and support of children. It is generally understood that the expenses of education are thus included. Breed's Will, 1 Ch. D. 226. Trustees under a will thus authorized, and in effect testamentary guardians, are not compelled to pay over such moneys to a statute or probate guardian. Capps v. Hickman, 97 Ill. 429. 8 Story, Eq. Juris. § 1340; Macphers. Inf. 121; Tremain's Case, Stra. 168; Hall v. Hall, 3 Atk. 721. 4 Anon., 2 Ves. Sen. 56; Campbell v. Mackay, 2 M. & C. 34; contra, Storke v. Storke, 3 P. Wms. 51. |