Opinion
(June Term, 1851.)
1. A guardian is not at liberty to consider the amount expended on infants by a former guardian, even for board, if it exceeds their increase as a debt due from the word's estate and payable out of the principal.
2. A guardian is presumed to furnish all necessaries for his infant ward. and a stranger who furnishes them, except under peculiar circumstances, must take care to contract with the guardian, otherwise the provision that guardians shall not in their expenditures exceed the income of their wards would be vain and nugatory.
APPEAL from Dick, J., at HERTFORD Spring Term, 1851.
The case is stated in the opinion in this Court.
Bragg for plaintiff.
W. N. H. Smith for defendant.
This was debt on the guardian bond of the defendant Cook. The amount claimed as disbursements exceeded the income of the wards. But the defendant, admitting the general rule, insisted that an exception ought to be made upon the facts of this case, which were as follows: The defendant Cook was appointed guardian in 1843. From 1840 to 1843, one Moore had been the guardian. The infants lived with their mother during 1840. Cook married her in 1841, and they continued to live with him. One of the items of the defendant Cook's account was a charge of $36 a year against each of the infants for board for the years 1840-41 and 1842, and it was insisted this amount was a debt due by the infants to the defendant Cook, for the (68) satisfaction of which he had a right to "encroach" on the principal, the income being consumed by his disbursements and those of the former guardian, exclusive of this item of board, which it is insisted he was at liberty to pay out of the principal, because it was a debt due by his wards when he was appointed guardian.
His Honor was of a different opinion, and we concur with him. If Cook had been guardian all of the time it is admitted he would not have been at liberty thus to exceed the income. How can that be done indirectly which could not have been done directly? How could the infants, during the guardianship of Moore, incur a liability exceeding their income, which upon the appointment of Cook as guardian became a debt chargeable upon the principal of their estate? Moore, as guardian, was bound to furnish them with necessaries, and was not at liberty to exceed their income. The infants had no capacity to incur a debt exceeding their income, even for necessities. The guardians for infants are presumed to furnish all necessaries, and a stranger who furnishes board or anything else must, except under peculiar circumstances, take care to contract with the guardian, otherwise the provision that guardians shall not in their expenditures exceed the income of wards would be vain and nugatory.
PER CURIAM. Affirmed.
Cited: Hussey v. Rountree, 44 N.C. 112; Hyman v. Cain, 48 N.C. 112; Freeman v. Bridgers, 49 N.C. 4; Fessenden v. Jones, 52 N.C. 15.
(69)