I concur in the views and conclusions expressed in the opinion of Mr. Justice *Page 118 Jones, except the affirmance of the Circuit decree sustaining the administrators and guardian in expending a portion of the corpus of the estate of the minors in their support. The rule on that subject, which is embedded in the law of this State, is thus well expressed inHolmes v. Logan, 3 Strob. Eq., 31, 33: "The general rule is, that a guardian shall not exceed the annual income of the ward's estate in expenditures. When he ventures to encroach upon the capital, there must be some emergency to justify it; he ought to make a clear case of its being necessary and expedient to the ward. He is an agent and trustee appointed by the law, in loco parentis, to discharge important duties to the child, and is generally informed of his powers and liabilities; there is scarcely any guardian but knows that when he is infringing upon the corpus of his ward's estate he is acting in direct derogation of an established rule; the whole burden is, then, thrown upon him to show the emergency of the circumstances and the expediency of his expenditures before the Court can approve of his conduct. Guardians are not to be encouraged in pursuing this irregular and often arbitrary and improper course, which almost invariably leads to litigation and rarely bestows a benefit upon the ward. Access to the Court is easy, as it is always open, but when its authority is invoked to encroach upon the capital, its powers are exercised with extraordinary caution, and never without the clearest and most satisfactory proof — a doubt would defeat the application. When the guardian takes this high responsibility upon himself, he cannot complain that he must make out, at least, as clear a case for the subsequent sanction of his expenditures as he would have been required to do on an application for its authority to make them."
It is true the duties of a guardian, or other trustee charged with the administration of the property of minors, are often onerous and thankless, but this is not an excuse *Page 119 for failing to perform them. One of the duties which the law exacts of such trustee is to stand against extravagances and soft indulgence by the minors, or by himself or others for them, to the end not only that the property may be preserved, but that the minors themselves may not be injured by acquiring the habit of living beyond their means.
In this case the defendants, Horace P. Spear and A. Hardy Silcox, qualified as administrators with the will annexed of the estate of F.A. Silcox, on 21st July, 1897. The five children of F.A. Silcox, who are entitled to his estate, at that time ranged in age from nine years to sixteen years. The children were taken by Horace P. Spear to live in his own family, and in July, 1899, he qualified as their guardian. It is agreed that the period for which the guardian was charged with the maintenance of the wards extended over the space of six years from his appointment. According to the summary of the accounts submitted by counsel for the guardian, after paying all expenses incident to the administration of the trust, the net sums coming into the hands of the guardian for the support of his five wards for six years from the income of the estate aggregated eleven thousand three hundred and ninety-five dollars and twenty-eight cents ($11,395.28). The Circuit Judge allowed a charge of twenty dollars a month for the board of each ward, amounting to four thousand one hundred and eighty dollars and nine cents ($4,180.09). After paying board, therefore, the net income for other expenses was seven thousand two hundred and fifteen dollars and nineteen cents ($7,215.19). The guardian, therefore, had from the income of the estate, for the support of each minor, including board, four hundred and eighty dollars a year, or, exclusive of board, two hundred and forty dollars a year for clothing and incidental expenses. When the final statement is made, in accordance with the Circuit decree and the decree *Page 120 of this Court, the net income available for the support of the children will be substantially increased beyond the figures just set down, and will make the income credited to each ward at least five hundred dollars per annum. When it is remembered that the children were all kept together in the guardian's home as one family, and that they were sent to the public schools, and, therefore, incurred no expense for tuition, this income on the face of it seems so clearly adequate for the support of these wards as to forbid judicial approval of further allowance from the corpus of the property.
The accounts of the administrators and those of the guardian somewhat overlap, but the record shows that before the appointment of the guardian the net income available for the support of the minors, according to the corrected account, was about the same as that above indicated as coming into the hands of the guardian.
A careful examination of the record not only fails to disclose any conditions making it necessary and expedient to trench upon the corpus of the property, but, on the contrary, the evidence, as it seems to me, is convincing that the income was ample to provide for all reasonable expenditures for the support of the minors.
No objection is made to special disbursements by the guardian for Mrs. Anderson's trousseau, and, therefore, this expense must be charged to her share of the corpus on final settlement.
In my opinion, therefore, the judgment of the Circuit Court, allowing the administrators and guardian credit for expenditures in support of the minors beyond the income of the estate, should be reversed and the report of the master on this subject confirmed. *Page 121