The opinion of the Court was drawn up by
Tenney, C. J.Guardians are required by the statute, c. 57, § 12, to manage the estate of their wards frugally, and without waste; and apply the income and profits thereof,, as far as needed, for the comfortable maintenance of the ward and his family; and, if they are insufficient for that purpose, they,may use the principal; and, when any exigency occurs, the *281guardian may apply to a proper court, for a license to sell real estate of his ward, and apply the proceeds to the purposes contemplated by his license. These requirements are Jn harmony with the general legal principles, applicable to the relation of guardian and ward. 2 Kent’s Com., 229 to 231, (5th ed.)
From these provisions, it cannot be doubted that the ward is to have the maintenance referred to, from the property belonging to him; without the creation of any debts, unnecessarily, against him by the guardian. Ancl, for the attainment of such an object, the guardian is to appropriate the income and profits of the estate, and the principal, if the income and profits, are not sufficient. And money may be obtained by the sale of the ward’s real estate, under a judicial license, when it becomes necessary for such maintenance. And it cannot be admitted, that the guardian, by neglecting to exercise the authority conferred to enable him to perform his duty to his ward in this respect, when the means are ample for the purpose intended by the law, can expose his ward to become his debtor after he shall arrive at the age of twenty-one years. The omission to use this authority, is evidence of a want of fidelity in the execution of the trust committed to him by law.
This action is for the recovery of a sum of money advanced by the guardian in the maintenance of the ward from April, 1854, to March, 1857, the guardianship having continued till October 11, 1857, when it terminated by the death of the plaintiff’s testator.
The case shows no legal necessity for the delay in the guardian, which is exhibited, to provide the means for the maintenance of the defendant; and there was no reason for his becoming her creditor, after she became of the age of twenty-one years, disclosed by the facts agreed, so that this action cannot be maintained. Plaintiff nonsuit.
Appleton, Cutting, Goodenow, Davis and Kent, JJ., concurred.