The opinion of the Court was delivered by
Willaud, A. J.The comjfiainant, as administrator of Daniel W. Crosby, has brought his bill for an account against Dennis Crosby, the guardian of his intestate. An account was taken before the Commissioner, and a report made, to which exceptions W'ere taken and reported upon by the Commissioner. The exceptions were heard before Chancellor Carroll, and the report of the Commissioner sustained, and defendant’s exceptions overruled. To this *345decree exceptions have been taken, which will be noticed, in their order, in the grounds of appeal.
The first and second grounds of appeal ai-e based upon the allowance to the complainant of interest on the distributive share of his intestate while in the hands of the defendant, as administrator of the estate of Allen Crosby, the father of the ward. The report of the Commissioner allows complainant interest on annual balances in the hands of defendant, as administrator, not credited in the final accounting of the administrators. The objections urged to the decree, in this respect, are as follows: First, that the accounting of the administrators was full and final, and manifested an intention to discharge themselves of the trust as administrators, and that, no action having been commenced within four years thereafter, the statute of limitations is a bar to the complainant’s demand upon that accounting; and, second, that certain advances were made by the administrators, by means of which the property of the intestate, whose estate they administered, was saved for the benefit of the complainant’s intestate, as well as for other parties interested "in that estate, and that the same should be allowed, by way of ah equitable claim, as against complainant’s demand for interest on the administrator’s balances; and, third, that, if the accounting is to be opened, the co-administrator of the defendant should be represented as a party to the proceeding.
It was held, in Long vs. Cason, 4 Rich. Eq., 60, that; after a final accounting, and the appointment of. a new guardian, as between the old and the new guardian, the statute was a bar, unless proceedings adverse to the accounting were commenced in four years. It was said iu thaft case: “We hold that, as to a chose of the infant, not assignable at law, and peculiarly within the power and duty of the guardian, the laohes of the guardian, in the absence of collusion, by operation of the statute of limitations, bars the infant as to strangers, and leaves him to a remedy against the guardian.”
The doctrine of that case, applied to the facts of the present case, leads to the conclusion that, if the statute bars the remedy against the defendant, in the character of administrator, it is because of his laches, in the.character of guardian, for which he is accountable to the complainant. The defendant was appointed guardian in 1854, the same year -with that of the accounting of the administrators. If the accounting was unjust it was incumbent upon the defendant to rectify it, if the fault was on his part, or to *346take measures for its rectification, if the fault was on the part of his co-administrator ; for, daring all that period of time, he was the sole legal representative of his ward’s interest in his father’s estate. He is, therefore, chargeable with laches, in the character of guardian, and, as that trust still continues, there being an admitted balance of the ward’s estate in the defendant’s hands as guardian, the statute cannot be interposed as a bar. — Riddle vs. Riddle, 5 Rich. Eq., 31.
As to the equitable discount alleged to arise out of certain advances made by the administrators, for the purpose of saving property of their intestate, the naked fact appears in the answer, without any circumstances, there or elsewhere detailed in the case, to show any pecuniary loss to the defendant by reason of any such advance, nor any basis by which the amount of such loss could be ascertained, if any such existed. It is obvious that this claim is advanced as a make-weight, without the means or intention of making it good as an actual demand against the estate. Had it been made duly to appear that the administrators were actually in advance to the estate, a question might have arisen of the allowance of interest' on such advances; but the returns of the administrators are inconsistent with such a supposition. The annual balances, on which the Commissioner computed the interest, are those appearing in the administrators’ returns, and the defendant has failed to make a case for going behind his returns, and for throwing the burden of restating the accounts of the administration upon the representative of his deceased ward.
As it regards the non-joinder of the representatives of the eo-ad-ministrator, Hemphill, it is only necessary to say that, as the laches of the defendant, as guardian, is the substantial basis of this bill, the co-administrator is an unnecessary party to it. The first and second grounds of appeal must be disallowed.
The remaining grounds of appeal embrace claims, on the part of the defendant, for board and clothing for hÍ3 ward, covering two distinct periods of time, namely: from 1847, the death of A. Crosby, until 1854, the time when defendant became guardian, and from 1854 to the death of the ward, or a short time previous thereto, in 1863. In regard to the first period of time, he stands in the charac.ter of a guardian who has paid to himself a debt claimed to be due to himself as against his ward at the date of assuming the guardianship ; while, as to the latter period of time, he stands as a guardian making claim for advances and expenditures towards *347the maintenance of his ward. The additional fact appears, that almost the entire corpus of the estate, in addition to income, has thus become expended.
Much evidence was offered, by both parties, bearing upon this part of the case, from which the Commissioner concluded that the services of the ward, as a laborer for the defendant, from the year 1854, when he was thirteen years old, up to 1861, and his services on his plantation in 1862, would be sufficient compensation for the board and clothing of the ward during the entire period that he resided with defendant. The Chancellor acceded to the justness of the Commissioner’s conclusions, based upon the evidence; and now, after the questions of fact have received the careful consideration of two experienced minds, favorably situated for weighing the evidence, we are called upon to determine that their conclusions are overborne by a clear weight of undisputed testimony.
So far as it regards the claim for the maintenance of the ward prior to the defendant becoming guardian, the difficulty in the defendant’s case is not confined to the question of fact thus determined against him, but is affected by an inference that his act, in furnishing the infant a home and the means of living, was gratuitous.
The law on this subject is well stated by Chancellor Wardlaw, in Riddle vs. Riddle, (supra.) He says: “Where a father, or near relative of the infant, is trustee, he should show, distinctly, his purpose to charge for maintenance,” or it may be inferred to have been gratuitous. This proposition is entitled to the greatest weight in a case like the present, where the claim is made by the father’s brother, for the maintenance of a very young child, for seven years previous to any steps being taken to procure guardianship for the infant, and when the uncle subsequently becomes the guardian himself. Has the defendant, then, shown “distinctly his purpose to charge for maintenance,” so far as the period previous to the guardianship is concerned ?
According to the claim now made by the guardian, at the time of his appointment as guardian, July 4th, 1854, the estate of the infant in his hands, as administrator, amounting to $178, was insufficient to pay the amount of such claim; and, even after the correction of that amount, by the addition of interest on annual balances, the aggregate is less than the amount of the defendant’s demand at that date..'
Is it to be assumed that, in seeking to become the guardian of *348tlie infant, he stood as a creditor of the infant for an amount greater than the infant’s whole estate in hand at that time? It does not appear that at this time, or until two years afterwards, he manifested an intention to charge the infant with his maintenance for the period prior to the guardianship. The first notice of this demand is contained in the return, as guardian, made in 1856. This return credits the ward Avith a cash balance of $994.90. The following memorandum, introduced at the foot of the sheet containing the return, and after the jurat and signature of the Ordinary, is the only note of it, viz: “Boarding ward from 1847 until January, 1856, to be included in credits, and, also, for clothing.” The first evidence of the amount of this indefinite claim being stated, is found in the last return, as guardian, made in 1866, where it is charged at $75 a year from 1847 to 1855, making $600; and interest is charged thereon at $147. Thus, nineteen years elapsed from the commencement of the account against his ward, before.it is made the subject of a definite charge.
Equity must assume that the motive of the defendant, in seeking the guardianship of the infant’s estate, was to secure to the infant the benefit of that estate, and it is not to be inferred that the real motive was to obtain satisfaction of a demand against the infant’s estate that would absorb the whole estate in hand at the time of the ajoplication for guardianship. The idea of a gratuitous maintenance is the only one consistent with the assumption that the guardian entered upon his trust under the influence of motives appropriate to that relation.
In Riddle vs. Riddle, a delay of seven years, under a state of facts remarkably similar to those presented by the present case, was held to afford evidence that the maintenance was intended to be gratuitous. But the delay in the present case, previous to the claim being made definite, was nineteen years.
It is clear that the maintenance of the child, previous to the guardianship, must be considered gratuitous.
In McDowell vs. Caldwell, (2 McC. Ch., 43,) it is held that when the maintenance of the wards by the guardian, in his own family, originated in an express offer to maintain them free of charge, the guardian could not afterwards interpose a claim for maintenance ; that the guardian might have put an end to the arrangement; but, until he did so, it subsisted as a gratuitous undertaking. It is a matter of no importance, whether the intention to give a gratuitous maintenance is established by proof of an express promise or by *349inference. It is enough that it is found to exist, and tbe remark, in McDowell vs. Caldwell, becomes applicable.
It may, therefore, well be urged that, at the least, the maintenance of the ward ought to be considered as gratuitous down to the date of the return to the Ordinary, which affords the first evidence of an intent to charge the ward’s estate for his maintenance; but it is not necessary to rest the case on this proposition. So far as the conclusions of the Commissioner bear upon the period from the granting of guardianship down to the death of the ward, it is clear, that the evidence affords no ground for disturbing such conclusion.
It was held by Chancellor Wardlaw, in Riddle vs. Riddle, on the authority of Booth vs. Sineath, (2 Strob. Eq., 31,) that if the trustee exact from the infants all such labor and service as they are capable of rendering, the inference is especially strong that he expects no compensation for board beyond their services. It matters, therefore, little .whether the defendant is to be regarded as having assumed the support of his ward for such services as he might be able to render, or as having been paid for such support out of such services. In either case the result is the same — -that he should be charged with the estate of his w'ard coming into his hands, without deduction for board or clothing.
The Circuit decree must be affirmed, and the appeal dismissed.
Moses, C. J., concurred.