Patton's Adm'r, &c. vs Patton's Heirs, 3 B. Mon 160

Judge Ewing delivered the opinion of the Court. In May 1824, William Patton was appointed by the Christian County Court, guardian to his four infant children, who are the defendants in error, and executed bond with David S. Patton, Robert G. Patton, and Mathew Patton, Jr., as his securities. In 1824-5, several sums of money, some slaves and plate, came to the guardian’s hands, from the estate of the grand father of the wards. William Patton having died, the wards, by their next friend and guardian, Patton D. Harrison, filed their bill against David S.

Patton, in his own character, as surety and as administrator of their deceased father, and as executor of Mathew Patton, Jr., who had also died, and against David Johnson, and Elizabeth Patton, surviving administrators of Robert G.

Patton, who had also died, for an account- and settlement of the guardianship, and a decree for the property, and amount of money due them. n jS proper in guardianfox h\s owii'Clnldren, to be allowed»use fortiieRns™ppo”t an(1 eduoatiofl* A decree against of ^’guardian* aña sureties, aHeibeforey the comí, should diyect payment to be made of the a?3estatePofSthe yaymeníbysure4ies> This case has been managed with great irregularity in the Court below.

A decree seems to have been rendered, in August, 1837, and May, 1838, for the same amounts, and both decrees might be enforced against the •defendants ; for the first is not rendered as an interlocutory decree, or suspended for the report of the commsisioner, except as to the sale of the lots ; nor is it set aside by the latter decree, nor does it appear on the face of the latter decree, that it was substituted for the former, or made in lieu of it.

We also think that the father should have been allowed, under the circumstances of this case, for the maintenance, education, &c. of the infants, the interest upon ... ... i ,, ,. „ 1 , their money m his hands, as well as the use of their slaves, and that no charge should have been made against his estate during his life, for interest or hire, the amount as it appears, being greatly below an amount that would be requisite for their maintenance, &e.

Though a father, in the general, is bound to support his children out of his own means; when he is poor, or his means limited, and even in some cases, where his means are abundant, but their income is greater than his, a Court of Equity will allow him to apply their means to their support and education. Story’s Equity, 2, 577 — Kent's Com. But after •his death, they have a right to interest and the hire of their slaves, so far as they have not received the same. ¡David S. Patton is personally responsible for the sum for which he sold their negro woman Delilah, or her value and interest on the amount.

He had no power to sell ¡her, as the administrator of Wm. Patton, deceased — she was no part of his estate. But as Win. Patton was the principal in the guardian bond, his whole estate, rea! and personal, should be first made liable to the payment of the whole demand dne to the wards. It would be subjecting the estates of the sureties to 'an unnecessary and oppressive burthen, to subject them first to the payment of the demand due to ¡-[ie yyaj-dg. and afterwards to sell the estate which has 9 , , devolved upon them from their father, the principal, lor the indemnification of the sureties.

The estate, real and personal, of the guardian, which can be had, should be .first sold, and the amount which can be made, ascertained, and a decree rendered against the representatives of the sureties for the residue. ■/ tQwsley Goodloe for plaintiff: Morehead Reed fosdefendants. Both the decrees of 1837 and 1838, with the amendment to the latter, are reversed, and cause remanded, that further proceedings may be had not inconsistent with this iymiion.