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6 Va. 99

Beverleys v. Miller

Supreme Court of Virginia

Decided February 4, 1818

Supreme Court of Virginia · decided 1818-02-04

<p>1. Ifa suit against an infant in the Superior Court of Chancery, be fully defended by his guardiafl appointed by the cou~i. ty court, whose answer is ye-calved on his behalf, under the sanction and authority of the superior Court; he must be aqually bound by such defence, as if such guardian had been, in form, appointed guardian ad litern: but if the suit abate as to such guard~ ian, by ins death, before the decree; a guardian ad litcee ought to be appointed, notwithstanding all the testimony and accounts were taken befor~ his death.</p> <p>2. Under the parttcular circumstances of this case, no interest was permitted to be charged against a trustee on the monies from time to time in his hands, and no commissions were allowed him for his trouble; bL1L on closing his accounts, iuterc~t was allowed on a balance in his favour.</p> <p>3. A charge by a ttustee, for articles sold, and cash lent, b~/ine the creatioe oj'tJ~ frurt, ought iiot to be allowed, without proof thereof by disiutercated testimony.</p> <p>4. rt appears, from the decree in this case, that the points decided by Chancellor TArLo1~, concerning the evidence requisite to prove disbursements by a trusice, UI execution ofthe trust, and as to disbursements made without the consent of co-tru~ tees, were affirmed by the Court of Appeals. -=- See 4 H. end M. 415, 423</p>

Decided 1818-02-04

¶1February 4th, 1818, Judge Roane pi'onounced this Courts’ Opinion.

The Court

¶2is of opinion, that, as Elizabeth L. Beverley, who defended this suit for her infant children, had been appointed their guardian by the County Court;(1) and as her answer was received for them, and full defence made, under the sanction and authority of the Chancery Court, *104although she was not expressly appointed Guardian to defend that suit; they must be equally bound by that defence as if she had been in form appointed by the Court guardian ad litem. But, as the suit had abated as to her, by her death, before the Decree, and altho’ all the testimony and accounts were taken before her death, yet a guardian ad litem ought to have been appointed before the decree was pronounced.

¶3The Court is also of opinion, that the decree in this case is further erroneous, in this; that, under it’s particular circumstances, no interest ought to be allowed on the one hand, or commissions on the other, except interest oirthe balance found due to the trustee; and that the charge of 18l. 12s. 8d. for sundry articles sold and casli lent, from 1784 to 1787, with interest thereon, being before the creation of the trust, ought not to have been allowed by the Commissioner without proof thereof by disinterested testimony. The Coui’t is also of opinion, that the rents of the real estate belonging to the trustfund, unless the same were paid to Bobert G. Beverley in his life time, or his widow after his death, for tlieir maintainance and the education of the children, ought either to have been collected by the trustee William Miller, and credit therefor given; or that fund, if notheretoforepaid, by the Tenant or Tenants as aforesaid, either to the cestuy que trusts, or Trustee, ought now to he resorted to and applied, in the first place, to discharge the balance due the Trustee; in exoneration of the Land.

¶4The Decree therefore, so far as it conflicts with this opinion, is reversed, with costs, and the residue thereof affirmed; and the cause is remanded to the Chancery Court to be finally proceeded in according to the principles above declared.

¶5 Note. This fact appeared .by an Exhibit in the record.
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