Brodess v. Thompson , 2 H. & G. 120 ( 1828 )

Eahle, J.

delivered the opinion of the court. The appellee in this case brought an action of assumpsit in Dorchester county court, to recover compensation for certain buildings, erected by him on the land of the appellant. He had been under the guardianship of Thompson, and while he was his ward, the buildings were put up, under the order, and with the approbation of the orphans court of that county, and at an expense greatly exceeding the income of his estate, both real and personal. And was it within the authority of the orphans court to pass such an order? is the question now submitted to this court.

The orphans courts derive their powers mostly from statutory provisions, and are tribunals confessedly, limited in their jurisdiction, unable to exercise any authority whatever, not expressly given by law. The authority of the orphans court oí Dorchester county, to issue the orde> in question, is accordingly sought for in the act of 1798, ch. 101, and more particularly, in the tenth section of the 12 sub chapter of that act. Does it confer the power contended for? is the point immediately before us.

The interest or income of a minor’s estate, is the fund out of which he is to be maintained and educated, and under no circumstance could be exceeded, until the act of 1785, ch. 80, was passed. By the ninth section of that law, the orphans courts are invested with authority, to allow the guardian to apply a part of the personal estate, not exceeding a tenth part thereof, to the education of his ward. The act of 1798, ch. 101, in its tenth section of the 12 sub chapter, only enlarged this authority, by extending the expenditure to any part, or the whole of the personal estate, if necessary. The better educa•tion of the Ward is the object of both laws, and the general expressions used in the tenth section, are to be construed with reférence to this object. What shall be deemed advantageous to the ward, is to be understood, in respect to his maintenance andj:education, having an eye to his future situation, and prospects in life. That the legislature did not mean to extend the expenditure of the principal, to any other objects than those personal to the ward, is plain from the language of the tenth section, in the' closing part of it. “No part of the real estate shall, on account of such maintenance or education, be diminished, without the approbation of the court .of chancery, or- general court, as well as the orphans court. ” Clearly indicating,' by the relative terms such maintenance or education, the object of expenditure authorised in the first part of the same section. Should an application of the personal estate not suffice to maintain and educate suitably to the future destination ■of the ward, then such maintenance and education may also induce an application of a part of the real estate, with the approbation of the court of chancery, or general court, as well as the orphans court.

As it is the unquestionable province of a guardian, under our laws, to take care of the person of his ward, so we think it peculiarly belongs to his office, to keep together and preserve his property of every kind and description. Repairs necessary for these ends, within tho compass of the income, ought to be attended to; but we apprehend that schemes of improvement, under no circumstances, ought to be engaged in. They often prove expensive, and their tendency is to encumber the ward, and involve him in debt; and we are decidedly of opinion the orphans courts have no authority to sanction them, by an application of any part of the principal of minors’ estates.

JUDGMENT REVERSED,