(after stating the case). It was entirely proper that all the evidence before the referee should be before the *123Court in determining upon bis findings. There is no cause furnished to the defendants for complaint of the action of the Judge in re-committing the report, and it is sustained.
It is a well settled principle that in the management of the trust estate committed to the guardian, he will not be allowed to use more than the accruing profits in the maintenance and education of his ward, except with the sanction of the Court, or in extreme cases and of urgent necessity-The law is so explicitly declared by the Court, Ruffin, C. J., delivering the opinion, in Long v. Norcum, 2 Ired. Eq., 354, and so universally accepted and acted on since, that we deem it needless to look elsewhere for precedent or authority.
The Court say that while it is not an inexorable rule to refuse to allow expenditures that encroach upon the principal estate, unless the previous authority to do so has been given by the Chancellor, so as to admit of no exceptions, as he has often taken part of the capital for the present benefit of the ward, and in cases where such sanction, if asked in advance, would be unhesitatingly given, sustain such expenditure when made under the circumstances by the guardian acting without permission. And this may be done when, in the language of the Court, “ from the possession of the property the infant cannot be entitled to maintenance as a pauper, and from mental imbecility or want of bodily health or strength he cannot be maintained from the profits of his property, nor put out apprentice and maintained by his master. In such a case, while there is any part of the estate, it must be used to keep the unfortunate infant alive.”
In that case the property consisted of a single slave worth,, perhaps, $300, and during the guardianship others were born until their aggregate value was nearly $1,500, and the principal was not only not diminished by the disbursement, but largely augmented in value, so that if the increase be considered, there was in fact no encroachment upon the principal.
*124There are no such necessities shown in the present case, and the general rale must prevail. It may be that an investment in the education and training of the infant for the duties and pursuits of mature life would be, and generally it is, far more valuable to him than the money thus expended would be if retained and paid him after arrival at age, but until the General Assembly shall otherwise provide, the law must be, enforced as it has come down from the past, and infants must, beyond income, make their own struggles to acquire knowledge, or their guardian must expend their moneys, and in the words of the opinion, “ depend on the sense of honor and justice of the ward and his living to come of age.”
In this connection, however, it may be observed that the proceeds of the sale of land in the distribution among the tenants is principal, and the accruing profits or interest thereon could be used in the support of the ward up to the time of her marriage, and that, thereafter arising, would belong to the husband as tenant by the courtesy, and, if received by him, could not constitute a claim against the guardian.
We are next to consider the matters embraced in the overruled exceptions of the defendant to the account.
The first and second of defendant’s exceptions are overruled, the irrelevancy of the objectionable testimony, not having so far as we can see any misleading tendency upon the'mind of the referee, and the other too vague in terms. Currie v. McNeill,. 83 N. C., 176; Morrison v. Baker, 81 N. C., 76.
The third exception to the report is that the guardian is charged with the^entire amount of the feme relator’s distributive share in her father’s estate, when it never went into his hands.
The ground of this exception is that no final account was filed by the administrator until 1862, more than two years *125after marriage, when the fund, under the law then in force, became the property of the husband on his reducing it to possessions, and that the loss from insolvency is the result of his neglect and delay in collecting and not that of the guardian, and this on the principle enunciated in State v. Skinner, 3 Ired., 564.
This case decides that the .mere neglect of a collecting officer to collect a solvent debt — it remaining good and no actual loss sustained by reason of the delay, such as the intervention of the statute of limitations and the like — until the making the change by statute. Rev. Code, Ch. 78, § 3, did not .charge him with the debt, but only with nominal damages. See also Willey v. Eure, 8 Jones, 320.
Again, while it does not distinctly appear in the report that Robert, the administrator, was entirely solvent when his final account was rendered and the debt could have been collected, it seems to have been so assumed by the referee and that insolvency afterwards supervened in consequence of the general wreck of property brought about by the war; and while the plaintiff Willis, by his inaction, is quite as blamable for the loss as the guardian, it may be that letting the indebtedness rest upon the security of the administration bond, seemed to both as safe a course of action as collecting the money -would have been, and the general destruction of property and especially of the currency in use that followed, seems to justify what was done, or rather left undone. We do not think the defendant should be held liable for more than nominal damages for the imputed neglect to have a settlement with the administrator, and especially in view of the subsequent course of the husband in letting the debt remain, the contrary of which would be to make the guardian an insurer or guarantor.
The last exception, in view of what is said, becomes of no importance in the result.
*126The guardian is charged with the money derived from the .sale of the land, and interest thereon. The interest is income and should be applied to the disbursements and charges for the ward’s support, and if consumed thereby, the guardian is not chargeable therefor. And so since the marriage and during the husband’s life, he, as tenant by the courtesy, is' entitled to the accrued interest, his wife only to the unimpaired principle at his death.
The referee finds that in general terms the defendant Fen-ner is personally indebted to the relator Willis, and then very properly holds, that as the action is upon the guardian bond, these personal accounts between them are outside the reference, and he disregards them.
The defendant Fenner in his answer, says he never re•ceived any of his ward’s personal estate, and that the money derived from the land was expended in part for the feme relator, and the residue for her husband, and that to this extent he is primarily liable in exoneration of himself, and that he is solvent.
The facts in reference to this matter are not before us in the report, and to enable us to pass on the question, ought to be ascertained. If it be true, it would not relieve the guardian from the consequences of' his mal-administration of the trust, but to avoid another suit, this liability, if incurred by said Willis, should be adjusted in the action.
The liability of a husband to account to the heirs at law •of his deceased wife for a fund received by him from a sale of her land is decided in the case of Scull v. Jernigan, 2 Dev. & Bat. Eq., 144. This inquiry may be determined upon a re-reference, rendered necessary in reforming the account .according to this opinion.
To this end the cause is remanded and judgment reversed.
Error.