In re the assessment of damages on the bond given by Walling

The Ordinary. In 1860, John L. Walling was appointed by the orphans court [106] of Middlesex county guardian of three of his minor children, and gave bond with David Hulit, now deceased, as surety. The youngest of the children came of age in the fall of 1871. * The guardian became insolvent about 1872 or 1873. In 1880, on the application of the wards, suit was brought on the bond in the name' of the ordinary, and judgment recovered for the amount of the penalty. The administrators of the surety insist that the support of the wards during minority should be allowed in estimating the damages. The estate of each of the wards was only about $216. The guardian, their father, was able to maintain 'them during all the period of their wardship, and it was his duty to do so. He would be entitled to no allowance therefor, under the circumstances, at law. Nor would he be in equity, for it is a settled principle of the court of chancery not to allow maintenance on behalf of infants out of their property unless it will be for their benefit to order an allowance. And it is not for their benefit to direct an allowance out of their general estate, where they have any other sufficient provision for their maintenance, or a right which can be enforced to demand it from [107] other sources. The court, therefore, will not direct an allowance to the father of the infants out of their estate, where he is of sufficient ability to maintain and bring them up without it in reference to their situation and prospects in life, having a due regard to the claims of others upon his bounty. Matter of Kane, 2 Barb. Ch. 375. In the case in hand the father makes no charge for maintenance, and never intended to make any, but the claim is made on behalf of the surety’s estate. There is no ground for allowing it. Further, the administrators insist that the surety’s estate is discharged by reason of the failure of the wards for so long a time after they came of age to prosecute their father for the money due them. But the mere omission to prosecute the principal will not discharge the surety. There should be execution for the amount of the money received by the guardian, with' interest, crediting the payments proved.