Opinion. were made in good faith and according to his best judgment." There is no evidence in the record which we have been able to find tending to show that for a girl of the kind and station in life of said ward a sum of something like $600 per annum on an average was not excessive, except the testimony of the guardian, to the effect that he made about that expenditure and his testimony in one place to the effect that he considered such expenditures essential and necessary. At other places in his testimony, however, the guardian shows that during the whole period from September 1, 1910, he did not exercise any control over such expenditures, except to remonstrate with his ward and at times with her uncle-in-law, Mr. Garnett; that he allowed the ward, a girl of twelve years of age in September, 1910, and who had only reached the age of eighteen years in 1916, to herself control the amount of her expenditures. As he testifies, "She did the buying; I did the paying." It is true the guardian testifies that he had conversations. with his ward "I reckon a hundred times. I have told her she was spending too much and spending it too fast, and I also told her uncle, R. W. Garnett." But he made her no definite allowance to spend at any time; made no effort, after the first year from September, 1910, to keep her expenditures within her income, as he himself admits in his testimony, except to remonstrate, as aforesaid, after the bills were made and when or after he paid them. And during the first year from September 1, 1910, the expenditures were approximately $500.00 and the next year approximately the same amount, so that it is apparent that the effort testified to by the guardian to restrict expenditures the first year of his guardianship, was not substantially different from his action in that regard in succeeding years. [2] It should be said, in justice to the guardian, that Opinion. there is no suggestion in the evidence of the existence of any bad faith or turpitude on his part in all of his transactions. But the testimony of the guardian himself is to the effect that he did not himself regard the expenditures in excess of the income as judicious or proper. And the evidence plainly establishes the fact that he abdicated his authority and control over the estate of his ward and the income therefrom and over the conduct of the ward in the matter of expenditures. Such abdication may have been due to the very affection of the guardian for his ward or to some other cause, but to whatever cause due, it constituted a plain dereliction of the very duty which the office of guardian is created to perform, and no guardian can devolve such duty upon his ward, even with the consent of the latter, or upon any other person, or thus escape responsibility for injudicious and unreasonable disbursements in excess of the income of the ward which are made without authority of the instrument under which he acts, if there be such, or, if there be none such, without previous authority of the court. [3] Touching the disbursements by a guardian for the support and maintenance and education of his ward in excess of the income from the estate, the test of whether there will be an allowance of credit therefor in the settlement of his accounts, is well established under the statute in Virginia (Sec. 2604 of the Code), as expounded by the decisions of court. That test is not, as claimed by appellant, merely that the guardian has acted in good faith, but that the disbursements are such as the court would have authorized had application been previously made to it. If they are such disbursements they will be allowed, although made by the guardian without previous authority, but not otherwise. And the court in acting on the subject will be guided by its determination of whether the expenditures in excess of the annual income were actually made and by its further deter Opinion. mination of whether they were judicious and proper from the standpoint of the interest of the ward. Barton v. Bowen, 68 Va. (27 Gratt.) 849, 855; 1 Minor's Inst. (2nd ed.) 473-4. [4] Therefore, on the question of whether there was error in the decree under review in its allowance of the expenditures aforesaid of only $250 per year from September 1, 1910, to September 1, 1916, and $403.51 from September 1, 1916, to September 1, 1917, we are of opinion that the evidence in the record sustains the conclusion that under the facts and circumstances of this case, such expenditures were injudicious and improper and should not be allowed, to the extent that they annually exceeded the annual income of the ward with which the guardian is chargeable. It is true that one of the witnesses for appellee, Mrs. Garnett, stated that in her opinion $30 or $35 per month would be a fair amount to support the ward in keeping with the ordinary circumstances of her family, and Mr. Garnett testified that he thought that $40 per month would be a reasonable amount for a; young lady situated in the normal school and situated in life as is the said ward; but the testimony of the latter on this subject applies only to the period after September, 1916, and the testimony of both of these witnesses and of the guardian furnished evidence from which the learned and experienced chancellor of the court below, was warranted in forming his own opinion in the premises and he was not, nor are we, bound by the expression of opinion even of witnesses for appellee. [5] However, it is apparent from the facts mentioned in the statement preceding this opinion, that the annual income of the ward for which the guardian is accountable amounted to over $250 per annum. We are of opinion that under section 2603 of the Code, a guardian acting is good faith has the discretion to expend the whole of the income of the estate of his ward for the "maintenance and educa Opinion. ton" of the latter. Action in good faith by the guardian in making expenditures for such purposes or either of then is the standard applicable to and is the test of whether there will be allowance of credit therefor in the settlement of his accounts, so long as such expenditures are kept within the ward's income. It is only to the extent that the guardian, of his own authority, breaks in upon the corpus of the trust fund for the maintenance or education of his ward, that the standard and test first above mentioned must be applied. [6] We are, therefore, of opinion that, so far as actually made, the expenditures in question for the respective years from September 1, 1910, to September 1, 1917, to the extent of the net annual income with which the guardian is chargeable for such years, respectively, after deducting lawful charges of administration, should be allowed in the settlement of his guardianship accounts, but no further. Of course, if there should be an excess of such income for any year over such actual expenditures, the surplus becomes a part of the principal for the succeeding year under the wellsettled rule on that subject. The assignment of error under consideration is, therefore, partly well taken. 4. The fourth assignment of error by appellant is that the decree under review did not allow appellant commissions on the whole $10,000 value of the twenty shares of Farmville mill stock to which he was entitled as administrator of S. H. Bliss, deceased. The same remarks above made concerning the first assignment of error apply also to this. Hence, there is no merit in this assignment of error. 5. The fifth assignment of error by appellant is that the decree aforesaid did not allow the appellant the $176.49 mentioned in the statement preceding this opinion, being the net amount paid by him in good faith to the said widow. on account of her share of the estate of S. H. Bliss, deceased, Opinion. as distributee of such estate prior to the discovery of the existence of the will of such decedent. We are of opinion that this assignment of error is well taken. [7] Under the statute law of Virginia the personal estate (as is also the real estate) of a decedent is expressly made assets for the payment of his debts. And where there is sufficient personal estate to pay all debts, the administrator, although he may have no actual notice of their existence, takes the risk of personal liability for payment of debts if he distributes the personal estate before awaiting the twelve months' period allowed by statute in Virginia for presentation of debts and before then obtaining protection from personal liability therefor by refunding bonds or before such protection is afforded him by order of court under the statute law in such case made and provided, unless the creditor's laches or other conduct thereafter should bar the demand. Sections 2706, 2707, 2708 of the Code; 7 Am. & Eng. Encycl. Law (1st ed.), pp. 318-319, and note 1 and authorities there cited. [8-11] Whatever may be the true solution of the muchdebated and centuries-old question of the nature and origin of the law of succession to property-whether it be a natural right or one which is the creature of "juri positivis merely," as it is regarded by Blackstone-it is a right which all authorities agree may be regulated by the sovereign and by virtue of the statutes of distribution (which have become wellnigh universal); wherever such statutes exist it has become a right which is vested in the persons entitled to take upon the death of the intestate, subject to such conditions. as the statute law may impose upon the devolution of the title. 7 Am. & Eng. Ency. Law, pp. 346, et seq., and authorities cited. And, by the statute of distribution of personal estate (section 2557 of the Code), where a person dies intestate as to his personal estate, his distributees |