TOWNSHEND v. DUNCAN. 51

The bill, it is true, does not allege that the devisees, or their
guardian, received the rents and profits of the land charged with
the payment of the annuity. But no such allegation by the
plaintiffs was necessary; since it was for them to have
shewn, that the devisees actually took the estate as devised. If
they derived no profit from it, it was their own fault; and a matter
with which the plaintiffs could have no concern. If the estate
charged was wholly insufficient to pay the annuity, they should
have disclaimed all right to it; or the fact should have been, in
some way, put upon the record by the defendants; which has not
been done. But, according to the common law, the mother, as
guardian, has an interest in, and is bound to take charge of her
wards' estate, (f) And by the common law, as well as by posi-
tive legislative enactment, a guardian of an infant is bound imme-
diately to take possession of his ward's real and personal estate; to
manage it to the best advantage; and to account for its rents and
profits, (g) It could not, therefore, be necessary for these plain-
tiffs to aver, as a foundation of their claim to relief, that the guar-
dians of these infant devisees had received the rents and profits of
their estate; or, in other words, that they had performed their legal
duty; since that must be presumed; and a guardian himself surely
could not be permitted to rely upon the fact of his own negligence
for his own benefit, (h)

(/) Ratcliff's case, 3 Co. 38; Roach v. Garvan, 1 Ves. 1-58; Mellish v. De Costa,
2 Atk. 14; Smith v. Marshall, 2 Atk. 70; The King v. Oakley, 10 East, 494; 2
Fonb. 238; 1 Blac. Com. 461.—(g) Co. Litt. 88; 2 Fonb. 243; Hay v. Conner, 2
H. & J. 347: Brodess v. Thompson, 2 H. & G. 120; 1798, ch. 101, Sub. Ch. 12;
(h) Gregory v. Mighell, 18 Ves. 331; Parker v. Mackall, pos. note.

Cox v. CALLAHAN.—This bill was filed on the 15th of December, 1790—It states
that the plaintiff, while an infant, became seized of a certain tract of land as devisee
of his late father; that his mother was entitled to dower therein; that she married
John Railey, who afterwards became the guardian of the plaintiff; that Railey held
the land to which the plaintiff was entitled, and took the rents and profits, but never
paid or accounted for them; that he made his will, and appointed the defendant
Chaires his executor, who received the then crop of the plaintiff's land; that the
lands of which John Railey died seized, descended to his heir Charles Railey, who
devised them in part to the defendant Benton, and in remainder and wholly to the
defendant Callahan, whom he appointed his executors and died; that John Railey's
personal estate was insufficient to pay Ms debts; and that neither he, in his life-
time, nor any of the defendants since, have paid or accounted to the plaintiff for the
rents and profits of his lands. Prayer for an account, and for general relief.

The defendants answered, proofs were taken, and the case was thereupon brought
before the court.

nth January, 1793.—HANSON, Chancellor.-This cause standing ready for hear-
ing, and being submitted to the Chancellor without argument, the bill, answers,