Brannon, Judge:
As will be seen in 43 W. Va. 711, (28 S. E. 776), this is a suit by Ingaby M. Windon against William A. Stewart to surcharge and falsify accounts of Stewart as her guardian. When the case ivent back 'from this Court to the circuit court of Harrison the account was re-committed to a commissioner, and upon his report a decree for the plaintiff was pronounced, from which Stewart appeals.
Stewart complains that payments made by him in improvements, in cutting filth and otherwise, have been disallowed. These credits were definitely disallowed by our former decision, as we were of opinion that they were such improvements as a tenant was required by law to make without pay. But counsel for Stewart now says that no question of that kind had been raised in the circuit court prior to our decision, and that the right to credit for such improvements was not denied in the circuit court, but it was only claimed that they were worth nothing. The bill charges that the settlements contained numerous items allowed to the credit of the guardian for “improvements” and “work done on farm,” branding them as “false,” “improper and erroneous,” and “illegal” and “excessive,” and alleging that they should not have been allowed, and explicitly and elaborately falsifying them. There could scarcely be a stronger or more explicit protest against these items than that made by the bill. Their amounts were specified and to whom paid. The legal reason that they were not allowable, that is, that they should have been done free of charge by the tenant, is not given, it is true; [490] but that is matter of law, not necessary or proper to put in a pleading. The answer of Stewart denied that these items were improperly allowed, and thus there was a plain issue made upon them. This Court considered these items and definitely held that they had been improperly allowed the guardian, and our decision is res judicata as to them.
When the case went back to the circuit court, Stewart 'for the first time presented a written lease providing that the tenant should be “credited on the rent with all improvements and repairs.” The question whether these improvements should be allowed was plainly involved in the pleadings, and Stewart was bound to present this paper as evidence before the hearing, and it is too late to do so after a final decision upon that issue by this Court. “When a question of law or fact is once definitely settled and determined by decree of this Court, and the cause is remanded for further proceedings, the party cannot by subsequent pleadings call in question the conclusiveness of the questions determined by said decree.” Seabright v. Seabright, 33 W. Va. 152; Henry v. Davis, 13 Id. 230; Camden v. Werninger, 7 Id. 528. If you cannot elude such decision by new pleadings, for a stronger reason you cannot by hew evidence; for the decision covers all things and evidence that were in the case, and all evidence which, under the pleadings, might have been put in the case. McCoy v. McCoy, 29 W. Va. 794; Wandling v. Straw, 25 Id. 692; Cromwell v. County, 94 U. S. 351. So, if this lease were ever so forceful, it could not be considered now; but it is of no force, as it does not specify what improvement and repairs would be allowed, and would be construed to refer to permanent improvements and repairs, not those things which the tenant would be bound by law to do. The language is not definite enough to change what would otherwise be the legal rule.
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Brannon, Judge:
As will be seen in 43 W. Va. 711, (28 S. E. 776), this is a suit by Ingaby M. Windon against William A. Stewart to surcharge and falsify accounts of Stewart as her guardian. When the case ivent back 'from this Court to the circuit court of Harrison the account was re-committed to a commissioner, and upon his report a decree for the plaintiff was pronounced, from which Stewart appeals.
Stewart complains that payments made by him in improvements, in cutting filth and otherwise, have been disallowed. These credits were definitely disallowed by our former decision, as we were of opinion that they were such improvements as a tenant was required by law to make without pay. But counsel for Stewart now says that no question of that kind had been raised in the circuit court prior to our decision, and that the right to credit for such improvements was not denied in the circuit court, but it was only claimed that they were worth nothing. The bill charges that the settlements contained numerous items allowed to the credit of the guardian for “improvements” and “work done on farm,” branding them as “false,” “improper and erroneous,” and “illegal” and “excessive,” and alleging that they should not have been allowed, and explicitly and elaborately falsifying them. There could scarcely be a stronger or more explicit protest against these items than that made by the bill. Their amounts were specified and to whom paid. The legal reason that they were not allowable, that is, that they should have been done free of charge by the tenant, is not given, it is true; [490] but that is matter of law, not necessary or proper to put in a pleading. The answer of Stewart denied that these items were improperly allowed, and thus there was a plain issue made upon them. This Court considered these items and definitely held that they had been improperly allowed the guardian, and our decision is res judicata as to them.
When the case went back to the circuit court, Stewart 'for the first time presented a written lease providing that the tenant should be “credited on the rent with all improvements and repairs.” The question whether these improvements should be allowed was plainly involved in the pleadings, and Stewart was bound to present this paper as evidence before the hearing, and it is too late to do so after a final decision upon that issue by this Court. “When a question of law or fact is once definitely settled and determined by decree of this Court, and the cause is remanded for further proceedings, the party cannot by subsequent pleadings call in question the conclusiveness of the questions determined by said decree.” Seabright v. Seabright, 33 W. Va. 152; Henry v. Davis, 13 Id. 230; Camden v. Werninger, 7 Id. 528. If you cannot elude such decision by new pleadings, for a stronger reason you cannot by hew evidence; for the decision covers all things and evidence that were in the case, and all evidence which, under the pleadings, might have been put in the case. McCoy v. McCoy, 29 W. Va. 794; Wandling v. Straw, 25 Id. 692; Cromwell v. County, 94 U. S. 351. So, if this lease were ever so forceful, it could not be considered now; but it is of no force, as it does not specify what improvement and repairs would be allowed, and would be construed to refer to permanent improvements and repairs, not those things which the tenant would be bound by law to do. The language is not definite enough to change what would otherwise be the legal rule.
The next matter is as to a charge of two hundred and fifty-six dollars and thirty-six cents against the guardian by the decree for board and clothing furnished the ward. We held in the former decision that as the ward was a daughter of Stewart, and performed service for him, he could not make this charge. That matter is closed. But it is claimed that this charge operates to double charge him with that amount. It is contended, on the other hand, that even if this be so, our former decision precludes the review of this matter. I hardly think so. The opinion does not indicate that it was intended to be final as to this claim of [491] double charge, but indicates that it was a matter to be investigated upon a re-committal to a commissioner. It might have been, should have been, clearer. It does say that no double charge in that item was perceived; but the intent was not clearly final. To say the least it is not clear that it was the intent (as it was not) to be final; and the law is that to work an estoppel by record, it “must be certain to every intent.” 1 Greenl. Ev. s. 22. As the effect of estoppels may be to shut out the truth, they are not to be favored or extended by mere construction, and will not be made out by mere argument or inference. 1 Herm. Estop. 24, s. 4; 4 Kent 261 n. Especially where res judicata is sought to be based on a mere opinion, it ought to be clear that it was meant to close the point, in cases where there is reversal and a remand for further proceedings by re-accounting. The former decision is no res judicata as to this matter of double charging, as it was meant to be left open for the commissioner on re-committal. I do not yet see that in the item of two hundred and fifty-six dollars and thirty-six cents alone and per se there is double charge; for the guardian having been wrongly allowed for board and clothing credits from which that sum comes, it is not a wrong-process to make it a charge against him; but I am of opinion that there is a double charge by the decree. A suit to surcharge and falsify settlements does not overhaul them. When confirmed they are prima facie correct and stand still surcharged and falsified, and when surcharged and falsified, they stand still valid, except so far as successfully surcharged and falsified. The last confirmed settlement before commissioner Adams found a balance due the ward of one hundred and sixty-five dollars and twelve cents. That amount stands in her favor by force of that settlement. Such balance as may be found due 'from her guardian by reason of surcharge and falsification of settlements before Adams will also stand in her favor. In the Adams’ settlements Stewart is charged with moneys received, other than rent, amounting to three hundred and sixty-nine dollars and ninety-nine cents. Commissioner Thompson says two hundred and fifty-nine dollars and ninety-nine cents, but he omits the Devers money, one hundred and ten dollars. That balance of one hundred and sixty-five dollars and twelve cents includes those moneys. In the decree of 23rd September, 1895, Stewart is charged with four hundred and ten dollars and twelve cents, which sum includes the three hundred and sixty-nine dollars and ninety-[492] nine cents, and thus that three hundred and sixty-nine dollars and ninety-nine cents is twice charged to Stewart — charged in the Adams settlements, and re-charged in the decree. That decree was reversed but when the commissioner made Ms report after reversal he took the sum allowed by it against Stewart one thousand three hundred and eighty-four dollars and sixty-two cents, deducted from it rent which had been charged to Stewart in former report, but which this Court held improper, two hundred and ninety dollars and ninety-three cents, added improper allowance for improvements and interest three hundred and three dollars and seventy-five cents, leaving one thousand three hundred and ninety-seven dollars and forty-four cents on 23rd September, 1895, added interest to date of decree (two hundred and twenty dollars and thirty cents), leaving the ward one thousand six hundred and seventeen dollars and seventy-four cents; then deducting costs (three hundred and twenty-five dollars and fifteen cents), leaving balance to ward one thousand two hundred and ninety-two dollars and fifty-nine cents, and for this balance the decree was rendered involved in this appeal. This shows that the first decree including those moneys is the basis of the last decree, with certain deductions, but not deducting the three hundred and sixty-nine dollars and ninety-nine cents. Stewart thus pays that money in being responsible for one hundred and sixty-five dollars and twelve cents, the balance in Adams’ settlement, and pays it again in the decree for one thousand two hundred and ninety-two dollars and fifty-nine cents. These moneys charged to Stewart by Adams being the same entering into the four hundred and ten dollars and twelve cents, there is double charge of three hundred and sixty-nine'dollars and ninety-nine cents. The difference (forty dollars and thirteen cents) between three hundred and sixty-nine dollars and ninety-nine cents and four hundred and ten dollars and twelve cents likely was a reservation by attorneys, and never received by Stewart. At any rate, it cannot be charged to him, because there is no surcharge to justify it in the bill or in the paper “XYZ” to warrant it. The bill makes a general surcharge without specification. This will not do. Corbin v. Mills, 19 Grat. 438. That paper of further specification filed with the commissioner is allowable under that case; but it specifies only one item in Adams’'settlement as a surcharge, the one hundred and ten dollars, charged September 27, 1884, when Adams charged it. It [493] was the proper amount of tbe Devers debt at tbat date. Thus the charge of four hundred and ten dollars and twelve cents and its interest, two hundred and sixteen dollars and twenty-nine cents, wrongly entered into the decree as debits against Stewart. A bill to surcharge and falsify, as I stated in the former opinion, does not revamp and re-state the prior settlements, but is addressed only to items surcharged and falsified — those improperly omitted or credited; and such items as may be successfully surcharged and falsified added together constitute the relief to which the party is entitled. Shugart v. Thompson, 10 Leigh 434; Corbin v. Mills, 19 Grat. 438, 465. This matter is not excepted to, but is fought by Stewart, and as it appears on the face of the report, he can rely on it without exception. Kester v. Lyon, 40 W. Va. 161.
There is some compound interest charged on rent and items improperly credited for board and clothing,-after the ward became twenty-one, which is erroneous, as with the close of the guardianship the trust ends, and it is then only a matter between debtor and creditor. 1 Minor Inst. 486.
I think proper items entering into Adams’ unconfirmed last report, which have not been allowed, should enter into a future account. It seems to me that two items, eight dollars and forty-one cents and nine dollars and seventy-two cents commission ✓allowed in Adams’ settlements, are wrong, because Stewart was too late in settling. There may be other items of compensation likewise, if specified.
The decree is reversed and the case remanded for another account.
UPON REHEARING.
A rehearing has not led us to a different conclusion from that announced in the foregoing opinion, and therefore it is re-announced.