Opinion
(December Term, 1832.)
1. Where an administrator procures himself to be appointed guardian of the next of kin to his intestate, but does not return an account as guardian, or in any way designate the property of his ward, so that it can be identified, the sureties to the administration bond are not discharged.
2. The case of Harrison v. Ward, ante, 417, approved.
DEBT upon a bond, executed by the defendant, as surety of John J. Carrington, on his taking out letters of administration upon the estate of John Carrington. The bond was in common from of administration bonds and the breach assigned was the nonpayment by the administrator of the relator's share of the residue of the intestate's (530) assets.
W. A. Graham for plaintiff.
Badger for defendant.
After oyer, the defendant pleaded performance of the condition by the administrator.
Upon the trial, before Martin, J., at ORANGE, on the last circuit, the facts were that the bond was executed in consequence of John J. Carrington's appointment as administrator at November sessions, 1817, of Orange County Court; that at the ensuing August sessions he was appointed guardian of the relator, and gave the usual bond with other sureties, but he had never returned his account as guardian to the office of the county court.
His Honor ruled that John J. Carrington was, upon these facts, both administrator and guardian, and the assets being uniformly in his possession, that possession should be taken as being in the character in which it was rightful, which his Honor held to be that of guardian. In submission to this opinion the plaintiff was nonsuited and appealed.
The principle of the case of Harrison v. Ward, decided at this term, ante, p. 417, governs this; indeed it goes farther, for in that case there was a return as administrator; here there was none as guardian. There is not the least proof here that the money due to the relator was at any time at, or after J. J. Carrington's appointment as guardian, in his hands. There is no return even acknowledging it as a debt — nothing but a bare presumption that he then had it, because it was his duty to have had it, and this presumption, if it arises, is in a great measure repelled by his not producing it when afterwards called on. The evidence offered by the defendant, or rather relied on by him, for it is the relator's evidence, only proves that he ought to have, not that he actually had it. This would be presuming too much (531) in order to apply the judge's maxim, for had the defendant actually shown that the administrator at any time after he became guardian had this money separated from other money, and marked as the ward's money, so as to make it the ward's property, or after two years from his administration had it marked and labeled as money of the estate, there would in the case first put be something wherewith to charge him as guardian, as by such appropriation it became the property of the ward, and in the second case there would be facts upon which the judge's rule might operate. But in the case stated there is nothing to make this sum the property either of his ward, or of the estate, so as to leave room for a presumption in which character J. J. Carrington held it. In Clancy v. Dickey the negroes had been of the estate, the executor became guardian, and had them in his possession after the time in which he could rightfully hold them as executor. The law therefore adjudged, in the absence of positive proof, that he held them as he rightfully might, viz., as guardian.
PER CURIAM. Judgment reversed.
Cited: Foye v. Bell, 18 N.C. 478; Jones v. Brown, 68 N.C. 555; Harris v. Harrison, 78 N.C. 213.