Harrison Ex Rel. Amason v. Ward , 14 N.C. 417 ( 1832 )

After oyer, the defendants pleaded several pleas, and amongst them, performance of the condition of the bond by the administrator.

On the trial, before Swain, J., at EDGECOMBE, on the fall circuit of 1831, the defendants relied upon the following facts in support of their plea:

At November sessions, 1821, of the county court of Edgecombe, Elisha Amason was appointed guardian of the relators, and of their brother Woodward, the intestate, and gave the usual bond, with sufficient (418) sureties. The intestate, Woodward, died in 1825, and at February sessions, 1826, letters of administration upon his estate issued to Elisha Amason, who then gave the bond upon which the action was brought. At November sessions, 1828, Elisha Amason returned an account current as administrator of Woodward, which showed a balance due the relators, who were his next of kin, and which was claimed in this action. At February sessions, 1828, Elisha Amason renewed his bonds as guardian of the relators, and gave sureties, who were then and at the time of the trial insolvent.

Upon these facts, his Honor ruled that the guardian and administration bonds were cumulative securities for the benefit of the relators, and that they had a right to elect on which of them to sue, and that if the bonds were not cumulative securities for the relators, they had, upon the facts in evidence, a right to recover upon the administration bond.

Verdict for the plaintiff, and appeal by the defendants. after stating the case as above, proceeded: The bond is in the proper and usual form of an administration bond. The defendants rely on the fact that the conditions of the bond were performed by the administrator's rendering an account current as above stated, he being then also the guardian of the relators; that is, that the money acknowledged to be due to the relators in that account, by its rendition, ipso facto, passed from the possession of Elisha as the administrator of Woodward, and vested in him as the guardian of the relators. Had this been specific property, and in the actual possession of Elisha, his possession more than two years after his appointment as administrator would unquestionably, according to the case of Clancy v. Dickey, 2 Hawks, 497, have been as guardian, and would so far have been a performance of one of the conditions of his administration bond, viz.: a payment or delivery to the persons entitled. I presume (419) the rule to be a sound one that when a person has two or more capacities in which to take and hold, and takes and holds without a declaration in which capacity he does so, it shall be taken that he holds in that capacity in which he ought of right to take and hold. He takes in the one capacity or the other; not in both. It is, therefore, reasonable that he should hold in the rightful capacity, and so, in the absence of proof to the contrary, the law presumes. But this rule cannot apply to money not identified or separated from other money, by putting a mark upon it, as in the case before us, where it was not made the ward's money; until this is done, the condition of the bond is not performed. In this case, it remains a mere debt or duty owing to the relators, and that it should be paid to them, or some person for them, was the object of taking the bond now in suit. Whether the admission upon the record made by the administrator amounts to enough to charge the sureties to the guardian bond, it is unnecessary to decide. If they are charged, it will not be by proof of any fact, but by the admission of one who is charged upon that admission by an estoppel, without regard to the actual state of the facts. As, for instance, they would be charged in the present case without proof that the guardian had so much money of the estate of the intestate in his hands. On no other state of facts, either actual or by estoppel, can the sureties of the guardian be charged. The estoppels of Elisha Amason do not affect the relators; they may insist on new rights arising on the actualfacts, not on those which others are concluded from denying. It will be understood that I give no opinion whether the guardian bond is or is not cumulative.

PER CURIAM. Judgment affirmed.

Cited: Clancy v. Carrington, post, 530; Foyer v. Bell, 18 N.C. 478; S.v. Jones, 68 N.C. 555; Harris v. Harrison, 78 N.C. 213; Ruffin v.Harrison, 81 N.C. 217.

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