Davis, Adm'r v. . Fox, Adm'r , 69 N.C. 435 ( 1873 )

Plaintiff's intestate, J. H. Davis, was guardian of one N.J. Lee, and during the minority of his said ward certain lands were sold by order of the Court of Equity of Mecklenburg county, and the proceeds of sale was paid into the office of the clerk and master of that Court. A.C. Williamson, the intestate of the defendant, Fox, was the clerk and master at the time, and never paid over the money belonging to the ward, either to the guardian or to any one else, for said ward. The other defendants were the sureties of the clerk and master, or the representatives of such sureties.

On the return of the summons the defendants demurred to the complaint of the plaintiff, assigning as grounds for the demurrer that the plaintiff, as administrator, had no such right to the funds of the ward of his intestate as will authorize him to bring a suit for the recovery of those funds.

His Honor overruled the demurrer, and gave judgment for the amount due the ward and interest. From this judgment the defendant appealed. We are of opinion that the first exception of the defendant to the ruling below, is well taken, to-wit The plaintiff as administrator of the deceased guardian, cannot maintain an action on the bond of the clerk and master for a fund alleged to be due to the ward. The action should be brought by the ward if she be now of age, or in her name by a second guardian, if she is still a minor. The administrator of the deceased guardian, has no interest or concern with the fund, for which the clerk and master in equity and his sureties may be liable. The matter which concerns him, is to have a settlement in regard to the money received by his intestate as guardian, in which settlement will, of course, be included commissions, vouchers, c. The administrator cannot maintain an action for a fund that his intestate ought to have collected. On payment of the amount he will have an equity, to be allowed to sue in the name of the ward, in order to have indemnity out of the bond of the clerk and master, but until such payment, he has no status in a Court of law or equity, except as the representative of a guardian who was in default.

Error; this will be certified.

The other exceptions are not noticed, as they may be cured by amendment.

PER CURIAM. Judgment reversed.