Sudderth v. . McCombs , 65 N.C. 186 ( 1871 )

No statement of the facts is necessary, as it will sufficiently appear in the opinion of the Court. This is an action by the guardian of the infant children of Abram Harshaw against the defendants as administrators of A. Sudderth, the former guardian, brought in the Superior Court of Cherokee County. An account was taken and reported by the order of the court, to which exceptions were filed by both parties, and (187) it is by appeal from the Judge's rulings upon these exceptions that the case comes to this Court.

We have decided in Rowland v. Thompson, ante 110, that the Superior Court has no original jurisdiction of an action by a ward against his guardian for an account, but that it must be brought in the Probate Court. Of course the same thing is equally true of an action by a guardian against the administrators of a former guardian for a settlement of his guardian account. The present action must therefore be dismissed.

But as the questions presented by the exceptions will in all probability arise in the course of taking the account in the Probate Court, and our opinion was invited by counsel, and as the principal difficulty in dealing with them arises out of the absence of full statements in the report of the facts upon which they must be decided; we think we may not improperly present the views which we take of them.

The plaintiff excepts to the report because:

1. He is required to receive $7,000 of Confederate Treasury notes, bonds, etc., and that the defendants are credited with the same. On that point the report states that the former guardian had collected considerable amounts in Confederate money which on the 28th of March, 1864, he invested in Confederate bonds and certificates. Properly to pass on this exception it is necessary to know when and under what circumstances the Confederate money which the guardian converted into bonds was received. On this point nothing is stated in the report, nor so far as we can see in the evidence. If the Confederate money was received under circumstances which justified it, (and what those circumstances are has been defined in several decisions of this Court,) and if the guardian could not by ordinary diligence have disposed of it in some better and safer way, he would be justified even so late as March, 1864, in changing it for Confederate bonds, which (188) were at least no worse than the currency, and as bearing interest, if anything a little better. The time and circumstances of the receipt of the currency is therefore the proper subject of inquiry, as the liability of the guardian will depend on his ability to justify the original receipt, and not on the mere conversion into another form of the same security. If the $1,200 paid by Joshua Harshaw in the Spring of 1863, was a part of the $7,000, it will be proper to inquire whether the payment was passed on the guardian by Harshaw, and into the other circumstances of the transaction, keeping in view the rule laid down in Emerson v. Mallett, 62 N.C. 234, andState rel. White v. Robinson, 64 N.C. 698. We are inclined to think uponthe evidence as it stands the defendants would be chargeable with this sum of $1,200. As to the rest the facts are too vague for even a conjecture.

2. That defendants are credited with $1,023, which their intestate received in Bank bills in 1859 and 1860 and failed to invest and which they now offer to pay in the same bills to the plaintiff.

Prima facie, bank bills could have been safely loaned out in 1859 and 1860, and in the absence of some good reason to the contrary, it was the duty of the guardian to have done so. The defendants therefore, unless they can show some excuse for the default which does not appear in the present report, are chargeable with that sum and interest from its receipt.

3. That defendants are credited with $877.91 which their intestate received in Confederate money in 1865. The report does not state the circumstances under which this money was received in 1865, and it is therefore impossible to say whether or not its receipt was excusable. If it was voluntarily received in payment of solvent debts, it was not excusable, and it will be for the defendants to show circumstances (189) to justify the apparent negligence.

4. That defendants are credited with $575, received by their intestate in May, 1864, in North Carolina treasury notes, being for the hire of certain negroes.

The testimony of A.H. Sudderth leaves it doubtful what the contract about the hire of the negroes in 1864 was. We are inclined to think as the evidence stands at present that the defendants are entitled to that credit.

Those observations will probably render it unnecessary to consider the exceptions of the defendants.

The action is dismissed.

Per curiam.

Judgment reversed.

Cited: Dockery v. French, 73 N.C. 426; Suddreth v. McCombs, 82 N.C. 535;Donnelly v. Wilcox, 113 N.C. 409.