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

Pearson, C. J.

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 jf 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,, &o. 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-