Read v. . Turner

CoNNOR, J. If the judgment in this action from which the defendant has appealed is affirmed by this Court, the judgment for $3,000, with interest and costs, which the plaintiff recovered of M. A. Turner prior to his adjudication as a lunatic, will be paid in full out of his estate. The said estate, now in the hands of the defendant, as his guardian, and consisting of money, is not sufficient in amount for the like payment of the judgments of other creditors of the lunatic, whose debts were contracted also prior to the adjudication. The effect of the judgment in this action, therefore, is to give to plaintiff priority over other judgment creditors, who are not parties to this action and who had no opportunity to be heard before the judgment was rendered. *777 Power to appoint a guardian of a person wbo bas been duly adjudged a lunatic (0. S., 2285), is conferred by statute in tbis State on tbe clerk of tbe Superior Court of tbe county in wbicb sucb person resided or bad bis domicile at tbe date of bis adjudication. 0. S., 2150. Sucb guardian is required to give a bond or other security to be approved by a judge or by tbe court. 0. S., 2161. Tbe bond must be conditioned that sucb guardian shall faithfully execute tbe trust reposed in him as sucb, and obey tbe lawful orders of tbe clerk or judge touching tbe guardianship committed to him. C. S., 2162. In tbe administration of tbe estate in behalf of tbe lunatic, tbe guardian is subject to tbe orders of tbe clerk by whom be was appointed and to whom be is required by statute to account. 0. S., 2183-2188. In proper eases it is the duty of tbe clerk to make an order authorizing, and directing tbe guardian of a lunatic to expend from bis estate sucb sum or sums - as shall be found by the clerk are or may be required for tbe adequate support and maintenance of tbe lunatic and of tbe members of bis family wbo are dependent on him. Lemly v. Ellis, 146 N. C., 221, 59 S. E., 683; McLean, v. Breese, 109 N. C., 564, 13 S. E., 910; McIlhenny v. Savings Co., 108 N. C., 311, 12 S. E., 1001; Adams v. Thomas, 83 N. C., 522, and 81 N. C., 296; In re Latham, 39 N. C., 231. Ordinarily, tbe guardian and tbe sureties on bis bond are fully protected by tbe orders of tbe clerk, approved in proper cases by tbe judge, with respect to tbe administration of tbe estate of bis ward. It bas been held by tbis Court that tbe clerk of tbe Superior Court is without power to authorize or order tbe guardian of a lunatic to pay out of tbe estate committed by tbe court to sucb guardian, debts of tbe lunatic contracted by him prior to bis adjudication. In Blake v. Respass, 77 N. C., 196, it was said by Bynum, J.: “By tbe common law, as well as by statute 17 Edward II, cb. 10, wbicb was only declaratory of tbe common law, tbe king as parens patrice took charge of tbe effects of a lunatic, and held them, first, for tbe maintenance of him and bis family, and second, for tbe benefit of bis creditors, as tbe Court of Chancery might order from time to time.” As tbe clerk of tbe Superior Court in tbis State bas only sucb powers as are conferred on him by statute, and as no power bas thus been conferred on tbe clerk to authorize or order tbe payment of tbe debts of a lunatic contracted prior to bis adjudication, it follows that tbe clerk is without sucb power. Tbe proceedings begun by petition “In tbe matter of M. A. Turner, lunatic, Matbilde S. Turner, Guardian,” and by petition in tbe action entitled, “Mrs. George H. Read v. M. A. Turner and M. E. Turner,” in which tbe judgment for -$3,000, with interest and costs, was rendered, should have been dismissed. Tbe relief sought by tbe plaintiff on tbe facts alleged in tbe petitions in said proceedings can be bad only in a *778 civil action instituted by tbe plaintiff against the guardian of the lunatic, in the Superior Court of Mecklenburg County. This Court by virtue of its general equity jurisdiction has power to grant the relief. Adams v. Thomas, 83 N. C., 521. The plaintiff has no lien by virtue of her judgment for $3,000 on the assets of the estate of M. A. Turner, in the hands of his guardian. She acquired no lien by the commencement of this action. The defendant, Mathilde S. Turner, guardian of M. A. Turner, lunatic, was well advised when she presented to the court, in her answer to the complaint, the facts shown therein, to wit, that there were judgment creditors of M. A. Turner, other than the plaintiff, whose judgments were recovered upon debts contracted by the lunatic prior to his adjudication and prior to her appointment as guardian. On all the facts appearing in the pleadings, these judgment- creditors are entitled to share pro rata in the estate of the lunatic, after adequate provision has been made for the support and maintenance of the lunatic and his dependent family. There was error in the refusal of the court to make an order that these creditors be made parties to the action, before judgment was rendered. For this error the action is remanded to the Superior Court of Meck-lenburg County for further proceedings in accordance with this opinion. Before any order is made or judgment rendered in this action, the court should find that provision has been made by an order of the clerk of the Superior Court of Mecklenburg County out of his estate for the adequate support and maintenance of the lunatic and of the members of his family who are dependent on him. We quote with approval the language of Dillard, J., in Adams v. Thomas, 81 N. C., 296, as follows: “Property of a lunatic put into the hands of a committee is to be regarded as in custodia legis, and no creditor can reach it for a preexisting debt, except through the order of the Superior Court, and that order is never made until first a sufficiency is ascertained and set apart for his own maintenance and that of his family, if minors, and this administration of the estate is based on the idea that the sovereign owes the duty to a person thus unfortunate to devote his property primarily to his maintenance and to protect him against his existing creditors, except in subordination thereto.” Where, however, adequate provision has been made for the support and maintenance of a lunatic and the dependent members of his family, out of his estate in the hands of his guardian, and there remains any part of said estate which is available for the payment of his creditors, such part of said estate should be disbursed by the guardian, under an order or judgment of the Superior Court, pro rata, among the creditors, where there are no priorities by virtue of liens or mortgages. Error.