State Ex Rel. Leonard v. York

Stacy, C. J., after stating tbe case: It is tbe bolding of a number of courts that a joint-control agreement between a guardian and tbe surety on bis bond, like tbe one here alleged, is contrary to public policy and void, in tbe absence of legislative sanction or approval. Re Estate and Guardianship of Wood, 159 Cal., 466, 114 Pac., 992, 36 L. R. A. (N. S.), 252; Fidelity & Deposit Co. v. Butler, 130 Ga., 225, 60 S. E., 851, 16 L. R. A. (N. S.), where tbe English and American authorities are cited and reviewed. Without statutory authority, therefore, such arrangement, under these decisions, would render tbe guardian and bis surety liable to tbe ward as guarantors of tbe property or funds so held. Cowan v. Roberts, 134 N. C., 415, 46 S. E., 979. *706 The doctrine of the cases is, that as the relation between a guardian and his ward is that of trustee and cestui que trust, the guardian may not relinquish control, in whole or in -part, to a surety, or turn over to the surety, for its own protection, the very estate for which it is intended to furnish indemnity against loss, without becoming liable therefor as guarantor. White v. Baugh, 3 Clark & Fin., 44, 6 Eng. Reprint, 1354; 28 C. J., 1128. See, also, valuable article in 66 United States Law Review, 233. We are not disposed to question the soundness of these decisions, where no legislative declaration of policy has been made, but it is observed that, in this jurisdiction, C. S., 6382(e), corporate sureties of fiduciaries are permitted, in certain instances at least, to require, for their protection, a deposit of a portion of the trust property, or that “no future sale, mortgage, pledge or other disposition can be made thereof without the consent of such corporation, except by decree or order of court of competent jurisdiction.” Thus, it would seem that in cases coming within the purview of this statute, and perforce to the extent thereof, joint-control agreements between fiduciaries and their sureties are sanctioned in this State by act of Assembly. Pierce v. Pierce, 197 N. C., 348, 148 S. E., 438. That the present agreement comes within the spirit of the act will be assumed on demurrer, at least the contrary will not be presumed. S. v. Bank, 193 N. C., 524, 137 S. E., 593. We cannot say, therefore, that the demurrer was improvidently overruled. Affirmed.