Culp v. . Lee

Clark, J.: 1. The direction in the residuary clause that the “surplus shall be equally divided and paid over to Philip J. Russell, Miss Mary Russell and the children of my niece Martha, wife of Charles Stanford, in equal portion, share and share alike, to them, and each and every of them, their executors, administrators and assigns absolutely forever,” was properly construed as a devise per capita, and not to the children of Martha Stanford per stirpes as a class. The authorities, Bryant v. Scott, 21 N. C., 155; Gheeves v. Bell, 54 N. C., 234; Harrell v. Davenport, 58 N. C., 4; Hill v. Spruill, 39 N. C., 244; Waller v. Forsythe, 62 N. C., 353; Harris v. Philpot, 40 N. C., 329; Lane v. Lane, 60 N. C., 630; Ward v. Stow, 17 N. C., 509, and other cases cited by counsel, are in point. There is nothing in the will which takes this case out of the settled rule of construction. The intention of the testator expressed *678 that the surplus should be “equally divided” between the beneficiaries, Philip Russell, Mary Russell and the children of Martha Stanford, and that they shall take “in equal portion, share and share alike, to them and each avd every of them,” points clearly to a per capita division among them. 2. The child of Martha Stanford, born the day after the testalor’s death, is entitled to share with the other children. Barringer v. Cowan, 55 N C., 436. 3. If the guardian received for his wards a less sum than they were entitled to receive, it is true they can sue the guardian and his sureties for his default, but they have their election to sue either the guardian or the executor from whom he insufficiently collected the fund devised to them, or both. Harris v. Harrison, 78 N. C., 202; Luton v. Wilcox, 83 N. C., 21. It has been held that where a receiver, appointed to take charge of a ward’s estate, makes a settlement with the guardian and executes a release to him, even under the direction of the Court, such settlement and release are not conclusive against the ward. Temple v. Williams, 91 N. C., 82. The settlement made in this case by the defendant with the guardian of the plaintiffs, had no other effect than to put the burden on plaintiff's to prove that the settlement made by defendant with their guardian was not a full payment of the sum due them, and which the guardian should have collected in their behalf. 4. When the defendant filed his final accouut 19th December, 1876, it closed the trust as between him and the dis-tributees, if sui juris, so that the lapse of ten years certainly would bar an action against him. The Code, § 158; Wyrick v. Wyrick, 106 N. C., 86. If not, indeed, six year's. The Code, § 154 (2); Vaughan v. Hines, 87 N. C., 445; Andres v. Powell, 97 N. C., 155; Kennedy v. Cromwell, 108 N. C , 1. If the plaintiffs had been without a auardian to represent them, the statute would not have run against them till one bad been appointed, or the disability of non-age had been removed. *679 Brawley v. Brawley, at this term. But here, the guardian was appointed in November, 1873, and the defendant has been exposed to an action by him since the account was filed in December, 1876, more than ten years, and the principle applies that a cause of action barred against a trustee, is barred against the cestui que trust also. Welborn v. Finley, 52 N. C., 228; Herndon v. Pratt, 59 N C., 327; Clayton v. Cagle, 97 N. C., 300; King v. Rhew, 108 N. C., 696. If the trustee, the guardian, was faithless, or negligent, he was liable on his bond to an action by his wards after their arrival at age. If, at that time, the defendant had not become protected by the lapse of ten years from filing his final account, the plaintiffs could have brought action against him as well as the guardian, as we have said above. Harris v. Harrison, 78 N. C., 202. Error.