Ogburn v. . Wilson

*118 Smith, C.J. (after stating the facts as above). The matter in. controversy is as to the contesting demands of the plaintiff and the assignee Mary, upon the fund in the hands of the trustees, and this depends upon the construction of the second declaration of trust in the assignment, 'which has been recited. The plaintiff contends that inasmuch as the claims of the two older wards have been extinguished, the certificate representing the joint property, in its entirety, belongs to the intestate, and as such must be paid to him. The defendant Mary insists that the interest of the infants in the money represented in the certificate are several and distinct, each being entitled to his ratable part only; and hence that the interests of two have been extinguished and their shares fall into the residuum of the trust fund and belong to her as next in priority ; and further, if this be not so as to two-thirds, it is as to a moiety, as the security of the deed is for Ella and her deceased brother. Now the argument for the plaintiff would be difficult to combat, as to the right disposition of the money, if the whole case-depended on the form of the certificate and payment was coerced out of the debtor. But the question is as to the appropriation, under the trust deed, of the money in the trustees’ hands, now that two of the infants have been settled with, and one only remains to assert his claims. Is he entitled to all which the certificate calls for or his part only ? ' Now it is manifest that it is secured in the assignment for the-sole benefit of Ella and Charles and to Wilsou as their guardian, excluding the older brother from participating in what may be received. They only are named as the beneficiaries for whom the guardian proposes to act, and their interests he protects out of his own estate. But a moiety only belongs to the intestate and a moiety only is secured to him. The other moiety would belong to Ella, but that she has received all her estate and can now assert no right to a share of the fund. If Charles had also been paid, the indebtedness evidenced *119 by the certificate would cease to exist altogether and would be put out of the way of the assignee Mary, in her asserting her claim next after the bills due in Greensboro. As this would be true of all, .so it would be true'of any extinguished share of either. The intestate’s right was, when the deed was executed, confined to one-half of the debt, and it remains undisturbed by subsequent changes. If a surety upon the guardian’s bond had paid the judgment recovered on it, he might by subrogation claim the fund distributable to Charles, as he might that belonging to Ella if he had paid her. But the payment by the principal debtor is a discharge of the debt and he is not allowed to come in and share in the division of his own estate and thereby diminish the trust fund created by his own act to the prejudice of the more remotely secured creditors. This separation of interest seems to be indicated in what fell from RodmaN, J., delivering the opinion in State ex rel. Whitford v. Foy, 65 N. C., 273. “These wards,” he proceeds to say, “were equally interested in a common fund and must bear all losses affecting it equally. So long as all remained infants, each was entitled to have his share of the fund bear compound interest, but when any one ceased to be entitled to this privilege of an infant, by death or marriage, the share of that one becoming immediately demanda-ble, ceased to bear any more than simple interest, although if the guardian receive more, he would be liable to pay it.” The controversy hinges upon an interpretation of the deed, and the intention of the parties to it. Does it upon a tair rendering of the second declaration of trust secure to the intestate, more than a moiety of the deposit — and is there any just reason for allowing him to succeed to what is secured to his sister? It is not a question of survivorship, but of construction and purpose in reference to the application of the trust fund, and we think the intestate entitled to one-half of what would have been distributed if Ella had not received her full estate. *120 The plaintiff has no interest in the alleged wrongful payments to Wilson, since they are only injurious to creditors of the third class, and no controversy is made in this action by them. There is error in the judgment and it will be entered for one-half of the sum due under the certificate against the trustees. Error. ' Reversed.