Latham v. . Wilcox

Davis, J., (after stating the case). The case is before us on appeal from the rulings of his Honor on the first, second, fourth and fifth exceptions, and can be considered upon those exceptions alone. 1. The first exception cannot be maintained. There was some evidence that William Latham had been appointed guardian to the plaintiff. Though there were no sureties to the bond given, there was evidence that he acted as guardian; he took notes as guardian, and he, if living, would not be heard to say that, because he had not complied with all the requirements of the law, he was therefore not ac *373 countable as guardian for the property and fund received by him as guardian, and being dead, his administrators cannot avail themselves of such a defence for his estate. Having acted as guardian, he could not, if living, nor can his administrators say, that because the provisions of the law were not complied with he was not guardian. There was evidence and proper evidence to support the finding of the referee in the Court below. Usry v. Suit, 91, N. C., 406; Barnes v. Lewis, 73 N. C., 138; Lemley v. Atwood, 65 N. C., 46; Sain v. Bailey, 90 N C., 566; Humble v. Mebane, 89 N. C., 411; Topping v. Windley, 99 N. C., 4. In these cases the liabilities of guardians and of persons acting as or dealing with guardians are discussed, and fully sustain the ruling in this case. 2. The second exception is to the charge of compound interest. The notes received by the defendant’s intestate, as guardian, were properly charged with compound interest, and so with regard to the money with which he ought to have charged himself for the rent of said lands which he used; but with regard to the price of the horse, it does not appear that any money was collected. The referee finds that the fifty dollars were not collected. He does not find whether it could have been collected or not, or under what circumstances the horse was sold, and the guardian should only be charged with the unpaid portion of the price of the horse with simple interest. With this modification the ruling upon the second exception is affirmed. 3. The fourth exception was to the refusal to apply the sum paid to the plaintiff (the receipts for which are referred to) to the credit of the defendants on the sums due from the estate of their intestate as guardian of the plaintiff. The plaintiff is a son of the deceased guardian and one of his heirs and distributees. The estate is a large one, and by the finding of the referee and the Court below, the items excepted to were paid to the plaintiff, not on the sum *374 due to him from the intestate’s estate on the guardian account (for the defendants denied that their intestate was guardian, or that he receivedfor, or owed to, the plaintiff any thing on that account), but on what was due to him as one of the next of kin, and it was in that character that it was paid to and received by him. It was not a case in which the defendants had a right, after having denied the existence of the liability of their intestate as guardian, to say that they would apply sums paid to the plaintiff as one of the dis-tributees to what may be found to be due to him as a debt from their intestate, and we think the case of Jenkins v. Smith, 72 N. C., 296, and others cited by counsel for defendants, have no application to this case. The exception cannot be maintained. 4. The fifth exception is to the refusal to credit the defendants with the sum paid to Wagner. For the same reason given in regard to the fourth exception this cannot be maintained. These sums were paid to the plaintiff as one of the next of kin of William Latham, who, it appears, left a large estate, and in the settlement of the estate the defendants will be credited with them on the distributive share of the plaintiff as so much paid to him on that account. Modified and affirmed.