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Sawyer versus Knowles
Shepley, C. J.
— The plaintiff was appointed administrator of the estate of Hiram Hill, on April 20, 1836. After a former guardian of the minor children of Hill had resigned, the plaintiff appears to have been appointed, during the year 1844, their
[210] guardian by the Judge of Probate. Acting in that capacity, he settled, as the jury have found, an obligation made by the defendant to those children, and received therefor the note, upon which this action has been commenced.
It is provided by statute, chap. 110, sect. 6, that “no executor or administrator on an estate shall be appointed guardian to -any minor, interested therein.” The appointment of the plaintiff as guardian, was therefore void, and his acts as such were void, unless he had before that time ceased to be administrator of their father’s estate. Conkey v. Kingman, 24 Pick. 115.
The obligation surrendered to the defendant, would be still binding upon him, and he might be compelled to pay it to any person lawfully authorized to enforce it.
The note having been made payable to one having no lawful authority to adjust and deliver up that obligation, was without consideration. To this it is objected, that the defendant must by law be presumed to have been discharged from his trust as administrator, before he was appointed guardian.
If such were the presumption of law, the production by an administrator, of his letter of administration, or of a copy of the record of his appointment would, after the lapse of a few years, be insufficient proof that he sustained that character; ,and one does not readily perceive, how he could produce proof, that he had not been discharged.
When there is proof, that a person has been legally appointed to an office or place of trust, the presumption of law is, that he continues to hold it during the term prescribed by law, or until he has been legally discharged.
It is not perceived, that the instructions respecting a ratification were too restricted; or that the defendant was estopped to make this defence, because he had not returned the obligation. Exceptions overruled.