Tbe plaintiff contends that she is entitled to recover of the defendant J. B. Cain, clerk of the Superior Court of Buncombe County, North Carolina, and the sureties on his official bond, for breach of duty, in turning over to the Central Bank and Trust Company, a corporation, as guardian, the funds in his hands of John Morris Quinton, minor, and not requiring said bank as guardian to give bond. We cannot so hold.
This brings us to consider the statutes on the subject:
C. S., 2161, is as follows: “No guardian appointed for an infant, idiot, lunatic, insane person or inebriate, shall be permitted to receive property of the infant, idiot, lunatic, insane person or inebriate until he shall have given sufficient security, approved' by a judge, or the court, to account for and apply same under the direction of the court.”
C. S., 2162, in part, is as follows: “Every guardian of the estate, before letters of appointment are issued to him, must give a bond payable to the State, with two or more sufficient sureties, to be acknowledged before and approved by the clerk of the Superior Court and to be jointly and severally bound. The penalty in such bond must be double, at least, the value of all personal property and the rents and profits issuing from the real estate of the infant, . . . The bond must be conditioned that such guardian shall faithfully execute the trust reposed in him as such, and obey all lawful orders of the clerk ¡or judge touching the guardianship of the estate committed to him,” etc.
As to giving bond in a surety company, see C. S., 339. As to giving-mortgage in lieu of bond, see C. S., 346. If these were the only statutes on the subject plaintiff’s contention ivould be correct. We have another statute dealing with this subject — C. S., 6376, which is as follows: “Any corporation licensed by the insurance commissioner, where such powers or privileges are granted it in its charter, may be guardian, trustee, assignee, receiver, executor or administrator in this State without giving any bond; and the clerks of the Superior Courts or other officers charged with the duty, or clothed with the power of making such appointments, are authorized to appoint such corporation to any such office, whether the corporation is a resident of this State or not.”
*166C. S., 6377, provides bow sucb corporation is licensed to do business. C. S., 6378, provides that tbe Insurance Commissioner shall make examination as to solvency. O. S., 6379, the certificate of Insurance Commissioner as to solvency equivalent to justification. C. S., 6380, provides that Insurance Commissioner notify clerk of Superior Court of license and revocation.
The agreed facts bearing on the subject, are as follows: “That about 15 February, 1930, the said sum of $1,000 was turned over by J. R. Cain, clerk of the Superior Court of Buncombe County, North Carolina, to the defendant, Central Bank and Trust Company, of Asheville, N. C., as guardian for John Morris Quinton, minor, and no guardian bond was required of or given by said Central Bank and Trust Company, but it was allowed to take and handle said funds of said minor without giving bond. That the charter of Central Bank and Trust Company, authorized it to do a fiduciary business and an indemnity and surety business and was so licensed by the Insurance Commissioner.”
O. S., 6376, seems to be a special privilege allowed certain banks when its charter permits it to act as guardian. Whatever may be the criticism of C. S., 6376, et seq., it is a legislative matter and not for this Court. The law-making branch of the government has passed the act, and if constitutional it is the duty of this Court to uphold same, no attack is made on its constitutionality. If the Central Bank and Trust Company, intermingled this guardian fund with other funds of the bank, it and its surety would be liable to plaintiff.
In Roebuck v. Surety Co., 200 N. C., at p. 202, the following is stated as the law: “The bank, as guardian, in not investing the funds of its ward, but intermingling it with other funds of its bank, was faithless to the trust reposed in it; and its bondsman, the defendant, must suffer the loss for such faithlessness.” Bank v. Corporation Commission, 201 N. C., 381; Bane v. Nicholson, ante, 104. For the reasons given, the judgment of the court below is
Affirmed.