Horton v. Horton, 39 N.C. 54, 4 Ired. Eq. 54 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 54, 4 Ired. Eq. 54

WILLIAM HORTON vs. EDWIN R. HORTON.

Whether or not a guardian is bound to go to another State to sue a former guardian, who has taken off his ward’s property; yet when such former guardian has given a guardian bond in this State, the subsequent guardian is bound to sue on that bond to recover the value of the property so removed : and if ho neglects to do so, he is answerable to the ward for the amount of the property removed.

This cause was transmitted to this Court from the Court of Equity of Chatham County, at the Fall Term, 1842.

The bill is filed by William Horton, against Edwin R. Horton, who was the guardian of the plaintiff, for an account. The facts are., that Joseph Horton was first appointed the plaintiff’s guardian by the County Court, and entered into a guardian bond, in which the present defendant and another person were bis sureties. This was in the year 1820, and the plaintiff was then seven or eight years old. Joseph Horton received, as legacies, from a deceased relative to his ward, the sum of $100, and a negro boy, worth $300. In January, 1823, Joseph Il'orton, being about to remove to Alabama, and to carry the slave with him, in order to induce the defendant and his co -surety to assent thereto, executed to them a conveyance for a tract of land in Chatham County to indemnify them from any loss in case he did not get from the plaintiff a release, when he came to full age ; and he then went with the defendant’s approbation. In May, 1823, the defendant procured the removal of Joseph Horton, and himself to be appointed to the guardianship of the plaintiff. But he never afterwards took any steps to got in his ward’s money and slave from Joseph Horton, who died in Alabama some years ago. The present bill charges that the defendant ought to have done so, and that he is liable to the plaintiff, among other things, for the value of the estate which ought to have been received from the first guardian.

The answer does not deny the facts, but insists that the defendant bad not, under his appointment as guardian'in this State, authority to receive or sue for the ward’s property in Alabama.

There was the usual reference to the Master to take the accounts of the estate of the plaintiff in the hands, or that ought to have been in the hands, of the defendant. The Master has reported a balance of $1080 23 against the defendant, which includes the value of the negro and the pecuniary legacy to the plaintiff, which Joseph Horton received and wasted ; and the defendant has excepted thereto.

W. II Haywood, for the plaintiff.

Badger and Manly, for the defendant.

Ruffin, C. J.

The defendant is liable for the sums charged by the Master. Admitting that a guardian of a ward residing here is not bound to secure the estate of the ward in another government, a point we do not decide, that would be no excuse for this defendant., For he had it in his power to have justice done to his ward, without going out of this State, namely, by an action against the sureties of the first guardian; Indeed, he himself was one' of them ; and there can be little doubt, that the principal purpose, for which he procured himself to be appointed guardian, was to prevent those sureties from being immediately sued, as they would have been, if any other person had been appointed. The plaintiff, has therefore, a right to consider his estate to have been in the hands of the defendant, upon his receiving the office of guardian. He might have his remedy at law against the defendant, as the surety of Joseph Horton, or upon his own bond as guardian, or he may have it in this Court by bill for the breach of trust. The defendant’s exception must therefore be over-ruled, and the report confirmed, and a decree according to it, with costs to the plaintiff.

Per Curiam.

Decree accordingly,