Matthews v. . Downs , 54 N.C. 331 ( 1854 )

THE bill states that Jonathan Downs was appointed guardian of the plaintiffs; that they were entitled to receive considerable sums of money under the will of their grandfather, Reuben Bozzle, which was in the hands of Ambrose M. Rea, the only acting executor under the (332) said will, and that the said guardian failed to call for the same from the said executor, but was grossly negligent in not doing so. That he was a resident in the same neighborhood with the executor Ambrose and well knew that he, Ambrose, was becoming intemperate and wasteful in his habits, and that he was likely to become insolvent, and that he used no exertions to obtain the estate coming to the plaintiffs from the executor before he became finally insolvent, and the bill seeks to subject the estate of the guardian to the payment of this amount for the want of diligence. The bill was filed against the administrator of Downs, the guardian, who answered. Replication was made to the answer, and under a decree that the defendant account the case was referred to commissioners, who made a report, and the question submitted to this Court arises on an exception to this report. The nature of the exception and the testimony relating to it are sufficiently stated in the opinion of the Court. The case comes up on an exception to the report of the referees.

The referees find that upon adjusting the account of the defendant Downs as guardian of the plaintiffs he is indebted to them in the sum of $335.38. That in settling with A. M. Rea, the executor of Reuben Bozzle, the defendant Downs left in his hands a sum which with interest to 5 January, 1852, amounted to $335.38, which was lost to the plaintiff through the insolvency of the said Rea. The defendants except because there is no sufficient evidence that the defendant Downs knew that there were any funds in the hands of the executor after the payment of the debts of said Bozzle. We must take the exception as it is intended and with reference to the facts disclosed in the report and in the case. Rea, as the executor of Bozzle, had, under the will of the latter, sold (333) all the property contained in the residuary clause except the land and negroes which were delivered to the defendant, the guardian. At the time he delivered over the land and negroes a suit was pending against the executor to recover a negro woman named Rose and her issue, consisting of about thirteen in number, in six of whom the wards of Downs were concerned, and to meet the expenses of that suit the executor retained in his hands the sum mentioned. Was the defendant Downs guilty of any negligence in leaving in his hands funds to the amount he did to meet the expenses of that suit? We think he was not. If a bill had been filed by the guardian to draw out of the hands of the executor the funds of his wards, upon its appearing that such a suit existed against the executor the latter would be entitled to retain in his hands a sum sufficient to meet the probable expense of defending it; and if it had been a money demand, to pay such judgment as might be rendered against him. Considering the nature of the suit and its importance both to the estate and to the children, a court of equity would have allowed the executor to retain in his hands a sum at least equal to that left with him by the guardian. Nor is the question altered by the fact that at that time the executor was insolvent or in failing circumstances; his right to retain was the same. Nor does it alter the question that he never paid the cost; that is a matter between the plaintiff in that suit and the executor. The question before us is, was the defendant Downs, the guardian, guilty of negligence in doing that which a court of equity would have allowed him to do? We cannot say he was guilty of any negligence in the matter.

The exception is sustained, and the report to be reformed accordingly.

PER CURIAM. Reversed.

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