10 N.J. Eq. 269 | New York Court of Chancery | 1854
Job Irick, late of tbe county of Burlington, deceased, left, at tbe time of Ms death, three minor children. He left a will, and appointed his brothers, William Irick and John S. Irick, and his brother in law, William Bidgway, his executors. They were also left by the will guardians of the minor children. They took upon themselves the execution of the will, and they assumed the guardianship of the minor children, entering into bonds, as required by the statute, for the faithful discharge of their duties as guardians. Their respective duties, both as executors and as guardians, were discharged by them separately. As guardians, they gave separate bonds, and as executors and guardians, they settled separate accounts with the Orphans Court.
In the term of February, 1842, of the Orphans Court of the county of Burlington, William Bidgway made a final settlement of Ms accounts as executor, showing a balance in his hands of $4792.06. In November term, 1843, he settled his accounts in the same court as guardian, and charged himself with the balance found in his hands as-executor, by his account as settled. The account shows a large balance due from the guardian.
Joseph Kirkbride was the security on William Bidgway’s bond as guardian. William H. Irick, one of the minor children, after arriving at age, caused a suit to be instituted in the Supreme Court on this bond. Joseph Kirkbride is deceased. This bill is filed by his administrator. It charges, that the accounts settled in the Orphans Court by William Bidgway, both as executor and as guardian, are erroneous, and are a fraud upon Ms security,
As the positive fraud charged in the hill is fully denied, and the supposed errors specified satisfactorily explained by the answers, it was admitted, on the argument, that the controversy between the parties is reduced to a matter of one single item charged in the accounts against the guardian.
At the time of the death of Job Irick, William Eidgway was indebted to liim on a bond, on which there was due, at the time Ridgway settled his accounts as executor, the sum of §>2926. In his settlement as executor, he charges himself with this amount; and as, in his settlement of his account as guardian, the balance found against him as executor was charged to him as guardian, his surety upon these proceedings stands responsible for this amount. This bond was, at the time of the settlement, in the hands of William Irick, a co-oxecutor, and it still remains in his hands uncancelled. The complainant submits, that whatever may be the effect of these settlements and proceedings in the Orphans Court, as between William Ridgway and the other executors or the minor children, that the same do not bind Joseph Kirkhride, the surety, for the amount of the bond; hut that Joseph Ifirkbride, iu becoming surety for William Ridgway as guardian, became surety for such moneys only as came to Ms hands as such guardian, and not surety for the individual debt on the bond of Ridgway to Job Irick.
If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolvent, and is never able to discharge such- indebtedness, such surety is not hound for such a delinquency of his principal. Ho is only bound for the faithful performance of his duties as administrator. It could he no breach of trust or delinquency in duty for the administrator not to do what
Let us apply this principle to the present case. At the time of the testator’s death, "William Bidgway owed him a debt upon a bond. It was due and payable. He assumed the' duties of executor, and settled Ms accounts in the Orphans Court. At the time of this settlement he was able to pay. The evidence of the debt was in the hands of one of his co-executors, William Irick. What was his duty as to this debt in accounting as executor? The statute makes the debt assets in his hands, and makes it his duty to account for it in the same manner as any other part of the personal estate. Elmer 599, § 26. It is true the evidence of the debt was in the hands of a co-executor ; but he could not bring suit upon it, for the debt was not denied. The debt was properly accounted for by William Bidgway. Nine months after this, Bidgway accounted with the court as guardian. The balance in his hands, as shown by his account as executor, belonged to him as guardian. The moment he accounted as executor,
The only question is, who «shall be the losers by the present insolvency of the guardian, his surety or the minor children ? Mr. Kirkbride was one of the appraisers of the personal property of Job Irick, and he appraised this debt as good in the hands of the executors. It is because the guardian has not faithfully discharged his duty, that he is unable to account to his wards. It was for such unfaithfulness that his surety became responsible.
The bill must be dismissed. As it is a bill filed by an administrator, and as there are some circumstances which I have not alluded to, in connection with the accounts, which call for explanation, let the decree be made without costs.