83 N.C. 543
N.C.
1880
Ashe, J.

This is a civil action brought by the plaintiff (relator) against the defendants as sureties upon the admin* islration bond of John D. Hyman, as administrator of W> F. Taylor, deceased.

The complaint substantially alleges that W. P. Taylor died intestate in the county of Hеnderson; that on the 10th day of September,. 1873, the said Hyman was duly qualified as his administrator, and together with the defendants executed and delivered to the probate judge of said county his bond in the penal sum of five thousand dollars conditioned for the faithful discharge of his duties as administrator j that as said administrator lie collected a large sum of money belonging to the estate of the intestate, viz; seventeen hum dred and sixty-five dollars, which he has not applied as the law directs, except the sum of six hundred and sixty dollars ; thаt the said Flyman died on the-day of —--, 1876, and afterwards, viz: on the 13th day of September, 1876; the plaintiff was duly appointed administrator de bonis non of the estate of the said W-. P. Taylor; and that the sum of about eleven hundred dollars is due by the said defendants to the plaintiff as administrator aforesaid by reason *545 of their suretyship on said bond, no part of which has been pаid.

The defendants in their answer deny that Hyman is dead, that he was appointed administrator of Taylor, and that they executed the bond. They deny that the plaintiff was appointed administrator de bonis non, or that any such sum of money as that alleged in the complaint, or any other sum, came to the hands of Hyman as administrator, and if it did, that ‍​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌‌​​‌‌​​‌‌​‌‌​​​‌​​‌​‌​‌​​​‍it has been applied as the law directs, and they insist that no demand was made upon them for a settlement before the commencement of the action.

The action was continued until fаll term, 1878, when the following order was made by Avery, the judge presiding, with the consent of the counsel of both parties, viz: “ In this cause, by consent of parties, it is referred to C. M. Pace, and W. W. Jones, 'Esqrs., with power to choose an umpire, in case they cannot agree, to determine and settle all the matters of controversy between the parties arising in this cause, and their award, or that of a majority of them, to be a rule of court.”

At spring term, 1880, of said court, the arbitrators returned their award, in substance as follows: That J. D. Hymаn qualified as administrator of W. F. Taylor on the 25th day of February, 1869, and executed his bond in the sum of five thousand dollars for the faithful discharge of the duties of his office, with T. W. Taylor and G. W. Mc-Minn as sureties, and on the 10th day of September, 1873, in compliance with an order of the probate court of said county, he renewed said bond in a like sura, with the defendants W, D. Miller and P. F. Patton as sureties; that said Hyman, as such administrator, received in the course of his administration, the sum of three thousand, four hundred and twenty-five dollars and fifty-seven cents, and disbursеd the sum of two thousand and forty-four dollars and ninety- *546 one cents, leaving a balance in favor of his intestate’s estate of one thousand three hundred and eighty dollars and sixty-six сents on the 5th of April, 1875; that Hyman, as administrator, never rendered any final account of his administration.

They further find that J. D. Hyman died on the day of 1876, and that the plaintiff, S. V. Pickens, qualified as administrator de bonis non, on his estate, on the 13th day of September, 1876; that they allowed J. I). Hyman as administrator two and a-half per cent, commissions upon all receipts and disbursements whiсh are shown in an exhibit marked ‍​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌‌​​‌‌​​‌‌​‌‌​​​‌​​‌​‌​‌​​​‍“A” accompanying the report; and as conclusions of law that the first and second bonds herein mentioned are cumulative, and that the defendants are responsible for the balance herein reported 'as a devastavit of said estate. Exhibit “A” referred to in the report, is an account stated by ’the arbitratоrs showing the receipts and disbursements of :said Hyman as administrator, running from July the 1st, 1869, to April the 5th, 1875, with interest on both sides of the account, leaving on that day a balance unadministered оf thirteen hundred and eighty dollars and sixty-six cents.

The defendants except to the report or award of the arbitrators :

First. Because the arbitrators held as matter of law thаt the two bonds given by Hyman in 1869 and 1873 were •cumulative, contending that they were only liable for the breaches committed after they became sureties in 1873.

Secondly. Because the arbitrators have charged them with interest on each item of money received by their principal, from the time it was received, whereas they could only be held liable for such interest after demand made.

Thirdly. Because the said arbitrators have charged interest •on the balance due April the 5th, 1875, without assigning •any reason for so doing.

Fourthly. Because the arbitrators have failed to report the *547 evidenсe upon which they base their findings, sp that the court might see whether the ‍​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌‌​​‌‌​​‌‌​‌‌​​​‌​​‌​‌​‌​​​‍conclusions reached by them were warranted by the evidence upon which they acted.

Fifthly. Beсause they have failed to find whether any demand was made by the plaintiff upon the defendant before action brought, or to report any evidence as to such demand.

Sixthly. Because the award is otherwise defective, insufficient, vague, indefinite and erroneous..

At the special June terra, 1880, of the said court, all of the exceptions to the award were overruled; the award was in all things confirmed and judgment rendered thereon in behalf of the plaintiff, and with an allowance of twenty-five dollars to еach of the arbitrators, to be taxed in the bill of costs. From which judgment the defendants appealed to this court.

We will consider the several exceptions to the award seria- •tim in the order in which they were taken.

The first exception to the legal conclusion оf the arbitrators, that the two bonds given by Hyman, as administrator, were cumulative, cannot be sustained. It is well settled that where successive bonds are given for the faithful discharge of a trust, all the bonds given during the continuance of the office are cumulative,’ and the sureties on each bond stand in the relation of co-sureties to the sureties on аll the other bonds. The second bond is an additional and cumulative security for the faithful discharge of the duties of the administrator, and is retrospective as to pre-existing аnd continuous breaches. Bell v. Jasper, 2 Ired. Eq., 597; Oates v. Bryan, 3 Dev., 451; Jones v. Hayes, 3 Ired. Eq., 50 2; Jones v. Blanton, 6 Ired. Eq., 415 Moore v. Boudinot, 64 N. C., 190; Hughes v. Boone, 81 N. C., 204.

The second exception is untenable. An administrator should not be charged with interest on moneys bona fide collected and kept for those entitled, unless there be plain ‍​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌‌​​‌‌​​‌‌​‌‌​​​‌​​‌​‌​‌​​​‍proof of misconduct in such collection and custody. Hester v. *548 Hester, 3 Ired. Eq. 9. But there is no pretence that the large balance which cante to the hands of Hyman as administrator, was kept b} him for' the purpose of paying debts, or for distribution.- He had been acting as administrator for more than seven years, when he died in 1876. The last item in the account of his administration stated by the arbitrators with which he is debited, is in the year 1872, four years before his death. He neither made annual returns, nor filed a final account. Nor dоes it appear that he kept any account of his administration, and in the case of Finch V. Rdgland, 2 Dev. Eq., 137, the court held, “ if an executor will not keep accounts to show when he did receive the money a'nd how much, there are but two-things the court can do — one is to charge him interest at the risk of making him pay it while the money lies by him ; the other is to let him keep the interest actually received by him as his own, and use the testator’s money for his own, purposes; and that there may be no evidence of the amount of interеst collected, or of the amount of principal used by him, encourage him not hr keep accounts, or full and true ones. 'Which of these principles ought to govern, it is not necessary to sdy.” And when an administrator has used a trust fund for his own advantage, of which there is a very strong presumption in this case, from the length of'time it was held by him, he'should be held tо a strict interest account. Arnett v. Linney, 1 Dev. Eq. 369; McNeill v. Hodges, decided at this term, ante, 504.

As to the third exception : The defendants were properly charged with interest'on the balance found due on the 5th of April, 1875, because that is the date of the last credit in the account, and “ administrators are chargeable with interest on balances in their hands, whenever those balances acсumulate beyond the exigencies of administration, unless it appears the fund has been kept sacred and intact for the! 'cestuis que trust, as their property ready to be delivered to *549 them, so that profit could nut have been made thereof, Peyton v. Smith, 2 Dev. & Bat. Eq., 325.

The fourth exception is founded upon a misconception of the nature -of the reference. It was a'Submission to arbitration, and not a reference under the Code of Civil Procedure, and arbitrators are not bound to find the facts separately from their conclusions of law, and are not required to report them. Lusk v. Clayton, 70 N. C., 184, Blossom v. Van- Amringe, 63 N. C., 65.

There is nothing in the fifth exception. No demand is necessary ‍​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌‌​​‌‌​​‌‌​‌‌​​​‌​​‌​‌​‌​​​‍to be made before bringing an aetion ©n an administration bond.

And as to the sixth .and last exception, we are unable to ■see in what particular the award is obnoxious to either of the objections set forth therein.

We hold that His Honor committed no error in overruling the exceptions and giving judgment according to the award. The judgment of the .court below is therefore affirmed.

No error. . • Affirmed.