22 N.C. 60 | N.C. | 1838
(61) The answer of John Long denied the charge of collusion, and as evidence to repel it stated that he resisted his own removal and the appointment of his brother, and appealed from the order, because the imputations against himself were unfounded, and George was not, in his opinion, a fit person to be the guardian of his father's person or estate. It stated that this defendant delivered over certain bonds belonging to the lunatic to George upon his appointment, and denied all intermeddling afterwards; but it did not set forth any account between those parties, nor allege that any final one was ever made, but, on the contrary, admitted that this defendant had not accounted for the profits of certain parts of his ward's lands, and insisted that he ought not to account for them, because his father, before he became a lunatic, gave him permission to take possession and take the profits to his own use. By plain inference, if not explicit admission in this answer, it appeared that George Long was an illiterate, improvident, and insolvent sot, not trustworthy to transact affairs, and especially to receive money.
As an exhibit a receipt from John to George Long was filed by the latter for the sum of $144.92, dated 3 February, 1827, and expressed to be "for part of his trouble for being guardian to Frederick Long." Upon the answer of George Long there is no reason why the court should not proceed to an account of what is or ought to be in his hands arising out of either of his offices of guardian or executor; and it must, of course, be ordered. It is equally clear that John Long ought to account in like manner to some person. The only question is whether the plaintiffs as legatees have the power to call for it. Generally, the executor alone can sue a debtor to or trustee for the testator, in respect of personality. But we think the (62) present is a case within the established exceptions. If the insolvency and incapacity of the executor would not, per se, suffice, yet those facts, with others admitted or clearly proved, raise so high a presumption of collusion as to establish it for this purpose. Doubtless the denial of it in the answer may be true as to the period to which that positive denial particularly points; that, namely, of the contest for the *57 guardianship. But their subsequent conduct is not susceptible of the same charitable interpretation. These persons are brothers, residing in the same neighborhood, and cognizant of each other's transactions and liabilities in their respective offices, and bound to account with each other for the benefit of third persons. But they do not account for a period of eleven years, and the executor is known by each to be irresponsible by reason of his insolvency; and each of them, upon a ground common to both, deny a liability for the profits of certain parts of the real estate, with which prima facie they are chargeable. Can one help entertaining a strong suspicion, under such circumstances, that the laches of the executor, otherwise so unaccountable, ought to be attributed either to positive collusion or to that undue influence exercised for gain by one brother, and yielded to by another, which amounts to the same thing in good sense, and in the view of a court of justice? If to those grounds of presumption be added the surprising fact that six years after the former guardian had handed over to his successor what he thought proper as the effects of the ward, and a few months after the death of the ward, when the latter was acting as executor, the former so far prevailed over him as to induce him, contrary to law and common reason, to pay back to him a sum of money in part of some larger sum which he claimed for his trouble as guardian, and all this without, even then, coming to an account, the evidence cannot be resisted of a power and control so exerted, for unfair and unjust ends, by the one over the other, as to constitute collusion. George Long might, perhaps, from negligence, have omitted to sue John. It is possible. But there is enough in the case to satisfy the mind that he was also unwilling to sue, and was thus unwilling because it was against the interest and wishes of his brother. There is, therefore, a proper ground for this bill of the legatees against John Long; and there must be a similar reference to take his accounts. The other questions made in the pleadings will properly come up (63) for decision upon the report of the master.
PER CURIAM. Direct an account.
Cited: Davidson v. Potts,
