193 S.E. 661 | N.C. | 1937
The above three actions are identical in character with the exception of the names of the respective plaintiffs, and were instituted for the same purpose, viz.: To compel an accounting for the funds belonging to said plaintiffs as minor children of Jesse A. Adams, deceased, and for whom J. B. Adams first qualified as guardian. The three actions were consolidated and referred by consent to D. H. Bland, Esq., who reported his findings of fact and conclusions of law to the Superior Court.
J. B. Adams qualified as guardian for the infant plaintiffs, children of Jesse A. Adams, deceased, on 23 November, 1923, giving bond with personal sureties. Later, on 1 September, 1930, said guardian entered into bond in the sum of $3,000, with Massachusetts Bonding Insurance Company as surety. This guardian filed a number of reports, the last of which was filed 26 August, 1930. This account showed that he then had a balance in hand belonging to his said trust in the sum of $1,089.89.
J. B. Adams died intestate on 4 March, 1931. Viola Lee Adams, his widow, was appointed and qualified as administratrix of his estate, and thereafter, on 30 April, 1931, likewise was appointed and qualified as guardian of the infants herein referred to, giving bond in the sum of $2,000, with the Employers' Liability Assurance Corporation as surety. On 14 December, 1931, Viola Lee Adams filed a final account as administratrix of J. B. Adams, guardian, purporting to close up and settle the trust account of said deceased guardian. This account showed a balance due the wards in the sum of $1,348.81. Thereafter on 26 January, 1933, Viola Lee Adams, as guardian for said infants, filed an account in the office of the clerk of the Superior Court of Johnston County, wherein she acknowledged a balance on hand belonging to said wards in the sum of $1,483.77. Demand was made upon Viola Lee Adams, guardian, for an accounting, and upon her failure to account, after certain proceedings before the clerk, these actions were instituted.
The referee reported his conclusion of law, among others, that the demurrer ore tenus interposed by the Massachusetts Bonding Insurance Company should be sustained, and so recommended. Upon appeal, this conclusion of law, among others duly excepted to by the appellees, was overruled, and judgment was entered against all the defendants, and the defendant Massachusetts Bonding Insurance Company excepted and appealed. *339 If the complaints fail to state a cause of action against the Massachusetts Bonding Insurance Company the other exceptions presented on this appeal become immaterial.
An examination of the complaints discloses that there is no breach of its bond by the Massachusetts Bonding Insurance Company charged or alleged. The language most nearly approximating an allegation to this effect is as follows: "14. As plaintiff is advised, informed and believes, the guardianship estate belonging to this plaintiff, and the other wards named, which was in the hands of the said J. B. Adams, guardian as aforesaid, at the time of his death, came into the hands of Mrs. Viola Lee Adams, the administratrix upon his estate, and thereafter, upon her petition for guardianship of the estate of this plaintiff and the other wards named, she was duly appointed, and she regularly qualified and entered upon the discharge of her duties as such on 30 April, 1931." In a subsequent paragraph the complaints alleged that demand was made upon the successor guardian, Viola Lee Adams, and that she has failed to account. Paragraph 14 of the complaint, when construed in connection with the other allegations, more nearly constitutes and allegation of full compliance than a breach, and the judgment overruling the demurrer ore tenus was erroneous.
But it is contended that the bond of the Massachusetts Bonding Insurance Company and the bond of the Employers' Liability Assurance Corporation were executed to assure the faithful administration of one estate and are cumulative; that being cumulative, default on the part of either guardian would impose liability upon both bonds.
A guardian occupies a position of trust which exists during the nonage of his ward, unless sooner terminated by death, resignation or removal. Where he has given successive bonds with different sureties, the sureties are jointly and severally liable, and upon default of the guardian they are liable to contribution among themselves proportionate to the amount of their respective bonds. Thornton v. Barbour,
It appears from the record that one of the infant children of Jesse A. Adams, deceased, is not a party plaintiff. It is the duty of the clerk, as probate judge, to take such action as may be necessary to protect the interest of this infant.
The judgment below, in so far as it affects the Massachusetts Bonding Insurance Company, is
Reversed.
