| N.C. | Jun 5, 1849
This was an action of debt on a guardian bond. Sarah Ann Hunter, the intestate of the plaintiff, and the ward of the defendant, in 1847, before her marriage, executed a deed, conveying all her estate, among other things the proceeds of the sale of a tract of land sold under the decree of the Court of Equity for partition, which was in the hands of the defendant, her *247 guardian, to a trustee for her separate use, and if she died without a child living at her death, then to the use of her contemplated husband, one Willis F. Reddick.
The intestate intermarried with the said Reddick, and (359) had a child born alive, but it died before the intestate. At the date of the deed and at the time of her marriage the intestate was about sixteen years of age. She died at the age of eighteen.
The breach assigned was a refusal to pay the amount of about $1,000, the sum received by the defendant as guardian, together with interest thereon from 19 May, 1840; at which time the defendant, as guardian, had received the said amount, being his ward's share of the land sold under the decree of the Court of Equity for partition.
His Honor was of opinion that the plaintiff could only recover the interest upon the sum received by the defendant as guardian; and a verdict and judgment were entered for the plaintiff for the penalty of the bond, to be discharged by the payment of the sum of $549, which was the interest upon the sum received by the defendant. We think his Honor was mistaken in the view which he took of the case. Admit that the deed of the intestate was void by reason of her infancy, his Honor seems to have been under the impression that the fund was to be treated as land, and that the plaintiff, as personal representative, could only recover the profits or interest up to the time of the death of the intestate, which, we presume, he considered was for the benefit of the husband, but that the principal belonged to the heirs at law.
Without deciding how the rights of the parties may be considered in a court of equity, we are of opinion that in a courtof law the defendant, having received money belonging to his ward, was, after her death, bound to pay it over to her personal representative; and that his refusal to do so was a clear breach of the bond to the amount of principal and (360) interest.
The judgment must be set aside, and a venire de novo issued.
PER CURIAM. Judgment accordingly.
Cited: Allison v. Robinson,