| N.C. | Jun 5, 1844
The facts as exhibited by the pleading and proofs are these, to wit: The petition was filed by the petitioner, Isaac, and his wife, Betsy, claiming certain sums received, or which ought to have been received, by the defendant as the guardian of the said Betsy Waggoner. The petition sets forth that Betsy Brown, the mother of the petitioner, Betsy Waggoner, died in the year 1818, leaving her an only child, and entitled to receive her personal property; that Isaac Ribelin administered upon the estate of the said Betsy Brown, and that the defendant was appointed the guardian of the petitioner, Betsy Waggoner; that the said administrator paid to the defendant, as her guardian, in 1820, the sum of $34.95, the amount then coming to the said petitioner from the (481) estate of her said mother. The petition further sets forth that Michael Brown, the father of the said Betsy Brown, died in 1820, and that Isaac Ribelin administered upon his estate and paid to the defendant, as guardian of the petitioner Betsy, the further sum of $27 in 1822; that the plaintiffs intermarried in 1832, and that soon thereafter the defendant paid over to the plaintiff Isaac Waggoner the sum of $74.10, the amount of the first money received by him as guardian of his wife, with the legal interest thereon, but refused to pay the second sum of $27, which it is alleged he had received or was in duty bound to receive of the said administrator, and prays an account, etc.
The answer admits that, as guardian of the petitioner Betsy Waggoner, he did receive from Isaac Ribelin, as administrator of Betsy Brown, her mother, the sum set forth in the petition, and that he did, in 1832, finally settle with and pay over to the plaintiff Isaac the whole of the said sum, with the interest thereon.
The defendant positively denies ever having received from the said Isaac Ribelin, as administrator of Michael Brown, any money whatever for his said ward Betsy. He avers that his said ward is not entitled in law to any portion of the estate of the said Michael Brown, as she was an illegitimate child of Betsy Brown, who died before Michael Brown.
It was admitted that Betsy Waggoner, the plaintiff, was an illegitimate child of the Betsy Brown mentioned, and there was some proof, as commented on by the court, as to the sums paid by Isaac Ribelin to the defendant as guardian of the plaintiff Betsy. The cause was set for hearing, and the court below made the following interlocutory decree, to wit: *352
On argument on petition, answer, and proofs, it is decreed that the defendant account. From which interlocutory decree the defendant prayed an appeal to the Supreme Court, which was granted. The first sum, it is admitted by the plaintiffs, has been fully accounted for. The plaintiffs do not aver that the second sum ever was received by the defendant; that the allegations is, he either received it or ought so to have done. The defendant positively denies he ever did receive it. To support their allegation, the plaintiffs introduced the testimony of Isaac Ribelin, the administrator of Michael Brown. He swears that he did pay over to the defendant the two several sums set forth in the petition. The testimony of this witness is so confused and comes in so questionable a character that we cannot place such confidence in it as to make it the foundation of any decree. He asserts in one part of his deposition that the receipt bears date when given, yet its date is in 1818, the year of the death of Betsy Brown; again, he states that he kept all the papers relative to the estate of Betsy Brown together in the same place, yet he produces the first receipt and can give no account of the second; so he says again that Jacob Fisher made his settlement, and he delivered to him all the papers concerning the estate, and has never seen them since, and yet when called on produces the first receipt. He is withal interested in fixing the payment on the defendant, as he thereby avoids, as he may suppose, responsibility to the distributees of Michael Brown. But if there were no circumstances shaking the confidence we might repose in the testimony of Ribelin, still we could not decree an account against the defendant upon it, for it is not so supported by the other testimony as to outweigh the positive denial of the defendant.
The witness Kluts states that when he, as the agent of the plaintiff Waggoner, demanded this money, the defendant denied he owed him anything, and upon being told that Ribelin would prove the payment, he observed, if Waggoner had begun at the root of the tree instead of the top, he would have got his money long since, referring very (483) manifestly to Ribelin's liability to pay the money. The testimony of Daniel Waggoner proves nothing.
We are of opinion, therefore, that the plaintiffs have failed to prove that the defendant ever received the second sum of $27, and that he has fully accounted with and paid over to the plaintiffs all the money he had received on account of his ward, Betsy Waggoner. *353
As to the second ground upon which the plaintiffs seek to charge the defendant, we do not think the defendant liable to the demand. In the petition it is stated that Betsey Brown, the mother of the plaintiff Betsey Waggoner, died in 1818, two years before the father, Michael Brown, and it is admitted that Betsey Waggoner was her illegitimate child. Betsey Brown, at the time of her death, was not entitled to any portion of her father's estate, and of course her illegitimate child was not. By the common law, a bastard, being filius nullius, was entitled to no portion of its parents' property, either real or personal. By sec. 4, ch. 64, Rev. Stat., it is provided that when a woman shall die intestate, leaving children commonly called illegitimate or natural, and no children born in lawful wedlock, the personal estate of which she shall die possessed shall be divided among such illegitimate children.
We are clear that Betsey Waggoner was entitled to no portion of Michael Brown's property, and that the defendant has been guilty of no negligence in not endeavoring to get that to which his ward had no claim.
We are of opinion that his Honor erred in decreeing an account. The interlocutory judgment is reversed and the petition is dismissed with costs.
PER CURIAM. Petition dismissed.
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