Burke v. Turner
| Decision Date | 31 October 1881 |
| Citation | 85 N.C. 500 |
| Court | North Carolina Supreme Court |
| Parties | HARRY BURKE and wife v. J. M. TURNER and others. |
OPINION TEXT STARTS HERE
CIVIL ACTION on a guardian bond tried at Fall Term, 1881, of IREDELL Superior Court, before Seymour, J.
The defendant J. M. Turner was appointed the guardian of the feme plaintiff in the year 1866, and the other defendants are the sureties to the bond given by him as such. Prior to such appointment, one Benjamin Turner, her father, had been her guardian and had received portions of her estate. In 1866, in contemplation of a resignation of his guardianship, he applied to the county court for the appointment of commissioners to audit his accounts, which was done, and after an examination into the accounts, the commissioners made their report to the court, the same being altogether an ex parte settlement.
Upon his appointment the new guardian settled with his predecessor upon the basis of such ex parte settlement, but the plaintiffs in this action allege that there was really due her a much larger sum than was thus ascertained and accounted for, and the object of the action is to fix the new guardian with a liability on account of his negligence in not calling the former to a stricter account.
After the pleadings in the case were completed, there was a reference to a commissioner to ascertain and report as well what the defendant guardian ought to have received, as what he did actually receive of the estate of his ward. The commissioner made his report, and it was upon exceptions to that report that the case was heard in the court below, and from the rulings of the court thereon both parties appealed to this court.
In their argument counsel treated the two appeals as one, and for the sake of convenience, they are so considered.
The commissioner finds that the former guardian received for his ward prior to the war, as the proceeds of the sales of lands belonging to the estate of Garrett Pickler, deceased, a sum which, with interest to the 1st of September, 1866, that being the time of the settlement, amounted to $3,477.56. That he also received from one Adams, administrator of David Pickler, deceased, on the 19th of December, 1862, in confederate money, the sum of $3,475.60, with the scale value of which he charges him, as of that date and interest, $1,725.36, which, added to $3,477.56, makes $5,202.92.
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¦Credit was given him (as was done in the ex parte settlement of ¦$1,024¦
¦1866) for the board and clothing of his daughter and ward from 1859 to¦19 ¦
¦1866, amounting with interest to ¦ ¦
+----------------------------------------------------------------------+------¦
¦For commissions on his receipts of $5,202.92, ¦260 15¦
+----------------------------------------------------------------------+------¦
¦And on his disbursements of $1,024.19, ¦51 10 ¦
+----------------------------------------------------------------------+------¦
¦Making a total of credits ¦$1,335¦
¦ ¦44 ¦
+----------------------------------------------------------------------+------¦
¦Leaving a balance due the ward from former guardian, ¦$3,867¦
¦ ¦48 ¦
+-----------------------------------------------------------------------------+
As to the first item of charge--to-wit, the sum of $3,477.56--arising from the sale of the lands of Garrett Pickler, his Honor finds that the lands so known belonged to the mother of the feme plaintiff who was living and covert at the time of the sale thereof for partition, and as she died without having converted the proceeds into personalty, leaving her husband (the said Benjamin) surviving her, he is as tenant by the courtesy, entitled to the use of the money during his life, and therefore the defendant guardian is not chargeable with the amount, and the plaintiffs appealed.
Mr. J. M. Clement, for plaintiffs .
Messrs. D. M. Furches and Robbins & Long, for defendants .
RUFFIN, J., after stating the case.
This ruling of his Honor was acquiesced in by the counsel who argued the cause for the plaintiffs in this court, and we have not therefore at all considered the question as to what might have been the liability of the new guardian for failing to secure the ultimate payment of the fund. The 2nd, 3rd, 4th, 5th and 6th exceptions of the defendants all related to this one item, and need not therefore be again adverted to.
Most of the exceptions to the commissioner's report had reference to the amount received from the administrator of David Pickler in confederate money and the rulings of the court below, and those exceptions furnish the principal grounds for the appeals taken by both parties.
The facts relating to the matter, as found by his Honor, are as follows: David Pickler died in 1862, leaving the feme plaintiff as one of his heirs at law and next of kin, and the said Adams having previously been his guardian, became his administrator. On the 19th day of December, 1863, he paid to Benjamin Turner, then acting as the guardian of said plaintiff the sum of $3,475.60 in confederate money, in full of her interest in said estate.
In December, 1862, confederate...
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