Humble v. Mebane

• Decision Date: 31 October 1883
• Citation: 89 N.C. 410
• Court: North Carolina Supreme Court
• Parties: P. C. HUMBLE and others v. W. M. MEBANE and others.

89 N.C. 410

P. C. HUMBLE and others

v.W. M. MEBANE and others.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL

ACTION on a guardian bond tried at Fall Term, 1883, of GUILFORD Superior Court, before MacRae, J.

The defendant Mebane, in February, 1866, was appointed guardian to the relators (Preston C. and Rebecca Humble and Libby Louisa, now the wife of the other relator) by the county court of Guilford, and entered into bond as such in the penal sum of $2,000, with the other defendant and one R. P. Shaw, sureties, with conditions required by law.

The relators having arrived at full age on August 14th, 1879, instituted this action to recover the trust estate in the hands of the guardian, and assign several breaches of the obligation, and especially his failure to come to an account and pay over what is due, collected on their behalf.

The defendants deny the breaches assigned, and say that the moneys received by the guardian and supposed then to belong to the wards, in fact, did not, but were part of an estate left by their father's mother, to which their father, Simon Humble, alone was entitled as distributee, and which were paid to the guardian by the administrators of the intestate, wrongfully.

At fall term, 1880, on motion of plaintiffs' counsel, resisted by the defendants, on the state of the pleadings, a reference was made to the clerk and he was directed to take and report the guardian account with the several relators.

Before the referee, the defendants offered to show that the funds, with which it was sought to charge the guardian, were derived from the estate of the relators' paternal grandmother, and paid by her administrators; and that their father, who was entitled thereto, was still alive. The evidence was rejected for the reason that, in the opinion of the referee, the matter was not embraced in the terms of the order.

The referee made his report, in which he finds that the guardian, in his character as such, on a note passed to him by the administrators as part of the distributive share claimed for the infants, recovered judgment and raised by execution sale of the debtor's land the sum of $250; and also collected other moneys for the wards, with which, and without interest, for reasons which are given, the guardian is charged, the aggregate sum being $647.71.

Upon the return of the report, the defendants filed a series of exceptions, the issues presented by which, as well as the defence already stated and that under the statute of limitations, they demanded should be submitted to the jury.

This was declined, and the defendants having withdrawn exceptions numbered 3, 4 and 5, the others were overruled, and, it being admitted on the record that all of the estate, to which the relators claim to be entitled, came from the estate of their grandmother, the court proceeded to render judgment for the sum reported by the referee. From these rulings the defendants appealed.

Mr. J. T. Morehead, for plaintiffs .

Messrs. Scott & Caldwell, for defendants .

SMITH, C. J., after stating the above.

It would be clearly irregular and unjust, where a defence is set up to the entire action, to leave it undisposed of and direct a compulsory reference to have an account taken, and then, upon the coming in of the report, refuse to hear or to submit an issue, as to the facts upon which it depends, to the jury, if those facts found true would defeat the plaintiffs' recovery. And it was not less erroneous in the referee to hear and report the evidence when offered, since it tended to show, according to the defendants' contention, that nothing to which the plaintiffs were entitled had passed into the guardian's hands which was covered by the bond. The very object of the reference is to ascertain what the guardian has received or ought to be charged with, and how the same has been administered. If no estate belonging to the wards has been or could have been recovered, no liability has been incurred, as none would be if the fund has all been legally disbursed and nothing is due. In either case the plaintiffs must fail. But if the...