Luton v. Wilcox

• Decision Date: 30 June 1880
• Citation: 83 N.C. 20
• Court: North Carolina Supreme Court
• Parties: CAROLINE V. LUTON v. J. S. WILCOX, Adm'r, and others.

83 N.C. 20

CAROLINE V. LUTON

v.J. S. WILCOX, Adm'r, and others.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION upon a Guardian Bond, tried at Fall Term, 1879, of PASQUOTANK Superior Court, before Gudger, J.

The opinion states the case. Judgment in the court below for plaintiff, appeal by defendants.

Messrs. Gilliam & Gatling, and C. W. Grandy, for plaintiff .

Mr. George V. Strong, for defendants .

DILLARD, J.

The defendant, Stanton Meads, was duly appointed guardian to the feme relator in the year 1857, and gave bond. He afterwards executed renewals of his guardian bond as required by law, one in the year 1861, and another in the year 1866, with sureties to each bond, who, with the representatives of such as have died, are made co-defendants with him to this action.

The guardian having in his hands two bonds, one for $1,320 on J. B. Shaw and T. D. Pendleton, and the other for $1,530 on William Pailin, John Pailin and Joseph Pailin, both belonging to his ward, placed the same in 1866 in the hands of C. C. Pool, as an attorney at law, for collection, and in November, 1867, the guardian compromised both of the debts, receiving twenty-five cents in the dollar on the first bond, and thirty-three and a third cents in the dollar on the second bond. Afterwards, to-wit, in the year 1869, the said Meads made an ex parte statement of his guardian account before the judge of probate, wherein after debiting himself with the aggregate of the two bonds aforesaid, he took a credit for the amount lost by the compromise, and thus reduced the estate of his ward down to the sum of a thousand dollars, or thereabouts; and thereupon he was allowed to resign his guardianship, and C. C. Pool, the attorney, was appointed and qualified as his successor.

Upon the appointment of Pool as guardian, he receipted Meads for the sums received by way of compromise on the two bonds aforesaid, amounting, with interest added, to the sum of $1,009.29, as in full of the amount due from him as the former guardian of his ward, and he continued to be the guardian until 1873, when he also was permitted to resign and one Cartwright was appointed his successor. Pool having failed to account with and pay over the funds of his ward, Cartwright instituted suit on his bond, and at fall term, 1874, recovered judgment against him and his sureties for the amount (with interest) paid over to him by Meads, and for nothing more; and of this recovery nothing has been collected, or can be.

This action is brought by the feme relator on the three bonds of Meads, the first guardian, with the view to make him and his sureties responsible for the mismanagement of her estate in compromising with those who had her funds in their hands, and the positions are taken in defence: first, that the acceptance by Pool from Meads of the sum realized by the compromise discharged him and shifted the burden on Pool and his sureties; and secondly, that the suit of Cartwright, the last guardian, against Pool and his sureties included the same matter, and that the judgment and recovery therein are res adjudicata and conclude the relator from again litigating for the same thing in this action. In opposition to the defences set up by defendants, the plaintiff replies, insisting on the insufficiency of the matters pleaded in bar, and alleging that the parties compromised with were entirely solvent and able to pay the whole of their debts; that this fact was well known and that they could have been made to pay the entire sum due, if Meads, the guardian, had exercised bona fides and ordinary prudence in and about the business of his wards.

On the trial, His Honor reserving the questions of law involved in the defences aforesaid, submitted an issue to the jury as to the solvency of the obligors at the time of the compromise; and the jury having responded that they were “good for fifty cents in the dollar,” the court overruled the defences relied on and rendered judgment against the defendants for the difference between the sum received on the compromise and what the jury found the bonds to have been worth. And from this judgment the appeal is taken.

Upon this appeal, the question for our determination is as to the legal sufficiency of the several matters relied on in the answer, to constitute a bar to the maintenance of this action.

By express provision of the statute law, the judge of probate may accept the resignation of a guardian and discharge him, if he shall exhibit his account for settlement, and the judge of probate is satisfied that he has been faithful and has truly accounted, and a competent person can be got to succeed him. But such resignation is authorized with a continuing liability in relation to all matters connected with the trust before the resignation. Bat. Rev., ch. 53, § 45.

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