The referee reports, that of the item of $1,628.69, that the plaintiffs seek to charge the defendants, and in respect to which an enquiry was ordered at the present term, $984.43 was of the fund in which the former guardian and father of feme plaintiff had a life estate as tenant by the courtesy, and bears interest from the first day of September, 1866. The *Page 591 balance of the item is embraced in the account stated and approved, and no further question is made about it.
It thus appears that the former guardian paid to the defendant guardian $984.43, in which he had a life estate as tenant by the courtesy, and which he might, under the ruling of the court below, have refused to pay to his successor. That court held that the defendant guardian was not required by law to take steps to secure or recover that fund for his ward, in which the former guardian had a life estate as tenant by the courtesy, and was not, therefore, chargeable with that fund; but it did not decide that if Benjamin Turner had paid the defendant guardian that fund, or any part of it, he would not be chargeable with the same. So that it is an open question whether or not he is liable, and this is now presented for our decision.
The question of how far the defendant guardian might have been held liable, as guardian, for his failure to see that the fund in which Benjamin Turner had a life estate as tenant by the courtesy was secured, is not before us. The court below held that he was not so liable, and there was no appeal from that decision, and we are not at liberty to review it.
The fund belonged to the feme plaintiff, subject to the life estate interest of the father. If for any cause he chose to waive his right and pay the fund, or any part of it, to his daughter's guardian for her, we can see no reason why he might not do so. He had the right to do with his interest as he saw fit. If he chose to give it to his daughter he had the right to do so without question on the part of the defendants. If he so paid the $984.43 under a mistake of law as to his rights, he could not probably have reclaimed it; and if he became insolvent and wasted the balance of the fund, or appropriated the same to his own use, as the evidence tends to show he did, then, in equity, he would not be allowed to reclaim the sum so paid to the guardian. At all events, the defendant guardian having received the money as guardian and in trust for his ward, he is chargeable with it; and neither himself nor his sureties can now be heard to insist that he is not. *Page 592
The father does not set up claim to the money so paid, and if he were to do so, he could not successfully assert such claim in the courts. He is estopped by his own act to set up such claim. In Humble v. Mebane,89 N.C. 410, the Chief-Justice said: "The report shows that the administrators, recognizing the relators' right, paid over to the guardianfor them, in money and in a bond, which he in their behalf and as their guardian afterwards sued on and collected by selling the debtor's land under execution, and with which he is charged in the account. He thus receives the money in trust for his wards, and is accountable therefor, as their estate, which he cannot be permitted to dispute." This authority bears directly and with conclusive force upon the question now before us, and must be decisive of it.
The feme plaintiff is entitled, in addition to the sum already approved, to have that sum enlarged by adding thereto the sum of $984.43, with interest thereon from the first day of September, 1866. Let judgment be entered accordingly.
Judgment accordingly.