delivered the opinion of the Court:
This suit was brought against the sureties on the official bond of Jackson Frick, now deceased, as administrator of the estate of James Evans, deceased, for the benefit of Mary E. Evans, in the circuit court of Union county. At the same term of court another suit was brought for the use of the same plaintiff, against Jacob Rendleman and Charles Hortline, two of the defendants in this case, and who are sureties on the official bond of the same Jackson Frick, as guardian for the same Mary E. Evans.
Both cases were submitted to the court for trial on an agreed statement of facts, from which it appears that Jackson Frick, since deceased, was, on the 23d day of January, 1874, appointed administrator, with the will annexed, of the estate of James Evans, and gave bond, as required by law, in the statutory form, with all of defendants in this action as his sureties, and at once entered upon the discharge of his duties as such administrator. Such proceedings were afterwards had in tlie circuit court of that county that the will of James Evans was set aside, but by the decree rendered the administrator was required to administer the effects of the estate as intestate property, unless the county court should otherwise direct. It does not appear, however, that the county court ever made any different order relieving Fripk from the duty imposed by the decree to administer the estate as intestate property.
After giving bond as such administrator Frick filed an inventory of the effects of the estate. In the course of administration he substantially reduced the effects of the estate to his possession, and paid all the debts of the estate with the exception perhaps of two small claims, trifling in amount. On the 20th day of August, 1874, Frick was appointed guardian of Mary E. Evans, sole heir of the said James Evans, deceased, and as such guardian gave the bond declared on in the other suit, with the defendants in that action as his sureties.
It is admitted that Frick never made any report of his acts as administrator of the estate of Evans, other than filing an inventory of the assets of the estate and the sale bills of the personal property; and that the records of the county court show no further proceedings, except the allowance of claims against the estate.
It is also admitted that Frick at no time made any report of his acts and doings as guardian of the heir of the estate of which he was administrator; and that the records of the county court, when he was appointed, show nothing other than his appointment as such guardian and the issuing of letters of guardianship. But it is admitted that Frick continued to act as guardian for the beneficial plaintiff up to the time of his death, and paid out money for and on behalf of his ward, and made entries in his memorandum book in relation to his trust as such guardian.
It is also admitted that notes aud accounts belonging to the estate, amounting to $7800, were in the hands of Frick at the time of his death; that of such amount the administrator de bonis non has collected $78, and of the remainder probably $88 can be realized, and the balance is conceded to be worthless.
At the time of the death of Frick, which occurred on the 20th of December, 1877, it is admitted, afcer allowing all just credits, there remained in his hands the sum of $5797.14 uuaccounted for, either as administrator or guardian, or otherwise, and for which one set or the other of his sureties on his ■ official bond is responsible. Certain rents came to his hands for the use of his ward, for which it is conceded the sureties on his bond as guardian are alone liable.
In the case before us the circuit court rendered, judgment against the sureties on the administrator’s bond for the penalty named, and for the damages found, $5797.14; and we understand from counsel that a judgment was also rendered in the other case on the guardian’s bond, against the sureties therein, for the penalty named, and for the balance found due from Frick to the estate at the time of his death, and also for the rents that had come to his hands from the lands of his ward. The suggestion is, that the latter judgment, as well as the one on the administrator’s bond rendered in the circuit court, was affirmed in the Appellate Court, but the transcript before us contains only the record of the judgment on the administrator’s bond.
All the facts in the case appear in a statement signed by the respective counsel, and there can be no disagreement concerning them.
The parties complaining of the judgment in this case are the sureties on the bond of Jackson Frick, as administrator of the estate of James Evans, deceased, and not the sureties on his bond as guardian of the heir to the estate of which he was administrator. Although it is conceded the administrator made no reports of his acts and doings in the matters of the estate to the county court, as the law required him to do, still it is maintained the sureties on his bond as administrator are not responsible for the funds remaining in his hands at the time of his death, for two reasons: first, because his appointment as administrator, with the will annexed, of the estate of Evans ceased and was determined when the will was declared voidjoy the decree of the circuit court; and second, because he ceased to act as such administrator long before his death.
On the first point made, we are inclined to hold the effect of the decree declaring the will of decedent invalid, was only to relieve Frick from administering the estate according to the provisions of the will. The decree itself provided he should continue to administer the estate as intestate property, unless the county court otherwise ordered, which, as we have seen, it did not do; and he must have so understood it, for he continued to act as such administrator until the administration of the estate was in fact closed by the payment of all claims against it, and of the expenses of administration.
The other point made we think is well taken. Frick was appointed administrator of the estate in January, 1874, and did not die until December, 1877, more than three years after his appointment, and long after he had been appointed guardian of the heir of the estate. Ample time had elapsed in which to complete the administration of the estate, and, as we understand the admissions in the record, he had in fact reduced all the personal effects of the estate to his possession that could be collected, except, perhaps, a small amount, and had paid all claims allowed against it, with the exception of two, both of which were insignificant in amount. Although he made no reports to the county court of his acts and doings as such administrator, the administration of the estate was practically closed long before the death of the administrator. The funds not wanted for the payment of claims and expenses of administration remained in his hands, and nothing remained to be done but to formally charge himself with the funds on hand as guardian of the heir of the estate.
The fact that Frick, from time to time, paid out funds on behalf of his ward, as the same were needed, to defray current expenses, is evidence that he treated the residue of the estate unexpended by him as administrator as funds belonging to his ward. Entries of such expenditures made in his books are corroborative of the same fact. But this is not all. Since the death 'of the administrator, there has been found among his private and official papers a memorandum-book that belonged to him in his lifetime, which contains entries, in his handwriting, in relation to his trust as guardian of Mary E. Evans. In a schedule contained in the record the entries made in the memorandum-book are set out in hcee verba, from which it appears that, after making a brief statement of the total amount received from the estate of which he was administrator, and of the amounts paid out, including the widow’s award, the deceased then stated the balance due his ward and the amount paid out on her behalf, together with a statement of rents received, the last entry being of the date of November 27, 1877; and the admission in the record is, that at the time of his death the administrator had in his hands moneys and effects unaccounted for nearly equal to the sum he states in that memorandum, under the date of February 13, 1877, was due the ward, and the exact amount for which judgment was rendered.
These entries were equivalent to formal charge of the then unexpended funds of the estate to himself as guardian of the heir; but even that was not indispensable to charge him with such funds as guardian. After completing the administration of the estate, as we have seen he did, by the payment of all debts and the expenses of administration, it was his duty to pay the funds unexpended to the guardian of the heir, and, as he bore that relation to the heir himself, he could do nothing more than retain such funds in his hands for the benefit of his ward, which all the circumstances show he did. An authority for this view of the law is found in Karr v. Karr, 6 Dana, 4, where the same person was executor or administrator of the estate and guardian of a distributee, and before his death made no settlement or election showing in which capacity he held the unexpended funds in his hands; it was presumed, after a reasonable time for settling the estate had elapsed, that he held such funds—at least that portion that was not necessary for the payment of debts, as guardian of such distributee. ^Reasoning upon the facts of the case, the court said, had the guardian been another person, it would have been his duty to coerce payment from such administrator, but as he was himself the administrator, he could only treat the funds as belonging to his ward.
In Watkins v. Shaw, 2 G. & J. (Md.) 220, it was said: “ This court are of opinion that where a sole executor sustains the twofold character of executor and guardian, the law will adjudge the ward’s proportion of the property then in his hands to be in his hands iii the capacity of guardian, after the time limited by law for tbe settlement of the estate, whether a final account has been passed by the orphan’s court or not, upon the principle that what the law has enjoined upon him to do shall be considered as done, and from that time he holds the ward’s proportion of the property, by operation of law, in that character in which he would be entitled to receive it upon final completion of his trust as executor.”
The case of Carroll v. Bosley, 6 Yerger, 220, was a suit on an administration bond. One of the sureties sued pleaded that before the appointment of defendant as administrator de bonis non he had been appointed guardian for the party for whom the suit was brought, and who would be entitled to the estate under the will of the testator; that he gave bond and security as guardian according to law, and that more than two years had elapsed from the date of the administration bond before suit was brought; that while the administrator united in himself both the office of administrator and guardian, he had in his hands all the assets of the estate which were left after the payment of debts, and that by operation of law the amount due him in right of his ward was retained by and vested in him as guardian. On demurrer to the plea, the only question made was whether, as the principal defendant was both administrator and guardian, the law will presume he held the property and money of the estate as guardian after the expiration of two years from his appointment as administrator, although he had done no act to indicate in what character he held, and the court ruled that “as it was his duty to settle the administration in two years and pay over to the guardian, the law will presume he performed the duty, and and consequently the presumption is that after two years he held the assets as guardian.”
In Taylor et al. v. Deblois, 4 Mason, 131, the question made was whether the administratrix, being at the same time guardian, -could, by any act of her own or by operation of law, transfer the property which was in her hands as assets of the intestate so as to make it the property of the minors who were her wards, and thus exonerate herself from any further liability as administratrix, and by consequence also exonerate the sureties upon her administration bond, and it was held that the assets in her hands could be so transferred, both by the act of the administratrix indicating an election to hold as guardian, and by operation of law. After a close and logical consideration of the question raised, Story, J., said: “ Here, after the guardianship, the administratrix having assets to pay the amount of the distributive shares, it was presently satisfied by way of retainer, and by operation of law there was a transmutation of the same to her as guardian, and she no longer held the same as administratrix.”
In Pratt et al. v. Northam et al. 5 Mason, 95, after approving of the principle declared in Taylor v. Deblois, Story, J., said: “If any act had been done by” the administrator “by which he elected to pass the property to his guardianship account, or if he had charged himself with it in the probate court as guardian,” it would bring the case in hand within the principle of the case cited. According to the decision in Pratt v. Northam, the administrator may indicate his election to hold the funds in his hands in the capacity of guardian by an act done out of court as effectually as if the same act were done in court. The account the administrator in this case stated in his memorandum book, where he charged himself with the funds remaining in his hands as guardian, indicates as clearly his election to hold such funds as guardian as though the statement he made had afterwards been filed in the office of the clerk of the court or with the court.
The cases cited bear a striking likeness, both as to the facts and principles discussed, with the one at bar. As we have seen, the funds remaining in the hands of Frick at his death were not needed for the payment of the debts or other charges against the estate, and as it was not necessary for him to retain them for that purpose, the presumption may well be indulged he treated such funds still remaining in his hands as belonging to his ward. The admitted fact that the guardian from time to time paid out money to discharge the current expenses of his ward and credited the same to himself as guardian, tends strongly to corroborate this view. That Frick assumed to act, and did act as guardian under his appointment, is conclusively proven by the fact he collected rents for his ward, and we may well believe he took to himself all funds that belonged to him in that capacity.
It was not indispensable there should have been an order of the county court to transfer the funds remaining in the hands of the administrator after payment of all claims against the estate, to "the guardian of the heir of the estate. Of course that is the more regular way, but when the same person acts in the dual capacity of administrator, and guardian of 'the heir of the same estate, it will be sufficient if he treat the funds in his hands as belonging to his ward and held in his capacity as guardian, and it will be presumed he does so after a reasonable time has elapsed for the settlement of the estate, or, as in this case, where it appears the estate has been in fact administered. The principle declared in Weir v. The People, 78 Ill. 192, supports this view of the law.
Under the law as we understand it, the sureties on Frick’s bond as administrator of the estate of Evans, are not liable for the funds that came to his hands from the estate and unaccounted for at the time of his death, and the judgment must be reversed and the cause remanded.
Judgment reversed.