#### OSCAR F. DUDLEY *&*WIFE AND OTHERS *against*JOHN WINFIELD, ADM’R., &c.

The share of an infant of the proceeds of real estate, sold for partition under a decree of a Court of Equity, descends to the heir, upon the death of the person entitled, unless after arrival at age, he elects to take it as personalty. But the annual interest of such share, to the time of his death, goes to the next of kin.

The Court will take no notice of averments in an answer, which are neither responsive to any allegation in the bill, nor supported by proof.

(The cases of *Scull v. Jmvigan,*2 Dev. & Bat. Eq. 144, and *Marsh*v. *Berner,*6 Ire. Eq. 524, cited and approved.)

The bill was filed by the next of kin of Thomas W. Lilly, deceased, against the defendant as guardian, and afterwards administrator, of the said deceased, for an account and settlement. The defendant, in his answer, submitted to an account; and, upon a reference to the Clerk and Master, he made a report in which he stated the defendant’s accounts, both as guardian and administrator. One item of charge was the proceeds of certain lands which had descended to the intestate from his grandfather, and which had been sold for partition while he was an infant, under a decree of the Court of Equity for Anson County, and the price tliereof paid to the defendant as guardian. It was stated in the *92bill, and admitted in the answer, that the intestate lived three or four years after he became of age, but the defendant never settled his guardian accounts with him, nor paid over to him his estate or any part thereof. The reason assigned in the answer, for the defendant’s not having done so was, that the intestate “ was a man of insane mind, and incapable of making a settlementbut this was stated in the answer only, and no testimony was offered to prove it. The defendant alleged in his answer that the proceeds of the land, sold under a decree of the Court of Equity, were real estate, and were claimed by the heirs at law of his intestate, who were different persons from the next of kin. He therefore excepted to the report of the Master : 1, because he had charged the said proceeds in the administration account in favor of the next of kin; 2, because he had charged compound interest thereon ; 3, because he had charged simple interest thereon.

After the exceptions were filed, the cause was set for hearing, and, by consent, transmitted to the Supreme Court.

*Winston,*for the plaintiff.

No counsel for the defendant.

Battle, J.,

after stating the case as above: We are of opinion, upon the authority of the case of *Scull*v. *Jernigan, 2*Dev. & Bat. Eq. Rep. 144, that the first exception must be sustained. In that case, it was decided that the proceeds of land, sold for partition under tire Act of 1812, (1 Rev. Slat., ch. 85, sec. 7,) to which an infant is entitled, remain real estate until he comes of age and elects to take them as money. That case has been very recently referred to with approbation in *Marsh*v. *Berrier,*6 Ire. Eq. Rep. 524. Its policy has been sanctioned by the Legislature in the Act of 1846, ch. 1, the 10th section of which declares, that all the proceeds of real estate which may be sold for the payment of debts by an executor or administrator, and not required therefor, *“*shall be considered as real estate, and as such shall be paid over by the executor or administrator to such persons as would be entitled to the land, had it not been sold, or, in case of feme coverts, invested as proceeds of sale made for partition.” The construction of the Act of 1812 is thus settled by the highest au*93thority, and it is decisive, in favor of the defendant, of the question presented by the first exception ; for it is admitted in the pleadings, that the intestate did not receive from the defendant as his guardian any part of the proceeds of his land which had been sold for partition. He did not, therefore, elect to take them as personal property. We lay no stress upon the statement in the answer that when the intestate came of age he was a man *“*of insane mind, and incapable of making a settlement;’ ’ because it is neither responsive to tiny allegation in the bill, nor proved.

The second and third exceptions must be overruled, to the extent at least of charging the defendant with the annual interest of the price of the land up to the time of the intestate’s death. *“*The interest which accrued during the infant’s life is personalty, as the profits of the land during that period would have been. But the capital and the interest thereon, since his death, belong to the heirs at law.” *Marsh*v. *Berrier, ubi supra.*

The report must be reformed in the particulars herein stated, and it will then be confirmed. The costs must be paid out of the fund.

Per Curiam. Decree accordingly.