#### EPHRAIM E. GREENLEE *and wife against*CHARLES McDOWELL.

Where the same person was administrator of a husband and guardian to the heirs of his wife, and he took a receipt, upon a disbursement, in his character of administrator, the *onus*of converting it into a voucher against his wards, on the ground of mistake, is upon him.

One fund cannot be subjected to the relief of another, upon the principle of substitution, unless it be made to appear, clearly, that the former fund was liable to the debt which the latter has discharged.

Cause removed from the Court of Equity of Burke county.

The bill v'as filed by the plaintiffs against the defendant as their guardian, for an account and settlement of his guardianship.

The case was referred to the clerk and master of Burke *326county, to state an account, which he accordingly did. The defendant filed various exceptions to the report, all of which were withdrawn in this Court but the *one relative*to the item in the list of vouchers filed, marked No. 4, which is as follows:

“ Received of Thomas Butler, administrator of W. 0. Butler, deceased, two hundred and twenty-nine dollars and forty-seven cents, in full of one sixth of the.amount of a judgment I obtained in Burke county court, against the estate of Mary Tate, administrator, &c., as will fully appear by reference to said judgment; and further, I release any further claim I have on said W. 0. Butler’s estate in said judgment; this 3rd of August, 1844. Samuel NewlaND.”

A record was produced showing that Samuel Newland sued the administrator, *de bonis*non, of Mary Tate, to the county court of Burke, and at the July Term, 1839, recovered a judgment for $1035,34, with interest, $266,52, and that the administrator had fully administered, and that there were no assets wherewith to satisfy the said debt and costs, and it was ordered that a *scire facias*issue against the heirs-at-law of Mary Tate.

No *scire facias*appears among the records of Burke county court, but extracts from the calendar of causes are made, stating a case in favor of “-Samuel Newland against the heirs of Mary Tate,” with the word “ sci. fa.” written opposite to the case, which was continued from term to term, from October, 1839, to April, 1842, when one of these extracts shows that the death of William 0. Butler was suggested, and at July following, is this entry : “ Death of W. 0. Butler suggested — abated as to W. 0. Butler. Judgment according to sci. fa.,” and on the calendar of Januaiy Term, 1843, appears as follows: “Abated as to W. 0. Butler and W. J. Tate. Judgment according to sci. fa., for $1121,82, of which sum $855,30 is principal; to bear int. from July 25, 1839, $12,65 cost, against the real estate of the heirs-at-law of Mary Tate; stayed twelve months.”

Thomas Butler was the administrator of W. C. Butler, and the guardian of his children, who are the heirs of his wife, and it *327is contended that the above payment was intended to be made by him in the latter capacity, and not in the former. If it is allowable to him in the capacity of guardian, the defendant, who is the surety on his bond, and his successor as guardian, is entitled to the benefit of it.

The receipt was rejected by the master, and the defendant excepted.

*Avery,*for the plaintiffs.

*N. W. Wooclfin*and *Gaither,*for the defendant.

PbaesoN, J.

All the exceptions are withdrawn but that relative to voucher No. 4. That purports to be a receipt given by Samuel Newland to Thomas Butler, *administrator*of William 0. Butler, in full of one sixth part of a judgment against “ *the estate of Marry Tate,*administrator.” *Prima facie,*therefore, it is not a proper voucher in favor of the defendant, who stands in the place of Thomas Butler, *as gucin'dian*of the heirs of William 0. Butler. The *onus*of offering an explanation and proving that the sum referred to was properly chargeable against the heirs, so as to convert it into a voucher for Thomas Butler as guardian, is upon the defendant. We concur with the master in the conclusion that these facts have not been satisfactorily established, and the exception is overruled.

By the way of explanation, it is suggested that the receipt was intended to be drawn to Thomas Butler as guardian, and was, by mistake of the draftsman, -written to him as administrator, (he being the administrator of Wm, 0. Butler, and also guardian of his children.) In support of this position, the defendant relies on the fact that the debt to Newland was originally due by Mrs. Tate, who was the mother of the wife of William 0. Butler, all three of -whom were dead. So that, as was contended, William 0. Butler was not, in fact, liable for 'the debt, but the liability -was upon his wife as one of the heirs of Mrs. Tate, and after the death of Mrs. Butler, fell upon her heirs, who were the wards of Thomas Butler, and in behalf of whom he paid the money.

*328There are two facts which oppose this suggestion, and tend to show that there was no mistake, and that the intention was to pay the mone3r as administrator and take a voucher accordingly. It appears by the record that Newland took a judgment against the administrator of Mrs. Tate, admitting the plea of “ no assets,” and issued a *sci.fa.*against her heirs, To this, "William C. Butler and wife were parties defendant. It is not shown whether Mrs. Butler died before or after the death of her husband. If-she survived him, then *her heirs*could not be made liable, unless a j udgment was taken against her administrator, and the fact established that she left no personal estate subject'to the payment thereof.

But if we assume that the husband survived, then it seems that the *sai. fa.*was still proceeded on against him until his death. At April Term, 1842, his deatli is suggested. At July Term following, the sci. fa. was abated as to him. Erom this it would seem that the parties acted under the impression that *he*was liable for the debt, and that after his death, liis administrator paid it as a debt due by his estate. This inference is put beyond all question by the fact that, in the receipt under consideration, Newland adds a *release*of all further claim on his part against the *estate of William C. Butler in said judgment.*

So, there was no mistake as to the form of the receipt. But it was insisted that although the money was paid, as upon a debt of William C. Butler, out of funds belonging to his estate, yet, under the doctrine of “substitution,” it can be set up against the heirs of Mrs. Butler. If a third person had been the administrator of William 0. Butler and made the payment, it would have taken *a long shoot*to reach the heirs of Mrs. Butler, upon the principle of substitution or any other principle, for a debt of Mrs. Tate. It must be borne in mind that the plaintiffs are entitled to the land as the heirs of their mother, and do not succeed to it as the heirs of their grandmother. We are at a loss to see any ground upon which Thomas Butler can be allowed to take any benefit from the *accident*that he was the administrator of William 0. Butler, *329and also the guardian of the children. Bnt waiving the objection that the payment was officious, and admitting that an administrator, or guardian, is at liberty to pay off debts without incurring the costs of a suit, yet it is clear, that if he does so, under circumstances like the present, he is bound to prove fully the liability of the fund in regard to which he seeks to use the payment as a voucher in his discharge.

The form of this receipt furnishes an inference, that ¥m. 0. Butler had become liable to pay this debt as a debt of his wife; bnt waiving that difficulty, under the law, as it was at the time this transaction took place, land descending to an heir was not charged with the debts of the ancestor, except for two years after the death. The debt of the ancestor became a debt of the heir in respect to the land, and not as a charge on the land so as to be a clog upon alienation, (Eev. Stat. ch. 63, sec. 15 and 16,) for which the heir might be made liable *if the personal estate*was insufficient. In order, therefore, to reach the heirs of Mrs. Butler, it is necessary to prove that it was a debt for which she was liable. Here the defendant fails. There was a judgment against the administrator of Mrs. Tate, ascertaining the debt so as to bind the heirs, but they were not bound on the question of personal assets. Upon the sci. fa. they could make up a collateral issue and go into the question; but the sci. fa. was permitted to abate, and that question was not passed on in a way to bind Mrs. Butler, and we have nothing to supply it. There is no proof before us binding upon the heirs, which shows that the personal estate of Mrs. Tate was insufficient to pay this debt in the due course of administration.

Again, suppose it be admitted that this was a debt for which Mrs. Butler was liable, then the question is, has the liability of the plaintiffs, as her heirs, been established ? In order to this, it was necessary to take a judgment against her administrator, and issue a sci. fa. against her heirs, so as to fix them. No such proceedings were had, and there is no .proof to supply the want of it. Eor aught that appears, Mrs. Butler, supposing her to have died in the life-time of her hus*330band, bad dioses in action, or effects not reduced into possession by the husband, which would constitute a fund in the hands of her administrator, for the payment of her debts. This may suggest a reason why the administrator of the husband paid the debt. But it is sufficient to say, that the defendant has not made the proof necessary to establish the liability of the heirs, so as to entitle him, under the doctrine of substitution, to convert this receipt into a voucher for him in discharge of the fund with which he is chargeable as the guardian of the plaintiffs.

Per- CukiaM, The exception is over-ruled, and the report in all things confirmed.