#### Richard Harrison *Chairman, &c. on the relation of*Barnes & Enos Amason *v.*Lamon Ward & Jonathan Ellis.

Where the same person is administrator, and also guardian of the next of kin, his returning an account of his administration, and acknowledging a balance due his ward, is not a performance of the condition of his administration bond. But it is otherwise if the money to pay the balance, is identified, and retained by the guardian, as the property of the ward.

In such a case are the bonds cumulative. Q.u?

Debt, upon a bond executed by the defendants, as sureties of *Elisha Jlmason,*on his taking out letters of administration upon the estate of *Woodward Jlmason.*

After *oyer,*the defendants pleaded several pleas, and amongst them, performance of the condition of the bond, by the administrator.

On the trial, before Swain, Judge, at Edgecomb, on the Fall Circuit of 1831, the defendants relied upon the following facts in support of their plea:

At November sessions 1821, of the County Court of Edgecomb, *Elisha Jlmason*was appointed guardian of the relators, and of their brother *Woodward,*the intestate, *418and gave the usual bond, with sufficient sureties. The intestate, Woodward, died in 1825, and at February ses-s.ons l826( letters of administration upon his estate, issued to *Elisha Jlmason,*who then gave the bond upon which the action was brought. At November sessions 1828, *Elisha Jlmason*returned an account current as administrator of *Woodward,*which showed a balance due the relators, who were his next of kin, and which was claimed in this action. At February sessions 1828, *Elisha Jlmason*renewed his bonds as guardian of the re-lators, and gave sureties who were then, and at the time of the trial, insolvent.

The case of *Chuwyv JJiJkey,*(i *'¿whs*4y7,) approyed.

Upon these facts, his Honor ruled, that the guardian and administration bonds were cumulative securities for the benefit of the relators, and that they had a right to elect on which of them to sue ; and that if the bonds were not cumulative securities for the relators, they had, upon the facts in evidence, a right to recover upon the administration bond.

Yerdict for the plaintiff, and appeal by the defendants.

The *Jltlorney General*for the defendants.

*Hogg*and *Mordecai, contra.*

Henderson, Chief-Justice,

after stating the case as above proceeded: The bond is in the proper and usual form of an administration bond. The defendants rely on the fact, that the conditions of the bond were performed by the administrator’s rendering an account current as above stated, he being then also the guardian of the relators; that is, that the money acknowledged to be due to the relators in that account, by its rendition, *ipso facto,*passed from the possession of *Elisha*as the administrator of *Woodward,*and vested in him as the guardian of the relators. Had this been specific property, and in the actual possession of *Elisha,*his possession more than two years after his appointment as administrator, would unquestionably, according to the case of *Clancy*v. *Dickey,*(2 *Hawks*497,) have been *•> f \*as guardian, and would so tar, have been a per-fomunce of one of the conditions of his administration *419bond, viz: a payment or delivery to the persons entitled. I presume the rule to be a sound one, that when a person has two or more capacities in which to take and hold, and takes and holds, without a declaration in which capacity he does so, it shall be taken that he holds in that capacity in which he ought of right to take and hold. He takes in the one capacity or the other, not in both ; it is therefore reasonable that he should hold in the rightful capacity, and so in the absence of proof to the contrary, the law presumes. But this rule cannot apply to money not identified or separated from other money, by putting a mark upon it, as in the case before us, w here it was not made the ward’s money ; until this is done, the condition of the bond is not performed. In this case, it remains a mere debt or duty owing to the relators, and that it should be paid to them, or some person for them, was the object of taking the bond now in suit. Whether the admission upon the record, made by the administrator, amounts to enough to charge the sureties to theguardianbond, it is unnecessary to decide. If they are charged, it will not be by proof of any fact, but by the admission of one, who is charged upon that admission by an estoppel, without regard to the actual state of the facts. As for instance, they would be charged in the presentcase, without proof that the guardian had so. much money of the estate of his intestate in his hands. On no other state of facts, either actual or by estoppel, can the sureties of the guardian he charged. The estoppels of *Elisha Amasan*do not affect the relators, they may insist on new rights arising on *the actual facts,*not on those which others are concluded from denying. It will be under» stood that I give no opinion whether the guardian bond is, or is not cumulative.

Where an act is rightful in one capacity, and wrongful in another, without proof to the contrary, it is taken to be in the first.

Per Curiam- — -Judgment aeeirmed^