#### J. B. O’Neall, Guardian, v. Thos. E. Herbert, Administrator.

If one be indebted to himself as guardian, as he is unable to sue himself, the debt shall bo presumed to be paid, and he, and his sureties, will be liable for it.

Where one of two co-administrators becomes guardian for minors interested in the estate, his legal liability on their joint bond for the acts of his co-administrator, is not such an indebtedness to himself, as guardian, as would render his sureties liable, where the extent of such liability was not ascertained by a judgment previous to the acceptance of the guardianship.

Nor can laches be imputed to such guardian, for failing to obtain letters of guardianship in another State, and to recover the estate from his co-administrator, who resided there.

Neither an executor or administrator is liable in Equity, *in the character of*trustee, for the assets which come into the hands of his co-executor or co-administrator, unless under particular circumstances.

*Before Ms Honor Chancellor JOHNSTON, at Newberry, July Term, 1837.*

The facts of this case, so far as they are material to a proper understanding of that part of it which relates to the liability of the defendant Thos. E. Herbert, administrator *of Pendleton*Page, in whose behalf this motion was made, were briefly these :

James W. Sibly was appointed the guardian of the complainants Caroline and Eliza McHardy, in this State, and gave as sureties to his guardianship bond, Joseph Sibly and Pendleton Page, and afterwards died insolvent. Joseph Sibly and Pendleton Page, tho sureties, were also dead, and the defendant Herbert was the administrator of Page. This bill was filed by John B. O’Neal], who was appointed the guardian of Caroline and Eliza McHardy, after the death of Jas. W. Sibly, against Thos. E. Herbert, as administrator of Page, and others, for an account of the funds which came to the hands of J. W. Sibly, as guardian of complainants. It appeared that Mrs. McHardy, the mother of complainants, died intestate in Florida, leaving property there to which they were entitled, as her heirs and distributees; and that Jas. W. Sibly, and one Murray, administered jointly upon her estate; and that each of them, by virtue of their authority, as administrators, came to the possession of a part of the property belonging thereto. This was before James W. Sibly was appointed guardian of the complain*31ants. The report of the Commissioner, to whom the matters of account were referred, presented the case in a two-fold aspect.— By the first, the sureties to the guardianship bond of Jas. "W. Sibly were only charged with the amount of funds belonging to his wards, and actually received by him as guardian; by the other, he was charged with a considerable sum, which there was no evidence ever came to his hands, but which were received by his co-administrator in Florida. To the alternative submitted in the Commissioner’s report, by which the sureties of Sibly, the guardian, were only charged with the amount actually received by him, there was no exception; but to that part of the report which attempted to charge them with the amount of money received by his co-administrator in Florida, the defendant Herbert excepted, upon the ground, that there being no evidence that the money ever came to the hands of Sibly, the guardian of complainants, either before or after his appointment, his sureties should not be charged with it.

The presiding Chancellor overruled the exception, and decreed that the sureties were liable.

From this decree the defendant Herbert appealed, and moved to reverse that part of it upon the following ground :

Because the sureties to the guardianship bond of Sibly should not have been made liable for the funds received by his co-administrator Murray, in Florida, and which, it appeared, never came into the hands of Sibly; nor were they within his power or control.

Young, for the appellant.

Fair & Pope, contra.

Curia, per

Harper, Ch.

I suppose that if an administrator have in his hands the balance of an estáte, and is afterwards appointed the guardian of infants entitled to it, he will be chargeable as guardian, and the sureties to his guardianship bond will be liable, as in the case of Simkins v. Cobb, ( *2*Bailey’s Rep. 60,) referred to by the Chancellor. So, if before his appointment he has *32received a sum of money belonging to bis wards, as in McDowall v. Caldwell, (2 M’C, Ch. Rep. 55.) Or if, in any other capacity, he be indebted to himself as guardian, being unable to sue himself, the debt shall be presumed to be paid, and he and his sureties will be liable.

There is no exception to that part of the report, or the decree, Which charges the sureties of James W. Siblywith that part of the estate of Mrs. McHardy, which was actually in his hands as administrator. It is only to so much of the report and decree as charges him with the amount received by his co-administrator Murray. It is supposed that he is liable for this on his administration bond; that this constituted a debt to himself, and that he is therefore chargeable in the character of guardian.

The general rule of this Court is, that one executor is not liable for the assets which come into the hands of his co-executor, unless under particular circumstances — such as having paid them over to him — having joined in a mis-application of them, or having joined in a receipt, by which he enabled him to receive' them. — ("Williams on Executors, 1118, et. seq.) I have not found any distinction made between an executor and an administrator, and the authors lay down the rule, treating indiscriminately of both. In Jacomb v. Harwood, (2 Ves. 267,) Sir John Strange, the Master of the Rolls, after stating that one of several executors has the entire control of the personal estate, adds, “It has been questioned in case of administrators, whether one administrator had such a power equal to that of an executor: and that the attempt has been made to distinguish that from the case of executors, who it was always agreed, might do so : and though, in Hudson v. Hudson, it was said that the Lord Chancellor had been of opinion that one administrator could not release, so as to bind the other; yet, when that case was more narrowly looked into, it appeared clearly that it was applicable to the particular circumstances of that case; and the words of the decree in that case are, that the plaintiff’s are not barred by the accounts stated or the release accepted, from demanding an account from the two sons in a Court of Equity. But after that, was Willand v. Penn, where it was held in B. R. after three arguments, that one administrator stood on the same *33ground and foundation with one executor.” No distinction seems to be made with lespect either to their power or duties. Indeed if all administrators were required to join in any act, it would be so much more in their favour. Trustees, it is said, are not liable for each others acts, though they join in a receipt, if they join merely for conformity. Otherwise of an executor, whose single receipt is sufficient. Indeed the plainest justice requires that each should be liable for his own acts, at least in the first instance.— Lenoir v. Winn and others, 4 Eq. Rep. 65.

But, it is urged that Jas. W. Sibly was a joint obligor on the administration bond; and, by the very terms of his contract, bound for the administration of Murray, as well as for his own. This may be so, and I suppose that the personal representative of Sibly, and the sureties of himself and Murray in Florida, may be made liable at law on that bond. But this is a different thing from his general liability *as a trustee,*in this Court. He will be liable as administrator, not as guardian. To constitute that debt to himself, which would bring this case within the principles of the cases relied on, it is necessary that there should have been a breach of the condition of the bond; and to constitute a breach of the condition of the bond, it is necessary that Murray should' have been called to account, and a decree obtained against him. If that had been done, and on his default, a judgment had been obtained against Sibly on the administration bond, this would have constituted such a debt to himself, on his being appointed guardian, as he was bound to pay. According to the view I have taken, it must be understood that each shall, as trustee, account for and pay over, what he himself has received; and it is on the default of either to do this, that the legal liability of both attaches on the administration bond. Suppose that Murray were now alive and solvent; is it to be imagined that the Court would, in the first instance, malee Sibly liable for the whole estate, without Murray’s being even a party to the suitl It appears that he is dead, and there is a suggestion, though I believe no proof, that his estate is insolvent. But this does not dispense with the necessity of first establishing the accounts against his personal representative. He alone is competent to litigate it. He might be able to shew that *34without any default of the administrator Murray, it was impossible to collect some of the monies now charged; or that he had paid money on acconnt of the estate, of which it would be impossible that Sibly should furnish the evidence. But the sureties of Sibly’s guardianship bond can never be made liable. Whatever Sib-ley may have done,, they certainly have never become bound for Murray’s- faithful administration.

Nor do I perceive that Sibly or his sureties can be made liable, on the ground of his laches, in failing to recover the estate from his co-administrator in Florida. He could have maintained no suit for that purpose there, in virtue of his appointment as guardian here. And I know of no principle on which he could be required, (as a matter of official duty,) to procure the appointment of guardian there, in order to enable him to bring such a suit.

The motion to reverse the Chancellor’s decree, so far as respects the exception in question, is therefore granted, and the exception sustained.