#### *John S. Edwards*vs. *Susan Spearman and others.*

Husband and wife were appointed guardians of two infant children by the Court of *Equity:*— Held, that after the death of the husband, the wife could not be made answerable for the money of the wards which came into the husband’s hands, and was wasted by him during the coverture. Such an appointment was in effect an appointment of the husband during the coverture, and of the wife, if she should survive him.

*Before*DeSaussure, Ch., *at Newberry, July,*1829.

The case came before the Court on the report of the Commissioner and exceptions thereto.

DeSaussure, Ch. The bill was filed on the ground of *quia timet.*

The complainant, who was surety in the guardianship bond of Edmund Spearman and Susan his wife, guardians of Isa7 bella and Ann Abney, filed his bill in December, 1827, for an account of the estate of the wards, and of the application of the proceeds by the guardians, and he seeks to be indemnified and protected against his liability. The defendant, Mrs. Spearman, *55widow of -John Abney, and afterwards of Edmund Spearman, in her answer, admits the guardianship and the bond to the Commissioner, as charged in the bill. She admits that her husband, Edmund Spearman, received considerable sums of money as guardian of Isabella and Ann Abney, but she does not knbw the amount. She, the defendant, also denies, that during the life of Edmund Spearman she received any money on account'of the said minors: but that since his death,'an agent of hers received the sum of $1050 from the Sheriff on account of the minors, and has paid her only one-third part thereof, refusing to pay her more, as her letters of guardianship were revoked. The answer states, that on the death of Edmund Spearman, in the year 1827, Robert Floyd administered on his estate. She relies on her being a married woman when she signed the bond of guardianship. That she had been appointed testamentary guardian of her daughters Isabella and Ann Ab-ney, by the will of their father, John Abney; and that she is not liable to account till théy come of age. Defendant intended to have removed out of the State, but has changed her intention since she learnt that the complainant sought to make her liable for monies received by Edmund Spearman in his life time. It appears that a short time prior to the filing the bill, Robert Floyd, the administrator of Edmund Spearman, had filed a petition, praying that the letters of guardianship granted to Mrs. Susan Spearman, of the minors Isabel and Ann Abney, should be revoked, which, it is stated to the Court, was ordered; and that the Commissioner should examine the accounts of the guardianship, and report upon the same to the Court. In .pursuance of this order, the Commissioner made a very full and clear report, on the 14th July, 1828, by which he stated the amount due by the estate of Mr. Edmund Spearman, to his wards, Isabella and Ann Abney, which report was confirmed at the same Court; hutas it was uncertain whether the estate of Edmund Spearman was sufficient to pay the bond debts, it . was ordered that the case be referred to the Commissioner to, ascertain and report the amount of assets in the- hands of the *56administrator, and what proportion thereof should be applied, in the due course of administration, to the payment of the amount which said Edmund was in arrear to the said wards after-payment of costs. In pursuance of this order, the Commissioner made a full and able report in February, 1829, in which he stated that the estate of Edmund Spearman was insolvent, and the simple contract debts could not be paid at all, nor the creditors of high degree only partially. The whole amount of the assets in the hands of the administrator, to be applied to the payment of the bond debts, was $7929 72. That there was due to Isabella and Ann Abney, $5280 68, and that their dividend of the assets would amount to $4388 70. The Commissioner also submitted several questions for the decision of the Court. 1st. As to the debt due to Catlet Conner, in which the Court agrees with the Commissioner in the view he takes, and confirms the report. 2d. As to the bond creditors who did not attend the. reference, but sent their demands, the Court agrees with the Commissioner on this point, and confirms the report. 3d. The liability of Mrs. Spearman, one of the defendants, to whose guardianship bond the complainant Edwards was surety. As Mr. Spearman’s estate was unable to pay the full amount due the wards, the complainant, who was one of the sureties in the guardianship bond of Mr. and Mrs. Spearman, contends that Mrs. Spearman’s property is to be the first resorted to, to make up the defect before he is called on.

The question is, whether the mother of the wards being a married woman at the time of the assumption of the guardianship, and signing the bond, is liable on that bond. The Commissioner did not consider this question as one submitted to him by the order of reference, and declined deciding on it. But he reported, that if the Court should be of the opinion, that Mrs. Spearman was liable, then the sum in which she would be responsible would be $891 97, with interest from 14th February 1829. But if she was not liable, then the same amount with interest from the same time would be due, and payable by the complainant, John S. Edwards, and his co-security, Robert Plant. *57On the petition filed *ex parte*Robert Floyd, which was referred to the Commissioner, he made a similar Report, as in Edwards *vs.*Spearman, to which he refers. To the above mentioned report, as to Mr. Spearman’s estate, there were filed three exceptions. The first of these was withdrawn at the hearing of the case. The second exception the Commissioner overruled, because the subject of it had never been before him, in which he was correct. The third exception of Floyd, administrator, *vs.*Spearman, was *“*because the Commissioner had not allowed Robert Floyd, (as a deduction payable to the Miss Abneys,) the sum of $209, already paid for them by him to Landrum, as appeared by the evidence annexed to the report, *ex parte*Robert Floyd.” The Commissioner examined the grounds of this exception, and reports very fully on it. He sustains this exception to his report, and I think has given satisfactory reasons for doing so. I, therefore, concur with him. There was another exception of Robert Floyd as to interest, which was abandoned. The only, point which remains for the consideration of the Court, is whether Mrs. Spearman is liable, on her guardianship bond, for the balance due to her daughters, the Miss Abneys, as above stated. It will be remembered that she and her second husband, Mr. Spearman, became, on their own application, guardians of her daughters by the order of the Court, (from whom it was kept out of view that she was guardian under the will of her first husband,) and that she joined in the guardianship bond with her husband. It has been clearly ascertained by the report of the Commissioner, that the guardians are liable on the bond in a certain sum of money. Mr. Spear-man’s estate is reported to be sufficient to pay all the debts, except a certain reported balance; which must be paid either by Mrs. Spearman, the other .guardian, or by the solvent surety in the bond.

There is no doubt where the justice lies. The guardians ought to be made liable before the surety is called upon to pay his or her defaults. An objection, however, is made on her behalf, that she was a *feme covert*at the time she signed the *58bond, and therefore is not bound thereby. The point was well and warmly argued by the counsel, and I acknowledge that I have hesitated a good deal on the subject; the strong leaning is to make this lady liable in preference to the surety of herself and her late husband. But I fear the rule of law is too strong— she was under coverture, and the law presumes that she is under the coercion of her husband, and therefore will not allow her to bind herself by a bond, or to make contracts. This will be a good reason for not appointing a mother guardian of her children, who has married a second time. But I do not perceive that she can be made liable according to the legal doctrine. The mind is somewhat relieved from its reluctance to make the surety liable, because it does not appear that the defendant, Mrs. Spearman, received any of the funds of the estate of Ab-ney. It appears that her husband, Mr. Spearman, received them, and the surety, Edwards, is clearly liable for his default, which has been established. The money in the hands of the agent of Mrs. Spearman, must however be first collected.

It is, therefore, ordered and decreed, that the Commissioner’s report be confirmed, except so far as the- same has been modified by this decree, and that so much of the debt due to the Miss Ab-neys be paid as they are entitled to proportionably with the other creditors out of the estate of Edmund Spearman as reported by the Commissioner; and that John S. Edwards, the surety who came into this Court by his bill, do pay; the balance due to the Miss Abneys, as reported, and not otherwise provided for, and that the costs of suit be paid by Mrs. Spearman and Mr. Robert Floyd.

The complainant appealed on the following grounds, viz:

1. Because the amounts paid to Landrum ought not to have been allowed against the estate.

2. Because Mrs. Spearman ought to have been decreed to be liable on the guardianship bond before any resort could be had against the sureties.

Caldwell, for appellant.

*59The opinion of the Court was delivered by

Harper, J.

The only point argued on the appeal respected the liability of the defendant, Mrs. Spearman, for the acts of her husband, during the coverture, in wasting the property of their wards. It is certain that her guardianship bond, signed by her, together with her husband and the sureties, as was observed by Lord Redesdale, in the case of *Adair*vs. Shaw, 1 Sch. and Lef., 284, with respect to an administration bond of a *feme*covert, was nothing. It was void at law, and a Court of Equity would charge her no farther than she would be chargeable on its own principles without it. I have- found no authority directly applicable to the subject. It is settled, that if a *feme*executrix, or administratrix, marry, she is liable for any *devastavit*the husband may afterwards commit; it is said, because it was her folly *to take*a husband who would so misconduct himself. So, I suppose, it would be, upon like reason, if a woman, being guardian, should marry, and thus put into the husband’s hands power to waste the ward’s estate. In the case of *Beynon*vs. Gollins, as reported 2 Bro. Ch. Rep., 323, it was held, that where administration had been granted to the wife during the marriage, she was not liable for the *devas-tavit*of the husband, afteir his death.- Lord Thurlow lays it down, that the action for *devastavit*would not lie at law, where the executorship was taken in the name of the wife, during the coverture, if she renounced upon her husband’s death. In the. case of *Adair*vs. *Shaw,*before referred to, however, Lord Redesdale declares the case of *Beynon*vs. *Gollins*to have been wrongly reported, and that the point represented to have been-decided in Brown did not arise in the case. In that case, administration was taken out in the name of the wife, during the coverture. The principal question in the case was, whether the representatives of the husband were liable in equity for his devastavit, no action having been brought against him in his life time, and being gone at law upon his death. Another question was, whether the wife was liable for the husband’s *devastavit,*and she was held to be so liable to creditors, inas*60much as the action at law remained against her, in favour of creditors. The Chancellor intimates an opinion that she would be liable also to legatees, but determined nothing on that point; the claim not being pressed. The capacity of the wife to take administration, apart from her husband, seems to have been borrowed by the ecclesiastical Courts from the civil, contrary to the general rule of the common law, which merges the separate existence of the wife in that of the husband. I have met with no decision respecting the wife’s liability, in the case of a joint administration of herself and her husband; but in such case it may be supposed that she would be liable, at least to creditors, as the action at law would survive against her. The rules respecting guardians, however, are -not taken from the ecclesiastical Courts. I am not aware how the ward could have any proceeding at law, against the wife surviving in spch case, for the waste of the husband during the coverture. She was not capable of committing waste, or rendering herself responsible to an action. The bond, as I before observed, is a nullity, so far as she is concerned. Equity does, for some purposes, regard the wife as a separate person, and guardianship has been committed to the wife alone. But in such case the Court will restrain the husband from interfering, and will protect the wife in disposing of the person and the property of the ward; It will order money to be paid her on her own separate receipt. *Wallis*vs. *Campbell,*13 Ves., 616. In such case Equity would charge her for her own waste. But in the case of a joint appointment with her husband, she can exercise no power of disposition. Here her, separate existence must be merged in the husband. I can conceive of no purpose or effect of such an appointment but to give the guardianship to the husband during the marriage, and to the wife if she shall survive him. And so I think the undertaking of the sureties must be regarded. They undertake for the conduct of the husband during his life, and for that of the wife if she shall survive. Apart from the hardship which seems to be imposed on the sureties in the present case, it would be plainly inequitable, on general principles, *61to make the wife hable for mismanagement to which she did not contribute, and could not have controlled. It may be said that it was her folly to join her husband in applying for the appointment. But the presumption oí the law will be found fact in many instances, that she acted under the influence and control of her husband.

It was argued that Mrs. Spearman was appointed testamentary guardian of her children, by the will of her former husband, and that the rule applies to her which would apply to a *feme*executrix or administratrix marrying. This fact is mentioned by the defendant in her answer, and is made no part of the complainant’s case. It does not appear from the decree that the point was made to the Court below. It does not appear that she ever acted under the appointment of the will. I give no opinion as to what her liability would have been, if she hkd assumed and acted under the appointment of the will which she put it into his power to do by marrying. ' The appointment w,as made by the Court, without reference to the will, which, it appears by the decree, was not brought to the view of the Court. The guardianship has since been revoked, and the estate put out of the defendant’s power. For these reasons, we must regard it as an original appointment by the Court, and leave out of question the appointment of the will. The decree must, therefore, be affirmed, and the motion dismissed.

Johnson and O’Neall, JJ., concurred.

*Appeal dismissed.*