#### BEVERLY LITTLE ROSE v. THE BANK OF WADESBORO.

(Filed 22 May, 1940.)

1. Appeal and Error § 37e—

An assignment of error to the refusal of the court to sustain exceptions to the findings of fact by the referee cannot be sustained when the findings are supported by evidence.

2. Guardian and Wax'd § 22: Executors and Administratoi's § 29—

Where an administrator or guardian files the reports required by law, which are audited by the clerk, acts in good faith and with due diligence, exercises sound business judgment, and accounts for all'funds received by *601it in its fiduciary capacity, it is entitled to commissions allowed by law and approved by tbe clerk witbin tbe limits prescribed by statute, O. S., 157, 2190.

3. Guardian and Wal'd § 22—

Where a bank, acting as administrator and as guardian for one of tbe distributees, pays over to itself as guardian tbe distributive share of its ward, such amount is cash received by it as guardian, and it is entitled by law to commissions thereon. O. S., 157, 2190.

4. Same—

A guardian is entitled to commissions on the amount obtained by it for the ward’s estate from its sale of the ward’s inherited interest in lands.

5. Same—

Where a bank acting as administrator and as guardian for one of the distributees makes an advancement to its ward from the intestate’s estate and uses the funds so advanced in making investments for the ward’s estate and charges such funds against the distributive share of the ward, the bank is entitled to commissions on sums thus advanced, since such money in cash received by it as guardian.

6. Guardian and Ward § 23—

A guardian is not liable for penalties paid for failure to list the ward’s personalty for taxes when no taxes were paid on the personalty for the years prior to five years before’the property was listed, and the penalties amount to less than the taxes would have been for those years had the property been properly listed, since in such instance the ward’s estate suffers no damage.

7. Appeal and Error § 25—

An exception which is not assigned as error is deemed abandoned.

8. Guardian and Ward § 22—

Where a guardian uses funds of its ward’s estate in its own business and pays to the ward’s estate interest on the funds so used, it is entitled to commissions on the amount of interest so paid.

9. Same—

A guardian is entitled to commissions on the sum received by it from the sale of stock belonging to its ward’s estate.

10. Guardian and Ward § 23—

Where it is found that the rents collected by the guardian amount to the reasonable rental value of the realty of the estate for the time it was rented, and there is no finding that there was any contract for any specific amount of rent to be paid subsequent to the date the rent was paid in full, the guardian cannot be held liable for failure to collect rents in excess of that accounted for.

11. Appeal and Error § 40a—

An assignment of error to the court’s failure to sustain exceptions to the referee’s conclusions of law cannot be sustained when the conclusions are supported by the findings of fact.

*60212. Guardian and Ward § 21—

Where a guardian is permitted to get in evidence £lie fact that it had paid interest on guardianship funds which it had used in its own business, and the referee finds as a fact that the interest claimed had been paid, the exclusion of the reason why the guardian had made the payment is not prejudicial, evidence of the reason for the payment being immaterial.

13. Guardian and Ward § 13: Executors and Administrators § 28—

When a guardian or administrator uses funds of the estate in its own business it must pay to the estate interest on such funds at the highest legal rate, and the fact that the fiduciary is a bank and deposits the funds from its trust department in its commercial department does not relieve it of the duty to pay interest on such funds, the bank being but a single entity and the use of the funds by one department being for the benefit of the bank as a whole.

14. Appeal and Error § 29—

Exceptions not set out in appellant’s brief or in support of which no authority is cited and no argument advanced are deemed abandoned. Rule of Practice in the Supreme Court, No. 28.

15. Guardian and Ward § 22: Executors and Administrator’s § 29—

Where a bank, acting as administrator and as guardian of one of the beneficiaries, comes into possession of certain stocks and bonds as administrator, subsequently delivers to itself as guardian the same stocks and bonds, and upon settlement with its ward delivers the same stocks and bonds to her upon her majority, the bank is not entitled to retain commissions on the stocks and bonds either as administrator or as guardian.

16. Guardian and Ward § 13—

A bank acting as guardian violates its fiduciary duties by depositing guardianship funds in its commercial department and commingling such funds with its general deposit funds.

17. Guardian and War’d §§ 21, 22: Reference § 14—

Where the facts are not in dispute, whether a guardian is liable for interest on guardianship funds used by it in its own business, and whether it is entitled to commissions on stocks received by it as guardian, are questions of law for the court, and not issues of fact for the jury, and the refusal of the court to submit such issues tendered upon appeal from the referee is not error.

Appeal by plaintiff and by defendant from *Johnston, Special Judge,*at November Term, 1939, of ANSON.

Affirmed.

*Thomas U. Leath and Connor <& Connor for plaintiff.*

*Rowland S. Pruette and B. M. Covington for defendant.*

Schenck, J.

The defendant was the guardian of the plaintiff, and upon becoming of age the plaintiff instituted this action for an accounting. The defendant was also the administrator of the estate of *W.*S. Little, father of the plaintiff.

*603At the March Term, 1938, upon motion of the plaintiff, the case was referred to U. L. Spence, Esquire, to which action the defendant excepted and reserved all rights.

On 5 July, 1938, in Wadesboro, the referee conducted a hearing of the cause, at which time and place evidence was taken and argument heard. On 10 June, 1939, the referee filed his report. To said report the plaintiff and defendant filed exceptions.

The case came on for hearing at the November Term, 1939, of Anson, upon the report and exceptions thereto, and the court overruled the exceptions both of plaintiff and defendant, with the exception of one of defendant’s exceptions which it sustained, and after allowing a credit of $266.66 on the conclusion of the referee which was necessitated by the sustaining of the one exception, confirmed the report of the referee and entered judgment accordant therewith.

From the judgment of the court confirming the report of the referee as modified, both plaintiff and defendant appealed, assigning error. However, no exception was taken to the modification made by the court to the referee’s report.

PlaiNtiff’s Appeal.

Plaintiff’s assignments of error 1, 2 and 3 are to the court’s failure to sustain her exceptions 1, 2, 3, 4 and 5 to certain findings of fact by the referee. There is .ample evidence to sustain the findings assailed by the assignments. “In reference cases, the findings of fact, approved or made by the judge of the Superior Court, if supported by any competent evidence, are not subject to review on appeal, unless some error of law has been committed in connection therewith.” *Wimberly v. Furniture Stores,*216 N. C., 732, and cases there cited.

Plaintiff’s assignment of error 4 is to the court’s failure to hold as a matter of law, as set forth in her first exception to the referee’s conclusions of law (Exception No. 6), that the defendant had forfeited its rights to all commissions, both as administrator and as guardian. This assignment cannot be sustained, since the findings of fact by the referee, sustained by evidence and approved by the court, establish that the defendant both as administrator and as guardian has from time to time filed the reports required of it by law showing the conditions of the estates administered, and that said reports so filed have been audited by the clerk and each retention of commissions has been allowed by the clerk and is well within the amounts prescribed by the statutes, C. S., 151 and 2190, and that no excessive commissions have been allowed and that the defendant has acted in good faith and with due diligence in administering its trusts, and has exercised sound business judgment and accounted for all funds received by it in both fiducial capacities.

*604Plaintiff’s assignment of error 5 is to the court’s failure to sustain her second exception to the referee's conclusions of law (Exception No. 7), wherein it was concluded that the defendant was entitled to commissions on the sum of $24,724.98 cash received by it as guardian from itself as administrator, representing the distributive share of the plaintiff in the estate of her deceased father. This assignment cannot be sustained. C. S., 157 and 2190, provide that guardians shall be entitled to commissions not exceeding five per cent upon the amount of receipts. No exception is made of receipts received from itself in another capacity, and we see no logical reason why there should be, or how such an exception can be read into the statute. The commission retained and approved by the clerk, 2%%, is well within the statutory limitation and cannot be held as a matter of law to be excessive under the circumstances of the case.

Plaintiff’s assignment of error 6 is to the court’s failure to sustain her third exception to the referee’s conclusions of law (Exception No. 8), that the defendant was entitled to commissions on money received by it as guardian from the sale of plaintiff’s interest in lands inherited by her from her late father. This assignment cannot be sustained. The amount retained was 3 per cent — well within the statutory limitation— and was approved by the clerk. "While this money may have been deemed real estate for the purpose of inheritance in the event of the death of the beneficiary thereof, still it was nevertheless money received and therefore a “receipt” when it came into the hands of the guardian, and as such was subject to the commissions allowed by the statutes.

Plaintiff’s assignment of error 7 is to the court’s failure to sustain her fourth exception to the referee’s conclusions of law (Exception No. 9), that the defendant was entitled to commissions on $3,584.31 advanced by the defendant as administrator to itself as guardian and used to purchase bonds for the plaintiff. This assignment cannot be sustained. The finding of fact upon which the conclusion of law is predicated is to the effect that the money so advanced was applied on the distributive share of the plaintiff in her father’s estate and was for the purpose of purchasing bonds for the plaintiff. Such money when it came into the defendant’s hand as guardian was a receipt and as such under the statutes, C. S., 157 and 2190, was subject to a commission within the limitations of the statutes when approved by the clerk. The 3% retained was within such limitations and was so approved.

Plaintiff’s assignment of error 8 is to the court’s failure to sustain his fifth exception to the referee’s conclusions of' law (Exception No. 10), that the plaintiff was not entitled to recover the penalties and costs which the defendant, as guardian, was required to pay to the town of Ansonville and county of Anson by reason of its failure to list the property of the plaintiff for taxes. This assignment cannot be sustained for the reason that the conclusion is supported by the findings of fact. The *605facts found divulge tbat tbe casb balances of tbe plaintiff beld by tbe defendant as guardian were not listed for a number of years prior to tbe year 1928, as well as thereafter, and tbat tbe penalties imposed were for failure to list for tbe years 1928, 1929, 1930, 1931 and 1932, and tbat no taxes were paid for tbe years prior to 1928, and tbat bad sucb taxes been paid they would bave amounted to far more than tbe penalties paid for failing to list for tbe year 1928 and subsequent years, and tbat therefore “tbe failure to list tbe casb balances and pay taxes thereon for tbe whole period of failure, resulted, it is manifest, to tbe advantage of plaintiff and she was not damaged thereby.” If “she was not damaged thereby,” it follows as a matter of law she cannot recover by reason thereof.

Note: Tbe plaintiff does not make an assignment of error of tbe court’s failure to sustain her sixth exception to tbe referee’s conclusions of law (Exception No. 11), tbat tbe plaintiff was not entitled to recover $149.78 claimed for alleged negligence in failing to insure tbe property of plaintiff against damage by fire. Therefore, this exception is abandoned.

Plaintiff’s assignment of error 9 is to tbe court’s failure to sustain her seventh exception to tbe referee’s conclusions of law (Exception No. 12), tbat tbe plaintiff was not entitled to recover $434.80 retained by defendant as commissions on $8,696.00 interest paid by tbe defendant on casb balances which the defendant, as guardian, bad on deposit in defendant’s commercial department. This assignment cannot be sustained, since, although where a guardian uses tbe funds of bis ward in bis own business be is chargeable with tbe highest rate of interest allowed by law, still where be uses tbe funds of bis ward, and makes regular annual settlements, charging himself with the interest thereon, be is entitled to bis commissions on tbe interest so charged. *Fisher v. Brown,*135 N. C., 198.

Plaintiff’s assignment of error 10 is to tbe court’s failure to sustain her eighth exception to the referee’s conclusions of law (Exception No. 13), tbat tbe plaintiff was not entitled to recover $25.00 commissions retained by tbe defendant as guardian on tbe sale of stock of tbe Eober-del Manufacturing Company for tbe sum of $500.00. This assignment cannot be sustained, since tbe $500.00 received for tbe stock was money received by tbe guardian and as sucb was a receipt subject to tbe provisions of tbe statutes, C. S., 157 and 2190, as to commissions.

Plaintiff’s assignment of error 11 is to tbe court’s failure to sustain her ninth exception to tbe referee’s conclusions of law (Exception No. 14), tbat tbe plaintiff is not entitled to recover of tbe defendant tbe sum of $1,315.00, or any part thereof, by reason of tbe failure to collect rent on a garage belonging to tbe estate of her late father. This assignment cannot be sustained for tbe reason tbat tbe conclusion is supported *606by tbe findings of fact. It is specifically found tbat tbe sum collected amounted to tbe reasonable rental value of tbe garage for tbe time it was rented, and tbat one-balf thereof was received by tbe defendant as guardian of tbe plaintiff. There is no finding tbat there was any contract for any specific amount of rent to be paid after August, 1928, to which date tbe rent was paid in full.

Plaintiff's assignment of error 12 is to tbe court’s failure to sustain her tenth exception to tbe referee’s conclusions of law (Exception No. 15), tbat tbe defendant is entitled to commissions on receipts and disbursements allowed it in its accounts filed as administrator and as guardian, except in certain instances indicated. This assignment presents tbe same question presented by assignment 4, namely, has tbe defendant by its conduct forfeited its right to all commissions both as administrator and as guardian, and for tbe same reasons there set forth must be answered in tbe negative.

Tbe plaintiff’s assignment of error 13 is to tbe court’s failure to sustain her eleventh and twelfth exceptions to tbe referee’s conclusions of law (Exceptions Nos. 16 and 17), tbat plaintiff is entitled to recover only those amounts named. This assignment cannot be sustained since tbe findings of fact support tbe conclusions of law.

On tbe plaintiff’s appeal tbe judgment of tbe Superior Court is

Affirmed.

DEFENDANT’S APPEAL.

Defendant’s assignments of error 1 to 10, inclusive, are to tbe failure of tbe court to sustain its exceptions (Exceptions Nos. 1 to 10, inclusive), to certain findings of fact by tbe referee. These assignments cannot be sustained, for tbe reason tbat such findings are supported by tbe evidence, and are approved by tbe judge of tbe Superior Court. *Wimberly v. Furniture Co.,*216 N. C., 732.

Defendant’s assignment of error 11 is to tbe sustaining by tbe court of the referee’s ruling allowing tbe motion of tbe plaintiff to strike out an answer made by tbe witness Robinson as to why tbe defendant, as administrator, paid certain interest on tbe funds of tbe estate of its intestate. (Exception No. 11.) This assignment cannot be sustained, since tbe answer stricken from tbe record tended to show (1) what tbe witness knew, or thought be knew, tbe law was relative to charging administrators with interest, which was irrelevant and immaterial to the issue involved; and (2) tbat interest was paid on $40,000.00 at tbe rate of 4% at the suggestion of an uncle of tbe plaintiff. Why tbe defendant made tbe payment was immaterial. If tbe fact tbat 4% interest was paid on $40,000.00 was material, and evidence tending to establish such fact was erroneously stricken out, such error was harmless since evidence of tbat fact appears elsewhere in tbe record, and such fact is virtually found by tbe referee.

*607Defendant’s assignment of error 12 is to tbe failure of tbe court to sustain its first exception to tbe referee’s conclusions of law (Exception No. 12), tbat inasmuch as tbe defendant used in its business, in its commercial department, funds received by it as administrator, made itself liable for interest on deposits remaining in its custody at tbe rate of 6% per annum, and defendant should have accounted for interest so accumulated in its final account as administrator, and defendant is liable to plaintiff for her share of such interest as a distributee of tbe estate of defendant’s intestate, and defendant should have credited her with such sum in its accounts as her guardian. This assignment cannot be sustained, since tbe facts found support tbe conclusions reached.

When a bank is an administrator or guardian and deposits money belonging to tbe estate of its intestate or ward with itself to the credit of itself as administrator or guardian, such deposit is a general deposit, and tbe money thereby becomes mingled with tbe general funds of tbe bank and constitutes a use in tbe general business of tbe bank for its general benefit, *Roebuck v. Surety Co.,*200 N. C., 196, and cases there cited, and when an administrator or guardian uses tbe money belonging to tbe estate of its intestate or ward in bis own business he is chargeable with tbe highest rate of interest allowed by law. *Fisher v. Brown,*135 N. C., 198.

While ordinarily an administrator is not chargeable with interest, still, if be collects interest be must account therefor, *Chambers v. Kerns,*59 N. C., 280, or, if be uses tbe money of tbe estate of bis intestate in bis own business be is chargeable with interest, *Smith v. Smith,*101 N. C., 461, and this irrespective of tbe fact tbat tbe administrator is a bank and tbe money is made use of in its commercial department. Tbe fact tbat tbe bank has two departments, a trust department and a commercial department, does not alter tbe fact tbat it is a single entity, doing business under one charter, and tbe use of money in one department inures to tbe benefit of tbe other department, and constitutes a use in its general business.

Such being the law, it was incumbent upon defendant as guardian to collect from itself as administrator such interest when its final account as administrator was filed.

Defendant’s assignment of error 13 is to failure of tbe court to sustain its second exception to tbe referee’s conclusion of law (Exception No. 13), tbat sums appropriated to itself as administrator for commissions prior to tbe filing of final account are deemed in law to be sums remaining in its bands as balances, upon which tbe defendant is liable to tbe estate for interest at 6%. This assignment is not set out in tbe defendant’s brief and is therefore taken as abandoned. Rule 28, Rules of tbe Supreme Court, 213 N. C., 825.

Defendant’s assignment of error 14 is to failure of tbe court to sustain *608its third exception to the referee’s conclusion of law (Exception No. 14), that by reason of having retained in its custody and used in its commercial department over certain periods of time certain moneys of the estate of its intestate which came into its hands as administrator, the defendant became liable to the plaintiff for her share, as a distributee, of interest at the rate of 6% on said moneys for said periods, less credits for the interest actually paid by the defendant as administrator on said moneys during said periods. This assignment cannot be sustained for the reasons set forth under assignment of error No. 12.

Defendant’s assignment of error 15 is to the failure of the court to sustain its fourth exception to the referee’s conclusion of law (Exception No. 15), that the defendant is not entitled to any reduction in its liability to plaintiff for interest by reason of an item contained in its final account as administrator filed 2 January, 1925, denominated “interest paid by the Bank of Wadesboro on administration account from July 18, 1923, to December 30, 1924, including interest collected on U. S. certificate of indebtedness, $2,193.46,” since it does not appear what portion of said amount was paid as interest on balances or what portion was collected from U. S. certificates of indebtedness. No reason or argument is stated or authorities cited in support of this assignment in the defendant’s brief, and therefore it will be taken as abandoned. Rule 28, *supra.*

Defendant’s assignment of error 16 is to the failure of the court to sustain its fifth exception to the referee’s conclusions of law (Exception No. 16), that the plaintiff was entitled to recover one-third of the amount which the defendant retained as commissions on stocks and bonds received by it as administrator. This assignment cannot be sustained, since the conclusion is supported by the facts found.

It is found that at the death of its intestate the defendant, as administrator, came into possession of certain stocks and bonds, and that one-third of these stocks and bonds were received by the defendant as guardian from itself as administrator, and that the selfsame one-third of the stocks and bonds were turned over by the defendant as her guardian to the plaintiff — that said stocks and bonds were never sold but held by the defendant in unchanged form from the time of its qualification as administrator to the time of filing its final account as guardian. An administrator is not entitled to commissions on specific articles of personal property delivered to it and by it delivered to the distributees. Property specifically received and delivered over in the course of distribution is not usually burdened with a charge of commissions. *Spruill v. Cannon,*22 N. C., 400; *Scroggs v. Stevenson,*100 N. C., 354. Such being the law, it was the duty of the defendant as guardian to collect from itself as administrator when it filed its final account as administrator the commissions retained by it upon these stocks and bonds.

Defendant’s assignment of error 17 is to the failure of the court to *609sustain its six exception to tbe referee’s conclusions of law (Exception No. 17), that tbe defendant as guardian having deposited tbe moneys of its ward, tbe plaintiff, in tbe commercial department of its bank and used tbe same therein for its benefit, without otherwise investing tbe same, made itself liable to tbe plaintiff for 6% compound interest on tbe moneys so deposited; and that tbe plaintiff was entitled to recover of tbe defendant tbe sum of $6,495.11, tbe difference between such 6% compound interest and tbe interest actually paid by tbe defendant. This assignment cannot be sustained, since tbe facts found support tbe conclusion reached.

Where a bank is authorized by its charter to act as guardian, it owes the same duty to its ward as an individual would owe to keep tbe ward’s funds separate from other funds of tbe guardian, and to invest tbe same as tbe law applicable to investments requires, and where funds of tbe ward are accepted by tbe bank in its banking department and commingled by it with its general deposit funds it violates its fiduciary duties as guardian and is liable to tbe ward for loss occasioned thereby. *Roebuck v. Surety Co., supra.*Where a guardian uses funds of its ward in its own business it is chargeable with tbe highest rate of interest. *Fisher v. Brown, supra.*

Defendant’s assignment of error 18 is to the court’s failure to sustain its seventh exception to tbe referee’s conclusions of law (Exception No. 18), that tbe defendant as guardian was not entitled to commissions on stocks and bonds received by it from itself as administrator, and by it as guardian turned over to its ward, tbe plaintiff, and that tbe plaintiff was entitled to recover such commissions so retained. This assignment cannot be sustained, since tbe facts found sustain tbe conclusion reached. What was said in tbe discussion of assignment of error 16 as to the retention of commissions on specific articles of property by an administrator applies to tbe retention of such commissions by a guardian, and the authorities there cited are applicable here.

Defendant’s assignments of error 19, 20, 21 and 22 are to tbe refusal of tbe court to submit to tbe jury four issues tendered. In defendant’s brief assignment 20 is not set out and is therefore taken as abandoned. Rule 28, *supra.*

Tbe issue tendered to which assignment 19 refers is: “What amount, if any, is tbe plaintiff entitled to recover of tbe defendant for interest on moneys bandied by tbe Bank of Wadesboro while acting as administrator of tbe estate of tbe late Walter S. Little ?” This issue relates to interest. Tbe facts upon which tbe referee concluded that tbe interest referred to in tbe issue tendered should be recovered are not in dispute. Whether upon these facts interest should be recovered, and tbe amount thereof if recovered, were questions of law for tbe court, and not issues of fact for *610the jury. Therefore the court was correct in refusing to submit to the jury the issue tendered.

The issue tendered to which assignment 21 refers is: “What amount, if any, is the plaintiff entitled to recover of the defendant for interest on moneys handled by the Bank of Wadesboro while acting as guardian of thp estate of the plaintiff herein?” What is said upon assignment 19 is here applicable, and the assignment cannot he sustained for the reason there given.

The issue tendered to which assignment 22 refers is: “Is the plaintiff entitled to recover of the defendant the sum of $442.50, with interest thereon from February 15, 1937, on account of commissions heretofore allowed by the clerk of the Superior Court of Anson County to the Bank of Wadesboro while acting as guardian of the estate of the plaintiff, for commissions on stocks and bonds received by it as such guardian?”

This issue is not based upon any disputed facts — no issue of fact which arises on the pleadings and the evidence is presented. The only controversy arising is one of law, namely, if under the facts as shown by all the evidence, the plaintiff is entitled to recover the item' involved. Therefore, the court was correct in refusing to submit to the jury the issue tendered.

Defendant’s assignment of error 23 is to judgment of the Superior Court, as entered. This assignment cannot be sustained for the reason that the judgment is supported by the findings of fact and conclusions of law of the referee, confirmed by the judge.

On defendant’s appeal the judgment of the Superior Court is

Affirmed.