State Ex Rel. Humphrey v. Humphrey

79 N.C. 396

• Court: Supreme Court of North Carolina
• Decided: June 5, 1878
• Status: Published

Opinion

Read®, J.

Suppose the guardian were alive, would it avail the defendant his surety, to show that the guardian was solvent and able to pay his .ward, the plaintiff? Of course not. The guardian being dead, would it avail the defendant surety to prove that his estate is solvent and able to pay ? Of course not, any more than if he were alive and. able to pay. How then can it avail the defendant to prove that the guardian is dead and his estate insolvent and unable to pay ? The defendant puts his defence upon the ground that the estate of the guardian which went into the hands of his administrator was sufficient to pay. the ward, and that the administrator has wasted it, and that he and the sureties on his administration bond are insolvent.

This makes it unfortunate for the defendant, but then his undertaking when he signed the guardian bond as surety, was, that he would suffer before the ward should. And he is now only performing that undertaking. If he had performed it earlier, he might have saved himself out of the estate of the guardian in the hands of the administrator.

No error. Affirmed.