
    Hannah Wilson et al. v. Joseph P. Wilson and Thomas L. Rhea.
    1. Where a person occupies the double relation of administrator of a decedent’s estate and guardian of the minor heirs of such decedent, and it becomes his duty, as such administrator, to pay over a fund in his hands for distributon to himself as guardian of the minor heirs, the law will, in general, presume such payment to have been made.
    2. But this legal presumption may be rebutted. And where he charges himself with the fund in his account as administrator, but fails to credit himself in that account with its payment to himself as guardian, and, in an attempted settlement of his account as guardian, refrains from charging himself therein with such fund, the legal presumption of a transfer of the fund is rebutted; and in an action by his former wards on his bond as administrator, for the recovery of the fund, he will be estopped to deny that he still holds the same as administrator.
    Error to the district court of Butler county.
    *John Rhea died testate, April 30, 1832. His will, duly probated, contained, among other provisions, the following:
    “ I give and bequeath to Joseph P. Wilson ” [one of the defendants in error] “ and his heirs, forever, one hundred acres of land, out of any part of the tract I now own, that my sister, Elizabeth Dick, may choose, to- be held by said Joseph P. Wilson and his-heirs, as hereinafter provided. I also give and bequeath to the said Joseph P. Wilson and his heirs, all the money I may have on hand, or may be due me here in this state, or elsewhere, including a claim I have for either money or land under the will of my grandfather, Thomas Lyon, deceased, at this time contingent; which said hundred acres of land, and money, and property coming to me from my grandfather’s estate, to be held by the said Joseph P. Wilson and his heirs, in trust for the sole use, benefit, and profit of my sister, Elizabeth Dick, and her heirs forever: Provided, nevertheless, that if my sister, Elizabeth Dick, shall not hereafter marry, and leave an heir or heirs of her body born after this time, then, and in that case, it is my will that the said money, land, and property, hereby bequeathed to Joseph P. Wilson in trust for her use, shall, at her death, be equally divided between my brother, Thomas Rhea, and my sister, Juliana Wilson.”
    Juliana Wilson was the wife of Joseph P. Wilson, and the mother ■of Hannah Wilson, Isabella Wilson, Elizabeth Wilson, and Henry Wilson,
    No executor was named in John Rhea’s will, but Joseph P. Wilson was appointed, July 16, 1832, administrator with the will annexed, and gave bond in the sum of $1,200, with Thomas L. Rhea and John C. Dunlevy (since deceased) as his sureties. The condition of the bond is, that “ Joseph P. Wilson shall, in all things, from time to time, and at all times, well and faithfully perform and discharge the duties enjoined on him as administrator of the estate of the said John Rhea, deceased, according to law.”
    Juliana Wilson died intestate, July 21,1834, leaving her children above named, her heirs at law.
    At the March term, 1834, of the court of common pleas of Butler county, Joseph P. Wilson made his first settlement as *administrator of John Rhea, deceased. The court made the following order in regard to this settlement: “Which being examined, the same is approved; leaving in the hands of said administrator, to be paid to the heirs and legatees of the testator, $803.”
    On February 15, 1837, Joseph P. Wilson paid over to Elizabeth Dick this $803, to enable her to get the use of the same in pursuance of the recited provisions of-John Rhea’s will, taking the following receipt:
    “February 15, 1837. Received of Joseph P. Wilson, administrator of John Rhea, deceased, eight hundred and three dollars, being the amount settled at the court; two hundred and nine dollars and 22-100 being the interest so settled with the court; making, in all, one thousand twelve dollars and 22-100. Elizabeth Dick.”
    March 6,1838, Elizabeth Dick died testate, not having married subsequently to the date of her brother John Ehea’s will, and not having an heir of her body. Samuel Gray was her executor.
    At the October term, 1838, of the court of common pleas of Butler county, Joseph P. Wilson was duly appointed guardian of the persons and estate of his daughters, the plaintiffs, Elizabeth Lawrence (then Wilson), Hannah Wilson, and Isabella Wilson, at that time aged, respectively, fifteen, fourteen, and twelve years; which office he continued to hold till his wards severally attained the age of majority.
    At the March term, 1839, of the court of common pleas, Joseph P. Wilson, as administrator of John Ehea, deceased, having received, October 6, 1837, $329.44 from the estate of Thomas Lyon, deceased, made an additional settlement, charging himself with that sum, and $37.23 interest thereon to March 6,1838, and crediting himself with $35.75 expenses of administration, leaving a balance of $330.92. The court made the following order in regard to this settlement: “ Which, being examined, is approved; showing that there remains in the hands of the administrator the sum of three hundred and thirty dollars and ninety-two cents unexpended.”
    Previous to this settlement, all the debts of John Ehea had been fully paid, and the sum of $330.92, then found in the *hands of the administrator, together with the balance of $803 shown by the former settlement, constituted the entire personal assets of Ehea’s estate, after the debts were paid, and after the death of Elizabeth Dick.
    April 13,1839, Gray, Elizabeth Dick’s executor, repaid to Joseph P. Wilson the $803 she had received from him February 15, 1837; and upon the back of the receipt she then gave to Wilson, as administrator, he entered the following receipt:
    “ Deceived, Eossville, April 13, 1839, of Samuel Gray, executor of the estate of Elizabeth Dick, deceased, eight hundred and threo dollars, being the amount in full of the principal of the within receipt.
    »$803. Joseph P. Wilson,
    “ Administrator of the estate of John Ehea.”
    
      February 17, 1853, Joseph P. Wilson, as guardian of his said daughters, filed in the probate court his account for settlement with his wards. In this account he does not charge himself with any portion of the $803 or the $330.92. He charges himself, however, with other moneys that came into his hands as guardian.
    The guardian charges himself in the account with $646.20, and credits himself with $1,737.34, leaving a balance of $1,091.14 due him.
    Appended to the account is the guardian’s affidavit, in which he states that he kept no regular accounts with his children, and has no regular dates for the charges against himself; that had he kept a regular account against his children, the amount of their indebtedness to him would be much larger; that, from the paternal relation which he bears to his wards, he never anticipated that an account would be brought against him by his children, and that if strict justice and right be done, the wards are largely indebted to him.
    This account was the only one ever filed by Joseph P. Wilson as guardian, and he never made any settlement in the probate court of his guardianship.
    In 1853, the plaintiffs brought suits against Joseph P. Wilson, upon his bond as guardian, to recover the moneys with which he *charged himself in his said account, filed in the probate court; and he defended. The suits were tried and determined by the verdict of a jury, but the $803 and $330.92 were not involved in the suits, and no evidence touching the same were submitted upon the trials.
    In 1853, the plaintiffs, Hannah Wilson, Isabella Wilson, and Elizabeth Lawrence, and their husbands, commenced an action in the court of common pleas of Butler county against Joseph P. Wilson, their father, and his surviving surety, Thomas L. Rhea, on the administration bond mentioned, to recover their share (threeeigliths) of said sums of $803 and $330.92.
    At the February term, 1854, judgment was given in favor of the plaintiffs, and the defendants appealed.
    At the April term, 1862, of the district court, the case was tried to the court, which found for the defendants on the facts stated, and after overruling a motion of the plaintiffs for a new trial gave judgment against them.
    To reverse this judgment the plaintiffs filed their petition in error in this court, assigning for error the giving of judgment, and the refusal to grant a new trial.
    
      Thomas Millikin, for plaintiffs in error:
    The district court erred in bolding that Joseph P. Wilson held the fund in litigation as guardian, and not as administrator:
    The presumption that, as the duty of paying and the right of receiving united in him, he paid it as administrator and received it as guardian, may be rebutted. There is no principle of public policy that requires the presumption to be regarded as conclusive. 17 Ohio, 266.
    It is a presumption to be made against the person acting in this double fiduciary capacity, and/or the benefit of cestui que trust. It can not be insisted upon by the trustee for his own benefit, and to the prejudice of his cestui qui trust.
    
    The payment must be a reality, not a fiction, and so recognized. The last fiduciary act impressed upon this fund was. its reception by Wilson as administrator.
    *See Conkey v. Dickinson, 13 Met. 51; Hall v. Cushing, 9 Pick. 395.
    
      James Clark, for defendants in error:
    The facts show that Wilson held the fund in litigation as guardian, and not as administrator.
    The two settlements of 1834 and. 1839, it is conceded, embraced everything connected with the administration of Rhea’s estate. No debts remained outstanding, and no assets uncollected. Had another person held the office of administrator, his duties would have been fully performed, with the single exception of paying over the money in his hands to those entitled to receive it; and the person entitled to receive the portion in controversy, would have been the guardian of the infants to whom it belonged; but the same person was both guardian and administrator; and how, in such case, was the latter to discharge the only remaining duty incumbent upon him ? In the case of Grey v. Brown, 1 Richardson, 351, the question is thus answered : “ Where the right of receiving a fund as guardian and the duty of paying it as trustee unite in the same person, the law presumes a performance of the duty; and, without further proof, the surety of the person as guardian is liable.”
    
    
      The case of Watkins v. The State, 2 Gill & Johns. 220, is, if possible, still more emphatic. “ It was there held, that where a sole executor sustains the two-fold character of executor and guardian, the law will adjudge the ward’s proportion of the property in his hands, to be in his hands in the capacity of guardian, after the time limited by law for the final settlement of the estate, whether a final settlement has been passed by the orphan’s court or not.”'
    
    In further corroboration of the doctrine here contended for, I beg leave to call attention to the case of The State v. Jordan, 3 Harris & McHenry, 179, in which it is laid down that “ the nonpayment of a legacy to a grandchild, whether the executor was-named by the will as the guardian of the child, is not a breach of his bond which will render his sureties liable.”
   *Brinkerhoff, J.

The action in the common pleas was-against Wilson, the administrator with the will annexed of John Rhea, deceased, and the surviving surety, on his bond as such administrator, for the recovery of a fund of over thirteen hundred dollars remaining in his hands for distribution on the final settlement of his account as such administrator. The plaintiffs are the devisees of this fund under the will. And at the time when this-final settlemant was made, and it became his duty as administrator to distribute the fund to the heirs of the devisees, they were infants, and he was the duly appointed guardian of their persons and property. He, not denying the receipt by him of the fund in his character as administrator, sets up, by answer in defense of' the action, that he holds it as guardian and not as administrator; and so contests his liability on his bond as administrator. And being, at the time of the receipt of the fund, both administrator- and guardian, the question on which the case turns is, in which of these two capacities does he now hold it?

It is true genei’ally, that where a party acting in a double capacity is possessed of a fund in one capacity which it is his duty (so to-speak) to transfer to himself in another, such transfer will in law; be presumed. But this legal presumption may be rebutted It is-a kind of legal fiction; and is so denominated by the court in Collard’s Administrator v. Donaldson, 17 Ohio, 264; and legal fictions have vitality and effect to promote the ends of justice, but. not to thwart them.

Wilson was not required to go through any such foolish formality as taking the fund which he held as administrator from one pocket; and putting it into another as guardian; but there were other and1 more sensible ways of indicating the capacity in which he regarded himself as holding the fund. He might legitimately have-charged himself with it in his account as guardian, and credited-himself with having made payment of it to the guardian in his account as administrator. But he did just the contrary to this. He refrained from charging himself with it as guardian, and thus, it would seem, prevented its forming any element of recovery against him in the former action against him and his sureties on his bond- as guardian.

*He received and receipted for it as administrator; he charged himself with it as administrator in his account as such; he never credited himself in his account as administrator with any transfer of it to himself as guardian ; and in his account as guardian he never charged himself with it, nor revealed his claim to be holding it as guardian until after the commencement and in the-progress of this action.

We are of opinion that these unequivocal manifestations of intention on the part of the principal defendant, Wilson, effectually rebut the legal presumption which his counsel invoke in his behalf; estop him to deny that he holds the fund in his capacity as administrator.; and that the district court erred in giving judgment for the defendants and in refusing to grant a new trial.

Judgment reversed, and cause remanded to district court.

Hay, C. J., and White, Welch, and Scott, JJ., concurred.  