
    Carroll, Governor, for the use of William Downs vs. Bosley.
    Where an administrator is also appointed guardian of the legatees or distributees, and more than two years had elapsed from the grant of administration: Held, in a suit against the security on the administration bond, that after the expiration of two years, it was his duty to retain as guardian, and the law would presume he did so retain.
    The presumption is rebutted by showing that he wasted the assets before the expiration of two years.
    This is a suit on an administration bond, commenced in the county court of Davidson, against Thomas Patterson as administrator de bonis non of James P. Downs, deceased, and John Bosley and Caleb M’Graw as sureties in said bond. The cause was adjourned by consent to the circuit court. The declaration sets out the bond and condition, and alleges a breach in the failure of Patterson to pay over to the person entitled. To this declaration the defendant, Bosley, pleaded three pleas: 1st. Payment at the day; 2d. Payment after the day; and 3d. That previous to said Patterson’s appointment of administrator of James P. Downs’ estate, he was appointed guardian of a certain William Downs, a minor, to whom said James P. Downs had bequeathed all his property, and for whose use the suit was brought, and gave bond and security, and entered upon such guardianship; that more than two years had elapsed after his giving bond as administrator and before the commencement of this suit; that Patterson being thus both administrator and guardian, had in his hands the whole fund of said estate for the payment of debts and legacies; that by operation of law the assets in his hands, after the payment of debts and after the expiration of two years from the grant of administration, would be deemed to be holden by him as guardian, &o. On the first and second pleas there was a verdict for the plaintiff; to the third plea there was a demurrer, which was overruled, and an appeal in the nature of a , . ’ writ ol error to this court.
    ... G. S. Yerger and F. B. Fogg, for the plaintiff in error:
    Insisted that the defendant was liable'upon his bond; that Patterson being both administrator and guardian, had the right to hold in either capacity, and that as he could only in the first instance hold as administrator, the presumption of law was that he continued so to hold, until some positive act on the part of Patterson showed that he elected or retained the fund in his hands as guardian. That, as between different sets of sureties, the burden would not be taken from one and put upon the other, without some evidence showing an intention or election upon the part of the guardian to hold as guardian. That the plea in this case did not aver any such act or election, and was therefor©1 bad. The case in 4 Mason, 131, when properly understood, is not in conflict with these positions, and if it were, so far as it conflicts with them, it was afterwards overruled by the same learned judge, who decided the case in 4 Mason’s Rep. 131. Vide 5-Mason’s Reports, 95. The latter case decides, that some positive, unequivocal act, upon the part of the administrator and guardian, is necessary, in order to change the original liabilities of the sureties in the different bonds.
    
      E. Ewing, for the defendant in error.
    1st. The law requires an administrator, after two years, to pay legacies and distributive portions to the persons entitled; where proof, as in the present case is impossible to be obtained on either side, the law will presume, the administrator to have done his duty; he could have taken no receipt from himself. Haywood and Cobbs, 105. The same presumption arises in regard to the guardian whose duty it was to have recovered and received the estate. Haywood and Cobbs, 138.
    2d. After two years from the grant of administration, the administrator is indebted to the guardian to the amount of assets in Ins bands; and being so indebted, and being himsell guardian, he is bound to retain as administrator for the debt due to him as guardian, otherwise, if he does not retain he cannot sue afterwards for it, and the law presumes that he has so retained. See 4 Mason, 131: Williamson Executors, 6S7 and 688.
    
      T. Washington, on same side,
    supported the positions assumed by Mr. Ewing, and cited, in addition, Harrison vs. Ward, 3 Dev. Rep. 417.
   Green, J.

delivered the opinion of the court.

This is a suit on an administration bond executed by Thomas Patterson, (the administrator de bonis non of James P. Downs,) and John Bosley, Caleb M’Graw and Isaac L. Crow, his securities. The defendant, John Bosley, pleaded separately that, before the time Patterson was appointed administrator of James P. Downs’ estate, he had been appointed guardian of William Downs, for whose use the suit is brought; that he gave bond and security as guardian according to law, and that more than two years elapsed from the date of the administration bond before suit was brought; that, while Patterson united in himself both the office of administrator and guardian, he had in his hands all the assets which were of the estate of James P. Downs, which were left after the payment of debts, and that, by operation of law the amount due him in right of his ward, was retained by, and vested-in him as guardian.

The plaintiff demurred generally to this plea, and the only question in the case is, whether, as Patterson was both administrator and guardian, the law will presume he Ijeld the property and money of the estate, as guardian, after the expiration of two years from his appointment as administrator, although he did no act by which to indicate in what character he held. The estate of James P. Downs came into the hands of Patterson as administrator. He was then clearly chargeable as such with the amount which was unadministered in the payment oí debts. But as it was his duty to settle the administration in two years and pay over to the guardian, the law will presume he performed the duty, and, consequently, the presumption is that after the two years, he held the assets as guardian. “If one has two capacities in which to take and hold, and takes and holds without any declaration in which capacity he does so, it shall be taken, he holds in that capacity in which he ought of right to take and hold.” This rule is laid down by the supreme court of North Carolina in the case of Harrison vs. Ward, 3 Dev. Rep. 417. But they say it does not hold in relation to money not identified and separated from other money by putting a mark on it. We do not perceive the reason for this distinction. The plea in this case avers that Patterson had in his hands, while both capacities were united in him, all the assets which belonged to the estate of James P. Downs, deceased, which were left unadministered in the payment of debts. He was then authorized by law, and it was his duty to retain the amount due to his ward from the estate. In the absence of proof to the contrary, we must presume he did so. If he had wasted the estate as administrator before the time at which by law it was his duty to settle up and close his administration, the case would have been altered, and that fact should have been replied. But here, it is averred, that he had the assets in his hands, and having the money so in his hands, the amount due his ward vías satisfied by way of retainer, and by operation of law it was vested in him as guardian, and so he no longer held as administrator. Taylor et al vs. Dublois et al, 4 Mason’s Rep. 131.

Judgment affirmed.  