
    THE STATE TO THE USE OF JACOBS AND WIFE, vs. HEARST ADMINISTRATOR OF HEARST.
    
    1. When the same person is executor of an estate, and guardian of a distributee, and there is. nothing to show in which capacity he holds funds, after payment of debts and settlement of the estate, he shall be presumed to hold them as guardian.
    ERROR TO FRANKLIN CIRCUIT COURT.
    STATEMERT OP THE CASE.
    This is a suit instituted to the use of Benjamin II. Jacobs and Polly Jacobs, against George Hearst, administrator of William Hearst, who was one of the securities of Joseph Funk, executor of the last will and testament of John Horine, deceased. Polly Jacobs, formerly Polly Horine, was one of the five children of John Horine, Horine, by his last will, dated 12th December, 1824, directed all his lands lying in Franklin, Washington, and Jefferson counties, to be equally divided between bis five children. He further directed the executor to sell his tract o! land lying in Merrimac township, Franklin county, known as the mill tract. On the 1st April, 1825, the executor sold this tract of land for the sum of $340. On 14th July, 1830, the executor Funk received the sum of $548 75, for three shares or dividends which John Horine deceased h,ad and was entitled to in the proceeds of the sale of a certain tract of land lying in Washington county, sold under an order of the circuit court of said county. Suit is brought against the administrator of the security of Funk, on his executor’s bond for one fifth of these two sums with interest from the period they were received. By reference to the evidence it will be seen that the executor returned the sale of the mill tract on the 1st April, 1845, to the office of the county clerk, and on the 4th February, 1833, he as executor filed an additional inventory for the sum of $548 79, which was the amount he received from the proceeds of the sale of the land in Washington county. The plaintiffs to sustain the issue on their part, introduced the executor’s bond. The will of John Horine deceased, the letters testamentary of Funk, the sale list showing the sale of the mill tract, Funk’s receipt of the land sold in Washington county—additional inventory, and the parol evidence of a witness in regard to the sale of the land in Washington county, and the identification of Polly Jacobs, and her marriage with Benjamin II. Jacobs.
    The defendant to sustain the issue on his part, offered and read in evidence an order of the county court of Franklin county, made on the 6th February, 1839, appointing Joseph Funk guardian of Solomon L. and Mary Ann Horine.
    2d. The bond of Joseph Funk as guardian with John Pritchell and William Campbell as securities in the sum of $1,000, dated 6th February, 1839.
    3d. An order of the county court of Franklin, exempting Joseph Funk as executor from making any longer annual settlements, which order was made on the 3d August, 1830. All this evidence was excepted to by the plaintiffs.
    At the close of the evidence, and at the instance of the plaintiffs, the court gave the following instruction: “ If the court, silting as a jury, find from the evidence that Joseph Funk, executor of John Horine, sold the mill tract of land for $340. on the 1st April, 1825, and that on the 14th July, 1830, he received the sum of $.548 75 from the proceeds of land belonging to John Horine, sold in Washington counfy, then under the will of said Horine, the relators are entitled to recover one fifth of these two amounts against the defendant, together with interest thereon at the rate of six per cent, per annum, irom the time they were respectively fo this dale. ’’ And of its own accord the conit gave the following instruction : That if the court should find that the executor Funk received the money as executor, he remained liable for the same in the capacity of executor until he discharged himself by payment, or until he commenced bolding the same as guardian of the plaintiff.
    Upon (his evidence tne court found a verdict for the defendant. A motion was made for a new trial, which was overr.ul.ed, and the case is brought here by writ of error..
    Johnson, for plaintiff in error.
    1st. One who is both executor and guardian will be deemed to hol'd the assets in the former capacity, where no change in the ir anner of holding appears, and his suieties as executor will alone be chargeable, and the (ac( of his having giren bond as guardian, is r.o proof or circumstance calculated to show a charge or transfer of assets from his hands as executor into a. holding in his capacity as guardian. Johnson et al vs. Fuquuy et ai, 1. Dana, Kentucky Rep., p. 514, which is precisely to the point.
    String fellow for defendant.
    ’ 1st. The appointment of Funk guardian of plaintiff Polly Jacobs in 1839, is some, evidence-that the property before th at time in his hands as executor of an,estate of which he had made final settlement nine years before,.was held by him if at all. as guardian and not as executor-
    2d. The final settlement made by Funk in 1830, opeiates as a release of securities' Itiseqnivalcnt to a judgment. Caldwell vs. Loekridge, 9 Mo. R., 362.
    3d. The instruction given by the court and excepted to, was giv.eh at request of. plaintiff in error.
   Scott, judge,

delivered the opinion of tile court.

The facts.of the case abundantly show that the executor,, as such, had' no further use for the money in his hands. Then the duty of paying it over must have arisen. The obligation of paying money, and the duty of receiving it, uniting in the same person, no suit could be brought in the event of an omission to pay. At common law, where such a state of tilings is produced'by the act of the creditor, (lie debt is extinguished, as there is no means of enforcing its payment- The character of creditor and debtor being here united by the act of the law or its agents, an extinguishment cannot take place ; but as no suit can be brought, the law will eo insiavti the money becomes payable transfer it from one character to the other. The authorities sustain the correctness of these view's. In the case of Watkins vs. State, 2 Gill, and John, it was held that where a sole executor sustained the twofold 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 settlement of the estate, whether a final account •has been passed by the orphans court or not. So in the case of Karr vs. Karr, 6 Dana 3, the court held that where the same person is executor and guardian of a distributee, and makes no settlement, or election -showing in what capacity he held the funds, he shall be presumed after •a reasonable time for settling the estate has elapsed, to hold them, or, at least the portion not necessary for the payment of debts, as guardian. To the same effect is the case of administrator of Johnson vs. executors of Johnson, 2 Hill, S. C., 285, in which it was maintained that when from ■the facts an executor who was also guardian, might be charged with the •receipt of moneys either as executor or guardian, he must account in the -latter character ; for whatever funds he had in his hands as executor, were by operation of law transferred to him as guardian.

The other judges concurring, the judgment of the court below will •be affirmed-.  