
    Seegar’s Ex’rs. vs. The State use of Betton.
    Appeae from Queen Anne’s county court. An action of debt was brought in the name of the. state, for the use of Joseph E. Betton, on a bond executed b'y the appellee’s testator, ori the 29th of July 1810, .as the guardian of Bet-ton. The breaehés of the condition of the'bond, which were assigned in the declaration, were, that the testator, as guardian of Betton, did not faithfully account .with the orphans court, as directed by law, for the management of the property and estate of his ward. That the intestate became possessed of real and personal estate of Betton, which his executors did-not deliver o'ver to hini upon his arrival at age,-, which happened before the impetration of the original writ iii-tliis cause, but altogether refused, &c. That Betton wás entitled to receive of th'e executors the surd tff S15S8, which the testator received, but did not account for in his life-time, and which the executors, although often thereto required, have refused to- pay over to him since the death of the testator,' &c. That the testator did not discharge the duties of guardian to Belton according to law, and that he, in his life-time, did Hot, nor the executors- since his death have not, delivered over' to Betton Ms personal' estate, according to law. The executors we're ruled to answer the declaration, but they neglected to d'o so, and a judgment was rendered against them- by default,A proceeding was therefore fed in' the' nature of a1 writ of’ inquiry, executed at bar, to inquire of the damages and' costs in the usual manner.
    A having: intermarried with B, who was the administratrix of C, the personal estate of C came to his hands and posses, sion, and upon a settlement of their administration account^ á distributive share of the balance against them was,due to D, to whom Á was appointed guardian. In an action on A*.s bond as guardiaii} brought against his executors, he being dead — 7icW, that B, and her sureties, on the estate of C, were released from all responsibility on account of it, and A and his sureties became a'tiswerable for it on his bond as guardian; and that B, and her sureties, being thus exonerated and discharged, she was a competent and admissible witness in such action.
    "Where the same person, who acts as the administrator of a deceased party, is appointed guardian to the representatives', whatever balance is in his hands at the rendition of a final account, ‘(and perhaps even p rior to that lime,) is in his hands and possession, not as administrator to the deceased, but as guardian to the sepresentatives
    1. At the execution of the inquiry at bar, the' plaintiff, for the purpose of ascertaining: tile- damages,- read in evidence the accounts of the testator'as.guardian, commencing in 1809, and ending irf 1814, showing a balance due to the testator, as guardian, of £64 11 7. The plaintiff then, for the purpose of charging the defendants with Bet
      
      Wn's proportion of illc. personal estate of his father Turbutt Baton, read in evidence a certificate of the letters oí administration on the estate of T. Betton, granted to N. Betton on the 13th of June 180ÍL Also an inventory returned by her on the said estate, amounting to $3346 46. Also the administration accoim.ts passed by T. Seegar, (the defendant’s testator,) and B his, wife, as, administratrix of T. Betton, leaving a balance to be accounted for of §3385 63g. The plaintiff then proved, that T. Seegar, the guardian, intermarried with 15. Betton, about twelve months after the death of. T. Betton, and that the property, which was, of T1 Betton at the time of his^ death, remained in the possession of, his widow at the time of her marriage. The plaintiff then offered to prove, by N See-gar, the widow of T. Seegar, and the administratrix. of B. Betton, the articles of property which came into the, possession of T. Seegar, of the estate of T. B.etton, at the time of the marriage, and also to prove the age of Joseph B. Betton, and the time he arrived at age. But the defendants objected to her being sworn, as being incompetent on account, of interest. But the court, [Earle, Civ. J. and Purnell, A. 3.]] determined that she was a competent and admissible witness, and permitted her to be examined, being of opinion, that T. Seegar, being the husband, of the administratrix of rP Betton, while he acted as guardian for Joseph E. Betton, wa.j. by operation of law in ppssession, as guardian, of the distributive share of the estate of the deceased, to which his ward, Betton, was entitled, and that A’. Betton, and her sureties on, the, administration, bond, were in like manner, by operation, of law, exonerated from all liability for the amount, of- the distributive share, whether rJL\ Seegar was, in point of-fact, possessed of the said distributive share or not. The defendants excepted.
    2. The plaintiff then proved by M. Seegar, the administratrix of T. Betton, that he died in March 1809, and. that she intermarried with T. Seegar, the defendant’s testator, in April 1810. That her son, Joseph B. Betton, arrived at age in 18 L9. That the property contained in the inventory, with the exception, of some articles which were con-? sinned, sold and used by her, came into the hands and possession of T. Seegar, at the time of his marriage. That Ike following property, viz. &c. amounting to §382 7% did not come to the hands mi possession of T-. Seegar% 
      The defendants then prayed the court to direct the jury, that the evidence was not sufficient to charge the defen- " dants for the amount of J. E. Bettoivs distributive share, according to the final accounts passed by T. Seegar and wife; and that the defendants are only answerable for so much of the personal estate of T. Betton as appears, by testimony, to have come into the hands and possession of T. Seegar the guardian. Which direction the court refused-to give. The defendants excepted. An inquisition being found for the plaintiff, and-judgment rendered thereon, the defendants appealed to this court.
    The cause was argued before. Buchanan, Martin, and-. Stephen, J, by
    
      Carmichael, for the Appellants, and by.
    
      Harrison, for the Appellee.
   The opinion of the court was delivered by

Martin, J.

This was an action,-, instituted in the name, of the State, for the use of Joseph E. Betton, against the executors of Thomas Seegar, upon a guardian’s bond. There was a judgment by default, and a proceeding in the nature of a writ of inquiry to be executed at bar, was ordered by the court. On the trial two bills of exceptions were taken by the counsel for the defendants. The first, an objection, to - the competency of a witness produced on the part of the plaintiff; and the second, upon the merits of. the question then depending before the jury.

It appears from the i'ecord, that letters of administration were granted to Elizabeth Betton on the estate of her deceased husband, Turbutt Betton, bn the 13 th ofJune.1809, That being thus the administratrix of her husband, and as such possessed of his personal estate, she soinetime early in the year 1810, (twelve months after the death of her 'first husband,) intermarried with Tilomas Seegar.' Tliat Thomas Seegar, and his wife, went on to settle’the estate of Turbutt Betton. They returned, as administrators, several accounts to the orphans court, and on the 13th of February 1816 rendered & final account, admitting abalance in their hands of 83385 68¿. One third of this bá . lance, 81128 54, Thomas Seegar had a right to retain ás the property of his wife,'leaving the sum of 82257 09 in His hands, to be paid over to-’' the representatives. On the 29üi of July 1810, Thomas Seegar was appointed guardian to Joseph E. Betton, and entered into the bond upon which this suit has been brought.

It is an established principle of law, that where the same person who acts as the administrator of a deceased party, is appointed guardian to the representatives, that whatever balance is in his hands at the rendition of a final account, (and perhaps eveu prior to that time,) is in his hands and possession, not as administrator to the deceased, but as guardian to the representatives, 'ibis transfer is Sjj operation of law. The administrator having in his braids a balance that ought to be paid over to the guardian, and one person representing both these characters, he cannot pay the money over to himself, nor, if the payment was refused, is there any person who could euforce it. Under these circumstances, the law, by implication, considers it in the hands and possession of the party in that representative character that ought to receive it. Thomas Seegar, acting as administrator of Turbiitt Thiton in consequence of his marriage with Elizabeth Litton the r¿dini¡iisiraíri:r, and admitting by his final account that he had a, balance of §2257 C9 in Ids hands due to the represen cativos, and being at that time the guauliau of Joseph E. Median, whatever sum was due to him was, by operation of law, in the hands of Thomas Seegar as his guardian. The administratrix, and her securities, on the estate of Turbitll Betton, were completely discharged and released from all responsibility on account of it, and ') liornas Seegar, and his securities, became answerable for it on his guardian bond.

Hut it has been contended, that although the general rule, that where the same person is both administrator and guardian, the balance, «pon a final settlement of the deceased’s estate, shall be considered in the possession of the guardian, is correct, the executors of Thomas Seegar ought not to be accountable for the whole amount of the. gum stated to be due by the final account, because it is in proof that the whole property did not come to his hands and possession, but that a’considerable part was wasted by the wife before her marriage with Thomas Seegar.

If the amount of property wasted by the wife, before her intermarriage with Thomas Seegar, had been more than the sum she was entitled to receive «non the settlement of Turbutt Bettor#* estate, a question might arise, which is not necessary to be considered- in this case, as it is net brought into view by the testimony in the record. It appears from the final account,on Tarbuti Belton’s estalea that the sum of §3385 63i, was in the hands of the administratrix and her husband, to be distributed according, to law. One third of this sum, §11,28 54, was due to the widow as. her part of the estate. Before her marriage, with Thomas Seegar she had wasted property to the amount of §382 70. The amount of property thus wasted by her, would be considered in law as so much received, by her in part payment of the sum due to her upon the settlement of the estate, and her husband, in- right of his wife, would be authorised to retain only so much as she, would have been entitled to receive had she remained sole. The sum wasted by the wife not being equal to that she, was entitled to retain, as the widow of Turbutt Betlon, it clearly follows that Thomas Seegar, at the time he rendered his final account, was in possession of the whole ainount of the sum due the representatives, after deducting the widow’s thirds.

This statement disposes of both exceptions, If Elizabeth. Seegar, and her securities on the administration bond, are by operation of law entirely released and exonerated from the debt due to Joseph E. Betlon, we cannot see that she, has any interest that would exclude her from being a witness in this cause.

The judgment of the court b.elow is affirmed on both cf-•the bills of exceptions.

judgment affirmed.  