Thurston's Adm'r v. Sinclair

Citations

• 79 Va. 101
• 1884 Va. LEXIS 65

Syllabus

<p>Guardians—Payments to before appointment—Case at bar.—Early in 1857, R. devised to W. real estate charged with payment of certain legacies, all whereof W. promptly paid, except one of $1,250 to the infant children of S. December 18th, 1857, W. paid this legacy to S. and took his receipt. April 3d, 1859, for slaves delivered by W. to S. under a decree rendered sometime before in a suit by S. as next friend of his children, and for balance of a residuary legacy to them then paid by W. to S., a receipt and a refunding bond were executed by S. to W. Neither the receipts nor the bond were signed by S. “ as guardian,” but in the last receipt and in the bond reference was made to S. as the guardian of said children. Later W. devised said real estate to E. and his personalty to his sister. After attaining their majority these children, claiming that S. was not their guardian on 18th December, 1857, and that the payment of the legacy by W. to S. on that day, was unauthorized, sued W.’s administrator for the payment thereof. The records of G. county, wherein the qualification of S. as such guardian should have been, were destroyed, much time had elapsed, the memory of S. had failed, and evidence was lost, &c.</p> <p>Held:</p> <p>1. The established facts show that S. was the guardian of his children, though the time of his appointment is left uncertain by lapse of time, destruction of records, &c. Yet it is fairly inferable that he was such guardian when he received the $1,250 legacy.</p> <p>2. If S. was not such guardian when he received that legacy, this money, by operation of law, became chargeable to him in his guardianship accounts, when he became guardian.</p> <p>3. It was a debt due from himself individually, to himself as such guardian, and upon his qualification as guardian, eo instanti it became assets in his hands, the law treating it as paid to him as guardian. Brown v. Lambert, 33 Gratt. 256.’</p> <p>4. Qucere : It is not necessary now to decide whether the rea