1. A father who had been appointed guardian to his children and given sureties as guardian, and who had received moneys belonging to his children and had become insolvent, made a deed of trust in April, 1838, conveying all his property to trustees for the payment of debts, in which, after preferring certain specified creditors, and reciting "that whereas the said R. A. B. (the father) may be and doubtless is now indebted to other individuals or companies in divers small amounts, or in amounts which are not now recollected, or the persons to whom they are due," provides among other things, stating how the creditors are to be preferred, as follows: "Thirdly, the debts on which the said R. A. C. or F. and C. have given a surety or endorser; fourthly, all other debts now owing by the said R. A. C. in equal proportion, if there be not a sufficiency to pay the whole": Held, that the children, or the sureties of their father as substitutes where they had paid the debts due the children, had a right to come in for a proportionable share of the property or surplus so secured by the deed of trust: Held, further, that when the grandfather of these children, by will dated in March, 1839, had directed certain property to be sold and the proceeds applied to the payment of the debts so due by the father to the children, and the balance to be given to the children themselves, that the children, or the sureties who had paid them, ought first to resort to this fund left by the grandfather before they applied for satisfaction out of the funds placed by their father in the hands of his trustees: Held further, that the sureties of the guardian, who had paid the children, were entitled to be substituted to the rights and remedies of the children so paid.
2. The father, or his trustee, in the settlement of the guardian accounts, has no right to charge the children with the amount expended for their education, the father being of sufficient ability to maintain and educate them.
3. It was the duty of the father, if of ability, to maintain his children: and if not, he should have had the sanction of the proper court to an application of the children's property to that purpose.
4. The court will never make a decree, when one of the parties sues by a next friend and that next friend has, or may have, an interest in the suit, opposed to that of the infant. It will require another next friend to be appointed to attend to the cause in behalf of the infant.
5. There are some modern English cases in which it has been held that the maker of a deed of trust for the payment of debts may, under certain circumstances, revoke the purposes declared in the deed and direct other dispositions of the property, but this doctrine has not yet been recognized in this State.
RUFFIN, C. J.
Although from various judicial proceedings in this case, and the circumstance that many of these were founded on matters which occurred since the original suit began, several alterations and amendments became necessary in this cause, which have rendered the statement of it somewhat perplexed and prolix, yet the questions for decision are not numerous, nor, we think, difficult. It seems to be clear that under the provisions of the deed of trust, the debts of the father, as guardian to his children, are secured and must be paid pari passu with others of the same class. It was a debt which existed at the time of the creation of the deed, and one for which (485) the maker of the deed had given sureties, and the language of that instrument is express that all debts of that character, "whether mentioned or not mentioned, are intended and are to be as fully secured and paid as if they were specially named in the deed." It is true, the parties say they were not in their contemplation, and they give the reasons why they were not. But that cannot control the express and positive provisions of the deed. There are some modern English cases in which, under certain circumstances, the maker of a deed of trust for the payment of his debts has been held at liberty to revoke those purposes and direct other dispositions of the property. We are not aware that the doctrine has been at all recognized in this country, and certainly it has not as yet in this State. But if it prevailed here it could not affect this case, inasmuch as a creditor — indeed, the principal creditor and surety of the maker of the deed, namely, Mr. Robertson — was a party to the deed, being one of the trustees, and the trustees accepted the office, sold all the property, and paid many of the debts. It is too late, after that, for the party to stop the further execution of the trusts, were he to attempt it. But he has made no such attempt, but only states that in making the deed he had no purpose to include these debts, and for that reason contends they are not included by the terms of the instrument. We think they are, and that they are to be paid in the class next to the judgments mentioned in the deed.
The Court is likewise of opinion that the grandfather, Godfrey Crowder, intended the legacy to these children as a satisfaction, at least pro tanto for their demand against their father and his sureties. He directs his executor to apply the fund "to the payment of the legacies, etc., which are in the hands of Robert A. Crowder as their guardian, so far as shall be necessary to discharge said legacies." Indeed, as he knew that his son was insolvent at the time he made his will, 26 March, 1839, his principal object in making the gift and in expressing himself as he did must have been to indemnify his son's surety, who was then sued by two of the children. We think, therefore, that the children were under the obligation in equity (486) to resort to that fund for their satisfaction before coming upon the father or his surety; for, under the will, they are to have, as a pure gift, what may remain after paying what their father owed them, and they cannot increase that fund by raising the money from the surety or their father which the grandfather intended his estate to pay. It follows that the grandfather's estate is thus made the primary fund for paying these debts, and that the children ought to resort to it in the first place, and that, if they would not, and had recourse to the surety, the latter has the right to stand in their place and receive their share of the fund provided by the grandfather. This has been definitely done in respect to the shares thereof belonging to two of the children, Henry and Mary, by the decree of 15 October, 1842, under which Puryear was then reimbursed the sum of $902.94, and he has probably received since the further sum of $215.46, each, from Nelson, on account of his payments to Henry and Mary's administrator. Why the decree did not also declare the other two children, Giles and John, bound to receive the same sums from Nelson, and require Nelson to pay them on account of their debts and in exoneration of Puryear as surety, we do not perceive, as they were all parties to the suit, and the accounts fully taken. But it is not material, since it seems probable those payments have been since made to them by Nelson, and have been allowed as a credit in taking their judgment against Puryear, and the whole can be shown before the master, should the parties find it necessary to go before the master for an account. We presume, however, the parties can readily settle among themselves, after knowing the opinions of the Court upon the question raised. Upon this point that opinion is that only so much of the debt of Robert A. Crowder to his children as shall remain after applying thereto the fund provided by the grandfather forms a charge against the trust funds of the father in the hands of Palmer. Upon the ordinary principle of substitution, as applicable between the creditor and the principal and his surety, Puryear is entitled to stand, in (487) respect of the balance of the debt thus forming that charge, in the place of Henry Crowder and Lewis Webb, whom he has fully paid; and, as regards the other two children, Giles and John, they will be entitled, or Puryear in their place, as it shall appear before the master that Puryear hath or hath not paid the debt to them, to such part of it as was not discharged out of Godfrey Crowder's fund. There can be no deduction on account of the education of the children. It was, by the settled rule of our courts, the duty of Mr. Crowder, as father, to maintain his children, if of ability; and if not, he should have the sanction of the proper court to an application of the children's property to that purpose. We doubt not that such is also the law of Virginia, for if it had not been the proper deductions would have been made in the suits brought by the wards in that State, in which the surety would be inclined to make every defense. But here the father seems to have had no lack of means, but to have possessed a competent fortune, until ruined by a mercantile partnership; and he never designed charging his children, as is manifest by his keeping no accounts against them. Besides, the grandfather's will covers the whole portions, interest as well as principal, and enough is got from that source to cover much more than all the profits of the wards' property, which is all that could be allowed for maintenance in any case; so there are many reasons why this deduction cannot be admitted. The Court can, however, only make these declarations, and cannot order the cause to a reference in the present state of the pleadings. At the time of filing the amended bill, Giles and John Crowder were infants, and the bill is filed in their behalf by Puryear, as their next friend. It seems that Giles Crowder hath since come of full age, and can prosecute the suit for himself. It may likewise be the case as to John, but it does not appear. If the case were sent in this condition before the master it would be the interest of Puryear to show that he had paid the whole debt due to John Crowder, in order to lay hold of his part of the fund in Palmer's hands, while he would, at the same time, be charged with the duty to the infant of showing that he had not made such payment, if in truth, and as (488) it may be, he has not made it. The Court cannot permit a suit to be carried on in the name of an infant by a next friend who can have an interest in conflict with that of the infant. The cause, therefore, must stand upon these declarations until another next friend can be found or the party himself shall come of age. When that shall be the case it will be referred to take the usual accounts of the trust fund and the payments made thereout, with directions for allowing all creditors to come in under the decree and prove their debts in order to distribute the fund in conformity to the deed.
PER CURIAM. Cause ordered to stand over.
Cited: Ingram v. Kirkpatrick, 41 N.C. 474; Haglar v. McComb, 66 N.C. 351; George v. High, 85 N.C. 504; Burke v. Turner, ib., 504; Mull v. Walker, 100 N.C. 50.
(489)