#### ISAAC WAGGONER & WIFE vs. HENRY MILLER.

A. was the illegitimate child ofB. B.her mother died before her, B’s, father C. A. is entitled to no part of the'estate of C,

Appeal from an interlocutory order of the Superior Court of Law of Rowan County, at Spring term 1844, his Honor Judge Battue presiding.

The facts as exhibited by the pleadings and proofs are these, to-wit: The petition was filed, by the petitioner Isaac and his wife Betsy, claiming certain sums received, or which ought to have been received by the defendant, as the guardian of the said Betsy Waggoner. The petition sets forth, that Betsy Brown, the mother of the petitioner Betsy Wag-goner, died in the year ] 818, leaving her an only child, and entitled to receive her personal property — that Isaac Ribelin administered upon the estate of the said Betsy Brown, and that the defendant was appointed the guardian of the petitioner, Betsy Waggoner — that the said administrator paid to the defendant, as her guardian, in the year 1820, the sum *481•of $34 95, the amount then coming to the said petitioner from the estate of her said mother. The petition further sets forth, that Michael Brown, the father of the said Betsy Brown, died in the year 1820, and that Isaac Ribelin administered upon his estate and paid to the defendant, as guardian of the petitioner, Betsy, the further sum of $27 in the year 1822 — that the plaintiffs intermarried in the year 1832 — and that, soon thereafter, the defendant paid over to the plaintiff Isaac Waggoner, the sum of $74 10, the amount of the first money received by him, as guardian of his wife, with the legal interest thereon; but refused to pay the second suns of $27, which, it is alleged, he had received, or was in duty, bound to receive of the said administrator, and prays an account, &c.

The answer admits, that, as guardian of the petitioner Betsy Waggoner, he did receive from Isaae Ribelin, as administrator of Betsy Brown, her mother, the sum set forth in the petition, and that he did, in the year 1832, finally settle with and pay over to the plaintiff, Isaae, the whole of the said sum with the interest thereon. The defendant positively denies ever having received from the said Isaac Ribelin, as administrator of Michael Brown, any money whatever for his said ward, Betsy.' He avers that his said ward was not entitled in law to any portion of the estate of the said Michael Brown, as she was an illegitimate child of Betsy Brown, who died before Michael Brown.

It was admitted that Betsy Waggoner, the plaintiff, was an illegitimate child of the Betsy Brown men tioned, and there was some proof, as commented on by the Court, as to the sums paid by Isaac Ribeliu to the defendant, as guardian of the plaintiff Betsy. The cause was set for hearing, and the Court below made the following interlocutory decree, to-wit:

On argument on petition, answer and proofs, it is decreed that the defendant account. From which interlocutory decree, the defendant prayed an appeal to the Supreme Court, which was srranted.

*482No counsel for the plaintiffs.

Boy dm for the defendant.

Nash, J.

The first sum, it is admitted by the plaintiffs, has been fully accounted for. The plaintiffs do not aver that the second sum ever was received by the defendant; the allegation is, he either' received it or ought so to have done. The defendant positively denies he ever did receive it. To support their allegation, the plaintiffs introduced the testimony of Isaac Ribelin, the administrator of Michael Brown. He swears that he did pay over to the defendant the two several sums set forth in the petition. The testimony of this witness is so confused, and comes in so questionable a character, that we cannot place such confidence in it, as to make it the foundation of any decree. He asserts, in one part of his deposition, that the receipt bears date when given, yet its date is in 1818, the year of the death of Betsy Brown ; again he states, that he kept all the papers relative to the estate of Betsy Brown together in the same place, yet he produces the first receipt and can give no account of the second; so he says again, that Jacob Fisher made his settlement, and he delivered to him all the papers concerning the estate, and has never seen them since, and yet when called on produces the first receipt. He is withal interested in fixing the payment on the defendant, as he thereby avoids, as he may suppose, responsibility to the distributees of Michael Brown. But if there were no circumstances, shaking the confidence we might repose in the testimony of Ribelin, still we could not decree an account against the defendant upon it; for it is not so supported by the other testimony, as to out-weigh the positive denial of the defendant. The witness Kluts, states, that when he, as the agent of the plaintiff Waggoner, demanded this money, the defendant denied he owed him any thing, and upon being told that Ribelin would prove the payment, he observed, if Waggoner had begun at the root of the tree instead of the top, he would have got his money long since, referring very manifestly to Ribelin’s liability to *483pay the money. The testimony oí Daniel Waggoner proves nothing.

We are of opinion, therefore, that the plaintiffs have failed to prove that the defendant ever received the second sum of $27, and that he has fully accounted with and paid over to the plaintiffs all the money he has received on account of his ward, Betsey Waggoner.

As to the second ground, upon which the plaintiffs seek to charge the defendant, we do not think the defendant liable to the demand. In the petition it is stated, that Betsey Brown, the mother of the plaintiff, Betsey Waggoner, died in the year 1818, two years before the father, Michael Brown, and it is admitted that Betsey Waggoner was her illegitimate child. Betsey Brown, at the time of her death, was not entitled to any portion of her father’s estate, and of course her illegitimate child was not. By the common law, a bastard, being films nullius, was entitled tono portion of its parents’ prperty, either real or personal. By the 4th section of the 64th ch. Rev. Stat., it is provided, that, when a woman shall die intestate, leaving children, commonly called illegitimate or natural, and no children born in lawful wedlock, the personal estate of which she shall die iiossessed, shall be divided among such illegitimate children. We are clear that Betsey Waggoner was entitled to no portion of Michael Brown’s property, and that the defendant has been guilty of no negligence in not endeavoring to get that to which his ward had no claim.

We are of opinion that his HoNor erred in decreeing an account; the interlocutory judgment is reversed, and the petition is dismissed with costs.

Per Curiam. Petition dismissed,