#### ALEXANDER D. McRAE vs. DANIEL D. McRAE.

A. died leaving three children, of whom B., the defendant, was the guardian, and who had slaves left to them by will by C. to the amount of upwards of sis hundred dollars. B.gave to D.the plaintiff, a bond, executed on the 4th of February, 1846, of the followiug purport; “I promise to pay D. three hundred and sixty dollars, being in consideration of money which he paid for A. and his heirs, which sum I am to pay when it can be raised out of the estate left to them by the will of D.” The writ was issued nearly three years after the date of the bond.

Held, that the true construction of this bond is, not that the payment should be delayed, until the guardian could raise the amount out of the hire and profits of the property, but that it should be made as soon as the guardian could, by proper proceedings, raise the money by the sale of the property, and that this could have been done within less than three years.

Appeal from the Superior Court of Law of Richmond County, at the Fall Term 1850, his Honor Judge Battle presiding.

This was an action of debt upon a bond, of which the following is a copy : “With interest from date, I promise to pay to Alexander D. McRae the sum of three hundred and sixty dollars, being in consideration of money, which he paid for Hugh D. McRae and his heirs, which sum I am to pay, when it can be raised out of estate left to them by the will of Daniel McRae, their father. In witness whereof, &c., dated 4th of February 1S46, and executed by Daniel D. McRae.”

The defence relied on was, that the bond showed upon its face, that it was payable upon a condition precedent, which had not been performed.

The plaintiff produced in evidence the will of Daniel ..McRae, dec’d, in which was the following clause: “I give *367and bequeath to my son, Alexander McRae, for the sole and separate use and benefit of my son Hugh McRae, in trust, the following slaves, viz.: Ehloe, and her child Hannah, Sam, Abram and Dinah, together with their future increase; also, I give and bequeath the one half of the tracts of land, whereon I now live, containing seven hundred and fifty acres, for the sole and separate use of my son Hugh McRae, during his natural life, and at his death to his heirs forever.” He then proved, that Hugh McRae, mentioned in the said clause, had died, leaving three children, to whom the defendant had been regularly appointed guardian ; and that two of theslaves mentioned in the clause aforesaid, were worth about .six hundred dollars. The writ was issued on the 15th day of January 1849, nearly three years after the date of the execution of the bond ; and the plaintiff contended,, that the defendant had had ample time to have raised the amount, mentioned in the bond, by a sale of the property of his wards : that it was his duty by law so to have done ; and that his neglect or delay in so doing ought not to. prevent the plaintiff from recovering.

The defendant contended, that the true construction of the bond was, that the money was to be raised out of the rents and profits of the property of his wards : that he had no right to sell it, or any part of it, to pay the bond ; and that there was no evidence, that any rents or profits had been received by him, nor even that the property had been delivered over to him, except what might be inferred from his appointment as guardian; and that consequently the plaintiff could not recover. And of this opinion was the Court, in submission to which the plaintiff was non-suited, and appealed to the Supreme Court.

No counsel for the plaintiff.

Strange, for the defendant.

*368Pearson, J.

This was debt on a bond for $360. The defence was, that payment was not to be made, until the defendant, as guardian of the children of Hugh McRae, could raise the money out of the rents and profits of the property of his wards.

His Honor was of opinion, that such was the proper construction of the bond. In this, we think, there is error. It is true, that for the maintenance and education of a ward, the guardian has no right to expend more than the income. But for the payment of debts, for which his ward is liable, a guardian has it in his power, by proper proceedings, to sell the real, as well as the personal estate.

The true construction of the bond is, that the money was to be paid as soon as it could be raised by a sale of the property of the wards of the defendant. He was bound to procure a sale for that purpose within a reasonable time. Certainly, it could have been done within some time short of three years.

Per Curiam. There must be a venire de novo.