#### J. E. TIMBERLAKE and others v. WILLIAM F. GREEN.

■Guardian cmd Ward — Statute of Limitations.

"Where the settlement of a guardian account has been sanctioned by the court and assented to by the wards, an action by the complaining party to re-open the same, if there be no allegation of fraud, must be brought within three years after bis majority.

:(Bedon v. Becton, 3 Jones Eq., 419; Whedbee v. Whedbee, o Jones Eq., 392; Barham v. Lomax, 73 N. C , 70; Spruill v. Sanderson, 79 3ST. C., 406, cited and approved.)

*659Civil Action tried at Spring Term, 1880, of Franklin ■Superior Court, before Seymour, I.

Judgment for defendant, appeal by plaintiffs.

Messrs. Fuller <fc Merrimon and íleade, Busbee & Busbee, for plaintiffs.

Messrs. J. J. Davis, J. B. Batchelor and Gilliam & Gatling, for defendant.

Shith, 0. J.

The defendant, on December 10th, 1855, was •appointed guardian to the infant children of Eppy Timber-lake among whom were the plaintiffs, J. E. Timberlake and R. L. Timberlake, the intestate o'f the plaintiff, George S. Baker, and entered into bond with sureties for the discharge of his official duties. R. L. Timberlake attained his majority in November-, 1868, and having died in 1872, administration on his estate was first committed to W. H. Spencer, and upon his death to the plaintiff, Baker-. J. E. Timbér-lake became of f-ull age on July 2d, 1874. The defendant failing to renew his bond, the solicitor of the district, at spring term, 1870, of the superior court of Franklin, instituted suit against the defendant -for an account and settlement ■of the estate in his hands. An attorney was employed by such of the wards as were then of full age to represent the infants and protect their interests in the action. But they had no other guardian, nor did they appear by next friend. At the same term a reference was made to this attorney and the attorney for the defendant to-state the guardian account, and the said-Spencer was appointed receiver of the estate. The referees stated the account, which was not returned,and a compromise report was made at fall term, 1871, wherein the controversy between the parties as to the defendant’s liability for investing the trust funds in confederate securities in 1863 was adjusted by charging him with one-half of the amount so invested. This adjustment was made with *660the concurrence of the wards who were of age, and confirmed by the court. The sureties to the guardian bond were then insolvent and the defendant s& embarrassed; as to render the collection of what was owing by him doubtful. The sums adjudged to be due those now prosecuting this action were paid to the said Spencer, he 'then being both receiver and administrator of the intestate,R. L, Timberlake, during the years 1872,1873 and 1874,. the final payment in March, 1874, The receiver had paid over bis share of the fund to the plaintiff; J. E, Timberlake,

Upon these facts His Honor was of opinion that, this action, being begun more than three years after the majority of J. E. Timberlake, was barred by the lapse of time and the plaintiffs apt entitled to an account, and he gave judgment for the defendant from which the plaintiff appealed.

It is decided in Becton v. Becton, 3 Jones Eq., 419, under the then existing statute, substantially' the same as that now in force (Bat. Rev., ch. 53, §,§.22, 23, 24,) that the purpose of the law directing this proceeding was to- “have the interests-of the infants attended to whenever there was reason to fear from the misconduct of the guardian that there was danger of loss to them,” and that a decree obtained against him and his sureties is not a bar to another action instituted by them on their coming of age, and “ will be allowed no other effect, than a prima facie presumption that the account and report upon which it was- made were correct.”” As the intestate, represented by the plaintiff, Baker, was of full ago wdien the action was begun and his first administrator has accepted the fruits of that recovery in his behalf, it is plain-he cannot, in the absence of fraud, set aside the adjudication and re-open the account then adjusted and confirmed, so as to subject the defendant to further liabilities. The other plaintiff whose interests were under the protection of an officer of the law and against whom the decree is presumptive evidence of the correctness of the account and report in *661which he 'manifests his acquiescence by accepting payment from the receiver, should if dissatisfied have instituted his ■action in a reasonable time after coming of age; and this, following the analogy ©f the case of Whedbee v. Whedbee, 5 Jones Eq., 392; and in -consonance with the decision in Spruill v. Sanderson, 79 N. C., 466, and Barham v. Lomax, 73 N. C., 76, should be within three years thereafter. The -right to re-open a settled account it is said in the first ease, must be exercised within three years thereafter. The rule ¡applies eertainly with as much force to the faets of the present case, as to those.

The deeree is not impeached for unfairness, it was assented ¡to by those who were of age and were similarly -interested. It was-a compromise of conflicting claims adopted by eoun--sel, submitted to and sanctioned by -the court, and subsequently carried out by the party himself when capable of ■•acting. Under these circumstances, we concur with His Honor that the delay is fatal to the coneeded right of the infant, when suiyuns, -to bring a new action and have a new ¡settlement.

We therefore affirm the ruling, and judgment will be here entered for the -defendant.

No error.. Affirmed.