Before E.C. DENNIS, J., Pickens County, January, 1944. Modified and remanded with directions.

Suit by Earle J. Bagwell against O.T. Hinton, as Administrator of the Estate of W.L. Bagwell, deceased, and others, for an accounting. From a Circuit Decree dismissing the Complaint, Plaintiff appeals.

The Circuit Decree of Judge E.C. Dennis, ordered to be reported, follows:

The above-entitled cause was heard by me at Greenville at the December Term, 1943.

Although other actions and proceedings have been brought, which will be subsequently adverted to, the hearing before me was upon the following complaints:

(A) Dated November 11, 1940, Earle Bagwell, Plaintiff, against Hinton, Administrator of W.L. Bagwell, and Wyatt, Administrator and Trustee of Nannie Bagwell; the complaint prays for an accounting by the estate of W.L. Bagwell and for judgment for the amount due against that estate only. No relief was claimed against Nannie Bagwell.

(B) Dated March 29, 1941, Earle Bagwell, Plaintiff, against all of the defendants named in the above title. The complaint asks that this action and the one commenced November, 1940, be consolidated and heard together and asks further for (1) an accounting by the estate of Mrs. Nancy Bagwell, Guardian; (2) that the two actions be consolidated "and that they be held in abeyance until the final decree of the Court in the action brought to set aside the alleged order of discharge (of Nancy Bagwell) in the Probate Court"; (3) that final judgment be given in his favor for the amounts found to be due him in connection with both guardianships. In this complaint it was expressly stated that no relief was sought against either principal or surety on the original guardianship bond.

(C) Dated August 18, 1943. Served after September 11, 1943, after order allowing it as an amendment to (A) was signed. The relief asked in this last complaint is (1) that an accounting of the guardianship of W.L. Bagwell and judgment against that estate "and judgment against the mother's estate on her obligation as surety;" (2) that the assets of the father's estate be applied to the payment of the amount due as herein determined and the amount of the balance due be adjusted between the parties to this action and proper distribution of the proceeds of sale of both estates be decreed herein.

It will be observed that the first case asked primarily for an accounting of the father's estate, the second for an accounting of the mother's estate; in the third case an effort is made for the first time to establish the liability of either, based upon the execution of the original bond signed by W. L. Bagwell, as guardian, and by his wife, Nancy Bagwell, as surety.

While the above are the three complaints which raise the issues heard by me, litigation with reference to the estate of Earle J. Bagwell, all of which was initiated by him, has been pending in the courts of Pickens County since the latter part of 1938. A very clear statement of the preceding actions will be found in the order signed by Judge Oxner in the case in which the parties are the same as in this case, his order being dated November 11, 1942, in which action he dismissed the complaint brought to set aside the order of the Probate Court, which discharged Mrs. Bagwell, as guardian of the estate of Earle Bagwell. A clear history of the litigation above referred to is given in that order and for that reason it is unnecessary to repeat it here.

In order to understand the issues for determination in this action it is necessary that a full statement of the facts be given and those facts, as I find them to be, are briefly as follows:

W.S. Murphy, a resident of Pickens County, died on June 17, 1922. He left surviving him one adopted child, Nancy Bagwell, who was the wife of W.L. Bagwell. Nancy and W.L. Bagwell had eight children. W.S. Murphy left a considerable estate in Picken and Anderson Counties, and also a considerable personal estate, as is shown by the appraisal in that estate and by the first return or executors therein, which return was filed on December 20, 1922. Among the personal assets, as shown by the return of the executors, there was on deposit in Easley Loan Trust Company $21,366.21; in the Commercial Bank $2,451.82; and in Pickens Bank $1,456.19; the total amount on deposit at the time of his death and which was on deposit at the time his executors were appointed aggregated the sum of $25,274.22. These deposits will be considered more in detail in this order.

W.S. Murphy left a will by which he directed that his estate be divided between his adopted child, Nancy Bagwell, and the eight children of Nancy and W.L. Bagwell. W.L. Bagwell and T.T. McMahan were named as executors of the will, duly qualified in the Probate Court on June 26, 1922, and entered into the discharge of their duties. Three of the children were minors and on December 20, 1922, the father, W.L. Bagwell, was appointed guardian of the three children by the Probate Court of Pickens County, qualified on that date by the execution of a bond in the sum of $7,000.00, with his wife, Nancy Bagwell, as surety thereon. This is the bond on which this suit is brought.

The plaintiff, Earle Bagwell, was the youngest of these three children. He contends that he was born on April 3, 1914, and attained his majority on April 3, 1935; the defendants contend the plaintiff is one year older than that. On this question there is a decided conflict of testimony and the Court does not consider it necessary to determine that question.

The record of the Probate Court shows that W.L. Bagwell regularly made annual returns in the administration of the three guardianship estates up to the time of his death. When the two older children attained their majority he duly accounted to them and paid over to each child the amount which it was entitled to receive. In the administration of these estates the guardian did not disturb or transfer the cash on deposit in the Easley Loan Trust Company but allowed such funds to remain and bear interest. In 1929, when plaintiff was 14 or 15 years old, the Easley Loan Trust Company failed and a considerable sum of money, guardianship funds of Earle Bagwell, was lost, with the exception of the small dividends that were subsequently paid thereon. Plaintiff contends that he first learned of said money being deposited and lost in said bank in 1932 or '33.

The guardian, W.L. Bagwell, died intestate in November, 1933, at which time plaintiff was 19 or 20 years old. The last return was filed by W.L. Bagwell, as guardian, on January 29, 1932, showing a balance on hand of $2,106.96. No administration was had to the estate of W.L. Bagwell until December, 1939, when O.T. Hinton was, at the instance of plaintiff, appointed administrator of his estate. After the death of W.L. Bagwell plaintiff's mother, Nancy Bagwell was appointed guardian of his estate, upon a petition signed by him, by the Probate Court of Pickens County on December 16, 1933. She duly gave bond with the U.S. F. G. Company as surety. She was discharged as such guardian by the Probate Court for Pickens County on April 30, 1934, having served a period of little more than four months, during which time she was not in good health and under a severe strain.

Nancy Bagwell died intestate on August 28, 1938, and Julien D. Wyatt was appointed administrator of her estate in September, 1938. Plaintiff testified that, although he knew of this money being lost in the bank, he never mentioned it to his father during his lifetime nor did he mention it to his mother after the death of his father, for the reason that he did not wish to disturb them. He lived with his mother during all the time until 1937, about a year before she died. Although Nancy Bagwell was appointed guardian for plaintiff and although the petition for her appointment was signed by him he testified that he knew nothing about his mother acting as guardian.

W.L. Bagwell as guardian borrowed $1,6000.00 from the estate of his ward, giving a real estate mortgage as security. Later the guardian conveyed this tract to plaintiff in full satisfaction of the debt. Plaintiff ratified and confirmed this transaction by a sale and conveyance of the property after he reached his majority. There was a partition proceeding had in 1938 wherein the remaining lands not theretofore divided among the children were partitioned among the heirs-at-law and distributes of W.L. Bagwell and Nancy Bagwell.

W.L. Bagwell, as guardian, made annual returns to the Probate Court up to the time of his death. Nancy Bagwell was, upon plaintiff's petition, appointed guardian of that estate and was duly discharged by the Probate Court for Pickens County on April 30, 1934. Her return filed on that date shows the balance received from the estate of W.L. Bagwell, guardian, being money on deposit in the Easley Loan Trust Company and Commercial Bank, aggregating $2,154.01.

On July 13, 1940, an action was instituted in the Court of Common Pleas for Pickens County seeking to set aside and have declared "void or voidable" the settlement of Nancy Bagwell had in the Probate Court. The case was heard by Judge Oxner on testimony taken before a Special Referee and on November 11, 1942, Judge Oxner signed an order dismissing said action and from that order no appeal was ever taken.

In the present case defendants unite in an answer in which the following defenses are pleaded:

(A) General denial; (B) Res judicata and estoppel; (C) Statute of limitations and laches.

Plaintiff's action herein is based principally upon the allegation that W.L. Bagwell deposited funds of plaintiff, his ward, in bank without obtaining a written order from the Probate Court, approving such deposits as required by Section 9050 of the Code, and hence, is liable for the loss resulting from the closing of the bank in 1929, together with interest on annual balances.

Has plaintiff shown that the deposits were made without written approval of the Probate Court? Even as to jurisdictional matters there is a presumption that where in a court of general jurisdiction the record is silent, the proceedings are presumed to be regular, and this presumption applies also to Courts of Probate and applies especially after a long lapse of time (in this case 21 years). Clark v. Neves, 76 S.C. 484, 490, 57 S.E., 614, 12 L.R.A. (N.S.), 298. In this case the burden is upon plaintiff to rebut such presumption and to show affirmatively that no such order was signed. The only testimony to this effect is that of N.A. Christopher, Probate Judge from April, 1920, to January 1, 1922. In his direct examination, when asked if the W.L. Bagwell file was a record in his office, he replied "Yes, I guess so; I don't know, I want to go by the records." In response to the leading question, "Did you pass such an order"? He replied "No, sir, No, sir." This is the only affirmative testimony that no order was signed. When asked if he was consulted he said, "No, I want to go by the record." When asked about a conversation had about that time he said, "Of course, it has been 19 years ago, and it is right hard to bring back anything that passed 19 years ago. It is right hard." This testimony clearly shows only vague impressions obscured by lapse of time and influenced by the fact that no order was found in the record after such lapse of time. Hudson and Lewis, succeeding Probate Judges, testified only that they found no such order in the file. Such vague testimony, after a lapse of 20 years, with the admission of a failing memory by the witness himself, is insufficient in my opinion to rebut the presumption which the law implies as to the regularity of a judicial record.

For another reason the position of plaintiff cannot be sustained: Section 9050 was enacted in 1920, only two years prior to the appointment of A.L. Bagwell as guardian. No case interpreting the statute was decided until 1931, when the opinion of Chief Justice Blease was written in the case of Ellis' Estate v. Brown, 162 S.C. 133, 160 S.E., 260, 263. In that case it was held that prior to the enactment of the section no written approval was required but after its enactment "There should have been such approval, which was not obtained." However, the Court declined to hold the guardian liable, stating that "If attention to the act of 1920 had been called to the probate judge, he would have passed the necessary order approving future deposits in the bank." The Chief Justice adds: "The court will, as it should, extend its hand at all times to aid in giving proper protection to a ward whose estate has been wrongfully, recklessly, or negligently dissipated by an unfaithful guardian. But when it clearly appears, as it does in the instant case, that a guardian, with little remuneration for his arduous services, has sought as best he could to be faithful to the trust imposed upon him, the court feels inclined not to hold him too strictly to any technical requirement of the law. Especially should this be the case when the probate judge, charged with the duty of overseeing the faithful administration of minor's estates on the part of their guardians, with no intention to do otherwise than protect such estates, has not sufficiently guided the guardians in the technical performance of their duties."

In Oakes' Estate v. Oakes et al., 170 S.C. 167, 169 S.E., 890, 892, in an opinion by the same Chief Justice, he, in holding the committee not liable for deposits made without written approval, says: "But it appears from the order of the judge of probate, and from that alone we get the facts, that the committee filed the annual returns required of him by the statutes, `containing itemized statements of all his receipts and disbursements and showing deposits in said banks and the amounts thereof and that his said reports were all accepted by the Judge of Probate without objection and that all except the first were approved in writing by endorsement of the Judge of Probate thereon.'"

In Glenn v. Worthy, 169 S.C. 263, 168 S.E., 705, 718, the failure to obtain the order "was considered a mere technical violation of the law, and did not subject the guardian to a charge of misconduct in failing to obtain same" and in Anderson v. Aetna Casualty Co., 175 S.C. 254, at page 273, 178 S.E., 819, at page 826, the Court, referring to the Ellis case, says: "In that special case they were exonerated because the guardian made constant reports to the judge of probate, who approved the actions of the guardian."

The testimony in this case clearly shows less for holding the guardian liable than those above cited, in all of which the guardian was exonerated.

At the time the guardian in the present case was appointed there was already in the banks approximately $25,000.00, which was deposited by the testator in his life time, was on deposit at his death, was left there by his executors, and a portion thereof was finally transferred by them on the books of the bank to each of the three minors, including Earle J. Bagwell, and not to their guardian, about three months prior to the qualification of the guardian. W.L. Bagwell, as guardian, made and filed in the Probate Court annual returns from the close of the year following his appointment up to the date of his death, a period of about ten years. All these returns were accepted, approved and filed by the Probate Judges, none of whom were aware of the passage of the Act, and hence, were unable to advise the guardian, who had no attorney, in the performance of his duties; he was, therefore, in the position of needing advice, having the right to rely upon the Probate Judges to give it to him and they were unable to do so because of their ignorance of the enactment of Section 9050. All of these Probate Judges testified that they considered the banks solvent until the date of their closing in 1929, and they never had any reason to question their solvency; all knew from the cash balances which showed on Bagwell's annual returns as guardian that such balances represented deposits in banks; none of them made any objection to such deposits and all testified that if they had been asked for an order they would have unhesitatingly signed it. Christopher knew at the time Bagwell was appointed guardian that the money which he received as guardian had been deposited in the banks by the testator, was in those banks at the time of his death, was left there by the executors and was transferred by them to the minors on the books of the bank and the guardian received the deposits when he was appointed guardian. The record in the three guardianship estates (including plaintiff's) showed an actual balance in each estate of about $4,000.00, or $12,000.00 in all, thus confirming the statement of the Probate Judges that they knew the money was deposited in the banks and they approved of such deposits.

In the Oakes case and in the cases following it the Supreme Court was offered an opportunity of laying down the arbitrary rule now contended for by this plaintiff and it refused to do so. In my opinion, and I so hold, the liability of the fiduciary does not result arbitrarily from his failure to secure an approving order in advance of his making the deposit, but when loss occurs through the subsequent closing of the bank it becomes a proper subject of judicial inquiry whether under all the circumstances the Court would have approved the deposit had its approval been asked. The testimony clearly shows that such an approval would have been given and, considering the principles decided and the facts that developed in this case, it is my opinion that the guardian should not be held responsible in this case for such loss.

For another reason plaintiff cannot recover in this action: W.L. Bagwell died intestate November, 1933. Upon his death the title to the guardianship estate vested, not in his administrator, but in the successor guardian, Nancy Bagwell. Gary v. People's National Bank, 26 S.C. 538, 2 S.E., 568, 4 Am. St. Rep., 733. However, no administration was taken out on the estate of W.L. Bagwell until December, 1939. Meanwhile, upon a petition signed by plaintiff, his mother, Nancy Bagwell, was appointed guardian of his estate on December 16, 1933, duly qualified, gave bond with the U.S.F. G. Co., as surety, was discharged April 30, 1934, and Judge Oxner, on November 11, 1942, signed an order dismissing the action brought by plaintiff to set aside the order of discharge.

When Nancy Bagwell, as successor guardian, was discharged she showed as assets the deposits in Easley Loan Trust Company and in Commercial Bank, which were received by her from her predecessor guardian as the only assets in his hands at the time of his death. This is shown by the last return made by him in the Probate Court. Nancy Bagwell received, as shown by her final return, no other part of the guardianship estate.

Under these facts the mother guardian became vested with the title to the guardianship estate. 65 C.J., 656; Gary v. People's National Bank, supra. Her discharge by the Probate Court adjudicated necessarily that the entire guardianship estate had been fully administered and that neither she, as guardian, nor her husband, as predecessor guardian, was liable either to account further or for judgment and such adjudication is res judicata as to the liability of W.L. Bagwell, and Nancy Bagwell, as guardian, to further account or for judgment against either.

Even, however, if plaintiff is entitled to recover at all, neither W.L. Bagwell nor Nancy Bagwell, as surety, can in any event be chargeable with any item not deposited in the bank by him nor can he be charged for any amount barred by the Statute of Limitations. For such sums not so deposited and for such as are so barred plaintiff clearly cannot recover.

As has been shown, when W.S. Murphy died he had deposits in bank approximating $25,000.00, which he himself had made. This is shown by the first return of W.L. Bagwell and T.T. McMahan, as executors, which was sworn to by them before, and filed with N.A. Christopher, then Probate Judge, on December 20, 1922, the same day that W.L. Bagwell was appointed guardian. As disbursements that return also shows that there was paid to "Earl Bagwell, Minor," $1.700.00 on July 3, 1922, and there was paid on the same date to C.C. Vivian Bagwell and Bernice G. Bagwell, the two other minors for whom W.L. Bagwell was also appointed guardian, each $1,700.00. The pass book of "Earle Jackson Bagwell, Minor" in Easley Loan Trust Company was introduced in evidence by plaintiff. The book shows the first deposit of $1,700.00 on September 2, 1922, and on it there is a notation, "Saving Int. starts 7/3/22."

Since W.L. Bagwell was not appointed guardian until December 20, 1922, it must necessarily follow that the deposit shown as having been made on September 2, 1922, was not made by him as guardian but must have been made by a transfer of funds by the executors direct to an account opened by the Bank in the name of "Earle Jackson Bagwell (Minor)." Since on the date shown on the pass book as the date of the first deposit W.L. Bagwell had not been appointed guardian, he could not have made the deposit in that capacity, and therefore certainly as to the amount of $1,700.00 he could not legally be held liable. This fact alone will necessitate a restatement of the account, eliminating the item of $1,700.00 and in such restatement Bagwell, having regularly filed annual accounts, is entitled to be credited with commissions on receipts and disbursements at the legal rate.

Involved in such restatement is the question whether interest on annual balances should be allowed as claimed by plaintiff. The allowance of such interest is not a matter of right in the party seeking it but is within the discretion of the court. The governing principle is well stated in Bell v. Mackey, 191 S.C. 105, 139, 3 S.E.2d 816, 831, as follows: "Further than this the allowance of interest against an executor or administrator is in the discretion of the Court: `The following is stated in Huguenin et al. v. Adams et al., 110 S.C. 407, 96 S.E., 918, 922: "There is no inflexible rule of law that a balance against a trustee at the end of the year shall bear interest the year following. Each case must depend upon the circumstances of it. The only inflexible rule is that the trustee shall not make a profit out of the balance in his hands, and that he shall not be charged with loss except for neglect of duty." And in Nicholson v. Whitlock, 57 S.C. 36, 35 S.E., 412, 414: "The principle is well established that it is a matter of discretion with the court, in the exercise of its equitable jurisdiction, whether it will allow interest against the administrator." See also Dixon v. Hunter's Distributes, 3 Hill, 204; Pettus v. Clawson, 4 Rich. Eq., 92; Tompkins v. Tompkins, 18 S.C. 1; Glenn v. Worthy, 169 S.C. 263, 168, S.C. 705.' Beacham v. Ross et al., 187 S.C. 398, 197 S.E., 369, 373."

In addition to the facts already stated herein there is no charge that W.L. Bagwell nor Mrs. Bagwell ever as guardians misappropriated any guardianship funds held by them for plaintiff. On the contrary, the evidence shows that W.L. Bagwell honestly administered the minor's estate, made annual returns and used due care and diligence. Mrs. Nancy Bagwell was upon the death of W.L. Bagwell appointed successor guardian, was discharged by the Probate Court and a subsequent action brought in the Court of Common Pleas to set aside the order of discharge was dismissed by Judge Oxner. Plaintiff took no action of any kind until about six years after the death of his father, until one year after the death of his mother and until six years after the discharge of his mother, as guardian, by the Probate Court. This Court is satisfied that the exercise of its equitable discretion demands that the interest claimed be disallowed.

The balance on deposit in the guardianship estate at the date of the death of W.L. Bagwell and as shown by his last return was $2,106.96. Deducting $1,700.00 from this amount leaves $406.98. If W.L. Bagwell, as guardian, is credited with the amount of his commissions and with the dividends paid direct to plaintiff, there would be no balance left for which W.L. Bagwell is liable as guardian.

Defendants plead as defense the six-year and twenty-year Statute of Limitations. It is contended by plaintiff that being an action in equity the Statute does not apply. In certain cases this is true. It is also true that in equity cases the Statute is generally applied by analogy or a less period may constitute a bar, Kirpatrick v. Atkinson, 32 S.C. Eq., 27, 11 Rich. Eq., 27, 31, or where legal issues are involved the statute may be applied in determining whether such items are barred, McGee v. Hall, 26 S.C. 179, 187, 1 S.E., 711. In this case no such accounting is required to ascertain liability on items deposited in bank as would give to a Court of Equity exclusive jurisdiction, since the time and amount of the deposits of which complaint is made are definite. Therefore, this action, based upon such deposits, would be barred in twenty years after the date of such deposits.

In this action judgment is sought against W.L. Bagwell, as principal, and Mrs. Nancy Bagwell, as surety, on the original guardianship bond, which was executed December 20, 1922. Obviously any breach of such bond occurred, if at all, when the deposits were successively made, and as to such deposits the cause of action would be barred as to all made more than twenty years before the commencement of the action. Strain v. Babb, 30 S.C. 342, 9 S.E., 271, 14 Am. St. Rep., 905.

Plaintiff's original complaint herein is dated November 11, 1940, and the first amended complaint was dated March 29, 1941. On September 11, 1943, an order was passed allowing plaintiff to file an amended complaint as a substitute for the other two. The two first complaints asked merely for an accounting and neither asks for judgment on the bond and therefore the action on the bond was brought for the first time on September 11, 1943. The position of plaintiff's counsel evidently is that this complaint, filed on September 11, 1943, relates back to the date of the first complaint, November 11, 1940, and that the action is therefore brought within twenty years from the date of the first breach and that none of the deposits are barred by the statute and therefore defendants are liable for all deposits made. A complete answer to this position is found in Coral Gables, Inc., v. Palmetto Brick Co., 183 S.C. 478, 191 S.E., 337. The Court says at page 487 of 183 S.C. at page 340 of 191 S.E.: "A statute providing for the amendment of pleadings does not permit a court, under color of ordering an amendment, to abrogate the statute of limitations. Hence the rule is that an amendment which introduces a new or different cause of action and makes a new or different demand does not relate back to the beginning of the action, so as to stop the running of the statute of limitations, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies, although the causes of action set forth in the original pleading and in the amendment arise out of the same transaction, and, by the practice of the state, a plaintiff is only required to state the facts which constitute his cause of action, and although the original pleading demanded an amount large enough to cover both causes of action."

Under this decision the amendment introduced a new and different cause of action and makes a new and different demand. The action is now on the original bond against W. L. Bagwell, principal, and Mrs. Bagwell, as surety, and so far as the Statute of Limitations is concerned it is as if this action was commenced on September 11, 1943. Any deposit made prior to twenty years before that date is barred by the Statute of Limitations and being so barred cannot be considered in determining the liability of the principal and surety and hence in considering the liabilities on the bond deposits made prior to September 11, 1923, must be excluded. As shown by the pass book introduced in evidence these items and the dates of the deposits are as follows: September 2, 1922, $1,700.00; May 17, 1923, $820.00; July 3, 1923, $40.62; July 14, 1923; $100.00; August 20, 1923; $500.00. Total $3,160.62. Restating the accounting of W.L. Bagwell on this basis, eliminating the five items stated above and crediting the account with Bagwell's legal commissions, it will be shown that there is no liability, since his final balance, as shown by pass book, is $2,020.46, which is greatly less than the balance would be if the account is restated as above.

For the reasons herein above stated, it is, therefore, ordered and adjudged that the complaint herein be, and the same is hereby, dismissed, with costs.