Judgment.—On the sixteenth day of June, A. D., 1849, this cause was heard before the Court of Errors and Appeals, on a transcript of the record of the Superior Court in and for the county of Sussex, and on the questions of law reserved for hearing before this court; and was argued by counsel. Upon due consideration whereof, it is the opinion of this court, upon the said questions of law, that where the administrator of an intestate’s estate, being at the same time the guardian of a minor child, who is a representative of the estate, passes an account of his administration showing a residuary balance in his hands as administrator, distributable among the representatives of the intestate, and neglects or refuses to retain as guardian the distributive share of his ward, his sureties in the administration bond remain liable for such share. As between them and the sureties in the guardian bond, it must appear by some act on his part, that he has made his election to retain as guardian before the former can be exonerated, or the latter be charged. Such election may be shown by his claiming a credit on his administration account, for the distributive share of his ward, or by charging himself with it,-in his guardian account. If he neglects or refuses to do so, he may be constrained to make the election, by compelling him to pass an account as guardian, and to charge himself in that capacity, with the fund. But it is not only the right, but also the duty of the administrator, to retain as guardian the distributive share of his ward, and the sureties in the guardian bond may become responsible by his neglect or refusal so to do his duty in this respect, if by such neglect or refusal the fund is lost by reason of the insolvency of himself and his sureties in the administration bond. In such case, in a suit against the sureties in the guardian bond, such distributive share may be recovered byway of damages, upon showing that the remedies at law against the principal and sureties in the administration bond have been exhausted; and that satisfaction could not be obtained because of their insolvency. And it is ordered by the court that this cause be remanded, and the opinion of this court be certified to the Superior Court in and for the county of Sussex; and that the said William E. Burton, guardian of the plaintiff, pay the costs of the proceedings in this court.