63 S.W. 863 | Tex. | 1901
Lead Opinion
This suit was brought by E.E. Allen, joined by her husband, Granville Allen, Charles H. Bast, D.S. Bast, and T.J. Bast, upon the bond of Abe Bast, given as their guardian. One of the sureties on the bond having died, the principal, the surviving surety, and the heirs of the deceased surety were made parties defendant.
The conclusions of fact found by the trial judge were approved by the Court of Civil Appeals, and, with one exception to be hereafter noted, present a full statement of the facts of the case. So far as necessary to the purposes of this opinion, we here set them out.
"1. I find that Orlena Bast died prior to the 5th day of January, 1879, leaving as her sole surviving heirs her children, E.E. Bast, Charles H. Bast, David S. Bast, and Thomas J. Bast, and that on 10th March, 1900, they were of following ages, to wit: E.E. Bast, who married Granville Allen on the 8th of May, 1892, was 26 years of age; D.S. Bast was 23 years of age, T.J. Bast 21 years of age, and Chas. H. Bast 28 years of age.
"2. I find that Abe Bast was the father of the children above mentioned, and that he was, by proper orders, appointed guardian of their persons and estates on the 25th day of January, 1879; that he duly qualified as such guardian and on the 26th of March, 1879, he entered into bond in the form stated in plaintiffs' petition, with J.C. Reed and D.F. Cameron as sureties, which said bond was delivered to and was approved by the probate judge of Dallas County, Texas, and was made payable to the county judge of Dallas County, Texas, was in the sum of $3400, and was conditioned that said guardian should faithfully perform all the duties required of him by *626 law as guardian of the estates of his said wards. [Though the court does not so find, the undisputed fact is that the bond was joint and not joint and several.]
"3. That the only estate that said wards had was their interest in certain lands inherited by them from their said mother, and that the title to said lands was then involved in suit pending in the District Court of Dallas County, Texas; said suit was numbered 3417, and styled Cameron v. Thurmond, which said suit was also a suit for partition and had been filed in 1876, had been once appealed to the Supreme Court, and had been reversed and remanded, and that judgment had been finally rendered on the 17th day of February, 1890, divesting title out of said minor wards of Abe Bast, and vesting title in W.H. Gaston on his paying to said Abe Bast, guardian, the sum of $5000.
"4. I find that said $5000 was paid in cash to Abe Bast prior to the rendition of judgment, as aforesaid, in cause No. 3417; and that the same was paid and said judgment so rendered under a compromise agreement between all the parties at interest in said cause, which said compromise agreement was duly authorized by order of probate court of Dallas County, Texas, made and entered on the minutes of said probate court on the 14th day of February, 1890, in the Bast guardianship.
"5. I find that Abe Bast, guardian, never made any report to the probate court of Dallas County, Texas, where said guardianship was pending, of the amount received, as above stated, — though he was ordered several times to make report, — and that he has never made any settlement with his said wards in any way, and has not accounted either to them or to the probate court for the money so received.
"6. I find that said guardianship was closed, without any accounting, on the 16th of August, 1898.
"7. I find that demand was made on Abe Bast for a settlement about the 5th of October, 1899, the date this suit was filed, and that he made no reply to the demand.
"8. I find that J.C. Reed, one of the sureties on said guardian's bond, died on the 7th day of January, 1885; that the administration was opened in Dallas County, Texas, on his estate on the 28th day of March, 1885, and that on July 3, 1890, said administration was closed by the proper order. That J.C. Reed's surviving widow, who was his second wife, married R.T. Merriman prior to this suit.
"9. I find that the property described in plaintiffs' petition (except the lot in the town of Grand Prairie) was acquired by J.C. Reed prior to 1860 and was community property between himself and his first wife, who died prior to 1880; the said property descended to his heirs and only children, to wit, Bessie Stovall and Emma Harston, and upon the close of the administration upon his estate, was turned over to them by his administrator, and that they, with their husbands, are now in possession of said land, holding the same as such heirs."
Upon the facts found by it, the trial court gave judgment against *627 defendants Bast and Cameron for the full amount of the bond, but also ruled that as against the heirs of Reed, the deceased surety, the plaintiffs should take nothing. From the judgment, the plaintiffs appealed, and the Court of Civil Appeals reversed the judgment of the trial court and held that Mrs. Allen and Chas. H. Bast were barred by the statute of limitations, but that the other two plaintiffs were entitled to recover not only as against the principal and living surety, but also against the heirs of Reed. That court rendered judgment accordingly.
The plaintiffs, Mrs. Allen and Chas. H. Bast, on one side, and the defendants, the heirs of Reed, on the other, have applied to this court for a writ of error and both applications have been granted.
The heirs of Reed contest a recovery upon four grounds:
1. In the first place, it is contended that since the bond, by its terms, was joint and not several, the liability upon it ceased with the death of Reed. This is the rule of the common law. But in 1840 the Congress of the Republic enacted a statute which contained the following section: "Sec. 5. Be it further enacted, that the representative of one jointly bound with another, for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the lifetime of the latter, may be charged by virtue of such obligation in the same manner as such representative might have been charged, if the obligors had been bound severally as well as jointly." Laws 1839-40, p. 73. This continued in force until the Revised Statutes of 1879 went into effect, September 1, 1879, which was after the date of the execution of the guardian's bond. Mays v. Cockrum,
The purpose of the act we have under consideration was to abolish the common law rule as to joint bonds, and we see no reason why an action should have been allowed upon such bond against the executor or administrator of a deceased obligor, and should not be allowed to *629 charge the estate in the hands of the heirs with the debt where the administration had been closed. It is worthy of note that in the twenty-eighth section of the act "regulating the duties of probate courts and the settlement of successions," which was passed at the same session at which the statute in question became a law, "the personal representative or representatives of any testator or intestate" are mentioned, — evidently meaning executors or administrators, as the case might be. Laws 1839-40, p. 118. This shows that the Congress in session when these acts were passed were not unmindful of the distinction between the personal and the real representatives of an estate, and that when they meant to make a law applicable to executors and administrators and not to heirs, they used the terms "personal representatives." There is nothing in the context of the statute which indicates that the word "representatives" was not intended to include heirs; while it is necessary that they should be included in order to accomplish in full the purpose of its enactment. Upon this point, we conclude that the heirs of Reed were liable for a breach of the bond, whether occurring before or after his death.
2. In the second place, it is contended that the compromise of the suit in the District Court of Dallas County, under which the guardian secured the money with which the defendants are sought to be charged, was not authorized by law, and that therefore the guardian is not responsible to his wards therefor. It is unnecessary to discuss the facts pertaining to that matter. The statute settles the question. Section 69 of the Act of 1876 in relation to guardians provides: "The guardian or his heirs, executors, administrators, or assigns shall not dispute the right of the ward to any property that shall have come to his possession as guardian, except such property as shall have been recovered from the guardian, or there be a personal action pending on account of it." Laws 1876, p. 180. This was the law when the bond in this case was given and has ever since been the law. Rev. Stats. 1875, art. 2551; Rev. Stats. 1895, art. 2632. We think the statute in the main, is but declaratory of the common law.
3. In the third place, the statute of limitations is urged in bar of a recovery as to two of the plaintiffs. Chas. H. Bast attained his majority and Mrs. Allen was married more than four years before the suit was brought and before a demand for settlement was made. If the statute began to run from the time the relation of guardian and ward ceased to exist, then the action as to these parties is barred. But if the statute did not run until the guardian was discharged, then since the guardian has never been discharged, the suit was brought in time. The statute applicable to the case reads as follows: "All suits on the bond of any executor, administrator, or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal, or discharge of such executor, administrator, or guardian, and not thereafter." Rev. Stats., art. 3357. Article 2764 provides that "when the ward dies, or if a minor arrives at the age of twenty-one years, or if a female marries, * * * the guardianship *630 shall be immediately settled and the guardian discharged, as provided in the following articles of" the chapter. The same article is found in the Revised Statutes of 1879, article 2682.
Marlow v. Lacy,
The decision of the Court of Civil Appeals in Read v. Henderson, 57 Southwestern Reporter, 78 is in conflict with that of this court in Marlow v. Lacy, supra, and in that case a writ of error was denied by this court. But the ruling on the question of limitation was in favor of the party who applied for the writ of error and hence that question was not presented to this court. The fact that the party who was held to be barred did not apply to us for a writ of error was doubtless not known to the Court of Civil Appeals when they decided the present case, and the resulting misconception has probably led to the ruling in that court which we deem erroneous. *631
We think the action was not barred as to Mrs. Allen and C.H. Bast.
4. The fourth ground of error relied upon is that the Court of Civil Appeals erred in holding in effect that the guardian was not entitled to credit for expenditures in the maintenance of his wards. That the Court of Civil Appeals were correct in their ruling is shown by the decisions of this court. Blackwood v. Blackwood,
The judgment of the Court of Civil Appeals and that of the District Court are accordingly reversed and here rendered for all the plaintiffs against defendants Abe Bast, D.F. Cameron, and the heirs of Reed for the penalty of the bond, with interest at 6 per cent per annum from October 5, 1899, the date of the demand.
Reversed and rendered.
Addendum
As we think our opinion in this case sufficiently indicates the judgment that was to be rendered and that the judgment is in accordance with the opinion, the motion to correct the opinion is overruled.