Bell v. Rudolph

70 Miss. 234 | Miss. | 1892

Cooper, J.,

delivered the opinion of the court.

The demurrer of the appellant was properly overruled:

The obligation assumed by him in becoming surety for the guardian was that the estate of the infants should be lawfully managed by the guardian and restored to them upon the termination of the guardianship. While this obligation was in force, the guardian, without authority of law, loaned the money of the wards to her husband, and it- has never been repaid by him. Unless the estate is protected by the bond of the guardian, it has been wasted, and can never be restored to the infants, for Ratliff, the borrower, as well as the guardian, is insolvent. Time, the appellant was, upon his petition, relieved from future liability for the acts of the guardian by the decree of the court having jurisdiction of the guardianship, by which a new bond was required, which was after-wards given. But this did not, and could not, relieve the sureties on the first bond from liability for past delinquencies of the guardian; as to those, they continued bound as before.

1 The final account of the guardian, and the decree of the court thereon, operated to conclusively establish the fact that the guardian was indebted to the wards in the sums for which decrees were made, and gave the right to executions against her for the same. ' But the decrees are not satisfaction of the demands of the wards. They are but steps in the progress of securing satisfaction, and the obligation of the sureties is that they will pay the sums found due if the guardian does not. \

These decrees are conclusive against the guardian, and ¶rima fade evidence against the sureties of the amount due by her to the wards. On the facts stated by the bill, and admitted by the demurrer, a large part of the sum now found to be due had been lost to the estate of the minors at and before the decree was made releasing the appellant from the bond. As to this he was then, and ever since has been, bound until the same should be returned to the guardian, or to her successor in the guardianship. This obligation cannot be discharged by the mere admission of the guardian, nor by that together with a decree that she should pay the same to the present guardian. Payment alone can discharge the obligation. The statutes of limitation set up by the demurrer are not available to the appellant; the defense rests upon the assumption that time began to run against the wards from the time that the decree was passed discharging the appellant from liability for the future administration of the guardianship. This is an erroneous contention, for, under the obligation of the bond, the guardian was required to account with the wards, which she did not do until she rendered her final account. Nunnery v. Day, 64 Miss., 457.

The decree is affirmed.