103 Ky. 698 | Ky. Ct. App. | 1898
delivered the opinion of the court.
On November 13, 1883, E. R. Withers qualified as the statutory guardian of appellants in the Bath County Court, and gave bond with appellee W. A. Withers as his security. At the November term, 1885, of that court, upon motion of W. A. Withers to be released from bis obligation as surety for E. R. Withers, the guardian was required to execute a new bond, which he did, giving A. B. Barnes as surety thereon. The new bond was accepted and approved by the court, and an order was entered upon the records of the court, releasing appellee as surety. No settlement was made by the guardian, at the date of this order, and none had been made by him previously to that time.
In January, 1889, E. R. Withers became insolvent, and be was removed as guardian of appellants and a new guardian appointed for them. Soon after his removal he for the
In the meantime one of the infants arrived at age, and he, on his own account and the guardian for the other instituted separate actions, seeking to recover from the security on the original bond (appellee here) the balance due them.
Appellee resists judgment and relies for his defense upon the execution of the new bond and the county court order releasing him as- surety; and he also puts appellants upon proof of the indebtedness of the guardian and of the balance remaining unpaid. The pleading and proof being the same in each case, they were heard together below and will be considered together on this appeal.
On the trial appellants introduced as proof the county court settlement of the former guardian, made after his removal in 1889, and also proof that the guardian had collected and received for the wards, before the. execution of the new bond and while the first bond was in full force and effect, about $7,000, and that a comparatively small sum, consisting chiefly of rents, came into the hands of
The main question to be determined on the appeal is, on whom does the burden test of proving the date when the insolvent guardian appropriated to his own use the funds of his wards?
It is claimed by appellee that he can be held responsible only for such acts of maladministration of the guardian as are proven to have been done while he was surety on the bond; that in the absence of such proof the presumption is that the funds of the wards were in the hands of the guardian, intact, at the date of the execution of the new bond; that to overcome this presumption and hold appellee liable the burden of proof is upon appellants to show affirmatively that the waste complained of was committed by the guardian during the existence of the first bond, and that the record is wholly wanting in proof conducing to establish this fact.
It is true that in the vast majority of instances the burden of proving any fact lies upon the party who substantially asserts the affirmative of the issue. This is a rule of convenience, adopted, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable;
And this case illustrates the justness of this exception. The guardian knows the time when he appropriated the funds uf his infant wards to his own use, and the security upon his bond, by reason of the relation existing between them, presumably also has knowledge of this fact; whilst, on the other hand, it is manifestly improbable that the infant wards can have anj7 information on this point. The bulk of the estate of the infants came into hands of their guardian during the period of time when appellee was the surety upon his bond, and by the provisions of that bond he obligated himself “that his principal should, at the expiration of the trust reposed in him, deliver and pay over to the infants or to those who may be entitled thereto, all the estate and money in his hands as guardian; and that he would in all respects faithfully execute and perform the trust.”
The statute provides that “a guardian shall, within sixty days after the expiration of a year from his appointment, settle his accounts as guardian with the county court, and at least once every two years thereafter, and as much oftener as the court may require.” (Section 2037 Ky. Statutes.)
At the time appellee made his motion to require the
It has been held by this court that “a surety upon an official bond, who has by proper motions procured the execution of a new bond, continues to be responsible for the acts of his principal done prior to the execution of a new bond.” (See Pepper v. Donnelly, 87 Ky., 259.) And it has been also held that the security on the new bond is responsible only for such acts of the principal as are thereafter done. (See Jones v. Gallatin County, 78 Ky., 491.)
It is therefore evident that if the contention of appellee is a sound one, in case of the death of a guardian who had given successive bonds, or if from any cause he should fail or refuse to fix the date of the conversion of his ward’s money, his ward would in most instances be left without a remedy because of his inability to fix the date of the devastavit, and the provision made by law for his security and protection would thus be rendered nugatory.
The liability of a surety on a guardian’s bond, so far as the ward is concerned, is identical with that of his principal; and after proof of the receipt by the guardian of the ward’s money and failure to account for it, the guardian has not faithfully discharged the duty imposed
In our opinion the law requires appellee to show what became of the money of appellants which was received by the guardian while he was bound as surety upon his bond, and in the absence of proof showing clearly that at the date of the execution of the new bond the fund was intact in the hands of the guardian, he should be held liable for the balance shown by the proof to be due.
For the reasons indicated the judgment is reversed and cause remanded for proceedings consisted with this opinion.