129 Ky. 573 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
In 1887 J. W. Bales was appointed by the Madison county court as guardian of the appellant, and executed a bond, with Socrates Maupin as his surety. In February, 1889, Bales made a settlement of his accounts as guardian, which was put to record in the proper office Again in January, 1902, he made a settlement, showing a balance of some $400 due his ward. Afterwards Cornelison brought suit against his guardian on the bond to recover the amount due him on the settlement, and obtained judgment, upon which execution issued and was returned \‘No property found.’" Thereupon Cornelison brought this action against Chenault, Buraam, Sullivan, Turpin,, and appellee, Million, who were judges of the Madison county court at different times from 1887 to 1905. The action was dismissed or filed away, with leave,.
It is in effect alleged that Million was elected -county judge, and acted as such from December, 1899, until January, 1902; that he did not during that time make any inquiry into the solvency of Bales or his surety, and that if he had made reasonable inquiry as to their solvency he would have discovered that they were in failing circumstances and in debt in ■excess of the reasonable value of their property; and if he had required the guardian to make a settlement, or had inquired' into the solvency of the surety, the condition of their affairs would have been disclosed, and the rights of the ward protected, and his estate saved from loss; but by reason of the negligence of Million in failing to inquire into the solvency of the guardian and his surety, and in failing to require the guardian to make a settlement, the whole of the amount due the ward has been lost. In his answer Million admitted that during the time he was judge he did not make any inquiry into the solvency of the guardian, Bales, or his surety, or require any settlement, and attempts to excuse himself from discharging this duty upon the ground that the only settlement Bales made as guardian previous to his assuming the office of county judge in 1899 was made in 1889; that he had no knowledge or information that Cornelison had a guardian, or that Bales had ever qualified as his guardian; that when he became county judge he •examined the guardian settlement books in the clerk’s office of his court, for the purpose of ascertaining what guardians had made settlements within the two
The argument of counsel for appellee is that, as the statute requires county judges to make settlements with guardians every two years, which are recorded, each county judge may presume that his. predecessors have performed their duties under the statute, and is not required to examine the records further back than two years preceding his induction into office for the purpose of ascertaining what guardians are delinquent. We cannot agree in this construction of the statutory duties of a county judge in respect to guardians. Section 1065 provides that the county judge “shall when called on by a fiduciary settle his accounts, and shall once in each two years,, require all fiduciaries to settle their accounts, unless there is an fiction pending in the circuit court for such settlement.” And section 1068 provides that “it shall be the duty of the county judge at least once in each year to carefully inquire into the solvency of all the sureties upon the bond of each fiduciary; and if upon such inquiry there is reasonable grounds to believe that any bond is not amply sufficient to protect from all loss to those interested, he shall at once give notice to such fiduciary that a new bond .or additional
As suggested by counsel, these statutes impose upon the county judge duties that may, unless great, care and diligence is exercised, involve them in serious loss; But the law is so written, and it has been so construed, and we are not disposed at this day to impair the useful purpose of the statute by. getting
The judgment of the lower court is reversed with directions to proceed in conformity with this opinion.