40 S.E. 683 | S.C. | 1902
January 20, 1902. The opinion of the Court was delivered by
The record contains the following statement: "The above action was commenced on the 11th day of August, 1894. An order of reference was made therein to take the testimony upon the issues raised by the pleadings; upon the report of the referee the cause was first heard at the September (1896) term of the Court of Common Pleas for Fairfield County, before his Honor, Judge R. C. Watts; who, on the 9th day of January, 1897, filed his judgment therein, dismissing the complaint. Upon appeal by the plaintiff, the judgment of Judge Watts was reversed by the Supreme Court and the cause remanded —
It will not be necessary to consider the exceptions in detail, as this Court is satisfied with the conclusions reached by the Circuit Judge for the reasons assigned by him on all questions in issue, except those growing out of the suretyship of Mary Ann Elkin on the bond of W.B. Elkin, as guardian of the defendant, Henry L. Parr, which the Court will proceed to determine.
That portion of the decree disposing of these questions is as follows: "The twelfth defense charges that Mary Ann Elkin was surety on the bond of W.B. Elkin, guardian of Henry L. Parr, an infant; and the defendant, Henry L. Parr, pleads as an equitable defense against those who here represent Mary Ann Elkin, whatever the estate of W.B. Elkin is due to him by reason of guardianship, and arising thereout. Thereupon, the defendant, Carrie G. Elkin, answered the complaint, and replied to the amended answer of Parr, and the defendant, R.H. Jennings, as administrator of the estate of Mary Ann Elkin, replied to the amended answer of Parr. Among other defenses, the replies above referred to plead the statute of limitation to the said equitable defenses plead by Parr. The estate of Mary Ann Elkin replied, also, that Mary Ann Elkin died in 1884, and W.B. Elkin died in 1890, without lineal descendant; that by the will of James Elkin, his son, W.B., took a fee defeasible in the Elkin tract, with an executory devise to Mary Ann, the sister of W.B., in one-half the land, with contingent remainder to her children living at the time of her death; that the bond sued on was substituted for the Elkin tract by decree of the court of equity; that the estate of Mary Ann has no such interest in the bond as is chargeable with her liability as surety on the bond made by W.B. Elkin, as guardian for H.L. Parr. The estate of W.B. Elkin replied, also, that pursuant to the will of James *320
Elkin, the estate of James Elkin has no interest in the bond sued on, and for the reason above stated. Some additional testimony was taken by the referee after the said amendments, and it relates chiefly to the rents in the Lakin tract of land. I heard the cause on the testimony taken before the amendments, and that taken thereafter. The testimony appearing in the printed case of Ruff v. Elkin, and that entire record was withdrawn by counsel from consideration in this case. * * * The person named in the will of James Elkin as Mary Ann Elkin, and who was to take, under contingencies named, along with her sister, Judith W. Ruff, died in June, 1884. Her heirs at law are parties to this action. One of them, Carrie G. Elkin, widow of Mary Ann's son, David, and to whom reference will hereafter be made. In April, 1887, W.B. Elkin became the guardian of the person and estate of the defendant, Henry L. Parr, then about seven years old. The guardian's bond for $1,200, was signed by Mary Ann Elkin as a surety. The twelfth defense of Henry L. Parr, before cited, puts in issue the transaction of Elkin as guardian. It has been decided by the Circuit and Supreme Court that the defense is allowed —
The error of the Circuit Judge was in ruling that the surety on the guardianship bond of W.B. Elkin was not liable unless he received the rents of the lands as guardian of Henry L. Parr. A guardian and his sureties are not only liable for whatever property of the ward may have come into his hands as guardian, but likewise for all *322 property of the ward which could have been reduced to possession, by the exercise of due diligence on the part of the guardian in the administration of his trust. This is not a case where it can be contended that the guardian could not get the property of the ward into his possession, for he actually received the rents from lands belonging to the ward. The guardian and his sureties were, therefore, liable upon their bond for the rents, whether received by him as guardian or in his individual capacity. As this Court is satisfied that Mary Ann Elkin became liable to the full extent of the bond, it will not be necessary to order an accounting to determine the extent of her liability. This amount must be deducted from the beneficial interest of her representatives in the bond sued on.
It is the judgment of the Court, that the judgment of the Circuit Court as herein modified be affirmed.