97 Ky. 116 | Ky. Ct. App. | 1895
delivered the opinion of the court.
It appears that James T. Hicks was the guardian of Wirt
Wm. Hatchett was removed as guardian, and the Ohio Yalley Banking and Trust Company was appointed guardian of Wirt and Baxter Hicks. The former guardian, Hatchett, failing to pay the guardian the amount for which he was liable to his late wards, these actions were brought against his sureties, Johnson and Hatchett. The court rendered judgment against them for the amounts due each ward.
The appellant by an appropriate pleading denied his liability for any part of the amount for which the actions were brought, and insisted that his co-surety, John T. Hatchett, being solvent and liable as surety on the note which Wm. Hatchett had executed to Hicks, guardian, that in the event the present guardian should be permitted to recover of him, then he should be alloAved to recover against John T. Hatchett such amount as he was compelled to pay in consequence of his liability on the bond of Wm. Hatchett as guardian. On the other hand it is contended that Wm. Hatchett charged himself as guardian with the amount of the note which he owed the former guardian of his wards, or if he did not formally do so, being soUent when he qualified as their guardian, in law he was charged therewith, and it should be treated as cash assets in his hands.
From the foregoing facts it must be concluded that Wm.. Hatchett in effect charged himself as guardian with the amount of his note, and his sureties in the bond which he ex-cuted as guardian are liable to his wards therefor.
Even if nothing had been done by the guardian indicating a purpose to charge himself with the amount of his note, he was in law charged therewith, as he was solvent when he qualified as guardian.
When a debtor who is solvent qualifies as the administrator of the estate of his creditor or as the guardian of infants, the amount which he owes such estate must be treated as cash assets coming to his hands, for the proper disposition of what, his sureties in his bond are liable. (Karr’s Admr. v. Karr, 6 Dana,6; Hickman v. Kamp’s Admr.,3 Bush 206.)
The fact that John T. Hatchett was his surety on the note does not change the law which should be applied to this case. When Wm. Hatchett qualified as guardian and got possession of the note, the right to an action was suspended
We think Wm. Hatchett being solvent when he qualified as guardian of the Hicks children, his sureties became liable on the bond for the amount of the note which he owed the .former guardian.
It follows from the views expressed that the appellant was not entitled to recover of appellee John T. Hatchett.
Judgment affirmed.