35 Kan. 156 | Kan. | 1886
The opinion of the court was delivered by
This was an action .brought by Alice N. Cooper and Caleb T. Noell, against Isabella Holland, Augustine .Holland, and John Morris, on a guardian’s bond. Judgment was rendered in favor of the plaintiffs and against the defendants, and the defendant John Morris brings the case to this court for review, making Alice N. Cooper and Caleb T. Noell the defendants in error.
It appears from the evidence in the case that sometime in November, 1861, Caleb T. Noell died, leaving a widow, Isabella Noell, now Isabella Holland, and a daughter, Alice N. Noell, now Alice N. Cooper; and soon afterward, to wit, on March 27, 1862, a son, Caleb T. Noell, was born. Caleb T. Noell, deceased, also left a small amount of real estate, but whether he left any personal property or not, is not shown. On May 13,1870, Isabella Holland, as principal, and Augustine Holland, her husband, and John Morris, as sureties, executed the following bond, and Isabella Holland took and subscribed the following oath, to wit:
“guardian’s bond.
“Know all Men hy these Presents, That we, ■ Isabella Holland, as principal, and - and Augustine Holland, as sureties, are held and firmly bound unto the state of Kansas in the sum of five hundred dollars, for the payment of which ■we bind ourselves, our heirs, executors and administrators by these presents, upon the condition that Whereas, the said Isabella Holland has been appointed by the probate coui’t of Coffey county, Kansas, guardian of the persons and estate of Alice N. Noell and Caleb T. Noell, children and heirs of Caleb T. Noell, deceased, minors, of Coffey county, Kansas, under the age of eighteen years:
“Now if the said Isabella Holland shall faithfully discharge all of her duties as such guardian according to law, then the*158 above bond to be void, otherwise to remain in full force in law.
“ In witness whereof, we hereunto subscribe our names, this 13th day of May, 1870. Isabella Holland. (Seal.}
John Morris. (Seal.)
Augustine Holland. (Seal.)
“ State of Kansas, Coffey County, ss.—I, Isabella Holland, do solemnly swear that I will faithfully and impartially and to the best of my ability, discharge all the duties that shall devolve upon me as guardian of the persons and estate of Alice N. Noell and Caleb T. Noell, children and heirs of Caleb T. Noell, deceased, minor heirs of Caleb T. Noell, deceased. Isabella Holland.
“Sworn to and subscribed before me, this 13th day of May, 1870. John M. Rankin, Judge.”
This bond and oath were filed in the office of the probate judge on May 18, 1870, and on the same day Mrs. Holland was by the probate judge appointed guardian for the property of the minor heirs of Caleb T. Noell, deceased, by the following order, to wit -:
“In Vacation, May 18, 1870.—And now comes Isabella Holland, and represents that' she is the mother, of Alice N. Noell and Caleb T. Noell, minors under the age of fourteen years, and that the said heirs have property which may depreciate in value or remain unproductive if a guardian be not appointed'; and the court being satisfied of the fitness of said Isabella Holland to act as guardian of the said wards, it is ordered that letters of guardianship issue accordingly'to the said Isabella Holland, she having filed a sufficient bond as such guardian. John M. Rankin, Probate Judge.”
On the next day, to wit, May 19,1870, Mrs. Holland filed an application in the office of the probate court, asking permission to sell the aforesaid real estate which had descended to the said -minor children, as the heirs of Caleb T. Noell, deceased, which application was granted by the probate court. No other or additional bond was ever given by Mrs. Holland; but, nevertheless, on June 6, 1-870, as guardian, she sold said real estate to Joseph Newlan for the sum of $250, which sale was approved by the probate court; and on the same day Mrs. Holland ■ executed to Newlan- a guardian’s deed for the
- This action was on the aforesaid bond, and the principal question involved in the case is, whether there was any such breach of the bond as would render the sureties liable thereon. The plaintiffs below, defendants in error, claim that there was, while the defendant Morris, plaintiff in error, claims that 'there was not. The statutes providing for the giving of guardian’s bonds, §§ 7 and 15 of the act relating to guardians and wards, read as follows:
“Sec. 7. Guardians appointed to take charge of the property of the minor must give bond, with surety, to be approved by the court, in a penalty double the value of the personal estate, and of the rents and profits of the real estate of the minor, conditioned for the faithful discharge of their duties as such guardian, according to law. They must also take an oath of the same tenor as the condition of the bond.”
“Sec. 15. Before any such sale or mortgage [of real estate] can be made or executed, the guardian must give security to the satisfaction of the court, the penalty of which shall be at least double the value of the property to be sold or of the money to be raised by the mortgage, conditioned that he will faithfully perform his duties in that respect, and account for and apply all moneys received by him, under the direction of the court.”
The judgment of the court below will be reversed, and the cause remanded for further proceedings.