Newcomer's Appeal

43 Pa. 43 | Pa. | 1862

The opinion of the court was delivered, by

Strong, J.

If the Orphans’ Court had no power to order the cancellation of the first bond given by the guardian and Martin Newcomer as his surety, then there was no error in directing that the word “ cancelled,” written on the face of the bond*' should itself be stricken out. Then the act of the court was legitimately done to preserve its records from unauthorized mutilation. The primary question raised by this appeal therefore is, whether an Orphans’ Court, after having taken a bond, with sureties from the guardian of an infant, can direct that bond to be given up or cancelled while the guardianship remains and its duties are unperformed. Our Act of Assembly does not indeed demand that a bond shall in every case be required from a guardian. Its language is that the Orphans’ Court may require a bond with good and sufficient security from every guardian, whether appointed by the court or testamentary. Whether a bond shall be exacted or not is left discretionary with the court. But where, in the exercise of its discretion, the court has required one, and it has been given and filed in the office of the clerk of the court, the act expressly requires that “it shall be considered in trust for all persons interested.” These persons are of course the ward, or any one who may succeed to the guardianship. They become the owners of the security, and have a vested interest in it. Iiow then can the Orphans’ Court divest that interest without their knowledge or consent? It is not pretended that it derives any such power from our Acts of Assembly by express grant. But it is argued that because the court may or may not, at its discretion, exact the bond, it may relieve from it after it has been given. We do not feel the force of this argument. The right of the ward can be none the less after the bond has been given than it would have been had the bond been positively required by statute. When the discretion of the court has been exercised, when a guardian has been appointed and security taken from him, and when in consequence the funds of the ward have been paid into his hands, it would be very extraordinary if the court could review its discretion and annihilate the security, without which the property could not have been received. It is a new doctrine that rights conferred by the exercise of discretionary power are less secure than others, and it is unsustained either by reason or authority.

That the Orphans’ Court has no such power as that which is claimed for it, may be argued also from other sections of the Act of Assembly of March 29th 1832. Not only is there no express grant of it, but there is a strong negative implication that it does not exist. In the 22d section power is conferred upon the court in certain cases to require “ other and further security” from administrators and guardians. And in the 28th section it is enacted that the surety in the bond of an executor, administrator, or guardian may apply to the court whenever his principal is wasting or mismanaging the property under his charge, or is like to prove insolvent, or has neglected or refused to exhibit true and perfect inventories, or render full and just accounts, whereupon the court may order such exécutor, administrator, or guardian to give counter securities to indemnify him against loss by his suretyship. But even this does not contemplate a release of the surety. He may be protected, but not discharged. What was the necessity of this provision for the security of a guardian, if the court can cancel his bond ? The legislature provided relief by counter security, not by a substitution of sureties; and hence it may be inferred that they contemplated no substitution.

Our opinion therefore is, that the bond of the appellant’s testator was improperly marked cancelled, even if it was done 'by order of the Orphans’ Court, and consequently that the order to strike off the word “ cancelled” was not erroneous.

Decree affirmed.