45 Ark. 495 | Ark. | 1885
This was an action by the guardian of a minor on the bond of his predecessor in the trust; the defendant, Padgett, being sued both in his individual capacity as surety on the bond and also as administrator of the deceased guardian. The breach assigned was that the accounts of the former guardian had been settled by the probate court, a balance struck in favor of the ward, and an order to pay over, which had not been complied with after demand made. The first guardian had died, in the year 1875, and the probate court had not adjusted his accounts until 1882, and the action then taken was at the instance of the minor’s stepfather, acting as next friend, the minor then being without a legal guardian. Padgett was duly notified of the proposed adjustment, and was present in court; but declined to take any part in the proceedings. The probate court fixed the amount of the guardian’s indebtedness by taking as a basis the balance shown against himself in his last settlement, filed the year before his death, and as it did not appear that any expenditures on the ward’s account had since been made, computing interest thereon at the rate of six per cent, per annum.
The defenses were: 1. That Padgett had been appointed administrator of the deceased guardian in 1875, and this claim had not been exhibited, or proved against the estate, within two years thereafter. 2, 3, 4 and 5. The lapse of more than two years since the adjustment of the late guardian’s accounts, and the lapse of more than five and eight years, respectively, since the qualification of his personal representative, and the lapse of more than ten years since the execution of the bond sued on, before the commencement of this action. 6. The probate court could not be moved to adjust the guardian’s accounts by the minor’s next friend.
These several pleas were adjudged to be insufficient upon demurrer, and the defendant declining to plead further, final judgment went against him, both in his representative and m his individual character.
Considered as defenses in exoneration of the surety, 'all of the pleas tender immaterial issues. The claim against the estate of the deceased obligor may have beén barred by the statute of non-claim, and yet the liability of the surety may have remained intact. Ashby v. Johnston, 23 Ark., 163. So it is of no manner of consequence how many years had elapsed since the giving of the bond, or since the death of the principal obligor, or the qualification of his administrator. Ihe statute did not begin to run until the final settlement of the guardian’s accounts and an order to pay over the balance due. Sebastian v. Bryan, 21 Ark., 447; Norton v. Miller, 23 Id., 109; Connelly v. Weatherly, 33 Id., 658; Vance v. Beattie, 35 Id., 93.
As but little more than two years had passed since the probate court had settled the accounts, it is evident that the action against the surety'was not barred.
It was the duty of Padgett, as administrator, to make settlement with the probate court of the unsettled guardianship. And the performance of this duty might have been coerced by rule and attachment. Or the probate court might, as it did, after due notice to him, proceed itself to state the account from its own records and any other legitimate evidence it could obtain.
But the first plea presents a good defense, considered with sole reference to the administrator of the deceased guardian. The Statute of Non-Claim imperatively requires all demands, of whatsoever nature, against the estate of a decedent, to be exhibited to the administrator before the end of two years from the grant of letters, under pain of being forever barred. There is no reservation in favor of infants. Consequently the claim of a ward must be presented within two years, whether there has been a final settlement of the guardianship or not. Hill v. State, 23 Ark., 612, 614; Connelly v. Weatherly, 33 Id., 658; Morgan v. Hamlet, 113 U. S., 449; Patterson v. McCann, 39 Ark., 577; Purcelly v. Carter, ante, 299.
The judgment against Padgett, as surety, is affirmed, but as against Padgett, as administrator, it is reversed, and cause remanded, with directions to overrule the demurrer to the first plea, and to proceed in conformity to this opinion.