35 F. 102 | U.S. Circuit Court for the District of Northern Iowa | 1888
On the 13th day of March, 1873, E. G. Spencer was appointed guardian of the estate of Mary and Anna Robb, minor heirs of James K.iRobb, deceased, by the circuit court of Dubuque county, Iowa. He filed a bond with sureties in the sum of $4,000, conditioned for the faithful performance of his duties as guardian, and for a full'compliance with all the requirements of the law in such cases provided. The present action is brought upon the bond, it being averred in the petition that the said Spencer received as guardian all the property belonging to his said wards; that he wrongfully converted the same to his own use; that he never made any report of his doings as guardian; that in 1884, said Spencer died, and that one George B. Smeallie was appointed administrator of his estate by the circuit court of Blackhawk county, Iowa, of which county Spencer was a resident at the time of his death; that said wards duly filed claims against said estate in said circuit court of Black-hawk county, which were heard and adjudicated on the 7th days of May, 1885 and 1886, it being adjudged that there was due plaintiff the sum
It has been held by the supreme court of Iowa that the section gave to the circuit court the exclusive jurisdiction of proceedings to probate a will, but did not deprive other courts of jurisdiction over actions brought, to set aside a will, (Leighton v. Orr, 44 Iowa, 679,) and that the circuit court did not have exclusive jurisdiction over suits on an administrator’s bond, (Jenkins v. Shields, 36 Iowa, 526.) The real point presented by the demurrer is that to constitute a breach of the bond, it is necessary to show that the guardian had failed to obey some order of the probate court, and that nothing less than this can constitute a breach of the bond, and in support of this view the cases of O’Brien v. Strang, 42 Iowa, 643, and Gillespie v. See, 33 N. W. Rep. 676, are cited. In the former case, the bond sued on was given under section 2261 of the Code, which provides that when the guardian is authorized to sell lands of the ward, he shall give a bond conditioned “that he will faithfully perform his duty in that respect, and account for and apply all moneys received by him under the direction of the court.” Bonds executed under this section are given for a specific purpose, and only after the court has ordered the guardian to make the sale or mortgage of the property. For the acts of the guardian in making sales of property under order of the court, the general bond given by the guardian is not liable. Madison Co. v. Johnston, 51 Iowa, 152. The actual question presented in O’Brien v. Strang was, therefore, whether suit could be maintained on a bond given under sectión 2261 of the Code before the adjustment of the guardian’s final account with the circuit court, and before the guardian has failed to obey any order of the court. It was held that the demurrer to the petition was properly
In Gillespie v. See, 33 N. W. Rep. 676, it seems to be assumed that the ruling in O’Brien v. Strang is applicable generally to suits on guardian’s bonds, yet despite the broad terms used, these decisions must be read in the light of the facts presented by the cases and the exact points, which it is apparent were taken into consideration by the court when passing on them. So read these cases go to the extent of holding that upon the expiration of a guardianship, either by the ward becoming of age or by the resignation or removal of a guardian, a suit against the sureties on the bond is prematurely brought, if commenced before the final accounting is had in the court having charge of the estate of the ward, for the reason that ordinarily it cannot be known what allowance for expenditures and as compensation for services will be made until the accounting is had, and hence it cannot be fairly said that the guardian is at fault in not paying over the money or property in his hands until the amount to be paid is thus ascertained. ' While the supreme court of Iowa has declared this to be the general rule, I cannot believe that it was intended to be declared to be the universal rule. The facts in certain cases may be so entirely different from those in O’Brien v. Strang and Gillepsie v. See as to render the rule therein, recognized wholly inapplicable. When it is desired to compel a full and final settlement by a guardian of his accounts, the wisdom of requiring this to be done by a proceeding in the court having charge of the estate rather than by an independent suit on the bond is apparent,' but to accomplish this end', it is not necessary to go to the extreme of holding that nothing constitutes a breach of a guardian’s general bond save a failure to obey some specific order made-by the court granting the letters of guardianship.
When a person assumes the position of a guardian for the estate of a
’The petition in this cause charges that the guardian received the property of his wards, and wrongfully converted all of the same to his own use, and never made any report thereof as required by law and by said court. If this averment he true, and the demurrer admits it, then the guardian violated his duty, to the injury and damage of his wards, and a cause of aetion on the bond was then created. The inconveniences arising from endeavoring to settle the accounts of the guardian in a suit on the bond can usually be met by the exercise of proper discretion on the part of the court in which suit on the bond is brought. If in such a case it is made to appear by the answer or otherwise that notwithstanding there may have been an actionable breach of the bond, yet the interests of the principal or sureties on the bond require for their protection or full presentation, that a full and final settlement of the estate in the probate court should be had, the court can and will in a proper-case stay the proceedings on the bond, until a reasonable opportunity is given for bringing about such final settlement and accounting, provided it appears that such a settlement can be had. This being done, the rights of all can he reasonably guarded, but if it be held that the wards can in no case bring an action on the guardian’s bond until after a final settlement in the probate court, then their rights may be wholly lost. Take the present ease as an illustration of the consequences of holding that no breach of a guardian’s general bond can be shown, except by proof of a failure to obey a specific order of the court. The sureties going on a bond become bound for the wrongful acts of their principal, and no further. When the guardian in this case died, he had not failed to obey any specific order of the court, for none had been made. The wards were not of age, so the time for a final accounting had not arrived. If it were possible to now have a settlement of the estate, could the court make an order directing the guardian to pay the balance found due the wards, and then hold the sureties liable for a failure on the part of their principal to obey an order of the court which was not made until more than four years after his death ? To hold the sureties, it must be made to appear that the condition of the bond was broken by the principal for whom they are sureties; and if the liability on the bond is limited only to failure to obey some specific order of the court, then it is apparent
Counsel for defendant argue at length in support of the proposition that the court of Blackhawk county had not jurisdiction to allow the accounts in favor of the wards against the estate of the deceased guardian. It cannot be questioned that the Blackhawk county court had jurisdiction of the estate, and that all claims against it were properly presented therein. Whether the allowance of the claims in favor of the wards is binding upon the sureties on the guardian’s bond is -another question, not by reason of the fact that the Blackhawk court did not have jurisdiction of claims against the estate of E. G. Spencer, but by reason of the fact that the sureties on the bond were not parties to that proceeding, .and are not hound by it. It is true, the petition in this case sets forth the allowance of the claims against the estate of E. G. Spencer, and asks judgment for the amount allowed, but it does not follow that the action is intended to be based upon the allowance made as adjudications binding the surety on the guardian’s bond. The petition avers the breach •of the bond to consist in the fact that the property of the wards came into the possession of the guardian, and was by him wrongfully converted to his own use. It is this that constitutes the cause of action, and not the fact that certain claims allowed by the Blackhawk county court in favor of the wards have not been paid. If, upon the trial, the facts ■constituting the cause of action are proven, then the plaintiff would he-