67 Tex. 483 | Tex. | 1887
Prior to the time G. O. Cherry became guardian of the estate of the appellee, he took into his possession United States four per cent bonds amounting to three thousand dollars. This was done under an agreement with his wife, who was then the guardian of the estate of the minor to whom the bonds belonged. At the time he received the bonds he executed an instrument as follows:
“ Know all men by these presents, that I have this day borrowed from my wife, Mrs. C. C. Cherry, guardian of the estate
“ Given under my hand and seal, this the thirtieth day of October, 1878, in the city and county of Galveston, State of Texas.”
Subsequently to the execution of this instrument and receipt of the bonds, he hypothecated them, and after this, was appointed and qualified as guardian, and having been required to do so, he, on July 13, 1882, executed a new bond as guardian, to which the persons who are made defendants, with him became sureties; but prior to the time his last bond was executed, the debt for which the bonds had been hypothecated not having been paid, their holder disposed of them. On the seventh day of August, 1884, Cherry was removed from the guardianship, and the person who serves as guardian in this case, was appointed and qualified in his stead.
From the time that Cherry qualified, until the last report made by him, and inclusive of that, he charged himself with the face value of the bonds as so much money in hand, but credited himself with the maintenance of his ward and some other matters which more than equaled the interest due on the bonds, but he never had on hand the money which his reports showed to be on hand, nor did he ever regain possession of the bonds. He was directed to turn over to his successor the ward’s estate, which he showed to be in his hands, and this he failed to do, whereupon this action was brought against him and the sureties on his bond to recover it.
The petition is such as to authorize a recovery against the guardian and his sureties, under any view of the case, if the law affects them with liability under the facts. A judgment was rendered against the principal and all the sureties, and from it only the surety Sargent appeals.
The transaction through which Cherry obtained the bonds from his wife was unauthorized, and the bonds remained a part of the ward’s estate, and he may be held either as a debtor to his ward, that relation attaching before he became guardian, or
The bond of the guardian bound him, not only to account for and pay over such money or other effects of his ward as came within his hands, but also to faithfully discharge the duties of guardian of the estate of his ward according to law. The bonds were the property of his ward, and it was his duty continuously, from the time of his first qualification, to regain and maintain possession of them; and the fact that his own act, before he became the guardian, rendered such action necessary, in no way relieved him from that duty. For the faithful discharge of this duty the sureties on the last bond were as much bound as were those on the first.
If the person who held the bonds through the hypothecation, or any other person, cáme into their possession through illegal means, with which the guardian was in no way connected, before his appointment or afterwards, it certainly would have been his duty to recover them, as any other property belonging to his ward’s estate; and the fact that he was an actor in the illegal diversion certainly can not relieve him or his sureties from liability for his failure of duty in this respect. “The guardian of the estate shall use due diligence to collect all claims or debts owing to the ward, and to recover possession of all property to which the ward has a title or claim; provided there is a reasonable prospect of collecting such claim or debts, or of recovering such property; and, if he neglects to use such diligence, he and his sureties shall be liable for all damages occasioned by such neglect,” is the plain declaration of the statute. (Rev. Stat., art. 2546, 2616.)
If we regard the guardian as having been a debtor to his ward’s estate, on account of what transpired before his appointment, the position of himself and sureties would be no better. If a person appointed executor, administrator or guardian be a debtor admitedly, at the time of his appointment, to the estate of which he is made the representative, having voluntarily assumed the trust, and his sureties having obligated themselves that he will faithfully execute it, and thus prevented the appointment of any other person, and being unable to sue himself, he must, in legal contemplation, be considered to have paid
The indebtedness of the guardian would be assets, for which, as other assets, he and his sureties must account. The rule that sureties are not liable for the misappropriation of assets made before they became sureties, is not applicable in this case; for the duty violated—whether it consists in failure to recover the bonds or to account for assets, if the guardian be deemed to have been a debtor, and therefore to hold for his ward a sum of money equal to his indebtedness—is one continuous in character.
There is no error in the judgment, and it will be affirmed.
Affirmed.
Opinion delivered March 11, 1887.
(Chief Justice Willie did not sit in this case.)
