State ex rel. Baird v. Hull, 53 Miss. 626

53 Miss. 626 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

In February, 1856', Mrs. Baird qualified as guardian of her two orphan children, and gave bond as such guardian, with D. H. Crisp as her surety. In May, 1860, she appeared before the Probate Court, which had appointed her guardian, and made application for permission to execute a new bond, “ her former security having moved out of this State.” Upon this information it was ordered by the court that the guardian should execute another bond, conditioned according to law for the discharge of her duties as such guardian, with security, to he approved, in the penalty of $10,000 ; and thereupon the said guardian tendered a bond, with William Hull as her suret}r and co-obligor; which bond was approved by the court, and ordered to be filed and recorded as a compliance with said order of the court. The guardian made final settlement of her guardianship of one of her wards, and was found indebted to said ward $5,583.14, and ordered to pay over this sum. Failing in which, this action was instituted on the bond executed by the guardian and Hull as aforesaid. Hull, the surety, pleaded separately, presenting several grounds of defence, the chief of which is the alleged invalidity of the bond as having been taken without authority of law.

The Code of 1857, p. 461, art. 145, in force when this bond was executed, provides that “ any Probate Court by which a guardian was appointed may, for good and sufficient cause shown, displace such guardian, after having summoned him to appear. And if the court should be informed, or have cause to suspect, that the sureties of a guardian were insufficient at the time the bond was executed, or have become so since, or are in failing or dubious circumstances, it may require and compel such guardian to give additional security; and, if he should refuse of neglect to do so, he may be displaced and a new guardian appointed.” Under this statute the court could require “ additional security,” i.e., a new security, additional to the former,"upon information or cause to suspect, no matter from what cause, the original or supervening insufficiency of the sureties. The cause of such insufficiency is left, without restriction or enumeration of grounds, to the court. “ Insufficient” is a comprehensive term, embracing every cause or ground the court may regard as amounting to that. The matter is referred to the court, as the protector of wards. “ Cause to suspect ” the insufficiency of the sureties is enough to authorize the requirement of “ additional security; ” therefore no attempt was made to prescribe the particular circumstances in which “ additional security ” may be required. Removal from this State by the sole surety on a guardian’s bond is, undoubtedly, cause to suspect the insufficiency of such surety. It is expressly made so in case of a public officer, whose surety removes, permanently, from this State ; and this furnishes a strong suggestion to the court in the case of a guardian’s surety having removed. If the court, having been informed of the removal from this State of Crisp, the only surety on this guardian’s bond, ordered a new bond, and stated the particular cause from which insufficiency of the former surety is a legal conclusion, rather than the conclusion without mention of the cause producing it, this is not a valid objection to the exercise of the lawful power of the court to require a new bond, since the record shows a state of case which made it the plain duty of the court to order the guardian to give additional security.

The language of the statute is, “ may require and compel such guardian to give additional security.” The terms “ sureties ” and “ security ” are used in their proper sense, the one as indicating persons, and the other the instrument which’ secures. If the old bond were executed by new sureties, it would thereby become a new security; and a new bond, distinct from the former, rvould be a new security. The name is not important. It is the end aimed at which must be considered. The particular way in which new security is given is not material. The term “ additional” embraces the idea of joining or uniting one thing to another, so as thereby to form one aggregate. We add by bringing things together. “Additional security ” is that which, united with or joined to the former, is deemed to make it as an aggregate sufficient as a security from the beginning. The statute contemplates not merely supervening insufficiency, after the grant of guardianship, but “insufficiency at the time the bond was executed.” In such case there is no discharge of the former surety, but his liability continues and is supplemented by the “ additional security,” both constituting security for the faithful discharge of duty by the guardian. The obligation of the guardian is to “ faithfully account . . . for the management of the property and estate of the orphan under his care,” &c. The additional security must be held to have been entered into with reference to the law in force, which prescribed the duties of the guardian. It must be assumed that the “ additional security ” kept the guardian from being displaced, and brought to an immediate accounting for the management of the property of the ward up to that time; and the “additional security” must be held to stand as an indemnitjr for the discharge of the duties of the guardianship, as a whole, embracing the time before as well as after the date of the “ additional security.”

Where sureties apprehend danger and seek relief, and a new bond is given, the new bond, by express provision of the statute, art. 145, p. 461, Code of 1857, only operates “ for the future, the original sureties being bound for all breaches of the first bond; ” but no such provision is made with reference to the case of “ additional security ” required by the court, not on the application of sureties for relief, but on information or cause to suspect original or supervening insufficiency of sureties. In one case, the original sureties are discharged as to future breaches, and the new bond alone is a security as to them, because the law is so written; but it is not so written as to the other, and the language employed and the nature of the transaction contemplated negative such result.

In Lewenthall v. State, 51 Miss. 645, it is held that a new bond given by a tax-collector, under § 815 of the Code of 1871, operated for the future only; but there is a plain distinction between the statute under which that bond was given and that under which the bond in this case was executed. The decision in the case cited is rested on the general principié that a bond or other obligation, unless otherwise expressed, is prospective only in its operation, and that the statute under which the bond involved was given does “ not contemplate that the new bond covers past delinquencies.” The statute under which the bond in the case at bar was given, as above shown, does contemplate that the “ additional security ” it provides for shall cover the whole guardianship, and, with the former security, shall secure the faithful performance of duty by the guardian. State v. Stewart, 86 Miss. 652; Pinkstaff v. People, 59 Ill. 148; Ennis v. Smith, 14 How. 400, 417 ; Phillips v. Brazeal, 14 Ala. 746; Glenn v. Wallace, 4 Strob. Eq. 149.

The condition of the bond sued on is in the form of the statute, except that it omits the words “ with its increase and profits.” These words are a mere particularization of part of what is embraced in the general words of the condition, and their omission could not have the effect to lessen the liability on the bond. The condition without these words is broad enough to cover all the additions to the ward’s estate, whether arising from nature or the law.

The decree of the Chancery Court on the final account of the guardian is conclusive in this action against the guardian, but is only prima fade as to the surety, who was not a party to that suit; and it is admissible for him to exonerate himself from liability for any charges or omissions in the final account, which were not legal as against him. Lipscomb v. Postell, 38 Miss. 476 ; United States v. Boyd, 5 How. 29. This applies to the hire of slaves of the ward in the years 1862, 1863, and 1864, and to the alleged fraudulent omission of the guardian to obtain credit for expenditures for the ward, and her commissions as guardian. These matters should be investigated at the instance of the surety, to ascertain the truth of the case.

Mrs. Baird, the guardian, purchased land at the sale of her husband’s real estate in May, 1856, to the amount of $1,904, and gave her notes, with personal security, at one and two years, for this amount to the administrator. Subsequently, these notes were surrendered to Mrs. Baird, upon her receipting, as guardian aforesaid, for so much received by her from said administrator, as distributive share of her wards. For this, as so much money in her hands as guardian, she is clearly chargeable as such; and she being chargeable, her surety is, for to that end was security required. The cases of Baughn v. Shackleford, and Buckinghams. Walker, cited by counsel from 48 Miss. 255 and 609, and Elliott v. Connell, 5 S. & M. 91, in so far as they have any bearing at all on this question, support the view here announced. It is true that the character of Mrs. Baird, as guardian, was distinct from her individual character, and that she had no right to pay her individual debt with estate of her wards; but the very object of requiring security on granting letters of guardianship, and making it proper for the court to require “ additional security ” on mere cause for suspicion of the insufficiency of the sureties, was to indemnify against the injurious consequences of improper conduct by the guardian in dealing with the estate of the ward.

Her surety is not bound for the guardian’s individual debt to anybody except her ward. For that he is bound, and by receipting to the administrator of the estate of the ancestor of her ward for a distributive portion, the guardian became such debtor. The proceeds of real estate in Tennessee, belonging to her wards, came into the hands of the guardian here, and were reported by her to the Probate Court, and charged to her. This money thereby became subject to the jurisdiction of that court, and the guardian was accountable for it to the court, and she being liable, her surety, who became sponsor for her faithfully accounting for the management of the property and estate of her ward, is liable also. That is his engagement. It covers all property, no matter where it came from, how it got here, or when it came into her hands. It was for the surety to keep himself advised of the action of his principal, and, if he saw he had reason to apprehend danger and desired to be discharged, he had his remedy. Martin v. Stevens, 30 Miss. 159; Jefferson v. Glover, 46 Miss. 510.

The cases in which a guardian is chargeable with interest are well settled by former decisions in this State, and with the announcement that, whenever the guardian is chargeable with interest, the surety is bound for such charge, there will be no difficulty in disposing of this question in the case. It results from the foregoing views that the demurrer was properly sustained to the fifth and seventh pleas of Hull, was improperly overruled as to the first, second, third, fourth, and sixth pleas, and improperly extended back to the amended declaration; and that the demurrer to the first and second pleas to the amended declaration was improperly overruled; but as to the third plea to said amended declaration, said demurrer was properly overruled. Therefore, the judgment is affirmed as to said fifth and seventh pleas to the original declaration, and said third plea to said amended declaration, and is reversed as to said other pleas, and as to said amended declaration ; and judgment will be entered here in accordance with this opinion, with leave to the defendant below to plead over, and to the plaintiff to reply to all of his pleas to which demurrer is not sustained.