This suit was instituted in the circuit court of the city of St. Louis to recover damages occasioned by an alleged breach of a guardian’s bond. It is averred in the petition that, in 1871, John P. Slevin was appointed by the probate court of St. Louis county guardian of the person and estate of Louis Garesché, then a minor- about fifteen years old ; that said Slevin
It is further averred that plaintiff and said Adéle Garesché, in 1882, filed a bill to foreclose said mortgage j that it was foreclosed and the land was sold for forty-six hundred dollars, and that said plaintiff’s share of the proceeds of said sale was two thousand dollars. It is also averred that said John and T. E. Slevin became bankrupts in 1876; that John has died, leaving no estate, and said T. E. Slevin was insolvent. It is then averred that said investment of plaintiff’s money was reckless and injudicious, and that, by reason thereof, he has been damaged four thousand dollars.
The answer of defendants, Charles Slevin and Garesché, admits the appointment of John P. Slevin as guardian, and the execution of the bond sued on, as alleged; admits that said Slevin loaned four thousand
It appearing that defendant, John Slevin, was not served with process, the suit was dismissed as to him, and the trial was proceeded with against the securities, in which plaintiff obtained judgment; from which defendants have appealed and seek a reversal on various grounds, the first of which, stripped of all redundancy, is, that a ward who has obtained his majority cannot maintain a suit against the securities on the bond of the guardian, without making such guardian a party, nor until final settlement has been made by the guardian, and his liability thereby ascertained. It is mutually conceded in the briefs of counsel that the above contention cannot be sustained, under the rulings of this court in the cases of Devore v. Pitman, 3 Mo. 180, and Oldham v. Trimble, 15 Mo. 225. In the first of these cases, it is said that an administration bond is joint and several, and may be put in suit by any person aggrieved against one or all of the obligors, and that the surety may be sued as soon as the principal commits a breach of the condition of the bond, and that no convic
It is, however, insisted that the act of 1883 (Acts, 1883, p/ 23), which requires executors and administrators to make final settlement after the expiration of two years from the date of the publication of notice of the grant of letters, and provides a method of procedure against them in the event of their failure to make such settlement, has modified or changed the rule announced In the above cases. We cannot perceive that it has any such effect. In the said cases, it is not given as a reason for the rule, that the law, at that time, made no pro-. vision for forcing an administrator to make final settlement, but the reason given is, that an administrator’s bond is a joint and several obligation, and being such, suit can be brought against any one or all the obligors.
Nor is the question, as is contended, affected by Eevised Statutes, section 2612, which provides that if a guardian fails to pay to his ward, money ordered on final settlement to be paid to him, the same proceedings may be had against his guardian and sureties, as are authorized when an executor or administrator fails, when ordered, to pay demands against an estate. When an executor or administrator fails to pay demands against the estate, which he has been ordered to pay, it is provided by Eevised Statutes, section 235, if he fail to pay when payment is demanded, the clerk of the court, on application of the creditor, and being satisfied that such ■demand has been made, shall issue execution against the
These sections of the statute simply provide a summary remedy for enforcing the payment of a demand ordered to be paid, which the party interested may or may not avail himself of, but they in no way deny to him the right of suit on the bond. The remedy thus provided is cumulative, but not exclusive, and, by the terms of section 2612, can only be resorted to by the ward when on final settlement the guardian has been ordered to pay. Besides this, the fact stated in plaintiff ’ s abstract, that it appeared in evidence that Slevin, the guardian, was a non-resident of the state, which fact was not disputed in the oral argument, nor is it disputed in the abstract or brief of counsel, authorized a suit on the bond against the sureties even in the states where the principal is ordinarily held to be a necessary party. Brandt on Suretyship, sec. 495; Commonwealth v. Wenrick, 8 Watts [Pa.] 159.
The question as to whether the guardian was or was not reckless and injudicious in making the loan and in taking the mortgage to secure it was one of fact, to be determined by the evidence under proper instructions, and this question, we think, was fairly submitted to the jury in the following instructions:
“1. If John Slevin, guardian, in loaning the moneys of his ward, acted in good faith and with ordinary care and prudence, and if he fully believed that the security accepted by him was ample and sufficient to secure said loan, then he and his sureties are in no wise*261 responsible for any loss which may have been occasioned by such loan.”
“2. If at the time the mortgage read in evidence was executed, the land accepted by the guardian as security was sufficient properly to secure the same, then, although the same may have since depreciated in value, and though, upon a sale of the security, it did not realize enough to pay the said loan, the said John E. Slevin and his securities are not responsible for any loss that may have been occasioned to relator by such depreciation or sale.”
As the answer admits that the four thousand dollars in question loaned by the guardian belonged to the estate of the ward, no question of the non-liability of the securities for a preexisting debt of the. guardian can arise in the case.
It is further insisted that, under the evidence, defendants should have been allowed for the board and lodging of plaintiff by the guardian. The only evidence upon that subject was that of the guardian himself, who testified that his wife, then deceased, was a sister of Mrs. Garesché, the mother of the plaintiff, and that, before Mrs. Garesche died, she requested him to take care of her children after her death. He further testified as follows: “Accordingly, after her death, they came to my house and lived there during their minority; the relator herein lived with me from March 6, 1871, until his majority, about five years and four months. I never charged him, or any of my wards, for their board or lodging. I think twenty-five dollars per month would be a very reasonable charge for said board and lodging. I did not intend to charge them for their board and lodging, for I thought I was sufficiently able to provide for them as for my own children, but I never told them I would not charge anything. Had I supposed my sureties would ever have to pay my indebtedness to the relator, I would certainly have charged him for his board
The only question arising on this evidence is as to the correctness of the following instruction, given by the court of its own motion :
“8. If Louis Caresché boarded and lodged with his guardian, John P. Slevin, during the time of such guardianship, from---to-- — , then, whatever would be a reasonable compensation for the same, the securities of said John P. Slevin, on said guardian’s bond, are entitled to as a credit in this cause; provided, said guardian furnished said board, intending, at the time, to charge therefor, and if he did not so intend, he cannot, at this time, claim such credit, nor can his sureties make such claim.”
This instruction, under the evidence, was fully warranted by the case of Folger v. Heidel, 60 Mo. 288, in which, it is said: ‘•'It is not believed that a case can be found where a parent, or any one standing in loco parentis, has been allowed to charge an infant where he took it and raised it as a member of his family, without any intention or design of charging for its support.”
Pinding nothing in the record justifying an interference with the judgment, it is hereby affirmed.