188 Mo. App. 700 | Mo. Ct. App. | 1915
H. Fisher was elected, qualified, and commissioned public administrator and ex-officio public guardian and curator witbin and for Saline county, Missouri, for a term of four years commencing January 1, 1905. He gave bond with the Federal Union Surety Company as his surety. On April 13, 1907, the probate court of. Saline county ordered him, as ex-officio public guardian, to take charge of the estate of Samuel T. Johnston, then a minor a little over fifteen years of age. Pursuant to said order, Fisher, as such public guardian, took charge of said estate in 1907, made an inventory, and
Fisher’s first term expired January 1, 1909', but having been re-elected in the fall of 1908, he was commissioned and qualified for a second term of four years beginning on said January 1, 1909. This time he gave an official bond in the sum of $20,000 with appellant herein as his surety.
No money belonging to Johnston’s estate came into Fisher’s hands until June 9, 1910, which, of course, was during his second term. And during that term Fisher converted the funds of said estate to his own use, and at the time of his death owed said estate the sum of $1743.58 and left no funds or property out of which this money could be collected.
Johnston became twenty-one years of age February 8, 1913. And this suit at his relation was instituted December 13, 1913, on said bond executed by appellant, to recover the amount of said defalcation. A jury was waived and the cause was submitted to the court upon an agreed statement of facts. The court rendered judgment on the bond in the full penalty thereof to be satisfied by the payment of said $1743.58 with interest at six per cent from June 10, 1913, making a total of $1844.41.
Appellant says that as Fisher was ordered to take charge of said estate during his first term, when the other company was his surety, his duties with reference to said estate became fixed at that time. And that as a public administrator, after having once taken charge o.f an estate, continues in charge thereof until the estate is finally settled, unless he resigns, dies, is removed or discharged, the surety given by him at the time he takes charge of the estate continues to be liable therefor even though he be thereafter elected as his own successor for a new term, gives a
We are unable to subscribe to this doctrine. It is unnecessary to say whether a surety on an official bond of a public administrator whose term has expired and who has gone out of office remains liable for defalcations committed in estates after the expiration of his term and while yet in charge of said estate, since that is not the question involved here. The question here is whether or not a surety which has bound itself that an official elected to a public office will faithfully discharge all the duties of that office, can be allowed to escape liability for a clear violation of the duties of that office by fits principal. The authority by which a public administrator takes charge of an estate is one thing; the fidelity with which he manages and cares for that estate while in office is quite another thing. There is nothing in the bond herein sued on that limits the. surety’s liability only to those estates which the principal was authorized to take charge of during the second term. The obligation of said bond is that “if the said Jake H. Fisher, shall well and faithfully discharge all the duties of said office, as public administrator and ex-officio public guardian, and curator of Saline county, Missouri, then this obligation shall be void, but other
No authority is. cited in support of appellant’s view and we know of none. The holding of the authorities is, by implication, to the contrary. “Where an officer proves a defaulter, and has held the office under different appointments with several sets of sureties, it must now be conceded by established precedent that the sureties will be responsible who were on the bond at the time the defalcation occurred.” [State ex rel. v. Atherton, 40 Mo. 210, l. c. 220. See also State ex rel. v. Holman, 93 Mo. App. 611; Tittman v. Green, 108 Mo. 22, l. c. 33; State ex rel. v. Greer, 101 Mo. App. 669.]
Appellant pleaded another action pending in bar of this one. But that was merely a final settlement in the estate of said Johnston filed by Leonard W. Vandyke as administrator of the estate of Jake H. Fisher, deceased. This, however, was not filed till long after the institution of the suit at bar, and could
Tbe judgment is affirmed.