State ex rel. Yeoman v. Hoshaw

86 Mo. 193 | Mo. | 1885

Black, J.

— A demurrer was sustained to the petition in this case, judgment was entered thereon and plaintiff appealed. The facts disclosed by the petition are that W. H. Younger was, by the county court of Lawrence county, appointed guardian and curator of John, Ephraim and Margaret Woodrow. He gave bond conditional for the faithful performance of his duties with Oswald Hoshaw as' one of his sureties. The bond was approved in February, 1854. Oswald Hoshaw, the surety, died and his estate was finally settled in the probate court before the wards arrived at the age of majority. The defendant is an heir of Oswald Hoshaw and received from his father’s estate personal and real property. In 1867, Younger, as guardian, filed his final settlement in the probate court of Lawrence county, to which the wards filed exceptions, and from the judgment of that court the guardian appealed to the circuit court. The cause, on change of venue, went to the Greene circuit court, where Ephraim Woodrow obtained judgment against the guardian, Younger. This judgment was recovered on the nineteenth of December, 1871. Ephraim assigned the judgment to Yeoman, the plaintiff herein, in 1879, who commenced this suit on the seventeenth of December, 1881, in which he asks judgment against the ■defendant because of assets descended to him from the deceased surety on the bond.

1. The question presented by the demurrer is, when did the ten years’ statute of limitations commence to run against the ward in a suit on the bond; If it commenced to run when the ward became of age, then this suit is barred. If not until the final adjudication on the final settlement, then this suit is not barred. There is no doubt but that the statute of limitations will begin to run in favor of an administrator and against a distributee from the date of the final settlement and order of distribution. State v. Blackwell, 20 Mo. 97. The same must be true as bétween guardian and ward. Johnson v. Smith’s Adm’r, 27 Mo. 591, can hardly be regarded as having any bearing upon the case at bar, for there the relations of guardian and ward did not exist. The money in that case was due the moment it was received. But the respondent insists that the State, etc., v. Willi, 46 Mo. 236, is decisive of this one. There the guardian made settlement just after the ward became of age. The guardian died and suit was not commenced on the bond until more than ten years after the settlement. The court then said: “ Sp it will be .seen that the fiduciary relation of an administrator and guardian is not treated as a continuing and subsisting trust after the time when, by the terms of -its creation, it should terminate and the proceeds of the trust be accounted for.” This is certainly a correct statement of the law, and, when taken in connection with the facts of that case, is not open to objection.

But it is further insisted that, by making the quotation from Greene v. Johnson, 3 Gill & John. 389, the doctrine was announced that the statute commenced to-run the moment the ward became of age. What was then said must be taken in connection with the facts of that case. It is true the statute declares that every guardian or curator shall continue in office, unless sooner-discharged, until the ward shall arrive at full age. Then for many, and indeed for most, purposes the relation does cease, but not for all purposes. When that time arrives the guardian is required by law to make an exhibit of his accounts and file the same with the probate court. This exhibit must remain on file for at least three months. He must also give the prescribed notice of his intention to apply for a discharge. The ward may then appear and contest the correctness of the accounts and review the entire accounts of the guardian. It then becomes the duty of the guardian to pay over the balance found due to the ward. The bond stands, as security that the guardian will do all of these things, and that, too, after his majority, i. e., file the account, give the notice, and pay the balance found due as. ordered by the probate court. If the guardian should fail to file the accounts within the time fixed by law, the ward might bring suit on the bond and assign the breach with sufficient breadth to call for a full statement of the accounts. But the ward may not sue on the bond the day after he arrives at full age, for the guardian has the right to settle his accounts with the probate court and he has the prescribed time in which to make the same, give notice, etc., and so long as he proceeds within the appointed time there is no breach of the bond and there can be no suit on it in the circuit court. Now, in this case, the settlement was made. This suit is not for a failure to make final settlement, nor for a failure on the part of the guardian to perform any antecedent duty. The breach and only breach assigned is a failure to pay the amount of the' final settlement allowed agaihst the guardian. When did that breach arise, and, consequently, the cause of action accrue ? Manifestly, when the amount to be paid was ascertained and not before. That judgment is conclusive against the sureties. For them it is conclusive against the ward. He Can recover no more.

2. Another objection assigned by the demurrer is that there is a defect of parties defendant. The petition alleges that the property described therein descended to the defendant as heir of the surety on the bond. It also shows that there were other heirs, but that the real estate has been partitioned and the defendant holds his portion in severalty. In 2 Tuck. Com. Ill, in considering the action of a debt, it is said : “This action, we have seen, lies against the heir irpon the bond of the ancestor when the heir is expressly bound therein and hath assets by descet. It is considered the heirs own debt in respect of the assets and he is, therefore, chargeable in the debt and detinent.” 1 Chitt. Plead. (16 Am. Ed.) 124. He is not chargeable further than he received assets. 4 Bac. Abr., Heir & Ancestor, F. If he sets forth the assets, which he has, the judgment is special, to be recovered of the land descended. Ib. H. At common law it was necessary to sue all the heirs jointly. 2 Tuck. Com, 111; 1 Chitt. Plead. (16 Am. Ed.) 61. It appears to be made necessary so to do by statute in New York. Barbour on Parties, 136. But as all contracts are, by our law, joint and several, and the defendant holds his portion of the estate descended in severalty, we see no reason why he may not be sued without joining the other heirs.

The judgment is reversed and the cause remanded.

All concur, except Sherwood, J., who did not sit in the hearing of the case.