63 Ark. 218 | Ark. | 1896
(after stating the facts.) This is a suit against John B. Buck, a surety on a guardian’s bond, and the heirs of Thomas S. James, another surety on said bond, to collect the balance found on settlement to be due from the guardian to his- ward. The surety James having- died, leaving valuable real estate, which descended to his heirs, the appellant, Clara T. Davis, seeks by this suit in equity to charge such property with the payment of the money found due from her guardian. Her suit is resisted by the heirs of James on several grounds. It is firs* alleged that the guardian converted and wasted the assets of his ward prior to the execution of the bond sued on in this action. But we are of opinion that this contention cannot avail,for the bond,by its terms, relates back and covers such breaches, whether committed prior or subsequent to the execution thereof. This bond was executed in 1875. It recites that Davis, the principal, was on the 7th day of September, 1869, appointed guardian of Clara T. Davis, a minor, and the condition of the bond is that said Davis, upon the determination of guardianship, shall deliver and pay to the said Clara T. Davis “all money, property, and effects belongingto her in the possession or under the control of the said Davis, and that shall be due her from the said Davis.” It will be noticed that the bond undertakes that the guardian shall pay his ward all sums due her upon the determination of his guardianship. We therefore consider it immaterial whether the conversion of the money by the guardian took place prior or subsequent to the execution of the bond. Dugger v. Wright, 51 Ark. 232.
The next contention is that the action is barred by the statute of non-claim, for the reason that the claim of plaintiff was never exhibited to the administrator of the estate of Thos. S. James. It is conceded that the statute of non-claim has no application to claims that are inchoate and contingent, but it is denied that this is such a claim, and we a^e asked to decide the question thus raised. James died in 1877, and the administration upon his estate, begun soon after his death, was closed on July 16, 1885, by final settlement and discharge of of the administrator. During the whole period of the administration the guardianship of Davis existed and continued until his ward became of age, which was on October 9, 1885, some months after the administration upon the estate of James had been closed. The appellant, through her attorney, procured a citation against Davis on the 15th of May, 1890, to compel him to make final settlement of his guardianship account in the probate court, but this settlement was not made until 1892. Until this settlement was made and the balance due from the guardian ascertained by the court, the appellant had no cause of action that she could enforce, either at law or in equity, against the sureties on her guardian’s bond. Vance v. Beattie, 35 Ark. 93. It seems to us that, before this settlement, she had no claim that could properly be exhibited to the administrator of the estate of James, but we need not decide that question, for certainly she had no such claim before she became of age and the guardianship of Davis had terminated. Prior to that time she had no right to demand of her guardian the payment of money belonging to her which had come into his hands, much less had she the right to demand this of the sureties upon his bond.
It is true she could have required her guardian to make the annual settlements required of him by the statute, but the right to demand a showing of his accounts by the guardian is not a claim that can be exhibited against the estate of his surety. The contract of the surety was that the guardian upon the determination of his guardianship should pay the sums of money then due his ward, and until that time arrived there was no claim that could be exhibited against the estate of the surety. Berton v. Anderson, 56 Ark. 474; Perry v. Field, 40 ib. 175; Sebastian v. Bryan, 21 ib. 447; Walker v. Byers, 14 ib. 252. Prior to the termination of the guardianship, the plaintiff’s claim was uncertain and contingent. As was said by another court in a similar case, it “depended upon a future, uncertain event, for it might happen that, by reason of losses in investments for which the guardian was not responsible, or by advances to, or expenses incurred for, his ward, a final accounting would show that there was nothing due from the guardian.” Hantzch v. Massolt, 63 N. W. R. (Minn.) 1070. As the administration upon the estate of James closed before the guardianship of Davis terminated, there was no one to whom she could exhibit her claim after it accrued, and therefore her suit is not barred by her failure so to do.
It is further said that appellant is barred by laches , the statute of limitations. But, as before stated, her cause of action did not accrue until the final settlement of her guardian’s account. As it is not shown that the appellees were in any way injured by the delay in bringing the guardian to a settlement, and as this suit was commenced soon after such settlement was made, the contention that the suit was barred by the statute of limitations and laches cannot be sustained. Vance v. Beattie, 35 Ark. 93; Hawkins v. Mims, 36 ib. 145; George v. Elms, 46 ib. 260; State v. Roth, 47 ib. 222.
There may be some hardship in compelling- the heirs of James to pay back to appellant the money squandered by her father, but the bond executed by James was a valid contract; and althoug-h he received no benefit therefrom, it is binding- upon the estate that descended from him to his heirs. State v. Roth, 47 Ark. 222; Hall v. Brewer, 40 ib. 433.
The judgment of the chancery court is reversed, and the case is remanded, with an order that a decree be entered in favor of apellant in accordance with this opinion.
