71 Ind. 52 | Ind. | 1880
The appellant David Stevenson was the legal guardian of the persons and estates of his infant daughters, Mary L. and Emma A. Stevenson, who were the owners in fee-simple of certain real estate in Marion county, Indiana. Upon the petition of said guardian, he was authorized by the proper court to sell the real estate of his said wards, at private sale, upon his executing an additional bond in the penal sum of sixteen thousand dollars, with his co-appellant, Joshua M. W. Langsdale, as his surety therein, payable to the State of Indiana, and conditioned for the faithful discharge of the duties of his said trust, according to law; which said bond was executed and filed accordingly, and is the bond now in suit in this action. Afterward, upon the application of said guardian,
This suit was brought by the appellee’s relator, James H. Ruddell, as the administrator of the estate of the said Emma A. Stevenson, who had died intestate, in 1877, long after the sale of her share of said real estate, by her said guardian, upon the said additional bond so executed as aforesaid by the appellants Stevenson and Langsdale. The relator alleged in his complaint, that of the moneys received by said guardian, on account of his said sale of his wards’ real estate, the one-half thereof, to wit, the sum of four thousand eight hundred and fifty-five dollars, belonged to the estate of his intestate, the said Emma A. Stevenson, deceased; and, by way of breaches of the bond in suit, the relator alleged that the said guardian had not faithfully discharged' the duties of his said trust, according to law, in this :
1. That he had not managed the estate of his said ward for her best interest, but that, on the contrary, he had converted the same to his own use, and had used it for his own individual gain and profit;
2. That he had never rendered to the proper court any account whatever of his l’eceipts and disbursements as such guardian; and,
8. That on the — day of-, 1877, the said Emma A. Stevenson died intestate, and the guardian’s trust, as to her, then and thereby expired, and that the said guardian had ever since failed to account for and pay over to the relator, as the administrator of said decedent’s estate, her said estate or any part thereof.
The cause was tried by the court, and a finding was made for the appellee’s relator, against the appellant Stevenson, as principal, and the said Langsdale, as surety, in the sum of four thousand nine hundred arid fifty-eight dollars and thirty-three cents; and judgment was rendered accordingly, to be levied and collected without any relief whatever from valuation or appraisement laws, to which judgment the appellants severally excepted. The appellants’ separate motions for a new trial having been overruled by the court, and their exceptions saved to these decisions, they appealed from the judgment below to this court.
Without setting out in detail the appellants’ assignments of error, we will consider and decide the several questions presented and discussed by their counsel, in his brief of this cause in this court.
The first point made by their counsel in argument is, thatthebond in suit was vitiated and avoidedby an order of the court, subsequent to the execution of said bond ; which said order authorized and directed the guardian to sell his wards’ real estate at public sale, instead of at private sale, as directed in a previous order of the court. This point was decided adversely to the appellants, and we think correctly so, in the recent case of Stevenson v. The State, ex rel. McDowell, 69 Ind. 257, which was a suit against the same appellants and upon the same bond as in the case now before us, brought upon the relation of the living daughter and ward of the
In the third paragraph of answer, and by way of set-off against any amount which might be found due the appellee’s relator, the appellant Langsdale separately said that his co-appellant, David Stevenson, had failed and refused to claim credit for a large sum of money expended by him during the continuance of said guardianship, for the support, education and maintenance of his said ward, and for clothing and necessaries purchased for and furnished to said, ward, to wit, the sum of two thousand five hundred dollars ; and the said Langsdale said that he was surety for his co-appellant, Stevenson, in the bond in suit, and he prayed that the said sum might be set off, etc.
The relator’s demurrer, for the want of facts, as we have seen, was sustained by the court to this third paragraph of answer; and this ruling is complained of, in argument, by the appellants’ counsel. The paragraph is clearly insufficient, even upon the theory that Langsdale might insist upon a credit which his principal was entitled to but had refused to claim. It was not alleged there
Butitis claimed by appellants’ counsel, that “the demurrer to said paragraph of answer should have been carried back to the complaint, and it held to be bad.” The objection of counsel to the complaint, as we understand it, is, that the bond in suit is not conditioned, as the statute contemplates, for “ the faithful payment, and accounting for, of all moneys arising from such sale according to law,” but only “ for the faithful discharge of his duties,” by said guardian. 2 R. S. 1876, p. 595, sec. 18.
In section 5 of the act touching the relation of guardian and ward, approved June 9th, 1852, it is provided, that “ Such guardian’s bond shall not be void on account of any informality, illegality, or defect, either formal or substantial, in the same, * * * * but shall have the same force and effect,” as if such bond had been “ legally executed.” 2 R. S. 1876, p. 588.
Strictly speaking, perhaps, the provisions of this section 5 were intended to apply to the general bond of the guardian, required in and by the preceding section 4 of the guardian’s act; but, by fair construction, as it seems to us, the cura
It has been uniformly held by this court, that the effect of these statutory provisions is to legalize and validate the bond in question, and make of it just such a bond as was contemplated and called for by the terms of the statute which required its execution. Railsback v. Greve, 58 Ind. 72; Graham v. The State, ex rel., 66 Ind. 386; The State, ex rel., v. Wyant, 67 Ind. 25.
The only other matter complained of is, that the judgment below was rendered, to be collected without any relief whatever from valuation or appraisement laws of this State. This form of judgment is authorized by the provisions of section 1 of “An act to regulate the collection of judgments and the sale of property on execution against any sheriff, constable, or other public officer, administrator, guardian, executor, or any other person or corporation receiving or holding moneys in a fiduciary capacity, or the securities of any or either of them,” approved December 21st, 1858. Acts 1858, p. ’39 ; 2 R. S. 1876, p. 188, note 5.
We find no error in the record.
