72 So. 150 | Miss. | 1916
delivered the opinion of the court.
Appellant prosecutes this appeal from decrees of the chancery court of Wilkinson county rendered against it as surety on the bond of Hattie Jackson, guardian of Clarissa, James, and William Jackson, minors, and also on the bond of Annette Dickson, guardian of Lucile and Modess Dickson, minors. The two cases were by agreement tried together in the court below, and are presented to us in the form of one record. There is no material controversy about the facts in the case. It appears that Hattie Jackson and her three minor children, just mentioned, were each to receive one thousand, five hundred dollars from a railroad company on a personal injury claim, and that Annette Dickson and her two
The question on the threshold of this case is the very pertinent inquiry presented by the demurrers to the bill, that is: Can these suits be maintained at all until the guardians have been removed, or at least called upon to make a final accounting of their trust and guardianship? The power of the chancery court, or of the chancellor in vacation, to exact an accounting of the guardians, or to remove a guardian for cause, is unquestioned; but in this case neither of the guardians is in default for failure to render seasonable accounts or to comply with any legitimate order of the court. Indeed, on this point we may quote the exact language of counsel for appellees that:
“In the case at bar the guardians have not wasted the estate of their wards, have not been grossly negligent, have not embezzled the funds, and have not shown themselves unfit for the trust.”
The guardians are yet in office, and as such are the sole custodians of the funds in question. It follows, therefore, that the minors, by next friend, could not maintain this suit against their own guardian without some default or breach of the bond. It cannot be that the mere failure of the Citizens’ Bank operates ipso facto as a breach of the guardian’s bond. Conceding, but not deciding, the liability of a guardian for any losses sustained through the failure of the bank, the
Appellant is a surety, and not a principal, and the authorities are in accord in the holding that a suit of this character cannot be maintained before a termination of the guardianship.
One of the leading cases on the subject is that of Bonner v. Evans, 89 Ga. 656, 15 S. E. 906. The supreme court, in reversing the case, among other things, says:
“If a next friend suing in behalf of the ward can • maintain an action for waste ... or recover money in his hands, it can be done only in connection with a proceeding to remove the guardian and revoke his letters.”
In Ely v. Hawkins, 15 Ind. 230, the court observes:
“The guardian sued is still the guardian of the infants under - the original appointment. That has not been revoked. The guardian has not been removed. Till such removal we think the statute does not authorize a judgment against him in a suit by the infant
To the same effect is the language of the supreme coupt of Louisiana in Gibbs v. Lum, 29 La. Ann. 526:
“It is well settled, and indeed elementary, that a minor cannot, pending the tutorship, execute his claims against his tutor; that such demands become executory only at the expiration of the tutorship. Being under tutorship, any moneys recovered would of necessity go immediately back into the hands of the tutor, who would thus, as it were, have money taken out of one pocket and immediately put back into another.”
“Ordinarily the ward cannot, pending the guardianship, maintain an action against the guardian to recover money or property due. No right of action arises in the ward’s favor until after there has been a final accounting and a balance has been struck, or until a refusal to account. After the account has been settled the ward may sue for the amount found due, and after termination of the guardianship he may sue for money due him.” 21 Cyc. p. 186.
See, also, Minter v. Clark, 92 Tenn. (8 Pickle), 459, 22 S. W. 73; Mason v. Mason, 191 Pick. (Mass.) 506 ;15 Am. & Eng. Enc. of Law (2d ed.) section 80; Woerner’s American Law of Guardianship, p. 152.
It affirmatively appears from the record that substantial dividends have been paid by the receiver of the Citizens’ Bank, and there is evidence that the receivership was still pending when the final decree in this cause was rendered, and that additional dividends would likely be declared in favor of all creditors of the bank, and even testimony that possibly the bank might pay its creditors in full. It is for this reason that the final decree recites that, if any further dividends are paid by the receiver, they should be paid to the guardian under the security of her new bond, and that the payment so received should be credited on the amount due the wards under the final decree, and that after a settlement in
“Until then the amount of his loss is entirely speculative, resting in the opinion of witnesses. . . . The liability of sureties is strictissimi juris, and their rights are not to be put to the sport of the opinions of witnesses as to the loss which their principal is liable to make good, when it is open to the person claiming to have suffered such loss, to proceed to ascertain the amount of his loss in the regular and proper way. . . . Having ascertained this-, and in the light of the event, it will be more opportune to litigate the question whether the land was inadequate security for the loss at the time the loan was made, and whether the inadequacy was such, under all the circumstances of the case, as to charge the guardian with negligence for which his sureties must answer.”
We are persuaded that the demurrer to the bill should have been sustained. We are further of the opinion that the development of the case by answer and proof did not show a default on the part of the guardian and consequent breach of the bond.
The decree of the lower court will be reversed and set aside, the demurrers to the bills sustained, and the bills dismissed without prejudice to the right of complainants to maintain proper actions, if necessary, at a seasonable time.
Reversed, and judgment here for appellant.
Reversed.