228 S.W. 154 | Tex. Comm'n App. | 1921
This suit was instituted by defendants in error to recover of W. C. Davis, as principal, and plaintiffs in error, as sureties, upon a guardian’s bond for the alleged failure upon the part of Davis to faithfully discharge the duties of guardian of the estates of the minors named in the bond.
Henry Dee Davis, father of the minors, died on the 10th day of August, A.. D. 1906, leaving a .will naming W. C. Davis as independent executor and trustee of his estate without bond.
Davis qualified as executor and trustee and filed an inventory and appraisement of the estate in which the assets were shown as $7S,814.75, and the liabilities at $7,750. Among the assets was an insurance policy of the face value of $2,000 payable to the three minors named in the bond. It was to collect the amount of this policy that Davis qualified as guardian, giving the bond heretofore referred to. The amount of the policy was collected by Davis and deposited with the Guaranty Trust & Banking Company of El Paso, whore it earned $72 interest. The principal and accumulated interest was withdrawn from this institution and loaned to one B. E. Jenkins, as evidenced by his note of March 10, 1908. Jenkins paid this note with interest, amounting to $2,210.14, about January 14, A. D. 1909,, and it was on that date deposited by Davis in the American National Bank to his account as executor and trustee, and mingled with the funds of the estate. By June’ 1, 1909, Davis had checked out all of
The probate court of El Paso county on July 21, A. D. 1908, made an order merging the guardianship cause with the original cause probating the will and directed that Davis handle the guardianship fund in the capacity of executor, trustee, 'and guardian without the necessity of making any report other than that required by the will.
Some time prior to March, A. D. 1916, the exact date not appearing of record, defendants in error instituted a suit against Davis for an accounting, the cause being No. 11817 upon the dockets of the Fourth district at El Paso, Tex. In that cause an agreed judgment was entered in which the court found •that, in addition to the amount of property in the hands of Davis as trustee at the time of the decree, Davis was indebted to the wards in the sum of $62,356.48, which sum he used in various and sundry investments during the management of the trust, and with a portion of said sum purchased various items of property, the title to which was taken in his own name. This property was transferred by Davis to the defendants in ■error at the agreed value of $30,000, and a personal judgment rendered against him for $13,643.13.
Plaintiffs in error contended in this case that the guardian fund was used by Davis in the purchase of the properties mentioned, and that such property was worth considerably more than the agreed value at which it had been transferred, and that they were not bound by the agreement and the júdg-' ment entered pursuant thereto.
A general demurrer was urged to defendants in error’s petition and overruled. A jury, in response to a special issue submitted to it, found that the fair and reasonable value of the property transferred to defendants in error was $36,400. The trial court •entered judgment in favor of each of the wards for her pro rata share of $2,000, with interest thereon at the rate of 10 per cent, per annum from the 14th day of January, A. D. 1909, to the 8th' day of September, A. D. 1917, less the guardian’s commission.
Upon appeal plaintiffs in error, in addition to assigning error to the court’s refusal to give certain special requested issues which will be hereafter considered, urged that the general demurrer to the petition should be sustained because the petition did not allege: (a) That the bond which was copied into the petition was executed by the parties thereon; <b) that a demand was made of the sureties for the performance of the bond; (e) that there was a default upon the part of the sureties; (d) that the amount of the bond had been fixed by an order of the county court; and (e) that the bond had been approved by the county judge as required by law. Upon rehearing the Court of Civil Appeals affirmed the judgment, Mr. Chief Justice Harper dissenting in part. 207 S. W. 679.
Defendants in error alleged that Davis was appointed guardian pursuant to the order of the court, and duly qualified by taking the oath and giving bond; that thereafter, on May 22, 1907, Davis, as guardian, collected the sum of $2,000 belonging to the minors and proceeded to use the said money and to invest same without any orders from the probate court, and had appropriated the same to his own use; that no part of the said sum was necessary for the use, education, and maintenance of the wards; and that by reason of such acts Davis and plaintiffs in error, the sureties on his bond, became liable to the wards. Plaintiffs in error alleged that they signed the bond solely as sureties, Davis being primarily liable, and that in the event of a judgment they have judgment over against Davis.
The allegations specifically negatived the faithful discharge of the duties -imposed by the covenant upon the part of the principal, and was therefore sufficient.
The uncontradicted evidence upon this point shows that on January 1, 1909, Davis had a balance in bank of 8259.13, and that thereafter he made the following deposits thereto: January 4, 1909, 81,560; January 14, 1909, 82,210.14 (which represented the guardian’s fund); February 19, 1909, 8885; February 29, 1909, 85,200. On June 1, 1909, all of this fund, except 8180.82, had been checked out by Davis as executor. Davis testified that at the time of the settlement of the suit against him for an accounting as executor he personally owed the. estate $40,-500 for money he had borrowed from it upon his own notes, most of which was unsecured, and that he used the borrowed money in the purchase of the various properties which the court in the accounting suit awarded to defendants in error. The dates of the various purchases are not shown, and there is a total lack of evidence that he used the money checked out between January 1, 1909, and June 1, 1909, in the purchase of any of this property. There was therefore no evidence warranting the submission of this issue. v
It is our conclusion, therefore, that the judgments of the Court of Civil Appeals and of the district court should be affirmed, and we so recommend.
«SxsaFor other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes