Fulgham v. Herstein

CLOPTON, J. The record presents the single question, whether the personal representative of a deceased guardian, whose estate is alleged to be insolvent, is a necessary party to a bill in equity brought by the ward against the executrix of the surety on the guardian’s bond, for a settlement of the guardianship, and for the payment of whatever sum may be ascertained to be due. Independent and exclusive of statute, the general rule is, that in cases of joint bonds or obligations, all the obligees and obligors must be made parties to the bill. “It has been said, that in regard to the obligors this is only a rule of convenience, and to save those who are severally charged the trouble of a new suit for contribution, against those who are not charged, and not a rule of necessity; and therefore it may be dispensed with in certain cases.” — Story Eq. PL, § 169. The general rule has its exceptions, founded on special grounds of convenience, or necessity. Among these exceptions is the insolvency of one of the obligors, whether principal or surety. The exception may be regarded as general as the rule. — Madox v. Jackson, 3 Atk. 405 ; Angerstein v. Clarke, 3 Swanst. 147; Montague v. Turpin, 8 Gratt. 453 ; Young v. Lyons, 8 Gill, 162. Under our decisions, an allegation of the insolvency of joint obligors, not made parties, is a sufficient excuse for the omission to make them parties.— Watts v. Gayle, 20 Ala. 817. The Chancery Court retains its original jurisdiction over the settlement of a guardian’s accounts; and the ward may invoke the jurisdiction, when no proceedings have been commenced in the Probate Court, without assigning special reasons. In the absence of statutory authority, the Probate Court has no power to compel the personal representative of a deceased guardian to appear and settle his accounts. — Snedicor v. Carnes, 8 Ala. 655. The remedy, in such case, is in equity. A suit in equity against the sureties of a guardian is not auxiliary, but an independent, original suit. In order to maintain such suit, it is not necessary that the liability of the guardian should be antecedently ascertained, or that a prior demand should be made upon the guardian, or, if he be dead, upon his personal representative. In Moore v. Armstrong, 9 Por. 697, it was held, that when an administrator dies, leaving no property, or having no personal representative in this State, his sureties may be sued alone in equity, before a liability has been fixed upon their principal. And in Frierson v. Travis, 39 Ala. 150, which was a bill filed by a ward, against one of the sureties of his guardian, it is said: “It is shown that the guardian, being the principal obligor in the bond,’was anon-resident of the State of Alabama, and died in the State of Texas, and that there was no administration upon his estate. With regard [499] to the other surety not made a party, it appears that he died insolvent. These facts constitute a sufficient excuse, under our decisions, for the failure to make the representatives of the deceased obligors parties.” The death of the guardian, and the insolvency of his estate, are alleged, the truth of which is admitted by the demurrer. A decree against his estate would not avail to the relief of defendant; and if the assistance of his persona] representative is necessary in taking the account, and should not be voluntarily furnished, it can be compelled by appropriate proceedings. Such is the rule, in the absence of statutory modification. The general rule has, however, been abrogated by statute. Every bond, by which two or more persons are jointly bonnd, is declared by statute to be several as well as joint. — Code, § 2905. Under the statutes, an action at law can be maintained separately against auy one of several joint obligors. Section 3754 of the Code provides, in reference to proceedings in chancery: “When the plaintiff has a joint demand, he may proceed against one or more of the parties thereto, without joining the others.” The purpose of the statute is to assimilate, in this respect, all bonds being joint and several, the practice at law and in equity. Under the statute, the complainant was authorized to bring his bill against the defendant as executrix of a surety, without making the personal representative of the deceased guardian a party, and without assigning any excuse for the omission.— Teague v. Corbitt, 57 Ala. 529. Reversed and remanded.