Wallace v. Swepston

McCulloch, J., (after stating the facts.) Appellants among other defenses tendered by their answer, pleaded the statute of limitations. It has been held in many decisions of this court that the cause of action against the surety on a guardian’s bond does not accrue until the amount of the liability is established by an order of the probate court, and an order is made by said court directing the amount to he paid over; and that the statute of .limitations does not commence to run against an action on the bond until that time. Padgett v. Norman, 44 Ark. 490; Vance v. Beattie, 35 Ark. 93; Connelly v. Weatherly, 33 Ark. 658; Norton v. Miller, 25 Ark. 109. This doctrine is limited, however, so far as the prerequisite of an order to pay over is concerned, to settlements which are not final, and where the guardianship is still left continuing. Where the guardianship relation is closed and ended by the death of the guardian, or the revocation of his letters, or by the coming of age of the ward, and the probate court adjusts the accounts, and establishes the amount due from the guardian, the cause of action accr'ues at once, if there be some person capable of suing. Smith v. Smithson, 48 Ark. 261. If there be then no one who can lawfully receive the amount, or sue for its recovery, the cause of action is postponed, and limitation does not begin to run until there is some one capable of suing. Hanf v. Whittington, 42 Ark. 491. The order of the probate court rendered on October 14, 1876, revoking the letters of the guardian, John W. Guerrant, terminated the guardianship. The order made at the next succeeding term of the court, attempting to reinstate him as guardian, was ineffectual for the purpose, as far as the sureties on his bond are concerned. Haden v. Swepston, 64 Ark. 477. The guardian then filed his settlement account, and the court subsequently examined and confirmed it, thus establishing the amount due from the guardian to his ward, and the right of action to recover the amount accrued at that time. But appellee was then a minor, incapable of asserting her rights, and no other guardian was appointed to receive the money for her. Therefore she was not barred of her action before she came of full age'. The bond being a sealed instrument, under the statute then in force the period of limitation was ten years from the accrual of the right thereon (Mansf. Dig. § 4484); and, under Mansf. Dig. § 4489, which was then in force, prescribing the period of limitations as against persons under disability, the action could have been brought within the above-named period after the removal of disability; i: e. the coming of age of the ward. Appellee attained her age of majority June 9, 1882, more than seventeen years before she commenced this suit. If it were held that the statute of limitations was not put in motion by the order of the probate court in 1877, establishing the amount due from the guardian, there is another point, more than ten years before the commencement of this suit, from which it would have begun to run. The guardian, having continued to act as such, notwithstanding his removal by the court, filed his final settlement account on July 10, 1883, and the same was confirmed at the next term of the probate court, and an order was made on him to pay over the amount found to be in his hands to appellee. This would also have formed a point from which the statute would begin to run, even if it had not then been in motion. The statute having once been set in motion, its operation was not arrested, as to the estate and heirs of the deceased surety,' Robt. C. Wallace, by the commencement and pendency of the action against Guerrant, .the guardian, and Jenkins, the other surety, to surcharge and falsify the accounts of the guardian. The assumption of jurisdiction by a court of equity in a suit to correct fraud and mistakes in the accounts of administrators and guardians does not lift the estates out of the probate court where they are still pending, and where the exclusive jurisdiction to administer is lodged by the Constitution. The estates are still pending in the probate court for all purposes, subject only to the jurisdiction of the court of equity to purge the accounts of fraud and mistakes. Hankins v. Layne, 48 Ark. 544. The orders of the probate court establishing the amount due from the guardian and the order rendered in October, 1883, directing him to pay over the funds, remained in full force, notwithstanding the suit against the guardian, and, as to all persons not made parties to that suit, the statute of limitations upon the cause of action matured by those orders of the probate court continued to run. It has been held by this court that the pendency of another suit, even between the same parties, does not prevent the statute bar from attaching as to a new action where the plaintiff has not suffered nonsuit or arrest of judgment in accordance with the terms of the statute. Hill v. Pipkins, 72 Ark. 549. It is the opinion of this court, therefore, that appellee’s cause of action is barred by the statute of limitation. It .is established by the decisions of this court that “a creditor can proceed in equity against the heirs who have received the ancestor’s estate for satisfaction of his claim which has accrued after the lapse of the time limited for authenticating it ágainst the administrator, or after the close of his administration.” Hall v. Brewer, 40 Ark. 433; Hendricks v. Keesee, 32 Ark. 714; Byrd v. Belding, 18 Ark. 118; Bennett v. Dawson, 15 Ark. 412. But suits of that kind, are not to be encouraged when not brought in apt time. According to the plainest principles of equity, the appellee, in addition to the bar of the statute of limitation, is barred of recovery against appellants on account of her laches in not commencing her suit at an earlier date. A recital of the facts of this case demonstrates, without argument, the justice of that doctrine. When the suit was commenced, the surety whose estate is sought to he subjected to the payment of the amount due from the guardian had been dead twenty-four years, and administration, whereby a valuable estate was wound up, had been closed for nearly ten years; some of his heirs had parted with their inheritance, and two of them had died; the principal in the bond, the guardian, had been dead for some .years. It is no excuse to say that a suit had been brought within the period of limitation against the guardian and another surety on his bond, without proceeding against the appellants or impleading them in any suit. At the end of that litigation appellee was adjudged the right to recovet no more, as against the sureties, than the probate court had held to be due twenty years before. After this long lapse of time and the changes in the status of the parties, it seems to us to be inequitable to permit appellee to disturb the heirs of the deceased surety on her guardian’s bond by subjecting the property inherited by them to the payment of a liability established so long ago. . We think, therefore, that the learned chancellor erred in not dismissing the complaint for want of equity, and the cause is reversed and remanded with directions to enter such a decree.