Merrells v. Phelps

McCurdy, J. On the 29th day of October, A. D. 1860, the defendants, Phelps as principal, and Holcomb as surety, gave a bond to the court of probate, the condition of which was that the said Phelps, who had been appointed guardian of Mary Ann Belden, a minor, should well, truly and faithfully execute and discharge his office as guardian and render a [112] true account to the judge or his successor if required, or to his ward when arrived at full age. This duty includes of course not merely a statement of receipts and disbursements but a payment to her of any balance which might be due on the settlement. He had at that time in his hands belonging to her the amount of forty dollars which he had received some time previously. For this sum he has never accounted to the court of probate, nor to her, nor has he paid any part of it to her although he was requested so to do by her after she became of full age. Here then is an admitted breach of his duty and his bond by the guardian; but the surety denies his liability for the reason that the money had come into the possession of the guardian before the execution of the bond. This defence is very clearly untenable, as the obligation was that the guardian should at a subsequent time account for the money of his ward, and it is perfectly immaterial whether he then held it or received it afterwards. In relation to the other item of the plaintiff’s claim there exists a more serious, indeed, as we think, a fatal objection. When Phelps received this money he had legally ceased to be guardian and Holcomb had therefore ceased to be surety. He had been in due form of law turned out of the office of guardian by the court of probate. It is true that there was an appeal to the superior court from the decree of the court of probate, but it was not prosecuted and the decree was not reversed. The plaintiff wholly mistakes the effect of such an appeal not pursued in the superior court. In the case of Curtiss v. Beardsley, 15 Conn., 518, the court held that an appeal from the decision of a justice of the peace vacated the judgment. But Judge Hinman in giving the opinion says, — “The practice is entirely different in appeals from probate. The statutes relating to appeals from that court are different. It is only the order, sentence, denial, decree or judgment-of the court of probate in the settlement of an estate that may be appealed from, whereas in suits before justices of the peace and in the [113] county courts which are appealable, it is the cause itself and not some order or denial or decree in the cause that may be appealed from.” It is finally urged by the plaintiff that Phelps having received the one hundred dollars in his character of guardian, and Holcomb having been cognizant of the fact, they are estopped from denying that he was guardian indeed. However it might be with Phelps, we think the principle of estoppel is hardly applicable to Holcomb. It does not appear that he did or said any thing intended or calculated to deceive or mislead, or to induce any one to change his position, and the displacement of the guardian having been a judicial proceeding by a public tribunal, we cannot think it was incumbent on Holcomb to seek out the plaintiff and communicate to him a fact of which the record of the court gave notice to the world. The judgment should be for forty dollars and the interest In this opinion the other judges concurred.