Henderson v. Coover

By the Court, Lewis, C. J. Coover having been appointed guardian of the plaintiff, gave the general bond as required by the statute, with the defendants Grove Adams and Louis Feusier as sureties. . Some time before his appointment, certain real estate belonging to the ward had been sold, in accordance with an order of the Probate Court, by one James Henderson, who was then the guardian of the plaintiff; but before the conveyance was made or the purchase money paid, Henderson resigned his guardianship, and the defendant Coover was [433] appointed to succeed him. The purchase money for the property so sold, which amounted to fifty-seven hundred dollars, was paid to Coover, and the deed of conveyance executed by him. The complaint charges that only five hundred dollars of the money thus received has been paid to the plaintiff; that after attaining his majority he demanded an accounting from his guardian, but that no account has been rendered; and, it is alleged, that the sum of fifty-two hundred dollars, the balance of the money received from the sale of the real estate, is now held by the defendant Coover. This action is brought upon the guardian’s general bond, and judgment asked against the principal and sureties for the sum of fifty-two hundred dollars, with costs of suit. After proving the material allegations of his complaint, the plaintiff was nonsuited by the Court below, and judgment for costs rendered against him, from which the appeal is taken. In our judgment the nonsuit was properly granted. The action, as we have before mentioned, is upon the general bond of the guardian, and the only material facts proven were the receipt .of the purchase money upon the sale of the real estate, and the refusal by Coover to account for it. But the sureties on the general bond of a guardian are not under our law responsible for the failure by the guardian to account for money received from the sale of real estate, or its misapplication by him. To sell the real estate of wards for their benefit is not included in the general duties of guardians, nor have they the right or authority to do so except upon obtaining a license from the proper Court authorizing it; and Sec. 32, p. 260, Laws of 1861, declares that every guardian “ authorized to sell real estate * * * shall before the sale give bond to the Probate Judge, with sufficient security, to be approved by such Probate Judge, with condition to sell the same in the manner prescribed by law for sales -of real estate by executors and administrators, and to account for and dispose of the proceeds of the sale in the manner provided by law.” In no case whatever can the real estate be sold until this bond is given. When given, the sureties upon it are very clearly responsible for any misapplication of the money acquired by the sale of such. [434] property, and for the refusal by the guardian to account for it, because' to account for such money is the principal condition of the bond, and the statute does not in direct terms require a condition in the general bond to account for the proceeds of such sales. It is true one of the conditions of the general bond is that the guardian shall “ pay over and deliver all the estate, moneys, and effects remaining in his hands or due from him on his final settlement but as that bond seems to be given only to secure the faithful performance of the guardian’s general duties, and a special bond is required to be given to secure an accounting for and proper disposition of the money arising from the sale of real estate, it can hardly be supposed that it was intended to make the sureties on the general bond responsible for a misapplication of the money arising from the sale of real estate. With respect to statutory provisions very similar to ours, the Supreme Court of Maine, in the case of Williams v. Morton, used this language : “ It could1 not have been designed by the Legislature that a bond given for the faithful discharge of the duties of guardian, which, by his letters of guardianship he is bound to perform, should be the security for the observance of the provisions o‘f a sale of real estate and the proper application of the proceeds, when the sale was under authority of a special license only, and a special bond is required, that the duties to be done under that license as the law prescribes, shall be faithfully performed. The proceedings under the license, as required by the statute, are not strictly speaking guardian duties, but as matter of convenience the change of the real estate of the ward into money is to be done by him who has the charge of the former, and who is to see that the latter is properly secured upon interest.” (38 Maine, 52.) Such also .appears to have been the view taken of like statutory regulations by the Supreme Court of Massachusetts. (Lyman et als. v. Conkey, 1 Met. 317.) The statute in that State has since been amended, so that at present it is made one of the express conditions of the general bond, that the guardian will render an account on oath of the property in his hands, including the proceeds of all real estate sold by him.” (Revised Statutes of Mass. 545.) Since the adoption of this amendment the Courts have very materially limited the liabilities [435] of the sureties upon the special bond. (See Fay v. Taylor et als., 11 Metcalf, 229, and 11 Cushing, 18.) Rut the general bond required by the statute of this State is substantially like that required by the Massachusetts law prior to the amendment, hence the case of Lyman et als. v. Conkey appears to sustain our views. As it was shown by the plaintiff’s proof that the money for which Coover has not accounted was the price of real estate sold, and that the defendants Adams and Feusier were sureties on the general bond only, the plaintiff was properly nonsuited. JOHNSON, J., did not participate in the foregoing decision.