Higgins v. State ex rel. Smith

Franklin, C. This was a suit by appellee, as guardian, upon the bond of a former guardian, against Wiles and Robertson, as administrators of the principal in the bond, appellant Higgins, as administrator of Blair, one of the sureties, and Vannoy, the other surety. A demurrer was sustained to the first paragraph of the complaint, and overruled as to the second. There was a trial by the court, a special finding made at the request of appellant, and conclusions of law stated. Exceptions were taken to the overruling of the demurrer to the second paragraph of the complaint, and to the conclusions of law. Judgment was rendered for the defendant Vannoy, .and against the other defendants, for the sum of $1315.75. Higgins, as administrator of Blair, has appealed to this •court, and assigned as errors: 1st. The overruling of the demurrer to the second paragraph of the complaint. 2d. Error in the conclusions of law. The objection to the complaint is that it does not state a sufficient breach of the bond. The alleged breach of the bond is as follows: “And plaintiff says that said Robertson, as such guai’dian, never paid said sums, or any portion thereof, to said wards; and that said Wiles and Robertson, or cither of them, as such administrators, have never paid said sums, or any portion thereof, to said wards, or to any one on their behalf.” Robertson, the former guardian, died March 26th, 1876; his administrators were appointed in April, 1876. Appellee Smith, as Robertson’s successor, was appointed guardian of [284] the wards; and this suit was commenced February 18th, 1879. The complaint shows that the money was in the hands of the former guardian at the time of his death. Blair, one of the sureties, died July 10th, 1879. The death of Eobertson terminated his guardianship, and upon the appointment of his successor the money was due to him; and the failure of Robertson’s administrators for nearly three years to pay over the money and account to appellee, we think, is a sufficient breach of the bond; and there was no error in overruling the demurrer to the second paragraph of the complaint. The exception to the conclusions of law is based upon the tenth special finding, which states that no demand was made for the money prior to the commencement of the suit, and that no conversion had been made of the funds prior to the death of Robertson. After the death of the former guardian, and the termination of his guardianship, the amount due the wards became a debt against his estate the same as any other indebtedness, and the liability of the sureties must be determined by the liability of the principal. The law makes it the duty of an administrator to pay the indebtedness of the estate, and the failure of the principal has fixed the liability of the surety; and no demand of the principal, or sureties, or their representatives, or either of them, was necessary before bringing suit. Voris v. State, ex rel., 47 Ind. 345; Lane v. State, ex rel., 27 Ind. 108; Covey v. Neff, 63 Ind. 391. In the case-of Hudson v. State, ex rel., 54 Ind. 378, this court held that in accordance with the statute, which provides that it was the duty of the guardian, “At the expiration of his trust, fully to account for and pay over to the proper person, all of the estate of said ward remaining in his hands.” 2 R. S. 1876, p. 590, section 9, clause 4, “No demand, therefore, was necessary. When money is payable at a fixed date, or upon the happening of a certain event, no demand is necessary before suit; and an action may be maintained, on a guardian’s bond, against the guardian and his sureties, without previous demand.” [285] The special finding of the court that no demand had been made for the money before the bringing of the suit, and that no conversion of the funds had been made before the death of the former guardian, was not within the issues in the case, did not affect the legal rights of the parties, and can but be regarded as surplusage. There was no error in the conclusions of law upon the special findings. The judgment below ought to be affirmed. Per Curiam. It is therefore ordered, upon the foregoing opinion, that the. judgment of the court below be and the same is in all things affirmed, with costs.