Asher v. State ex rel. Applegate

Niblack, J. — Action by the State, on the relation of Peter N. Applegate, guardian of William H. Brown, James Brown — 216 — and John D. Brown, against Joseph Asher, as surety on the bond of one John Brown, a former guardian of the relator’s wards. At the defendant’s request the court made a special finding of the facts, of which the fallowing is believeto b'e a fair , synopsis: That the father of the relator’s wards died in December, 1862; that, on the 5th day of February, 1863, John Brown, the grandfather of said wards, was, by the court of' common pleas of Owen county, appointed their guardian, the defendant becoming the surety upon the bond then executed, by the said John Brown as such guardian, in the penal sum of $1,000; that, at the May term, 1864, of said last named court, the said John Brown procured an order to sell certain real estate belonging to his said wards, and executed an additional bond as such guardian in the penal sum of $1,500, with one James M. Steele as his surety, and afterwards, on the 4th day of June, 1864, sold said real estate for the sum of $750; that, on the 5th day of September then next ensuing, he, the-said Brown, made a report, as such guardian, to said common pleas court, charging himself with the proceeds of said real estate and other assets, amounting to the aggregate sum of $1,309.05, and claiming credits as a deduction therefrom in the sum of $520.55, leaving a balance in his hands, as shown by that report, of $788.50; that the said John Brown had before that time received, for arrears of pay due to his wards, the sum of $214.43, of which amount he had only charged himself with the sum of $108 in his report, leaving $106.4& unaccounted for; that he afterwards, during the years 1867,, 1868 and 1869, also received from the U. S. Government, on-account of pension money due his said wards, several sums,, amounting in all to $785.93, for which no account was rendered; that, on the 27th of February, 1864, the said John Brown purchased two hundred acres of land in Morgan county, in this State, for the sum "of $2,200, which was paid for in part out of money in his hands belonging to his said wards, and took a deed therefor in his own name; that the defend — 217 — ant was, on the 8th day of May, 1869, by order of the -said court of common pleas of Owen county, released from further liability as surety on the bond in suit, and a new bond was executed by the said John Brown in the penal sum of $2,000, with one ’William H. Brown as his surety; that some time1 after executing this new bond the said John Brown died, and one Henry Lewis became his administrator; that afterwards, in September, 1875, the relator Applegate was, by the Owen Circuit Court, appointed guardian of said wards, as the successor of the said John Brown; that, at the December term, 1875, of the said Owen Circuit Court, in an action in which the said Henry Lewis, as administrator of the said John Brown,, Avas plaintiff, and the relator Applegate, guardian as herein above stated, Avas defendant, involving the mutual accounts-existing between the said Brown and his said Avards at the- ’ time of his, said Brown’s, death, said court found and adjudged that there was due from the estate of said Brown to-said wards, after deducting all proper credits, the sum of $2,-262.28; that in a proceeding in the Morgan Circuit Conrfc by Lewis, as the administrator, as above set forth, to have the land purchased by his decedent in Morgan county sold to pay debts against his estate, the relator Applegate procur'ed a lien, to be established against one hundred andtAventy acres of that land for the sum of $1,400, in favor of said wards, that being-the estimated amount of their money invested in said land by the decedent Brown, and said one hundred and twenty acres-being all of said land of Avhich he, the said Brown, remained the owner at the time of his death; that part of said sum which Brown invested in the Morgan county land did not come into his hands until after the defendant had been released as surety on his bond; that upon the sale of the last named land the relator receÍAred on the lien in favor of his. wards the sum of $1,213.25;, that he also received of the estate of Brown, on its final settlement, the sum of $286.67,, said estate being an insolvent estate, and paying only about seventeen cents on each dollar of indebtedness; that he also. — 218 — received from the sale of personal property the further sum ■of $25, making his total receipts the sum of $1,524.92 on ■claims due to his wards; that, on the 4th day of April, 1869, the said John Brown, as guardian, made a further report to the common pleas court of Owen county, in which he charged himself with the sum of $1,027.70, and claimed credit for ■$31.36, leaving a balance against him of $996.34, which report was approved by the court, but did not include the sum ■of $785.92 of pension money heretofore referred to as having been received by him; that the said Brown received no other funds or assets after the making and approval of his report, lastly above named, until some time after the 8th day of May, 1869, when the defendant was discharged from further liability •on his bond; that up to that time he was chargeable with assets received as follows: .Balance on report of 1864 ..........$ 788.50 Arrears of pay and bounty not charged..... 106.43 Interest on above two items......... 155.86 Pension money............... 785.92 Interest on same.............: 63.78 Interest received and reported in 1869 ..... 113.04 ■ Total.................$2,013.53 . Deduct credit allowed in 1869 ......... ,31.36 Balance................$1,982.17 Upon those findings the court stated its conclusions of law :as follows: First. That the defendant was liable to pay the relator the sum of $1,000, the full penalty of the bond sued on. Second. That judgment ought to be rendered in the name •of the State for the use of the relator against the defendant for said sum of $1,000. The defendant excepted to the conclusions of law thus stated by the court, but judgment wTas nevertheless rendered against him for the sum of $1,000. Error is assigned upon — 219 — the conclusions of law stated by the court, and upon which judgment was rendered. Owing to the brevity and uncertainty in the statement of some of the facts purporting to be found by the court, and particularly to the omission of any statement as to the dates at which certain sums of money were received by the two guardians, Brown and Applegate, respectively, we are wholly' unable to state a formal or satisfactory account of the condi-’ tion of the assets belonging to the wards at the time of the' ■commencement of this suit. ■ This brevity and uncertainty ■do not, however, so much apply to the aggregate amount' -of money received by Brown during the time covered by his ■first bond, as they do to the dates of certain transactions which the court below must have held to be conversions by him of ¡a considerable part, at least, of the assets in his hands during that period of time, and to the probable amount thus converted to his own use by Brown. The appellant assumes that there is nothing in the facts as found from which it can be inferred that Brown converted any of the assets which came into his hands prior to the 8th day of May, 1869, to his own use, except an indefinite amount •of money invested in the Morgan county land, which was' afterwards substantially recovered by the enforcement of a lien upon that land, and that hence the co.urt erred in coming to the conclusion that he, the appellant, was liable for any definite sum of money as surety upon the bond in force pre-’ vious to that date. Our inference, however, from the finding ■of the facts is, that all the assets which came into Brown’s hands, except those for which either he or his estate received & credit, were, in legal contemplation, converted by him to • his own use, and that the only real difficulty lies in the adjustment of his defalcation between the different bonds exe-' ■cuted by him as guardian. As has been observed, the Owen Circuit Court, in the action : between Lewis as the administrator of Brown, and Applegate, the appellee’s relator, as guardian, adjudged that Brown’s — 220 — estate was indebted to the wards, then represented by Apple-gate, in the sum of $2,262.28. Such a judgment could only have been rightfully rendered upon evidence showing to the satisfaction of the court rendering it, that Brown had made himself personally liable for the value of the assets which ought to have been found remaining in his hands as a separate and distinct fund belonging to the wards. Hence we must construe this judgment of the Owen Circuit Court as having established the fact that Brown had made himself 'personally liable for all the assets received by him for which he had not accounted at the time of his death. The failure of Brown to include in his reports to the court the sums of $106.43, arrears of pay, and of $785.92, pension money, respectively obtained by him, was, under the circumstances, a concealment, and hence a practical conversion of those sums of money, and a breach of his first bond, which was then in • force. Conceding that the conversion of the-money put into the Morgan county land was substantially reimbursed by the after enforcement of the lien against the greater portion of that land, which is more by near $200 than the appellant could in any event justly claim, there remained only the sum of $286.67, received from the estate of Brown, and the sum of $25, derived from the sale of personal property, which could,-under the most favoi’able construction, have been applied entirely as credits on the arrears of pay and pension money withheld by Brown. These sums, we feel justified in inferring, were not received by Applegate until after December, 1875, when the judgment, of the Owen Circuit Court, adjudging the estate of Brown to-be indebted to his wards, was rendered, and, counting interest on the arrears of pay and pension money withheld up to the earliest time at which said sums of money were probably received by Applegate, and became applicable as credits, there still remains, after deducting said sums, more than $1,000 due on account of such arrears of pay and pension money. *[n this computation the amount realized by Brown from — 221 — the sale of real estate, and secured by an additional bond, is not taken into account. This amount came into Brown’s hands before he obtained the pension money, and, hence, may have been at once used in part payment for the Morgan county land, which had already been purchased by him. Other reasons might be given in support of the conclusions ■of law stated by the court, but we deem it unnecessary to extend this opinion. Colburn v. State, ex rel., 47 Ind. 310; State, ex rel., v. Sanders, 62 Ind. 562; Bevis v. Heflin, 63 Ind. 129; Lowry v. State, ex rel., 64 Ind. 421. The judgment is affirmed, with costs.