Cornelison's Admr. v. Million

Opinion op the Court by Judge Carroll Affirm-mg. In 1885 the will of Eli C. Cornelison was'probated. In this will he provided among other things, that ‘ ‘ all the cash, notes and any debts that may be owing, [417] after my debts have been discharged, shall be Eli and Ernest Cornelisons, and if there be any other heirs, full brother or sister to them, they shall share equally. This money shall be loaned, and the interest shall be used for the benefit of the children to clothe and educate them, and as they become of age each shall draw his part of the principal. ’ ’ Cornelison v. Million, 124 S. W. 366. After this will was written, but before the death of the testator, a brother of Eli and Ernest was born. The property was reduced to cash, and one J. W. Bales appointed guardian of the three children, who were the only devisees under the will. Ernest Cornelison died in February, 1893,being-then about 10 years old. lie left surviving- him his mother, father, and his two infant brothers, Eli and Pal. Had Ernest lived until he reached his majority, he would have been 21 on the 4th of November, 1904. In January, 1910, the appellant, Cornelison, was appointed administrator of Ernest, and brought this suit against Bales, the guardian, and Million, the county judge of Madison county, to recover the one-third interest of Ernest in the fund devised to him by his grandfather. The petition charges that in February, 1889, the guardian made a settlement of his accounts, in April, 1902, another settlement, and in February, 1903, a third settlement. In this last settlement, the amount in the hands of the guardian was $1,013 and it is averred that the administrator of Ernest Cornelison was entitled to one-third of this sum, or $337.66 2-3. It is further charged that the guardian, Bales, became insolvent between December, 1899, and January, 1902, and that his surety in his bond as guardian was insolvent at all times after December 1, 1899. It is further averred that the appellee, Million, was duly elected judge of the Madi [418] son county court in November, 1899, and acted as judge from December, 1899,to January, 1902,and during this time failed and neglected to make inquiry as required by law into the solvency of Bales and his surety, and by reason of his failure to make this in quiry in the manner required by law the estate of the ward in the hands of Bales was lost, and a judgment was asked against Bales and Million- for the amount alleged to be due the administrator. To the petition a demurrer interposed by Million was sustained, and the question before us is the correctness of ihis ruling of the court. Section 201.8 of the Kentucky Statutes, under which it is sought to hold Million liable, has been construed by this court in a number of cases, among them Cornelison v. Million, 129 Ky. 573, 112 S. W. 654. But the question presented by this record does not in our judgment fall within the meaning of the statute. The ward of Bales died several years before Million became county judge,and so it follows that Million as county judge could not be chargedwith the duty of inquiring into the solvency ofBales so far as any money in his hands as guardian of Ernest Oornelison is concerned, for the simple reason that Bales at the time Million was county judge was not the guardian of Ernest Oornelison. If Million as county judge had required Bales, who was then guardian of Pal. and Eli Oornelison, to execute a new bond as guardian, it is manifest that he could not have required him to execute a bond as guardian of Ernest Oornelison, or have removed him for failing to execute such bond; and, as the county judge could do neither of these things, it is plain that he cannot be held liable for his failure to inquire into the sureties upon the bond of .Bales as guardian of Ernest Oornelison. Section 1068 of the Kentucky Statutes makes it the duty of [419] the county judge “to at least once in each year carefully inquire into the solvency of all the sureties upon the bond of each fiduciary, and if Upon such inquiry there is reason to believe that any bond is not amply sufficient to protect from all loss those interested, he shall at once give notice to such fiduciary that a new bond or additional surety on the old one is required, and upon the failure of such fiduciary to give said bond or surety within a reasonable time fixed by the court he shall be removed.” Now, let us suppose that while Million was county judge he had issued a rule against Bales, as guardian of Ernest Cornelison, to show cause why he should not execute a new bond, and that Bales in answer to this rule had come into court and said: “I am not the guardian of Ernest. He died six years ago.” Would not this response have put an end to the matter? How could Bales be required to execute a bond for a ward who was dead? How could he have been removed for failing to execute the bond-when his guardianship terminated upon the death of his ward? In answer to this, the argument is made that Bales had in his hands the funds of Ernest that came to him as guardian, and therefore, although his guardianship was at an end, it was nevertheless the duty of the county judge to see to the preservation of this fund, and to this end to require Bales to execute a sufficient bond. But this the county .judge, as we have endeavored to point out, could not do, and his liability is measured by his failure to do something that he had the power to do. He cannot be held responsible for the failure to do something that the statute did not give him authority to do. The county judge can only demand bond and good surety from fiduciaries who are at the time acting in such fiducial capacity. He is only negligent when he fails to inquire into the solvency of sureties [420] in a bond that he may require the fiduciary to execute. If he cannot compel the fiduciary to execute a sufficient bond or remove him, then he is not negligent in failing to make inquiry into the solvency of the sureties in a bond theretofore executed by such fiduciary. The fact that the guardian, after the death of the ward, holds the funds until they are surrendered to the person entitled to them,'does not give the county judge the right to demand a new bond. The duty of the county judge to protect in this manner the estate of the ward ends when the ward dies. Other persons then come into the right to th'e possession of the fund, and they must take such action as seems necessary to protect their interest. The county judge under the statute does not owe them any duty to inquire into the solvency of the sureties of the bond. His duty has been discharged in seeing to it that the fiduciary had a sufficient bond up to the time his fiducial relations terminated. It must be kept in mind that we are.not dealing with the liability of the guardian on his bond or with the liability of the sureties in the bond, but only of the liability of the county judge in reference thereto. How long the guardian would be liable on his bond, or how long the sureties would be liable after the death of the ward, are questions not before us on this appeal. Wherefore the judgment of the lower court is affirmed.