Rice v. Wilson

Grant, J. (after stating the facts). 1. The law did not require notice of the final hearing of the account of Miss Rogers as guardian to be given to the sureties. The judgment rendered by the probate court is conclusive and binding upon them, in the absence of collusion or fraud. The bonds of executors, administrators, and guardians are placed by the courts upon a different basis from those given by sheriffs, treasurers, etc., for the performance of their duties. The distinction is probably based upon the theory that the former are intrusted with estates which are -under the control of the courts; that they must render accounts to such courts, and have them determined and the amount fixed before suit upon the bond. One of the conditions of the bonds is that they shall render accounts, and, if such guardians, etc., do not pay the judgments found against them by the court, the sureties will. These bonds stand on the same basis as do bail and appeal bonds in suits at law. In each case there must be a judgment against the principal before the bail can be sued. Not so, however, with bonds of sheriffs, treasurers, etc. It is no condition of their bonds to pay any judgment that courts may render against them. The universal method pursued is to sue the principal and sureties in the same suit. 2 Brandt, Sur. § 638, where the rule and the reason [525] therefor are well stated, and authorities cited; Meyer v. Barth, 97 Wis. 352 (72 N. W. 748, 65 Am. St. Rep. 124). The Wisconsin statutes appear to be the same as our own. 2 Chat. Prob. Law, § 2781. 2. The discharge of Bader and Casey was wholly irregular and void. The proceedings to procure a discharge are regulated by statute. “Any surety may, upon his petition to the probate court, be discharged from all further responsibility, if the court, after due notice to all persons interested, deems it reasonable and proper, and the principal may thereupon be required to give a new bond.” 3 Comp. Laws, § 9501. The probate court can only act upon a petition filed by the surety who desires to be released, and a notice to all persons interested. The guardian in this case appears to have been utterly irresponsible financially. Her ward at that time was 16 or 17 years of age, and, under the law, entitled to choose his guardian. She had abdicated her entire duty under her own statement, and had intrusted the management of the estate to an agent, who squandered it, and evidently had squandered a large part of it at the time of the pretended release of these sureties. It is not improbable that this fact was known to Bader and Casey. An account had, at their request, been filed. They had contracted by their bond that that account should be correct. It was then not only their right, but their duty towards Miss Rogers’ ward, to have this account investigated before allowance. They did not even ask to have it allowed. No examination was made by the court, and the account was never passed upon. A notice served upon the ward himself, or upon his next of kin, might have prevented the discharge of the sureties until an accounting had been had, which should fully have determined the amount for which they were then liable. The statute is designed to prevent the possibility of collusive proceedings between the guardian or administrator and his sureties. The statute contemplates a hearing, from which a judge [526] of probate must determine that such release is reasonable and proper. These holdings render it unnecessary to discuss the other questions raised. The judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ,, concurred. Long, J., did not sit.