Nunnery v. Day

ARNOLD, J,, delivered the opinion of the court. Our statute provides that the powers and duties of a guardian over the person and estate of his ward shall cease and determine when the ward arrives at age or marries, and that in either event the guardian shall forthwith deliver to the ward all the property of every description in his hands belonging to the ward, and that on failure to do so suit may be brought on the guardian’s bond. While suit may be brought on the bond of the guardian for failure to comply with the law in this respect, the statute does not relieve him from making final account and settlement with the court, but, on the contrary, it requires that such account and settlement shall then be made. When the ward reaches majority or marries, the functions and authority of the guardian over the person and estate of the ward for the future ends, and his obligation to make final [460] account and settlement for the past begins and he remains guardian for such purpose, and the statute of limitations does not begin to run in favor of him or the sureties on his' bond until this is done. Alston v. Alston, 34 Ala. 15. The general rule is that the office of a trustee ceases only with the execution of his trust, and the duty of a guardian as trustee to account and settle continues until he has done so and is-discharged by order of the proper court. Henderson v. Winchester, 31 Miss. 290; Davis v. Chevis, 32 Ib. 317; Denson v. Denson, 33 Ib. 560. In cases of direct technical trusts, such as exist between guardian and ward, the statute of limitations does not run against the oestui que trust in favor of the trustee. The relations and privity between them are such that the possession of the trustee is the possession of the cestui que trust, and mere neglect of the trustee to perform the trust which he has assumed does not operate as a bar against the claim of the cestui que trust. Angelí on Limitations, § 166; 2 Perry on Trusts, § 863; Jordan v. McKenzie, 30 Miss. 32. The guardian in this case might have been compelled to account, after it became his duty to do so, at the instance of the sureties on his bond as well as by his ward, and the failure to compel the accounting was as much the negligence of the sureties as of the ward. Newton v. Hammond, 38 Ohio St. 430; Chapin v. Livermore, 13 Gray 561. The statute of limitations of seven years would have been no defense to the guardian, and so it was no defense to his sureties. The decree is affirmed and the cause remanded for further proceedings.