McClure v. Commonwealth

1. A guardian was appointed by a court not having the special jurisdiction, and in good faith money of his ward was received by him; he settled his account in the proper court. Held, that he was estopped from denying his liability in an action by a subsequent guardian to recover the money. 2. Both he and his surety were bound by his official bond; the guardian having no defence in equity, his surety could have none. 3. The jurisdiction to appoint guardians in the special case being limited to the Orphans’ Court of the minor’s residence, the appointment by the court of another county would be reversed, but the general jurisdiction over the appointment being vested in every Orphans’ Court, that which is done under an appointment by a court not having jurisdiction in the particular case is not necessarily void.

Error to the District Court of Allegheny county: Of October and November Term 1874, No. 145. This was an action of debt, brought to April Term 1873, of the court below, by-the Commonwealth of Pennsylvania, with the suggestion of Abram J. Fulkman, guardian, &c., of Wilson S. Fulkman and others, minors, &e., as plaintiffs, against Abdiel S. McClure impleaded with Frank Duff. The suit was founded on an official bond dated January 27th 1866, by Frank Duff, guardian of the above-named minors, with McClure as his surety. The declaration was in the usual form, the breaches being that he had refused to pay over the money of his wards. - The pleas were that Duff had not been duly appointed guardian, the Orphans’ Court of Allegheny county which appointed him, not having jurisdiction, as the children were residents of Crawford county, and that the bond was void by reason of the Orphans’ Court having no authority to take it. A case stated was afterwards filed, which set out the following facts:— Mary M. Hood, owning real estate in Allegheny county, by her will gave legacies to the minors, to be paid from the real estate which she ordered to be sold, but named no person to make the sale; Abram S. Pulkman, the executor, desiring to make a private sale, under the Act of April 18th 1853 (Price Act}, applied to the Orphans’ Court of Allegheny to appoint a guardian for the minors. The petition for the appointment of a guardian was by “ Abram S. Eulkman of Crawford county,” and set out that the minors were his children under the age of fourteen years. Duff was appointed guardian on the 27th of January 1866, the children then residing in Crawford county. On the same day he entered into the bond in suit with McClure as his surety, in the penalty of $3000, conditioned for the performance of his trust, &c.; on the same day the bond was approved by the Orphans’ Court of Allegheny county; on the same (iay Eulkman, and Duff as guardian, petitioned the Orphans’ Court of'Allegheny county for leave to make a private sale of the real estate of the testatrix; a private sale was decreed; it was made and approved by the Orphans’ Court of Allegheny county, and Duff received from the executor $1084.81, as the interest of his wards; the guardian, on the 17th of February 1866, settled an account by which there appeared to be in his hands a balance of $1016.82. The minors wei’e never residents of Allegheny county. On the 21st of March 1871 the Orphans’ Court of Butler county — the minors then living in that county — appointed Abram S. Eulkman guardian of the minors, and on the 14th of March 1873, the Orphans’ Court of Allegheny county removed Duff from his trust as guardian and ordered him to pay to Eulkman $1049.72, the balance in his hands as guardian; Duff had previously become insolvent and absconded, and the money was not paid over. “ If under the foregoing state of facts the court is of opinion that the plaintiff is entitled to recover, then judgment to be entered in favor of the plaintiff, and against Abdiel McClure, defendant, for the sum of $1049.82, with interest from March 14th 1873, with costs of suit; otherwise judgment to be entered in favor of defendant for costs.” “April 18th 1874, judgment was entered on the case stated against the defendant, Abdiel McClure, as follows: For the Commonwealth in ’the sum of $3000, the amount of the obligation or bond sued on ; and for the plaintiff, Abram S. Eulkman, guardian of Wilson, William and George M. Eulkman, in the sum of $1049.82, with interest from March 14th 1873, the amount of damages assessed and for cost of suit.” The defendant took a writ of error, and assigned for error, the entering judgment for the plaintiff on the case stated.