McKim v. Mann

C. Allen, J.

It has often been declared that a guardian, has no legal title to the estate of his ward in his hands. Chapin v. Livermore, 13 Gray, 561 . Rollins v. Marsh, 128 Mass. 116 . Kimball v. Perkins, 130 Mass. 141 . At the expiration of his trust, it becomes his duty to settle his account, and to pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons lawfully entitled thereto. Such is the condition of his bond. Pub. Sts. c. 139, § 22. He has no longer any duty or power in reference to the management of the estate, except merely to hold it for its preservation, and for the protection of any rights which may meanwhile need protection. The ward’s death effectually dissolves the relation of guardian and ward, and leaves upon the guardian the duty of a mere custodian of the property. He can no longer appear in court to defend a suit against the ward. Whitney v. Whitman, 4 Mass. 508 . In ordinary cases of agency, if the principal dies, the agency is determined by mere operation of law; and it will make no difference, even though the power is declared in express terms to be irrevocable. Marlett v. Jackman, 3 Allen, 287 , 294. Story on Agency, § 488. No reason is apparent why a guardian’s power should survive the death of his ward. Like, other agents whose authority has ceased, he must hold the property remaining in his hands till it can be delivered over, and must, settle his accounts; but his guardianship is at an end. And we cannot doubt that the death of the ward is a discharge of the guardian, within the meaning of the Pub. Sts. c. 139, § 28. Loring v. Alline, 9 Cush. 68 . Kimball v. Perkins, ubi supra, This is a statute of repose. Four years are allowed within which to bring an action against the sureties. It is not the policy of the Legislature to keep the sureties liable for an indefinite length of time. Four years must have been assumed to be, reasonable wifh respect to the rights of the sureties, and sufficient with respect to the rights of those interested in the ward’s estate. The language of the statute is explicit. The period of limitation does not date from the time when an action has accrued, but from the time of *509 the discharge of the guardian. If no right of action has accrued within the four years, for want of necessary preliminary steps, that is the fault or the misfortune of those interested in the estate.

The case of the plaintiff is not saved by the latter portion of the statute. Where a guardian is discharged by the death of his ward, it cannot be said that, at the time of such discharge, the person entitled to bring such action is out of the Commonwealth. That provision of statute contemplates the absence from the Commonwealth of some person who is entitled to bring the action, or to have the action brought for his benefit, and who subsequently returns into the State.

In pursuance of the agreed facts, judgment must be entered for the surety, and for the plaintiff as against the principal on the bond.

Judgment accordingly.