State ex rel. Shannon v. Strange

Perkins, J. —

Debt by the state on the relation of Harvey G. Shannon against Edward Strange, Wesley B. Sears, and Martin Gentry, upon the bond of said Strange, given as the guardian of the relator.

The declaration contains two counts. In the first, six breaches are assigned; in the second, none. Demurrers to the 1st, 2d, 4th, and 5th breaches of the first count were sustained, and likewise a demurrer, upon oyer of the bond being granted, to the second count. The 3d and 6th breaches, assigned in the first count, led to issues of fact which were tried by a jury. Verdict and judgment for the defendant. The evidence is upon the record. No previous proceeding had been instituted by the ward, Harvey G. Shannon, separately against said Strange, his guardian, to establish a claim against him in his fiduciary capacity.

The first question raised is, whether this suit will lie. It was held in Weiser v. Blatchly et al., 1 John. Ch. R. 607, and in Stichwell et ux. v. Mills et al., 19 John. R. 304, that a suit could not be sustained against a guardian and his sureties until after a separate suit by the ward against the guardian, in which a claim should be established against the latter in his trust capacity; but by our statutes, as we understand them, a suit is expressly authorized against the guardian and his sureties in the first instance. Sections 395, 400, 411, 421, pp. 559, 561, 562, 564, of the R. S., seem to us to authorize suits on the bonds of administrators against them and their sureties without the previous establishment of devastavils against the administrators; that is, without the previous establishment of claims *539 upon them personally, and to allow proof of such claims to be adduced in the suits on the bonds; and section 103 of said statutes, p. 611, enacts that, “ any bond given by a guardian may be put in suit by the ward or any other person entitled to the estate ; and the suit in such cases shall be conducted in like manner as is provided, with respect to suits on the bonds of executors and administrators.” We think the suit rightly brought. The demurrer to the second count of the declaration was correctly sustained. The suit was upon a bond not for the payment of money, and was commenced after the passage of the act of 1847, (Laws 1847, p. 112,) which requires the breaches, in suits upon such bonds, to be assigned in the declaration. Whether the Court erred or not in sustaining the demurrers to the 1st, 2d, 4th, and 5th breaches is immaterial, as the whole merits of the case were tried upon the issues upon the pleas to the 3d and 6th breaches.

The 3d and 6th breaches were, that Strange, the guardian, had received 500 dollars of the moneys of the ward, for which he had failed to account, either to the Probate Court, or to the ward on demand; pleas, that the guardian had accounted to the proper Probate Court, &c.

Replications, that he had not so accounted. On the trial the defendant proved that complaint had been made against Strange, as guardian, and that he had been removed from his trust by the Probate Court. They also proved that after his removal he settled his guardianship account with the Probate Court, delivered over the effects in his hands as guardian, and was duly discharged by the Court. The plaintiff objected to the proof of this settlement, because it was made ex parte after the guardian’s removal; but we think a fair construction of sub-section 4 of section 92, R. S. 609, authorized the settlement to be made. It was, therefore, a legal one, and hence rightly given in evidence.

The Court instructed the jury that it was prima facie correct. Such has been the repeated decision of this Court in regard to such settlements; and as the plaintiff *540 gave no evidence impeaching its accuracy, the judgment for the defendant was right (1) .

C. C. Nave, for the plaintiff. J. S. Harvey, for the defendants. Per Curiam. —

The judgment is affirmed, &c.

This case overrules the opinion of the Court, rendered in the case of Hunt v.White, ante, p. 105.