Com. v. Lee

• Decision Date: 02 May 1905
• Citation: 86 S.W. 990,120 Ky. 433
• Parties: COMMONWEALTH, to Use of LEE, v. LEE.
• Court: Kentucky Court of Appeals

86 S.W. 990

120 Ky. 433

COMMONWEALTH, to Use of LEE, v. LEE.

Court of Appeals of Kentucky.

May 2, 1905

Appeal from Circuit Court, Marshall County.

"To be officially reported."

Action by the commonwealth for the use of Thomas R. Lee, against W P. Lee, on his official bond as judge of the Marshall county court, to recover damages for his acceptance of Mary Lee as surety on the bond of T. D. Brown, guardian of T. R. Lee. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Hendrick & Miller, for appellant.

R. O Hester, for appellee.

BARKER J.

This is an action by the commonwealth of Kentucky, for the use of Thomas R. Lee, against the appellee, W. P. Lee, on his official bond as judge of Marshall county court, to recover damages alleged to have been sustained by his accepting Mary Lee as surety on the bond of T. D. Brown as guardian of T. R Lee, when he knew she was insolvent.

The following sections of the Kentucky Statutes of 1903 are necessary to a discussion of the questions raised by the record before us:

"Sec. 2017. No guardian except a testamentary one for nurture and education, can act until he has been appointed by the proper county court, and given covenant to the commonwealth, with good surety, approved by the court, faithfully to discharge the trust of guardian. The bond shall be carefully kept by the county court clerk in a book to be provided for that purpose."

"Sec. 2018. If the court fails to take such covenant, or accept such person or persons as surety as do not satisfy it of their sufficiency, the judge so in default and his sureties shall be jointly and severally liable to the ward for any damage he may sustain thereby."

"Sec. 2034. No disbursements shall be allowed the guardian for the maintenance and education of the ward beyond the income of the estate, except in the following cases, unless authorized by the deed or will under which the estate is derived: (1) When the ward is of such tender years or infirm health that he cannot be bound out as an apprentice, or no suitable person will take him as such. (2) When it is best for the ward that the principal of his personal estate shall be applied for his board and tuition, and the court, upon settlement of the accounts, shall deem such application to have been judicious and properly made. But neither the ward nor his real estate shall be liable for any such disbursement.

"Sec. 2035. If, from any source, a balance is owing by a guardian at the end of any year, counting from the time of his appointment, which ought to have been invested or loaned out for the benefit of the ward in reasonable time, but which remains in the hands of the guardian, he shall be charged with interest from the end of the year in which such balance arose; and thereafter he shall be charged with interest upon interest, in biennial rests, and the guardian shall account to his ward for whatever profit or rate of interest he receives from loans or investments of the trust funds."

J. F. Lee, the father of T. R. Lee, died intestate in Marshall county, Ky. in 1877, leaving a widow, Mary Lee, and five children. His estate consisted of land worth $3,000, and an insurance policy on his life for $5,000, together with other personalty, which realized at sale over $3,000. After the death of J. F. Lee, his son-in-law, T. D. Brown, was appointed and qualified as administrator of his estate, and collected the insurance policy, sold and converted into cash sufficient other personalty to realize the sum of $3,011.53, and out of this sum paid off debts amounting in round numbers to $1,800. This left in his hands a balance of $6,211.53, one-third of which was distributed to the widow, and the remainder divided equally among the five children. Afterwards, on the 7th day of October, 1878, appellee, as judge of the Marshall county court, appointed T. D. Brown guardian of T. R. Lee, then an infant about two years old, and accepted as surety on his bond Mrs. Mary Lee, the mother of the infant. Upon qualifying as guardian, Brown charged himself with the infant's distributable share of his father's estate; thereby becoming, in law, responsible for it in this fiducial capacity. He remained guardian for his infant brother-in-law, without having executed a new bond, throughout the infancy of the latter. Upon the ward's arriving at lawful age, this action was instituted against appellee upon his official bond; the petition stating substantially the foregoing facts with regard to the estate, the appointment and qualification of the guardian, and that the surety on the guardian's bond was at the time of her acceptance insolvent, and known to be so by him; that, by reason of the execution of the bond as guardian, and the acceptance of Mrs. Mary Lee as surety thereon, T. D. Brown received into his hands and custody all the personal estate of the infant; that he has become wholly insolvent, and, unless the ward can recover a judgment against appellee equal to the estate received and squandered by his guardian, it will be entirely lost to him; that by reason of the failure of appellee, as county judge aforesaid, to require of his guardian a solvent surety, the ward has been damaged in the sum of $3,216, for which he prays judgment. A general demurrer was interposed to the foregoing petition, and overruled by the court, whereupon appellee answered, placing in issue its material allegations. Upon trial of the case, the court dismissed the petition, from which judgment this appeal is prosecuted.

The first question with which we are confronted is whether or not, assuming that the estate of the infant was in whole or in part lost by the insolvency of the guardian and his surety, the county judge who accepted the insolvent surety is responsible for the loss, under the provisions of section 2018 of the Kentucky Statutes of 1903. The rule is well settled in this state that the county judge is not an insurer of the solvency of the sureties he accepts on guardians' bonds, and, if the evidence before him as to their solvency is such as would satisfy a person of ordinary prudence and judgment, he is not liable...