Abshire v. Rowe

• Decision Date: 29 January 1902
• Parties: ABSHIRE et al. v. ROWE et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 394

112 Ky. 545

ABSHIRE et al. v. ROWE et al. ^[1]

Court of Appeals of Kentucky.

January 29, 1902

Appeal from circuit court, Pike county.

"To be officially reported."

Action by Samuel J. Salyer, guardian of Ulysses S. Rowe and others against A. J. Abshire and others, on a guardian's bond. Judgment for plaintiff, and defendants A. J. Abshire and K F. Robertson appeal. Affirmed.

J. M Robertson, for appellants.

J. F Butler, for appellees.

O'REAR J.

One James Matney was appointed guardian for the infant appellees Rowe in August, 1895, by the Pike county court, and executed a bond, with L. D. Marrs and seven others as sureties. Thereafter there came to the hands of the guardian a fund belonging to the infants jointly to the amount of $1,666.66. On the 17th day of March, 1897, pursuant to a notice executed by said L. D. Marrs and D. B. Marrs, two of the sureties, the guardian was required to execute a new bond. The notice was for the purpose only of procuring the release of the two sureties named. This new bond was executed with appellants Abshire and K. F. Robertson and others as sureties. At the August term, 1898, of the Pike county court, Matney was removed as guardian, and Samuel J. Salyer was appointed his successor, who brought this suit against all the sureties in both the bonds executed by his predecessor. Matney, alleging the insolvency of Matney and the devastavit of his ward's estate, and alleging that he had refused and failed to pay over the amount, or any amount, of the money so received by him for them, and had failed to make any investment of same for them. Appellants Abshire and Robertson, sureties on the new bond, plead that the money received by the guardian was received before the new bond was executed or required, and that, likewise, it was squandered and converted by the guardian before the execution of the new bond. They claim that in consequence of these facts they are not bound, and they cite and rely upon Boyd v. Withers (Ky.) 46 S.W. 13; Jones v. Gallatin Co., 78 Ky. 491; Cassilly v. Cochran's Guardian (Ky.) 13 S.W. 844.

The question is, what was the purpose and what is the effect of the new bond? It is argued for appellants that it was to answer for the faithful accounting by the guardian of the wards' estate coming to his hands from and after its date. In Boyd v. Withers, supra, the court held that in any event the burden was upon the guardian or his surety claiming exemption to show when the devastavit was committed, and in the absence of such showing a judgment against any of the sureties would be upheld. In Cassilly v. Cochran's Guardian (Ky.) 13 S.W. 844, it was adjudged that, under the peculiar facts of that case, the conversion of the wards' estate by the guardian occurred after the execution of the new bond, and therefore the sureties upon the new bond were undeniably liable. The question here presented did not necessarily arise, and was not decided, in either of the cases cited. By section 1068 of the Kentucky Statutes it is made the duty of the county judge to at least once in each year carefully inquire into the solvency of all the sureties upon the bond of each fiduciary; and, if there is reason to believe that any bond is not amply sufficient to protect from loss those interested, he is required to give notice to such fiduciary "that a new bond, or additional surety on the old one, is required, and upon the failure of such fiduciary to give such bond or surety within a reasonable time, to be fixed by the court, he shall be removed." It is obviously the purpose of this statute to give to the county court a discretion, and invest it with a duty, long exercised by that tribunal, to exact ample and rigid security for the protection of infants whose estates are committed to guardians. A guardian is appointed subject to being removed for cause during the minority of the infant and the bond first executed covers that period. Elbert v. Jacoby, 8 Bush, 542. It not infrequently happens that one or more, or possibly all, of the sureties on the bond may become insolvent. They would not be interested, therefore, in directing the attention of the county court to derelictions of the principal. But the court may require the security to be strengthened by requiring additional surety, or the execution of a new bond. In either event it is the purpose of the court to protect the infant's interest. If the new bond should take effect only from its date, and the conversion of the ward's property or other wrongful act that may thereafter be complained of had occurred before the execution of this new bond,--the sureties in the old one having become insolvent,--then the execution of such new bond would probably be useless, so far as any practical benefit is concerned. Unless such new bond is executed, or additional surety furnished, it is the duty of the court to then remove the guardian and appoint another. This termination of his office, depriving him of its emoluments and privileges, and requiring of him an immediate settlement and transfer of the wards' assets to the successor, would all have occurred at the time of the original complaint, except for the execution of a new bond. The result of such execution is to continue the guardian in office, and to continue his rightful custody and use of his ward's estate, and to prevent for the time being an action to require him to account for and pay over what had previously come to his hands. It is what the language of the statute says it is,--"an additional surety." This statute is not new in our law. It has existed in one form or another from the earliest history of the commonwealth. And under it this court has uniformly held that the execution of one or more additional bonds is merely cumulative, affording additional protection to the infant, and additional security to him that the guardian shall execute and shall have executed faithfully all the duties of his office. Hutchcraft v. Shrout's Heirs, 1 T. B. Mon. 208, 15 Am. Dec. 100; Frederick v. Moore, 13 B. Mon. 472; Elbert v. Jacoby, 8 Bush, 545; Withers v. Hickman, 6 B. Mon. 292; Taylor v. Taylor's Ex'rs, Id. 559; Middleton's Adm'r v. Hensley (Ky.) 52 S.W. 974; Sievers v....