American Sur. Co. of New York v. Skaggs' Guardian

• Decision Date: 10 February 1933
• Citation: 247 Ky. 687,57 S.W.2d 495
• Parties: AMERICAN SURETY CO. OF NEW YORK v. SKAGGS' GUARDIAN et al.
• Court: Kentucky Court of Appeals

57 S.W.2d 495

247 Ky. 687

AMERICAN SURETY CO. OF NEW YORK v. SKAGGS' GUARDIAN et al.

Court of Appeals of Kentucky

February 10, 1933

As Extended on Denial of Rehearing March 17, 1933.

Appeal from the Circuit Court, Larue County.

Action by Blain Skaggs, as guardian of Glenn Albert Skaggs, against the American Surety Company of New York and another. From the judgment, defendants appeal, and plaintiff cross-appeals.

Reversed.

Faurest & Faurest, of Elizabethtown, and L. B. Handley, of Hodgenville, for appellant.

James &amp James, of Elizabethtown, and Will M. Graham, of Hodgenville for appellees.

DRURY C.

Blain Skaggs, as guardian of Glenn Albert Skaggs, began this action against R. W. Creal (former county judge of Larue county) and the American Surety Company, of New York, the surety on his official bond, to recover money alleged to have been lost by failure of the county judge to require biennial settlements of and to require proper bond of R. R. Hargan, the guardian of Glenn Albert Skaggs. The present guardian was given judgment for $614.53; the county judge and his surety have appealed, and the present guardian has prosecuted a cross-appeal.

R. W Creal served as county judge of Larue county from January 7, 1918, until January 2, 1926, two terms, and the American Surety Company was upon his official bonds during both terms.

R. R. Hargan was on March 1, 1918, by Judge R. W. Creal appointed public administrator and guardian for Larue county, and required to execute bond in the penal sum of $2,500, upon which bond the Maryland Casualty Company became his surety. We shall refer to this as "Hargan's general bond."

On December 4, 1919, the estate of Glenn Albert Skaggs, then eight years of age, was committed to the hands of R. R. Hargan as such public administrator and guardian. The only funds belonging to Glenn Albert Skaggs that came to the hands of R. R. Hargan were derived from a judicial sale of certain real estate in which Glenn Albert Skaggs had an interest, and, before the Larue circuit court would order this money paid to R. R. Hargan, it required him to execute a bond in that court with two sureties as provided by section 493 of the Civil Code of Practice. This Hargan did, and L. B. Handley and Charles Williams became sureties thereon. We shall refer to this as "Hargan's special bond."

Thereafter R. R. Hargan received for Glenn Albert Skaggs under orders of the Larue circuit court $598.72, on January 27, 1920, and $32.45 upon February 7, 1920. Hargan continued to act as such public administrator and guardian until March 24, 1930, when he was removed from office; and then it was found that this and other estates in Hargan's hands amounted to over $8,000. Hargan may not have made settlement of any of these estates; at least, he had made no settlement of this one.

On May 4, 1930, Blain Skaggs was appointed guardian of Glenn Albert Skaggs, and he is now so acting. He very promptly instituted suit in the Larue circuit court against R. R. Hargan, the Maryland Casualty Company, the surety on Hargan's general bond, and against the sureties on Hargan's special bond. Judgment was obtained against all of them except the Maryland Casualty Company, upon which execution issued and was returned, "No Property Found." The Maryland Casualty Company paid into court the $2,500 for which it was liable, and it was dismissed. This $2,500 was distributed among the various estates in the hands of Hargan, and the pro rata share going to young Skaggs was $308.79.

Thereupon Blain Skaggs, the present guardian, began this action with the results stated at the outset of this opinion.

When pursuant to section 3905, Ky. Stats., the estate of Glenn Albert Skaggs was committed to the hands of R. R. Hargan, as public administrator and guardian, the same responsibility then fell upon him and his bond as if he as an individual had then under section 2017, Ky. Stats., been appointed guardian of such ward and had executed bond as such, except that the liability of the surety upon the bond of Hargan as public administrator and guardian extends pro rata to all estates in his hands. The liability of the county judge and his surety under section 2018, Ky. Stats., extends to and applies as fully in one case as in the other. Olsen's Adm'r v. Rich, 79 Ky. 244.

The duties of a county judge under sections 1062, 1063, 1064, 1065, 1068, and 2017, Ky. Stats., are mandatory, and he and his surety are liable for any loss that may result to the infant as a result of his negligence or failure to comply with these statutory provisions. Section 2018, Ky. Stats.; Cornelison v. Million, 129 Ky. 573, 112 S.W. 654; Cornelison's Adm'r v. Million, 138 Ky. 416, 128 S.W. 316; Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112, 21 S.W.2d 147.

The Special Bond.

In the answer of the American Surety Company, which was adopted by the county judge, it is alleged that during all of both terms of R. W. Creal, as county judge, L. B. Handley and Charles Williams, the sureties upon the special bond executed by Hargan in the Larue circuit court were solvent, and because of that fact alleged and sought to be proven they contended they were to be excused. A demurrer was sustained to this, and it is of that action that they first complain. This demurrer was properly sustained. The special bond required by section 493 of the Civil Code of Practice is not given in lieu of the county court bond, but is additional thereto. Withers v. Hickman, 45 Ky. (6 B. Mon.) 292; Taylor v. Taylor's Ex'rs, 45 Ky. (6 B. Mon.) 559; Elbert v. Jacoby, 71 Ky. (8 Bush) 542; Barker v. Boyd, 71 S.W. 528, 24 Ky. Law Rep. 1389; Mahan v. Steele, 109 Ky. 31, 58 S.W. 446, 22 Ky. Law Rep. 546; Johnson v. Johnson's Heirs, 31 Ky. (1 Dana) 364; Clements v. Ramsey, 4 S. W. 311, 9 Ky. Law Rep. 172; 28 C.J. p. 1290, § 488; and page 1293, § 494.

The county judge has no control over the action of the circuit court, and the liability of a guardian on his general bond and the liability of the county judge and his surety for any loss resulting from his negligence would be just the same if the circuit court had ordered this money paid to Hargan without requiring any bond, or had allowed the bond to be executed in the circuit court by two utterly insolvent sureties. In Mahan v. Steele, 109 Ky. 31, 58 S.W. 446, 22 Ky. Law Rep. 546, it was held: "The fact that the proceeds of an infant's real estate sold in a proceeding under Civ. Code Prac. § 490, were paid to his guardian without first requiring the execution of the special bond prescribed by Id. § 493, does not release the surety in the general bond of the guardian from liability for such proceeds."

The statute imposes on the county judge the duty of protecting the estates of infants by bonds in his court over which he has control, and he cannot excuse his failure to perform his statutory duties by reason of a bond in the circuit court over which he had no control any more than he could excuse his dereliction by the fact that the guardian may have been solvent or that there may have been some private agreement on the part of some individual to protect the ward against loss.

Amount Due Ward.

These parties are in sharp disagreement as to the amount for which the judgment should have been awarded. Hargan received this money in January and February, 1920, and it was his duty to bestir himself to make this money yield an income. He needs must have some reasonable time in which to do so. Karr's Adm'r v. Karr, 36 Ky. (6 Dana) 3; Keubler v....