American Surety Co. of N.Y. v. Skaggs Gdn.
| Decision Date | 17 March 1933 |
| Citation | 247 Ky. 687 |
| Parties | American Surety Company of New York v. Skaggs' Guardian et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Guardian and Ward. — When pursuant to statute estate of minor was committed to hands of public guardian, same responsibility fell on him and his bond as if he as individual had been appointed guardian (Ky. Stats., secs. 2017, 3905).
2. Judges. — Liability of county judge and his surety applies where estate of minor is committed to hands of public guardian (Ky. Stats., secs. 2017, 3905).
3. Judges. — Duties of county judge under statutes respecting settlements with fiduciaries are mandatory, and he and surety are liable for loss to infant from his negligence or failure to comply with statute (Ky. Stats., secs. 1062, 1063, 1064, 1065, 1068, 2017, 2018).
4. Judges. — County judge could not excuse failure to perform statutory duties to protect infant's estate by reason of bond required in circuit court on judicial sale of lands (Ky. Stats., secs. 1062, 1063, 1064, 1065, 1068, 2017, 2018, 3905; Civil Code of Practice, sec. 493).
Facts were that, after estate of minor was committed to hands of public administrator and guardian under Ky. Stats., sec. 3905, a judicial sale of lands in which minor had interest was made under order of circuit court, and circuit court required public guardian to execute special bond in that court as provided by Civil Code of Practice, sec. 493, before it would order money paid over to him, but fact of execution of such special bond with solvent sureties did not relieve county judge of failure to perform his duties under Ky. Stats., secs. 1062, 1063, 1064, 1065, 1068, 2017, respecting settlements of fiduciaries because special bond required by Civil Code of Practice, sec. 493, is not given in lieu of county court bond, but is additional thereto.
5. Guardian and Ward. — Where there was no evidence that public guardian used ward's money himself or could have found safe income yielding investment, he was not chargeable with interest until end of year from time of his appointment (Ky. Stats., sec. 2035).
6. Judges. — Liability of county judge and his surety for negligence in not requiring settlements of guardian became fixed at time for first biennial settlement after term of office expired (Ky Stats., secs. 1062, 1063, 1064, 1065, 1068, 2017, 2018).
7. Payment. — Where payment was insufficient to pay all interest, it should be applied to interest longest due .
8. Costs. — Where defendants lost on main issue on which they relied on appeal, and appellate court's inability to determine extent of their liability was due to their failure to fully develop their defense, they should pay all costs of appeal.
Appeal from Larue Circuit Court.
FAUREST & FAUREST and L.B. HANDLEY for appellant.
JAMES & JAMES and WILL M. GRAHAM for appellees.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Reversing.
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 former 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 into 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., had 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 section 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.
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, sec. 488; and page 1293, sec. 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 proceeding under Civ. Code Prac. sec. 490, were paid to his guardian without first requiring the execution of the special bond prescribed by Id. sec. 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.
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. Taylor, 15 Ky. Law Rep. 334; Com. v. Lee, 120 Ky. 433, 86 S.W. 990, 89 S.W. 731, 27 Ky. Law Rep....
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