Asher v. Stull
| Decision Date | 05 December 1916 |
| Docket Number | 7729. |
| Citation | 161 P. 808,61 Okla. 320,1916 OK 999 |
| Parties | ASHER v. STULL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is not necessary that a claim for a fund wrongfully misappropriated by a guardian be presented to the administrator of the surety of such guardian before an action for the recovery thereon can be maintained.
Where a guardian dies without an accounting and settlement of his affairs having been made in the county court, his ward may maintain an action in the district court against the personal representatives of the sureties on his bond for an accounting and settlement.
In such action the court has jurisdiction to adjust the account of the deceased guardian with the ward, and may hear evidence and allow credits and determine the balance due, if any, by said guardian, and render judgment therefor.
Commissioners' Opinion, Division No. 3. Error from District Court, Grant County; W. M. Bowles, Judge.
Action by James H. Asher, as guardian of Elizabeth Miller, a minor against A. J. Stull and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
Sam P Ridings, of Medford, for plaintiff in error.
J. B Drennan, of Medford, R. E. Sullivan, of Pond Creek, and J. G McKelvy and E. H. Breeden, both of Medford, for defendants in error.
This suit was instituted in April, 1914, by plaintiff in error against the defendants in error, to recover from them as sureties on three separate bonds executed by Julia R. Miller, as guardian of Elizabeth Miller, who was her daughter.
It appears that on the 6th day of October, 1908, Julia R. Miller filed a bond as such guardian in the sum of $500, signed by A.
J. Stull as her surety, and thereafter, on the 31st day of May, 1910, she having intermarried with one Castor, she executed another bond in the sum of $3,000 signed by W. C. Caple and J. R. Goldsmith, as sureties; and on the 15th day of May, 1911, she filed in said court, as guardian, a bond in the sum of $3,000, signed by Richard K. Miller and O. J. Roberts, as her sureties.
It further appears that Julia R. Castor, who was the guardian aforesaid, died, and one William French was appointed administrator of her estate, and all the property belonging to said estate has been disposed of and distributed; and the said administrator of the estate of Julia R. Castor on the 23d day of January, 1914, presented and filed a report in the guardianship matter of Elizabeth Miller, showing an amount due by Julia R. Castor to her ward in the sum of $2,034.36, to recover which judgment is sought here.
It also appears that Richard K. Miller, who was one of the sureties upon the bond of Julia R. Castor, died before the institution of this suit, and that his administrator is made a party defendant here.
It also appears that Julia R. Miller was appointed administratrix of the estate of Wylie W. Miller, and that she qualified on the 1st day of February, 1908, as such administratrix, by executing a bond with M. M. Morrow and E. G. Palmer as her sureties, which bond was duly approved, and that on the 6th day of February, 1907, she filed an inventory of said estate, not including the homestead, at $887.09; that on February 21, 1907, she filed a suit as the administratrix of said estate, against the Chicago, Rock Island & Pacific Railway Company, for the wrongful death of said deceased; and that on August 5, 1907, the personal estate being less than $1,500, the judge of the county court of Grant county set all the same aside to the widow for the use and support of herself and her minor child; that in February, 1908, a judgment was rendered in her favor against the railroad company for the sum of $4,000, and it is shown by the evidence here that $3,000 of the same was paid to Julia R. Miller as the administratrix of said estate, for the use of herself and her child, Elizabeth Miller.
It further appears from the record that on the 4th day of March, 1908, the said Julia R. Miller loaned James W. Johnson and wife $2,800, taking a mortgage therefor to herself, which was money derived from the railroad settlement; that on the 8th day of September, 1909, the said Julia R. Miller assigned a one-half interest in the Johnson mortgage to O. S. Kelly, and that on the 24th day of May, 1910, she assigned the other one-half interest to the First State Bank of Pond Creek.
That in her first report as guardian on February 5, 1909, she mentions as the property of the minor a note and mortgage for $1,400, executed by J. W. Johnson, and on March 14, 1910, she again mentions the same note in her report, and shows a balance on hand in cash of $148.54. Again on May 5, 1911, she shows a balance due of $155.59, and under the head of "Notes and Accounts" she listed in her report one note of H. H. Castor and Julia R. Castor in the sum of $1,400.
The record further shows where J. H. Asher qualified as the guardian of Elizabeth Miller, after the death of Julia R. Castor, her mother, and that he executed bond about the 8th day of January, 1912, and on the 29th day of March, 1912, presented a claim to William French as the administrator of Julia R. Castor in the sum of $1,875.64. And it further appears that William French, as the administrator of the estate of Julia R. Castor, here attempts as such administrator to settle the account of Julia R. Castor, as guardian of her daughter, and shows an indebtedness to the ward of $1,875.64.
In the petition filed in this cause, the plaintiff prays judgment for $2,070.86. Upon the trial hereof, the court released the estate of Richard K. Miller from any liability, for the reason that the suit was not instituted within three months after the date of the rejection of the claim filed by the guardian with the administrator of said estate, as the undisputed facts show that Richard K. Miller died, and Josephine V. Miller was appointed his administratrix, and on the 8th day of May, 1913, gave the statutory notice to creditors, and that the plaintiff herein, J. H. Asher, as guardian of Elizabeth Miller, filed a claim with her as the...
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