Botkin v. Kleinschmidt

• Decision Date: 21 March 1898
• Citation: 52 P. 563,21 Mont. 1
• Parties: BOTKIN v. KLEINSCHMIDT et al.
• Court: Montana Supreme Court

52 P. 563

21 Mont. 1

BOTKIN v. KLEINSCHMIDT et al.

Supreme Court of Montana

March 21, 1898

Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.

Action by A. C. Botkin, guardian of the person and estate of William Kohlweiss, against T. H. Kleinschmidt and others, on the bond of Henry C. Yaeger, former guardian.From a judgment in favor of plaintiff, defendants appeal.Affirmed.

This is a suit on a guardian's bond.From the pleadings and record it appears that on July 3, 1889, Henry C. Yaeger was duly appointed and qualified as guardian of one Kohlweiss, an insane person.On September 9, 1889, the probate court of Lewis and Clarke county by proper order authorized Yaeger to sell certain real estate belonging to said insane ward.In pursuance of said order of sale, Yaeger executed the bond required by law in such cases, with defendants Kleinschmidt and Parchen as sureties thereon, in the sum of $10,000.The condition in said bond is as follows: "That whereas, by an order of the probate court of the said county of Lewis and Clarke, territory of Montana, duly made and entered on the 9th day of September, 1889, the above-bounden Henry C. Yaeger was authorized to sell lot No. 20, in block No. 26, property of said insane person, upon executing a bond according to law, in said sum of ten thousand dollars: Now, therefore, if the said Henry C. Yaeger, as such guardian, shall faithfully execute the duties of the trust according to law, then this obligation to be void; otherwise, to remain in full force and effect."On October 22, 1889, Yaeger sold the real estate mentioned for the sum of $3,500.On March 9, 1893, his letters as guardian were revoked, and the plaintiff herein was appointed and qualified as his successor.On December 2 1895, the district court of said county settled and adjudicated the account of said Yaeger as guardian of said estate, and duly adjudged the said Yaeger to be indebted to said estate in the sum of $4,595, being the amount for which the real estate was sold and the interest thereon, less some items of commission and costs, and ordered the said Yaeger to pay the same immediately to plaintiff, which the said Yaeger has failed to do.The defendants interposed a demurrer to the complaint in this action upon the grounds: (1) That the same did not state facts sufficient to constitute a cause of action; (2) that, while an embezzlement is alleged as of the date when the moneys were received, other facts alleged in the complaint show that it would have been an impossibility that there could have been an embezzlement at that time because it appears that the moneys came lawfully into Yaeger's possession, and that he was not required by law to keep the cash received in kind, but only to stand ready to turn over when lawfully ordered by the court so to do, and that there was, therefore, in law, no embezzlement until the court had made an order requiring the guardian to pay the moneys over to some person, and which order he had refused to obey; (3) because there has been no judgment or order of the court fixing the liability of the principal, and until this has taken place no right of action exists against the sureties.The demurrer was overruled.The defendants Parchen and Kleinschmidt then answered, denying the embezzlement, or that they assumed any obligations as to real estate proceeds or that any judgment of debt was entered against Yaeger.Upon the trial the defendants made special objections to the proofs upon the same grounds presented by their demurrer and answer.The proofs offered on the part of plaintiff were the records showing the order removing Yaeger as guardian of the estate, as shown above, and appointing plaintiff his successor, and the judgment, wherein the court adjudged Yaeger to be indebted to the estate in the amount as given above.Thereupon the appellants moved for a nonsuit, which was overruled, and, they making no further defense, judgment was entered against them for the sum of $4,595, with interest and costs.From this judgment, defendants appeal.

Toole & Wallace, for appellants.

A. C. Botkin, T. J. Walsh, and C. B. Nolan, for respondent.

PEMBERTON C.J.(after stating the facts).

Counsel for appellants contend that as the conditions of the bond sued on are not the conditions prescribed by section 387, p. 370, of the Compiled Statutes of 1887, but are conditions prescribed by section 358, p. 363, Id., they cannot be held liable in this action.Section 358 refers to the general duties and obligations of guardians, and the conditions of the bonds they are required to execute when they take charge of the estates of their wards.Section 387 has reference to bonds which guardians are required to give before selling real estate of their wards under order of court, and is as follows: "Every guardian, authorized to sell real estate, must, before the sale, give bond to the probate judge, with sufficient...