Boyd v. Withers
| Decision Date | 25 May 1898 |
| Citation | 103 Ky. 698,46 S.W. 13 |
| Parties | BOYD v. WITHERS (two cases). [1] |
| Court | Kentucky Court of Appeals |
Appeals from circuit court, Bath county.
"To be officially reported."
Actions by Dick W. Boyd and by Alex Boyd, guardian, against W. A Withers, as surety on the bond of E. R. Withers, guardian. Judgment for defendant, and plaintiffs appeal. Reversed.
Ira Julian, C. W. Goodpaster, and J. J. Nesbitt, for appellants.
Kohn Baird & Spindle and J. S. Hurt, for appellee.
On November 13, 1883, E. R. Withers qualified as the statutory guardian of appellants in the Bath county court, and gave bond, with appellee, W. A. Withers, as his security. At the November term, 1885, of that court, upon motion of W. A Withers to be released from his obligation as surety for E R. Withers, the guardian was required to execute a new bond, which he did, giving A. B. Barnes as surety thereon. The new bond was accepted and approved by the court, and an order was entered upon the records of the court releasing appellee as surety. No settlement was made by the guardian at the date of this order, and none had been made by him previously to that time. In January, 1889, E. R. Withers became insolvent; and he was removed as guardian of appellants, and a new guardian appointed for them. Soon after his removal, he for the first time made a settlement of his accounts with the county court, which disclosed that he was largely indebted to each of his two wards. The new guardian instituted proceedings against the former guardian on the second bond to recover the balance found to be due the infants. He realized a small pro rata from the estate of the former guardian, and recovered the greater part of the amount due his wards from the estate of the surety on the second bond; but, after exhausting both the guardian and the security, there remained about $968 due to each of his wards. In the meantime one of the infants arrived at age, and he, on his own account, and the guardian for the other, instituted separate actions, seeking to recover from the security on the original bond (appellee here) the balance due them. Appellee resists judgment, and relies for his defense upon the execution of the new bond, and the county court order releasing him as surety; and he also puts appellants upon proof of the indebtedness of the guardian, and of the balance remaining unpaid. The pleading and proof being the same in each case, they were heard together below, and will be considered together on this appeal.
On the trial appellants introduced as proof the county court settlement of the former guardian, made after his removal in 1889, and also proof that the guardian had collected and received for the wards, before the execution of the new bond, and while the first bond was in full force and effect, about $7,000, and that a comparatively small sum, consisting chiefly of rents, came into the hands of the guardian after the execution of the second bond. It also appealed that the surety on the second bond had paid on the judgments of appellants against the guardian largely more than the amount received by the guardian after the execution of the new bond, and the entry of the county court order releasing appellee as surety. On the hearing the chancellor dismissed both petitions, and plaintiffs appealed to this court, asking a reversal.
The main question to be determined on the appeal is, on whom does the burden rest of proving the date when the insolvent guardian appropriated to his own use the funds of his wards? It is claimed by appellee that he can be held responsible only for such acts of maladministration of the guardian as are proven to have been done while he was security on the bond; that, in the absence of such proof, the presumption is that the funds of the wards were in the hands of the guardian, intact, at the date of the execution of the new bond; that to overcome this presumption, and hold appell...
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Brooke v. Am. Sav. Bank of Muscatine
...Co. of Baltimore v. People ex rel. Kennedy, 46 Colo. 394, 104 P. 81;Williams et al. v. State ex rel. Roberts, 89 Ind. 570;Boyd v. Withers, 103 Ky. 698, 46 S. W. 13; Ætna Accident & Liability Co. v. Langley et al., 68 Okl. 283, 174 P. 1046. In the Shackleford Case, supra, it is said: “Penal ......
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Brooke v. American Savings Bank of Muscatine
...56 Miss. 648; American Bond. Co. v. People, 46 Colo. 394 (104 P. 81); Williams v. State ex rel. Roberts, 89 Ind. 570; Boyd v. Withers, 103 Ky. 698 (46 S.W. 13); Acc. & Liabil. Co. v. Langley, 68 Okla. 283 (174 P. 1046). In the Shackleford case, supra, it is said: "Penal bonds are never held......
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McMullen v. The Winfield Building and Loan Association
... ... knowledge of the fact, while the information would not be ... accessible to the parties indemnified. In Boyd v ... Withers, 46 S.W. 13, a case of successive bonds given by ... a guardian who had defaulted, and where the ward was unable ... to fix the ... ...
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Kentucky Retirement Systems v. Brown, No. 2006-CA-000296-MR (Ky. App. 12/28/2007)
...CR6 43.01(1)("The party holding the affirmative of an issue must produce the evidence to prove it."); see also Boyd v. Withers, 20 Ky.L.Rptr. 511, 46 S.W. 13, 14 (Ky. 1898)("It is true that in the vast majority of instances the burden of proving any fact lies upon the party who substantiall......