Commonwealth v. Raser

• Decision Date: 03 January 1870
• Citation: 62 Pa. 436
• Court: Pennsylvania Supreme Court
• Parties: Commonwealth to the use of Raser <I>versus</I> Raser.

62 Pa. 436

Commonwealth to the use of Raser versus Raser.

Supreme Court of Pennsylvania.

October 21, 1869.

January 3, 1870.

October 21st 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1869, No. 195 G. W. De Camp, for plaintiff in error.—The bond and its condition are prescribed by Act of March 29th 1832, § 8, Pamph. L. 191, Purd. 278, pl. 37. A suit will lie on it without any proceeding in the Orphans' Court: Commonwealth v. Bryan, 8 S. & R. 128; Commonwealth v. Wenrick, 8 Watts 159; Newcomer's Appeal, 7 Wright 43; Commonwealth v. Rogers, 3 P. F. Smith 470; Hartzell v. Commonwealth, 6 Wright 460.

J. C. Marshall (with whom was F. F. Marshall), for defendant in error.—Without final action in the Orphans' Court, the Common Pleas has no jurisdiction: Act of 1832, supra, Purd. 307, pl. 208, et seq.; Shilling's Appeal, 1 Barr 90; Dennison v. Cornwell, 17 S. & R. 374; Bowman v. Executors of Herr, 1 Penna R. 282; Nutz v. Reutter, 1 Watts 229; Carl v. Wonder, 5 Id. 97; Hostetter's Appeal, 6 Id. 245.

The opinion of the court was delivered, January 3d 1870, by THOMPSON, C.J.

The plaintiff, formerly a ward of the defendant Lockwood, brought this action in the court below against him and his sureties, on the bond given by them in the Orphans' Court of Erie county, on his appointment as guardian of the plaintiff; conditioned according to the Act of Assembly, "to render a just and true account of the management of the property and estate of said minor," &c.

No account had, at the time of the bringing the suit, been filed by the guardian, although much more than three years had elapsed since his appointment; nor had there been any move made to that effect by the ward, although she was over age five or six years, when this suit was brought. In 1859 the guardian removed out of the jurisdiction of the court into the state of Illinois, to the town of Quincy.

After the plaintiff had given in evidence the appointment of Lockwood as guardian, his bond executed by defendants as sureties, a receipt by him to the administrators of the estate of Thomas Raser, deceased, for $8000, "supposed," as the receipt says, "to be the amount due said Raser's heirs," and proof that there were six of them, and that the guardian had removed from the state in 1859, she rested. Whereupon, on motion of the defendants' counsel, the court granted a nonsuit against the plaintiffs.

The ground for the nonsuit does not appear, no opinion having been filed; but as the arguments on both sides assume that it was because no settlement of the accounts of the guardian had been made or called for, and no decree of the Orphans' Court fixing any liability on his part, we may accept this as the reason for the nonsuit, and notice it as the only one.

That a guardian's bond is security for all interested in the trust is not to be disputed. Nor is it to be doubted that it is liable to be sued in the common-law courts, whenever the guardian has been ultimately fixed by decree of the Orphans' Court as for a breach of it. The Orphans' Court is vested with ample powers by the 57th section of the Act of 29th March 1832 to compel settlements of guardians' accounts, whether the guardian has removed out of the jurisdiction of the court or not, if he has given security, as he did in this case. It can cite him to a settlement wherever he may be; and if his residence be not known, his sureties may be cited, and on due proof of service of the citation the act provides that the court "may proceed to make such order or decree in respect to the subject-matter as may be just and necessary."

It is not my purpose to analyze the provisions of the law, to show that the Orphans' Court has ample powers to arrive at an ascertainment of the state of a guardian's accounts and his liability in any case. It is armed with the powers of a court of chancery to reach the consciences of parties, guardians, sureties and everybody else having any knowledge of the accounts or doings of the guardian, and can compel the production of books and papers having relevancy to the matter of the trust, and then, after a settlement according to equity in such cases, it can decree against, or in favor of the guardian, as may be "just and necessary," and enforce its decree by sequestration as well as by common law writs of execution. This power to enforce the decree, at once, not only shows that a complete system was designed for the Orphans' Court in cases of this kind, but it exhibits a care for sureties, who by this means may be, and often are, saved from loss by guardians. I cannot but think, therefore, that the legislature intended that the Orphans' Court alone should have...