Hantzch v. Massolt
| Decision Date | 17 June 1895 |
| Docket Number | 9310 -- (138) |
| Parties | RICHARD R. HANTZCH v. MARY MASSOLT and Others |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining demurrers to the complaint. Reversed.
Orders sustaining the demurrers reversed.
McHale & Abell, for appellant.
Witchie & Bleecker, for respondents next of kin and heirs at law of William Massolt.
Kitchell Cohen & Shaw, for respondents devisees and legatees of John Heinrich.
Appeal by plaintiff from an order sustaining the demurrers of the defendants to his complaint, the material allegations of which are as follows: That on January 23, 1885, the plaintiff was a minor, and on that day John P. Noel was appointed his guardian by the probate court of the county of Hennepin, who accepted the trust, and executed to the judge of such court a guardian's bond in the penal sum of $ 1,000, with William Massolt and John Heinrich as sureties, which contained the conditions required by law. That Noel received as such guardian the sum of $ 843.28, the property of the plaintiff but wholly disregarded his trust, in that he never made any inventory of the estate of the plaintiff coming to his hands until December 4, 1893, and wholly failed and refused to perform his duties as such guardian, and in the year 1887 left the state of Minnesota, and did not return until the year 1892, but the plaintiff did not learn of his return to the state until October, 1893. That plaintiff became of age on August 3, 1891 and on October 30, 1893, filed a petition in the probate court in the matter of such guardianship, for the purpose of compelling Noel to settle his accounts as such guardian, and he was duly cited by the court to appear and file his account. That such further proceedings were had in such court that on December 4, 1893, the court made its order settling such account, wherein it was adjudged that there was due from Noel, as such guardian, to the plaintiff a balance of $ 533.88, with interest at 6 per cent. from January 30 1885, and that he pay the same within 10 days thereafter. That Noel appealed from this order to the district court; and on March 3, 1894, the order was by such court affirmed, and judgment entered therein in favor of the plaintiff, and against Noel, for the sum of $ 829, no part of which has ever been paid. That March 9, 1890, the surety John Heinrich died, seised of real and personal estate, and leaving a will, whereby he devised and bequeathed all of his property to the defendants Julius J. Heinrich, Gustav J. Heinrich, Antonia Oswold, Siegmund J. Wiedenbeck, Adolph C. Heinrich, and Nina Egle, the first three named being his children and only heirs at law. His will was admitted to probate in Hennepin county on April 28, 1890, and executors thereof appointed; and on May 2, 1890, the probate court made its order requiring all persons having claims against the estate to present them on or before December 30, 1890. Publication of this order was completed June 2, 1890; and on January 25, 1894, the estate was distributed to and received by the above-named defendants, who are now in the possession of it. That on February 24, 1892, William Massolt, the other surety, died, intestate, seised of real and personal estate; and his estate was duly administered and settled in the probate court of the county of Hennepin; and on March 30, 1892, the court made its order requiring all claims against the estate to be presented on or before the first Monday in October, 1892, and notice of such order was duly given; and thereafter, and on September 2, 1893, it made its decree of distribution whereby such estate was assigned to and was received by his next of kin and heirs at law, the defendants herein, other than the devisees and legatees of John Heinrich, hereinbefore specially named, who are now in possession of the same.
Upon this state of facts, the plaintiff seeks to recover from the defendants, as legatees and distributees of the sureties, respectively, his claim, not exceeding the value of the property received by them as such, under the provisions of G. S. 1894, c. 77. The most serious reason urged by respondents why the complaint does not state a cause of action is that the claim was provable against the estates of the respective sureties, and, not having been so presented, it is barred. This involves two question: (1) Was the claim a contingent one until after the time within which it could be presented to the probate court and allowed had expired? (2) If so, was the plaintiff bound to present it for allowance to the probate court, and, failing to do so, is this action barred?
1. A contingent claim is one where the liability depends upon some future event, which may or may not happen, and therefore makes it wholly uncertain whether there ever will be a liability. Sargent v. Kimball, 37 Vt. 320. Now, save in exceptional cases, a suit on a guardian's bond against the sureties cannot be maintained without a previous liquidation of the amount due from the guardian by a settlement of his accounts. Such an accounting is an equitable, and not a legal, proceeding. It involves, not only items of debit and credit, but considerations as to the propriety of charges and investments and allowances for compensation. 2 Brandt, Sur. § 574; Allen v. Tiffany, 53 Cal. 16; Murray v. Wood, 144 Mass. 195, 10 N.E. 822; Tudhope v. Potts, 91 Mich. 490, 51 N.W. 1110. In this case no final settlement of the guardian's account was made, although the plaintiff pursued the matter with reasonable diligence after he became of age, until long after the time for presenting claims against the respective estates of the sureties had expired. Until after the expiration of that time, it was a matter of uncertainty whether the plaintiff ever would have such a claim. It depended upon the contingency of a liquidation of the guardian's account. The plaintiff's claim then depended upon a future uncertain event, for it might happen that by reason of losses in investments, for which the guardian was not responsible, or by advances to or expenses incurred for his ward, a final accounting would show that there was nothing due from the guardian. It is clear that the plaintiff's claim was a contingent claim, incapable of liquidation until it became absolute by a settlement of the guardian's account. McKeen v. Waldron, 25 Minn. 466.
2. The plaintiff's claim did not become absolute and liquidated until long after the time for presenting claims against the estates of the deceased sureties, or either of them, had expired, and the estates settled and distributed to the defendants, as heirs and devisees. Is this action then barred because the plaintiff did not present the claim to the probate court for allowance?
The answer involves a construction of sections 104, 107, and 110 of the Probate Code (G. S. 1894, §§ 4511, 4514, 4517), which read as follows:
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