Harshman v. McBride

• Citation: 2 Ind.App. 382,28 N.E. 564
• Parties: Harshman v. McBride.
• Decision Date: 29 September 1891
• Court: Court of Appeals of Indiana

2 Ind.App. 382

28 N.E. 564

Harshman

v.McBride.

Appellate Court of Indiana.

Sept. 29, 1891.

Appeal from circuit court, Clinton county.

Action by Samuel S. McBride, as guardian, against Henry C. Harshman, as administrator of the estate of the former guardian. Judgment for plaintiff. Defendant appeals. Affirmed.

Jas. V. Kent and Doyal & Gard, for appellant. F. F. Moore, J. C. Smith, and S. O. Bayless, for appellee.

REINHARD, J.

Of the several errors assigned, the appellant's counsel have discussed only the overruling of the demurrer to the complaint or claim. It is that subject alone, therefore, which demands an examination at our hands. The particular question raised by the appellant is whether, if a guardian of infant wards convert the assets in his hands to his own use, and then die without having refunded the same, a claim may be filed and maintained against his estate by the succeeding guardian. The contention of the appellant is that in such a case the sole remedy is on the bond of the deceased guardian. It has been expressly decided that, after a ward has arrived at the age of majority, he has his option either to sue the guardian individually, or institute an action on the bond in the name of the state, on his relation, for a conversion of the funds in his hands belonging to such ward. Hays v. Walker, 90 Ind. 105. See, also, Stumph v. Guardianship of Pfeiffer, 58 Ind. 472. If this may be done by the ward after arrivingat full age, it is not easy to perceive why suit may not be maintained by a succeeding guardian; and, if the action will lie against the defaulting guardian while living, no good reason can be shown why a claim against his estate may not be filed and prosecuted after his death. To our minds, it is quite clear upon principle that the law imposes upon minor children no such hardships as to deprive them of a remedy so obviously just. The conversion of the funds in the hands of a guardian renders him individually indebted to the ward for the amount so converted. If the remedy were confined to an action on the bond, then the damages could in no event exceed the amount of the penalty named in the bond, whatever the amount of the conversion might be. Thus, if a guardian convert to his own use $2,000 of his ward's estate, and the penalty of the bond is but $1,000, the ward must be content with the $1,000, and no action would lie for the remaining $1,000. In the case before us, we are told that the liability on both bonds was limited to $2,000, ($1,000 each,) while the amount found...