Hocker v. Woods's Executor

• Decision Date: 01 January 1858
• Citation: 33 Pa. 466
• Parties: Hocker versus Woods's Executor.
• Court: Pennsylvania Supreme Court

33 Pa. 466

Hocker versus Woods's Executor.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

Herman Alricks and J. A. Fisher, for the plaintiff in error.— The discharge of Woods by the Orphans' Court, was merely a discharge from the duties of his appointment, not from his liability on the bond: Act 29th March 1832, § 11, Brightly's Purd. 192, pl. 35; Id. 217, pl. 193. He remained liable, as a principal in the bond, for the acts of his co-guardian: Patterson's Estate, 1 W. & S. 291; Boyd v. Boyd, 1 Watts 368; 2 Conn. 536; Weigand's Appeal, 4 Casey 471; Moore v. Wallis, 18 Ala. 458; Williams v. Harrison, 19 Id. 273; Thomas v. Riegel, 5 Rawle 266.

Hamilton Alricks, for the defendant in error, cited Sterrett's Appeal, 2 Penn. R. 419; Stem's Appeal, 5 Wh. 476; Calhoun's Estate, 6 Watts 185; Royer's Appeal, 1 Jones 36; Eyster's Appeal, 4 Harris 372, 376.

The opinion of the court was delivered by WOODWARD, J.

If a distinction, such as is made in the argument, may be taken between the discharge of a guardian from the duties of his appointment, and liability for the estate of his ward, it is not a distinction to rule this case, for the record which shows the discharge of Woods, shows also that no part of the wards' estate had come to his hands. There was then no liability when he was discharged, and liability could not accrue afterward. True it is, that joint administrators and executors are liable for the devastavits of each other; but this is, where the trust is continued in their hands jointly. When one is discharged under the Acts of Assembly, he is liable to account for the estate still in his hands, and he may, perhaps, be chargeable with the devastavit of his fellow-trustee committed before that time; but where there has been no such devastavit, and the discharged executor, administrator, or guardian has had possession of no part of the estate, which is this case, his discharge is complete to all intents, both from duties and liabilities.

But how did the discharge affect the surety in the bond? The principle is undoubted, that if a holder of a bond against two, with a surety for both, discharges one of the obligors, he releases, thereby, the surety. But why? Because he changes the contract of the surety without his consent. The duty to be performed was joint. The surety saw that both principals were bound for it, and he consented to be bound for them both, but never agreed to be bound for either alone. When, therefore,...