Hughes v. Langdon

• Court: Nebraska Supreme Court
• Writing for the Court: DAY, J.
• Citation: Hughes v. Langdon, 111 Neb. 508, 196 N. W. 915 (Neb. 1924)
• Decision Date: 15 January 1924
• Docket Number: 22563
• Parties: ENOS T. HUGHES, GUARDIAN, ET AL., APPELLEES, v. MARGARET LANGDON, DEFENDANT: DANIEL KELLY ET AL., APPELLANTS

196 N.W. 915

111 Neb. 508

ENOS T. HUGHES, GUARDIAN, ET AL., APPELLEES, v. MARGARET LANGDON, DEFENDANT:

DANIEL KELLY ET AL., APPELLANTS

No. 22563

Supreme Court of Nebraska

January 15, 1924

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Doyle & Doyle, Halligan, Beatty & Halligan and Hall, Cline & Williams, for appellants.

Anthony E. Langdon and William R. Patrick, contra.

Heard before LETTON, ROSE, DEAN, DAY and GOOD, JJ., REDICK District Judge.

OPINION

DAY, J.

Enos T. Hughes, as guardian of the estate of William K. Langdon, incompetent, and also in his capacity as administrator de bonis non of the estate of Michael J. Langdon, deceased, brought this action on a guardian's bond executed by Margaret Langdon, guardian of the estate of her insane husband, Michael J. Langdon. Daniel Kelly and Michael C. Kelly, brothers of Margaret Langdon, signed the bond as sureties. Process was served on the two Kellys only. Pending the action, defendant Michael C. Kelly died, and the action was revived against him in the name of his administrator, the First Trust Company of Lincoln, Nebraska. The trial resulted in a judgment in favor of the plaintiffs and against both defendants, for $ 14,741.58. Defendants appeal.

The record discloses the following facts: On April 10, 1888, Margaret Langdon was duly appointed guardian of the estate of her insane husband, Michael J. Langdon. On the same day she executed and delivered to the county judge her bond as such guardian in the penal sum of $ 12,000, which was signed by her brothers, Daniel and Michael C. Kelly, as sureties. She entered upon the duties as such guardian, and continued to act as such until the death of her husband, which occurred April 22, 1891. At the time of his death Michael J. Langdon left surviving him, as his heirs at law, his widow, Margaret Langdon, and a minor son, William K. Langdon, about 5 1/2 years of age. Nothing was done concerning the administration of the estate of Michael J. Langdon until December 12, 1902, at which time Margaret Langdon was duly appointed administratrix of the estate. The record fails to show whet, if anything, Margaret Langdon did as administratrix. It does appear, however, that at a later period she was discharged as administratrix. Shortly thereafter the mother and son moved to Oklahoma, while the son was still a minor; the son never returning to the state of Nebraska until 1915. On June 5, 1907, William K. Langdon, who was then about 21 years and 9 months of age, was declared insane, and was sent to the state hospital at Nevada, Missouri, where he remained until April 22, 1915. During this period he was not confined entirely within the institution, but was under its supervision and control. After being released he returned to Nebraska in August, 1915, and filed a motion in the matter of the guardianship of his father, Michael J. Langdon, asking that his mother, the guardian, be cited to appear in court and render an accounting of her doings as such guardian. A citation was duly issued by the county court of Lancaster county, in which the guardianship was pending. On March 25, 1916, upon a full hearing, that court found that, after deducting all proper charges in the guardianship, there remained in the hands of the guardian, and unaccounted for, $ 7,790.26, which with interest from the date of the death of the ward, Michael J. Langdon, amounted to $ 21,377.57. The court found that one-half of this sum belonged to the widow of Michael J. Langdon, and the other half to William K. Langdon, the son. Shortly thereafter William K. Langdon was again committed to the state hospital. In May, 1916, Patrick J. Langdon was appointed guardian of the estate of William K. Langdon, incompetent. Patrick J. Langdon died soon after instituting the present action, and Enos T. Hughes was appointed guardian in his stead. The record also shows that on proper application to the county court the discharge of Margaret Langdon as administratrix of the estate of Michael J. Langdon, deceased, was set aside, and on December 15, 1915, Patrick J. Langdon was appointed administrator de bonis non. Upon the death of Patrick J. Langdon, Enos T. Hughes was duly appointed administrator de bonis non, who has since prosecuted this action commenced by Patrick J. Langdon as guardian and as administrator de bonis non.

The main question presented by this record is whether the action was barred by the statute of limitations.

Defendants urge that the statute of limitations began to run April 22, 1891, the date of the death of Michael J. Langdon, and as the action was not commenced until September 3, 1918, the four-year statute of limitations applicable in such cases had long since run. In support of their contention the defendants rely upon section 8515, Comp. St. 1922, which is as follows:

"No action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged: Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed."

It will be noted that this section of the statute contains two clauses, the first announcing the general rule, and the second the exception. The first clause in clear and unmistakable language declares that no suit may be maintained against the sureties on a guardian's bond unless commenced within four years from the time of the discharge of such guardian. The question is at once suggested, when is the guardian deemed to be discharged within the meaning of the term "discharge," as used in the statute? By the great weight of authority in states having similar statutes the guardian is discharged by the happening of any event by which the guardianship is brought to a close. Thus, the removal, resignation, or death of the guardian, the death of the ward, the arrival...