Marlow v. Lacy

• Decision Date: 30 November 1886
• Citation: 2 S.W. 52
• Parties: MARLOW and others <I>v.</I> LACY and others.
• Court: Texas Supreme Court

2 S.W. 52

MARLOW and others

v. LACY and others.

Supreme Court of Texas.

November 30, 1886.

Appeal from Rusk county.

Action on guardian's bond.

J. H. Turner and Martin Casey, for appellants. H. L. Stine, for appellees.

STAYTON, J.

This is an action brought against T. J. Lacy and the sureties, and representative of a surety, on a bond executed by him as the guardian of a minor, who died in 1877, leaving a child which survived her but a few weeks. The plaintiffs sue as heirs of the ward's child, or as assigns of heirs. The petition shows that the property of the ward remained in the hands of the guardian until after the month of September, 1880, and that in February, 1880, the guardian filed his account for final settlement, which was approved by the probate court in the month of September of the same year. The answer alleged that the guardian had made final settlement in the probate court, and that during the year 1880 he delivered all of his ward's estate to the persons to whom he was directed to deliver it, under an order of the probate court partitioning the estate of his ward. The defendant also pleaded the statutes of limitation of four and seven years in bar of this action. They also set up the same defenses by demurrer. A jury was impaneled in the case, and the evidence heard; but the court, upon hearing argument on the demurrers, sustained them, withdrew the case from the jury, and, the plaintiffs declining to amend, judgment was entered for the defendants. This ruling of the court is assigned as error.

The correctness of this ruling will depend upon the true construction to be placed upon the statute prescribing when actions shall be brought upon the bonds of guardians. The statute declares that "all suits on the bond of any executor, administrator, or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal, or discharge of such executor, administrator, or guardian, and not thereafter." This statute does not, in express terms, provide within what time an action must be brought on a guardian's bond after the death of his ward; but we are of opinion that such an action is not barred until the "guardian," in the sense in which the term is here used, is discharged. The guardian ceases to have that representative character upon the death of his ward, but it does not follow from this that he is, within the meaning of this law, discharged by that court. If a guardian die, the statute is clear that limitation would run from that event, unless as this may be affected by the provisions of articles 3218 and 3222 of the Revised Statutes. A guardian cannot resign by his own volition, and declaration that he intends to or has done so. On the contrary, the statute provides that he must make an application to the probate court for permission to resign; that notice of this shall be given; that his account for final settlement required to be filed with his application to resign shall be examined and approved; that he shall be directed to turn over the property of his ward to some person qualified to receive it; upon compliance with which "such guardian shall be permitted to resign his trust, and be discharged,...