McManus v. Sears

• Decision Date: 13 June 1961
• Docket Number: No. 50307,50307
• Citation: 109 N.W.2d 630,252 Iowa 1053
• Parties: N. E. McMANUS, Administrator of the Estate of Elizabeth M. Johnson, Deceased, and Lee County, Iowa, Appellants, v. Richard O. SEARS, Richard O. Sears, Guardian of Elizabeth M. Johnson, a person of unsound mind, and Western Surety Company, Appellees.
• Court: Iowa Supreme Court

Page 630

109 N.W.2d 630

252 Iowa 1053

N. E. McMANUS, Administrator of the Estate of Elizabeth M. Johnson, Deceased, and Lee County, Iowa, Appellants, v. Richard O. SEARS, Richard O. Sears, Guardian of Elizabeth M. Johnson, a person of unsound mind, and Western Surety Company, Appellees.

No. 50307.

Supreme Court of Iowa.

June 13, 1961.

E. J. McManus, Keokuk, for appellant N. E. McManus.

Smiths' & Dickey, Keokuk, for appellees.

GARFIELD, Chief Justice.

The question presented is whether there was a breach of the bond of defendant Sears as guardian of decedent Elizabeth M. Johnson, resulting in loss to the guardianship, for which plaintiff as administrator of Elizabeth's estate may recover from the surety on the guardian's bond. The trial court held no such breach or loss was shown and denied relief. We affirm the decision.

There is no dispute in the material facts. They appear mainly from admitted allegations in the pleadings and stipulation of the parties. Trial was to the court without a jury.

The case is an aftermath of Ward v. Sears, 247 Iowa 1231, 78 N.W.2d 545, which set aside probate of the will of Elizabeth M. Johnson wherein her entire estate was bequeathed to defendant Sears and he was nominated executor without bond. Plaintiff, subsequently appointed administrator of Elizabeth's estate, seeks to recover from the surety on Sears' bond as Elizabeth's guardian the difference between the money that came to Sears as executor and the amount he turned over to plaintiff, plus about $600 rent received by Sears from realty devised to him under the will. It seems to be conceded the difference referred to is about $5,100.

March 26, 1953, Sears was appointed guardian of the person and property of Elizabeth M. Johnson on her own application under suction 670.5, Code 1958, I.C.A. He filed a guardian's bond in the sum of $10,000 with defendant Western Surety Co. as surety. April 2, 1953, Elizabeth executed the will previously mentioned, leaving her entire estate to Sears and naming him executor without bond. April 29 (1953), Elizabeth died. May 8th the will was admitted to probate and Sears was appointed executor without bond. On the same day, plaintiff's petition in the present case alleges, Sears as guardian paid and delivered to himself as executor and he as executor acknowledged receipt from himself as guardian of $11,618 cash and $8,650 in bonds. It is not claimed the amount of cash or bonds was insufficient. On the same day, it is alleged, the court discharged Sears as guardian and exonerated his bond.

On the trial it was stipulated these alleged facts are true. March 18, 1955, in the action to set aside probate of the will, the order of May 8, 1953, and all subsequent proceedings in the estate, including all acts of Sears as executor, were annulled and he was ordered to deliver to the administrator of Elizabeth's estate all assets of the estate which have come into his hands as executor. Ward v. Sears, supra, 247 Iowa 1231, 78 N.W.2d 545, affirms this judgment of March 18. The present petition filed November 13, 1956, alleges, and it is admitted, Sears is insolvent. There is no showing, however, he was insolvent on May 8, 1953, when as guardian he accounted to himself as executor and was discharged as guardian.

The conditions of the guardian's bond are substantially those set out in section 64.2, Code 1958, I.C.A. (see also section 64.4). They require the guardian to render a true account of his office and doings to the proper authority, to promptly pay over to the person entitled thereto all money and deliver all securities to anyone authorized to receive them, and make the surety liable for all money or property that may come to the guardian during his possession of his office.

The trial court held there is no question Sears as guardian fully accounted to himself as executor for all money that came to him as such guardian, there was no loss to the guardianship, the loss was in the estate. Sears evidently used the $5,700 which plaintiff seeks to recover on the guardian's bond sometime after May 8, 1953. So far as shown he did so in the belief the entire estate went to him under the will.

In view of the admitted allegations of plaintiff's petition to the effect Sears as guardian properly accounted to himself as executor, we think the trial court must be affirmed.

Before a surety on a guardian's bond may be held liable, breach of the bond and resulting loss to the guardianship must be shown. Faith v. National Surety Co., 230 Iowa 173, 179, 297 N.W. 287, 290, and citation; In re Guardianship of Johnston, 230 Iowa 891, 897, 299 N.W. 393, 395-396.

This case is much like Taylor v. McArthur, 87 Iowa 155, 54 N.W. 228, but less strong for plaintiff. There one Jenkins was appointed special administrator and later an executor of a decedent's estate. He filed no final report as special administrator but it was otherwise shown the property in his hands as such official came to him 'when he was appointed executor, and that the deficit in his accounts, if one exists, occurred...