Moore v. Hanscom

• Decision Date: 05 June 1907
• Citation: 103 S.W. 665
• Parties: MOORE et al. v. HANSCOM et al.
• Court: Texas Court of Appeals

103 S.W. 665

MOORE et al. v. HANSCOM et al.

Court of Civil Appeals of Texas.

June 5, 1907.

Rehearing Denied June 28, 1907.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Suit by S. S. Hanscom, guardian of the estate of Menard James, against Jennie B. Compton, executrix of the estate of A. J. Compton, C. H. Moore, and others; W. L. Hanscom being substituted as guardian on S. S. Hanscom's death. Defendants Moore and others appeal from the judgment. Partly affirmed and partly reversed, and judgment rendered.

Stewarts, Hunt & Myer, Jas. B. & Chas. J. Stubbs, Wheeler & Clough, Kleberg, Davidson & Neethe, and Harris & Harris, for appellants. Clay S. Briggs and John W. Campbell, for appellees.

FLY, J.

This is a suit instituted by S. S. Hanscom, guardian of the estate of Menard James, a person of unsound mind, against Jennie B. Compton, independent executrix of the estate of A. J. Compton, deceased, who was the predecessor of Hanscom as guardian of the estate of said James, the American Surety Company of New York, M. Marx and C. H. Moore, and the United States Fidelity & Guaranty Company of Baltimore, on three several bonds given by A. J. Compton, as guardian of the estate of Menard James, for the sum of $15,000 which it was alleged that the guardian had collected and which he nor his executrix nor bondsmen had ever paid over to said Hanscom, or had accounted for the same. S. S. Hanscom having died before the suit was tried, his brother, W. L. Hanscom, qualified as guardian and adopted the pleadings theretofore filed by S. S. Hanscom. The American Surety Company, which will be referred to hereinafter as the "Surety Company," pleaded misjoinder of parties and actions, failure to establish devastavit in the county court, inability to attack collaterally the accounts of the guardian, that the guardianship had not been closed, and that no application had been made for settlement of guardianship by legal representatives of deceased guardian. It also demurred to the cross-action of the other sureties, pleaded limitations of two and four years, that no attempt had been made to collect from the estate of A. J. Compton, and that it had been released by order of the county court and was not liable. Marx and Moore pleaded substantially the same matters as were pleaded by the Surety Company, and alleged that, before they signed the bond as sureties, they required the guardian to deposit with them the assets of the estate, including the sum of $11,913.13 evidenced by a certificate of deposit in favor of A. J. Compton, guardian, all of which assets they held in their hands until after they had been released by order of the county court. They prayed for judgment against the first surety, the Surety Company, if the defalcation occurred while it was on the bond, and against the last surety, the United States Fidelity & Guaranty Company, which will be designated hereinafter as the "Guaranty Company," if the defalcation occurred while it was a bondsman. The Guaranty Company denied liability and that the sureties on the former bonds had not been released, and that, in any event, the sureties are liable to it, because the moneys sued for were not in the possession of the guardian when the second bond was given. The executrix filed a general demurrer and general denial. The cause was tried by jury and a verdict was instructed for the plaintiff against all of the defendants for the sum of $11,839.85, with interest from February 18, 1905. The jury, as instructed, also found that the entire funds of the estate of Menard James had been misappropriated by Compton prior to October 19, 1902, and that no amount had ever been really paid to the estate. It was ordered in the judgment that the sureties on all the bonds have their executions over against Jennie B. Compton as independent executrix, and that Marx and Moore and the Guaranty Company be subrogated to the rights of the plaintiff for any sums collected from them, and that they have their execution over against the Surety Company.

On March 21, 1901, A. J. Compton was duly appointed guardian of the estate of Menard James, a person of unsound mind, and qualified on April 11, 1901, by taking the statutory oath and filing a bond with the American Surety Company of New York, as surety, in the sum of $20,000. An inventory was filed by Compton on April 27, 1901, in which land in different counties belonging to the estate was valued at $9,927 and 100 shares of Galveston Wharf Stock were valued at $9,500. He also reported that there were other shares in the wharf company in the name of other parties which he understood belonged to the estate. On October 11, 1902, another inventory was filed showing the estate to be worth $38,056.83. On April 19, 1902, the guardian reported that he had on hand $13,370.48, on April 18, 1903, $12,062.10, and on April 19, 1904, $11,708.91. On October 21, 1902, the following order was made by the county court: "In the Matter of the Estate of Menard James, Non Compos. October 21, 1902. A. J. Compton, guardian of said estate, having filed herein a duly approved and conditioned bond in the sum of seventy-six thousand one hundred and thirteen 66/100 ($76,113.66), in lieu of the bond heretofore filed by him, it is ordered by the court that the bondsmen on his previous bond herein filed be and they are hereby discharged and relieved from all further liability herein, and the clerk will record the bond herein filed this day, in the minutes of the court." The bond for $76,113.66 referred to in that order was the one on which C. H. Moore and M. Marx were sureties, and the bondsman released on the former bond was the American Surety Company. Afterwards the following order was made by the county court of Galveston county: "In the Matter of the Estate of Menard James, Non Compos. March 3, 1903. Whereas the amount of bond required of A. J. Compton, as guardian of said estate, having been by an order of the court, duly made and entered herein on the 20th day of February, 1903, reduced to and fixed at the sum of thirty thousand dollars ($30,000.00), and said A. J. Compton having on this 3rd day of March, 1903, presented to the judge of this court his bond as such guardian, made in pursuance of said order in said sum of $30,000.00, with the United States Fidelity & Guaranty Company of Baltimore, Maryland, as surety, which said bond has been duly approved by said judge and filed by the clerk of this court; now therefore, on this the 3rd day of March, 1903, it is ordered, adjudged, and decreed by the court that C. H. Moore and M. Marx, the sureties on the bond of said A. J. Compton, as guardian of said estate, in the sum of $76,113.66, filed herein on the 21st day of October, 1902, be and they are hereby, fully and completely discharged from all liability as such sureties henceforth." The bond referred to in the order was given the Guaranty Company and was in full force and effect when A. J. Compton died. On March 15, 1905, S. S. Hanscom, guardian, represented to the county court that he had failed to collect any money from the executrix or the Guaranty Company which was due the estate by Compton, and asked for and obtained permission to sue for the same. It fully appeared from the evidence that Compton was indebted to the estate of Menard James in the sum found by the jury, and that the money had been misappropriated by Compton before the discharge of his first surety, the American Surety Company. On October 20, 1902, Compton borrowed money from Adoue & Lobit, bankers of Galveston, and deposited with them $5,000, which he had borrowed from E. H. Compton of Houston, and left with the bankers gas company and wharf company certificates as collateral security. The bankers issued to him a certificate of deposit of $11,913.83. The certificate was in the name of "A. J. Compton, Guardian." The amount of the loan made by Adoue & Lobit was the difference between the deposit of $5,000 made by Compton and the amount of the certificate of deposit, being $6,913.83. The certificate of deposit was indorsed to Moore and Marx, and placed in their hands. On the same date the certificate of deposit was placed by Moore and Marx in the hands of Adoue & Lobit for safe-keeping, as well as gas company and wharf company stock, and the latter gave their receipt for the same. The certified check and stock were held subject to the order of Moore and Marx, and the bankers swore that the certificate of deposit would have been paid to the order of Moore and Marx at any time from October 20, 1902, until March 4, 1903, when, on their order, it, with the shares, was delivered to A. J. Compton.

The charge of the court partakes of the nature of conclusions of fact and law mixed together. It is as follows: "In March, 1901, A. J. Compton was appointed guardian of the estate of Menard James, non compos mentis, by the county court of Galveston county, and duly qualified by giving bond on the 11th day of April, 1901, and thereafter continued to act in that capacity until his death, November 1, 1904. During this period he gave three bonds. The first, with the American Surety Company of New York as surety, was approved April 11, 1901. The second, with M. Marx and G. H. Moore as sureties, was approved October 21, 1902. The third, with the United States Fidelity & Guaranty Company of Baltimore, Maryland, as surety, was approved March 3, 1903. Liability of the sureties under the first bond for future acts ceased with the approval of the second, and liability under the second for such acts ceased with the approval of the third; appropriate orders to this effect having been entered by the county court. During the time the first bond was operative Compton received from the executors of the former guardian $12,133.08 in cash, and his first annual report, filed May 2, 1902, stated the cash credit balance in his hands, including the sum named, as $11,946.88. In his second annual account, filed May 12,...