Nunnery v. Day

• Decision Date: 07 March 1887
• Citation: 64 Miss. 457,1 So. 636
• Court: Mississippi Supreme Court
• Parties: Z. E. NUNNERY, ADMINISTRATOR, v. R. H. DAY

1 So. 636

64 Miss. 457

Z. E. NUNNERY, ADMINISTRATOR, v. R. H. DAY

Supreme Court of Mississippi

March 7, 1887

APPEAL from the Chancery Court of Amite County, HON. LAUCH MCLAURIN Chancellor.

In 1886 the Probate Court of Amite County granted to Samuel O'Neal letters of guardianship of the person and estate of Robert H. Day, then a minor. O'Neal executed a guardian's bond with John H. Nunnery and Joseph Hughes as his sureties. On October 6, 1877, Robert H. Day became of age. Hughes died soon afterward intestate, and no administrator of his estate has since been appointed. On November 11, 1884, Day presented his petition to the chancery court against Samuel O'Neal and John H. Nunnery, setting out the above facts and alleging that his guardian O'Neal, has failed to faithfully account with the court as to the management of petitioner's estate; that O'Neal has failed and neglected to deliver up the property of the estate, consisting of personalty alone, to petitioner as required by law and stipulated in his bond that he has failed and neglected to make a final settlement of the guardianship. The petition prays for a final settlement and for a decree against O'Neal and his surety on his guardian's bond, John H. Nunnery, for the amount found to be due petitioner. John H. Nunnery having died after this petition was filed, the suit was revived against Z. E Nunnery, administrator of the estate of J. H. Nunnery, deceased. The administrator thereupon filed a plea setting up the seven years' statute of limitations. The cause was set down for hearing on the sufficiency of this plea. The Chancellor held the plea insufficient, and the defendant, Z. E. Nunnery, appealed.

Decree affirmed and cause remanded.

B. F. Johns, for the appellant.

Under § 2107, Code of 1880, the appellee, Day, had, on the 6th day of October, 1877, the right to demand his property and to put the bond in suit, either at law or in equity as he might elect, for the failure of the guardian on that day to deliver up to the ward all his property was a breach of his bond; in fact, the very breach now assigned. The statute clearly requires the guardian to deliver up and settle with his ward without any delay, without waiting the slow process of passing his final account through the court. The word forthwith, used in the statute, admits of no postponement. Webster defines it to mean, "As soon as can be done, the party laying aside all other business."

The conclusion is that the statute of limitations begins to run upon the ward's arrival at the age of twenty-one years just as it does against any other right as soon as the party is at liberty to sue. See Bailey v. Fitzgerald, 58 Miss. 660; Garland v. Normon, 50 Miss. 243.

B. F. Johns also argued the case orally.

T. McKnight, for the appellee.

I insist that the provisions of § 2107 of the Code of 1880 are to be construed as a whole, and as declaratory of the manner in which the guardian is to denude himself of the trust he holds by obtaining the decree of the court therein provided for that he may "be discharged."

The guardian stands in the attitude of an actor before the court, and is subject to its directions and under its control in the management of the affairs and the performance of the duties which devolve upon him by virtue of the trust which he holds. And it is as much the duty of the court as it is the privilege of the ward to call the guardian to account, and if, when served with notice, emanating directly from the court, to file an account, the guardian would certainly not be heard to plead the statute of limitations and thereby escape an accounting for and delivery of the trust estate, and I can conceive of no distinction as to the right of the guardian to plead the statute of limitations by reason of the source from whence his call to account may emanate.

The statute of limitations is not set in motion until there is a cause of action, and there is no cause of action against a trustee until he has been...