Overfield v. Overfield

• Decision Date: 10 May 1895
• Citation: 30 S.W. 994
• Parties: OVERFIELD et al. v. OVERFIELD et al.
• Court: Kentucky Court of Appeals

30 S.W. 994

OVERFIELD et al. v. OVERFIELD et al.

Court of Appeals of Kentucky.

May 10, 1895

Appeal from circuit court, Union county.

"Not to be officially reported."

Action by Sarah F. Overfield and other wards against A. M Overfield, guardian, and W. H. Winstead and another, bondsmen on a guardian's bond. From a judgment for plaintiffs defendants appeal. Judgment set aside, and a new judgment ordered.

Allen &amp Hughes, P. B. Miller, and Yeaman & Lockett, for appellants.

Adair & Morton, for appellees.

GRACE J.

The questions in this case arise on suits by the appellees (plaintiffs in the court below), being children of A. M. Overfield, and upon his bond as their guardian, with W. H. Winstead, Solomi Overfield, and John E. Wright as his sureties. This bond was taken by the Union county court.

The first objection made by the administrator and heirs of Solomi Overfield, who is dead, is that, being an illiterate man, he could not write, and did not write his name to the bond sued on, nor was his name signed thereto by any agent duly authorized in writing duly attested so to do. The record of the court recites that this bond was executed by Solomi Overfield, and W. H. Winstead was accepted and approved by the court, and the bond on its face shows that Solomi Overfield signed by making his mark only, and that this bond is attested by both the county court clerk and the county judge. Other evidence and the statements and admissions in the pleadings abundantly show that this party did sign and execute the bond, and a few months later, in a note to the county judge, about changing the co-surety on this bond, he recites that he had signed same. This note is signed by his mark, and duly attested by a witness. We think his signature to the bond is within both the letter and spirit of the statute making provision for signatures by one who cannot write his name. We have carefully examined the authorities claimed by appellants as supporting a different conclusion, and they do not support the contention of appellants. This defense was not well taken.

For appellant W. H. Winstead it is contended that, within a few months after he signed this bond, A. M. Overfield, by and with the consent of Solomi Overfield, his co-surety on this bond, secured to be signed thereto the name of John E. Wright, and that the county court accepted Wright in the room and stead of Winstead, made an order to this effect, and discharged Winstead from liability. It is only necessary to say of this defense and of this attempted release of W. H. Winstead that it is insufficient, for that purpose, that it was not done in the manner prescribed by the statute providing in a certain state of case and on a particular procedure for the release of a surety; that, to effect this legally, the statute must be strictly pursued. So this defense by Winstead is likewise ineffectual for his release. The rulings of the court below on both these questions were correct.

These appellants Winstead and the administrator of Solomi Overfield, however, present jointly one other defense to these actions, of more merit, and deserving consideration. This appointment of A. M. Overfield as guardian for his infant children (one then four years old, and the other six) was made in November, 1876; and in January following he received for these two children the sum of $174.40. The expenses, taxes, and some little items paid out by the guardian amount to, say, $20, leaving for both his wards $154.40, being for each $77.20. At that time their mother was dead, and the father had married again, and had by his last wife two children,-one, say, 2 1/2 years old; the other, 6 months. The father was a very poor man. He had no home, no trade, no teams or implements of husbandry, and no supplies and was reduced to the position of a day laborer, for which he received wages at the rate of $20 per month. These children, his wards, were sick with whooping cough and fever when he secured this money. He was not a stout, healthy man himself. These children remained with their father about four years (some witnesses say three, but the statement of an aunt fixes the time at four, and she says she has the Family Bible to go by), when they went to live with their grandfather; the daughter being then ten years of age, and the son eight. The daughter never returned. The son again lived with the father after four or five years. This son was not healthy or stout. The father claims that, under the very necessities of the case, he expended the whole of this $74 for each of his wards for food, clothing, schooling, doctor's bills, medicines, and such like expenses. We are inclined to give full faith and credit to his statement. In fact, it is not a matter difficult of belief, but the wonder is that, under all the facts detailed...